UK visa rule challenge rejected by High Court

[ThaiVisaExpress]

Not so good news today. UK family immigration rules are not discriminatory and do not infringe human rights, the High Court has ruled.

http://www.bbc.co.uk/news/uk-23198144

[Jay Sata]

The interesting part of the BBC report is this...

However, it did find that the earnings threshold could be disproportionate if combined with one of the four other requirements in the rules - for example, an inability to supplement a shortfall in income with savings, unless the savings were over £16,000.

It is now for Home Secretary Theresa May to decide whether any amendments should be made to satisfy the requirements of proportionality.

It appears there is some latitude for minor tweeking of the rules.

I'd say it's not all doom and gloom.

Edited July 5, 2013 by Jay Sata

[Kevin1908]

I think this is good news. From now on I know for sure that I am a second class citizen in my own country next to the rapists and murderers as it would appear do have human rights. Now just wait and see if Trenton Oldfield wins his appeal.

[Jay Sata]

It's not just finance that stops partners entering the UK. The inability of many to pass the pre entry English language test does the same.

Do you propose scrapping that?

[Kevin1908]

Do you

"Who" was that aimed at?

[Jay Sata]

It was intended in a general sense and not personal.

The point I was trying to make is for every spouse prevented from entering viz the the rules on

finance there are probably two who cannot pass the English test.

[Kevin1908]

It was intended in a general sense and not personal.

The point I was trying to make is for every spouse prevented from entering viz the the rules on

finance there are probably two who cannot pass the English test.

Interesting point. New immigrants are being barred due to English ability. Many immigrants already in the UK can't speak a word of English yet I am a second class citizen compared to them. What an upside down country the UK is.

[7by7]

When I heard this on the news today I wondered if anyone would have posted anything about it.

Glad to see that TVE is on the ball.

Not glad to see that the usual suspects from both sides have already used this topic to yet again air there ignorant prejudices rather than discus this very important ruling!

Getting back to the actual topic; does anyone know if the appellants have been given leave to appeal to a higher court?

[Jay Sata]

I guess you are having a go at me 7by7.

My understanding is the case is open to appeal.

It will be down to funding and prospects for success.

If I was a betting man I'd wager it will go the way of the dismissed language appeals.

[vinny]

High Court finds minimum income rules disproportionate and unjustified. Edited July 5, 2013 by vinny

[ThaiVisaExpress]

As far as I can see, the findings relate only to the applicant and sponsor who made the legal challenge. Here is a little more on the ruling ( from http://www.no5.com/news-and-publications/news/546-high-court-deals-another-blow-to-the-home-secretary-s-rules-on-family-migration-and-the-minimum-income-threshold/: )

Although the court did not strike down the rules as such, its declaratory judgment is a green light to foreign spouses who previously thought they had no prospect of being allowed to live together with their spouses in the UK to apply for permission to enter. After this judgment, many are likely to succeed in being allowed to enter under Art 8 of the European Convention on Human Rights even though they cannot satisfy the harsh requirements of the rules especially if, for example, the UK sponsoring spouse earns above the national minimum wage, there is reliable ‘third party support’, there is reliable evidence that the foreign spouse or partner will be working in the UK, or where children are likely to be affected so that is not in their best interests for the foreign spouse to be refused entry.

Manjit Gill QC, leading counsel for claimants said: “The plight of persons affected by the rules has rightly received publicity. The judgment will be a welcome relief to such persons. The rules have forced significant numbers of British people to go and live in Europe for a reasonable period for time, in exercise of their rights as EU Citizens, before they lawfully come back months later with their spouses under EU law. In other cases, the rules have forced such persons out of the UK and out of Europe altogether, even though they have been lawfully settled in the UK for many years. This is the price in terms of family life that has had to be paid. The impact on young people, part-time workers and women, particularly those from a racial minority background, who are more likely to be in low-paid jobs, has been particularly severe.”

The income threshold rules have received criticism from other quarters too. Last month, the All-Party Parliamentary Group on Migration issued a report which concluded that the rules were disproportionate. http://www.appgmigration.org.uk/family-inquiry.
Permission to appeal was granted and the matter is likely to proceed to the Court of Appeal. In the meantime, the Secretary of State will have to consider how to implement the judgment.

It looks like applicants and sponsors will need to go down the "human rights" route until, and if, the government rethink this whole thing.

Edited July 6, 2013 by ThaiVisaExpress

[ThaiVisaExpress]

The Judge states, in his determination:

1. However, I conclude that this measure is disproportionate when applied to British citizens and recognised refugees. In particular, it is more intrusive in its restrictions on family life to ensure that couples are self sufficient at the time of the spouse's first admission, and are above the level of recourse to public funds at the end of the five year period when the spouse's application for settlement is being considered.
2. There are a variety of less intrusive responses available. They include:
   i. reducing the minimum income required of the sponsor alone to £13,500; or thereabouts;
   ii. permitting any savings over the £1,000 that may be spent on processing the application itself to be used to supplement the income figure;
   iii. permitting account to be taken of the earning capacity of the spouse after entry or the satisfactorily supported maintenance undertakings of third parties;
   iv. reducing to twelve months the period for which the pre estimate of financial viability is assessed.

3. It is neither necessary nor desirable in these applications to go further than this judgment does in identifying what might be a proportionate financial requirement. It will be for the Secretary of State if she sees fit to make such adjustments to the rules as will meet the observations in this judgment. My conclusions, if they prove durable, are equally designed to assist people in the position of the claimants and their families as to whether there is a reasonable prospect of success in making an entry clearance application, and judges of the First-tier and Upper Tribunals who will have the difficult task of determining on the basis of particular facts as found or are undisputed whether Article 8 requires the admission of the particular person. By contrast with decisions on deportation or decisions affecting children where the principles are now established and clear, the problems facing judges on appeal to decide on human rights in individual cases without some assessment by the higher courts of whether the essential package is a legitimate starting point would be formidable.

But will the government take any notice of this ?

[somtampet]

^{Marry an english rose,no problems then lol}

^Serously

^{I know quite a few thais who are living in the uk illegaly,maybe these rules are to try and stop these people.}

[marstons]

personally i see it as good NEWS and the government carrying out it pre-election pledges. Theresa May wanted a much higher threshold so would not look for much movement from her. Any reduction in immigration of any kind is a vote winner and supported by the vast majority of the UK electorate. Well done the High Court

[Jay Sata]

The full text of the case is here.

http://www.bailii.org/ew/cases/EWHC/Admin/2013/1900.html

I have to say that the applicants below merit no justification to appeal the rules.

Abdul Majid is a British citizen of Pakistani origin.

He has four children in the UK,a further one with his wife in Pakistan, has been unemployed since 2006 and is on benefits of £17,361. He claims that if his wife was admitted his prospects for employment would improve as she would take care of the children.

Shaban Javid is a British citizen of Pakistani origin.

She has no qualifications,is unemployed but in May 2012 married a man in Pakistan.She says she cannot leave Handsworth to find employment elsewhere as she would lose the free accommodation she shares with an extended family.

Mr Justice Blake did make the following suggestions

reducing the minimum income required of the sponsor alone to £13,500; or thereabouts;

ii. permitting any savings over the £1,000 that may be spent on processing the application itself to be used to supplement the income figure;

iii. permitting account to be taken of the earning capacity of the spouse after entry or the satisfactorily supported maintenance undertakings of third parties;

iv. reducing to twelve months the period for which the pre estimate of financial viability is assessed.

The case also mentions Holland where the income level is 120% of the minimum wage.

Edited July 6, 2013 by Jay Sata

[Jay Sata]

Sorry I seem to have duplicated the judges comments Thaivisa raised

[lineofentry]

As the world population explosion continues unchecked you will see more and more toughened immigration and visa requirements being implemented by under presure governments around the world. Get used to it.

[bobrussell]

As this is a Thai forum it probably makes more sense to see how it impacts on those of us in relationships with Thais. Rather more relevant than taking a dislike to the individuals involved.

It clearly pressurises the government to look at the ways people can meet the required income levels and that has to be a big plus for the future.

Griping about spongers is pointless. We all have opinions but the main concern for us should be fair treatment for EU citizens and their non-EU citizen partners.

Perhaps this judgement is a start!

[ThaiVisaExpress]

I have started a new thread ( as it is new news) as the Home Office have announced that they are "pausing" some applications while they consider the High Court judgment. Theoldgit may want to combine the two threads

The thread regarding the pausing of some applications is here

Edited July 7, 2013 by theoldgit
Insert link to relevant subject

[jackinbkk]

Financial requirements should be higher, not lower. The UK is being bankrupted. Not just by poor immigrants but by those that then leech from the welfare state. There's a lot wrong but this is one positive step in the right direction.

If you think you can raise a child on £2,400 a year you are misguided.

Edited July 7, 2013 by jackinbkk

[ava15]

People arriving on a spouse visa cannot claim benefits.

Do we have to go through this every time?

Look at the fellow europeans coming in if you must.

[marstons]

As this is a Thai forum it probably makes more sense to see how it impacts on those of us in relationships with Thais. Rather more relevant than taking a dislike to the individuals involved.

It clearly pressurises the government to look at the ways people can meet the required income levels and that has to be a big plus for the future.

Griping about spongers is pointless. We all have opinions but the main concern for us should be fair treatment for EU citizens and their non-EU citizen partners.

Perhaps this judgement is a start!

The thread is about a judgement in the UK about all would be family immigrants into the UK, a partner of an EU citizen bringing in a non EU citizen as a wife is till another immigrant coming into a country where immigration has to be cut down. The family immigration rules are designed to do just that. Whilst guys bringing in a Thai partner don't usually burden the state unfortunately many others do. From my own point of few the limit seems fair and i would want to be on at least that sort of income to consider getting a partner. It may not suit agencies making money assisting immigration into the UK or people wishing to bring immigrants into the UK but its a high court ruling so its a case of living with it. I doubt any government feels under any pressure about reducing immigration any where in the more established EU member countries. Live with its going to get tougher.

[Jay Sata]

The thread is about a judgement in the UK about all would be family immigrants into the UK, a partner of an EU citizen bringing in a non EU citizen as a wife is till another immigrant coming into a country where immigration has to be cut down. The family immigration rules are designed to do just that. Whilst guys bringing in a Thai partner don't usually burden the state unfortunately many others do. From my own point of few the limit seems fair and i would want to be on at least that sort of income to consider getting a partner. It may not suit agencies making money assisting immigration into the UK or people wishing to bring immigrants into the UK but its a high court ruling so its a case of living with it. I doubt any government feels under any pressure about reducing immigration any where in the more established EU member countries. Live with its going to get tougher.

I agree with you Marston that those of us married to Thai's usually don't present much of a problem.

The cases I outlined from the court decision highlight a lot of the typical type of partner immigration that took place under the old rules.

Looking at the barrier of £18600 and allowing £8600 for accommodation community charges,electricity and heating I reckon you'd be lucky to have £10k to live on. \My wife and I could not exist on that.

However I'm sure a bit of latitude could be allowed for soemone who is just a couple of thousand short of the numbers.

Teresa May is a strong womam and she has managed to get rid of Abu Qatada today.

I doubt she'll backtrack on the current rules given the current elector mood on immigration.

Edited July 7, 2013 by Jay Sata

[ava15]

Ask any joe schmoe on the average uk high street what the financial requirements are for non-eu family visas.

The uk media have barely touched these new requirements since they came in, bar the odd update (which dont make anywhere near the front pages)

I do agree though that you wont find any western governments thinking its a good idea to make it easier on immigration.

[MaprangHolmes]

The thread is about a judgement in the UK about all would be family immigrants into the UK, a partner of an EU citizen bringing in a non EU citizen as a wife is till another immigrant coming into a country where immigration has to be cut down. The family immigration rules are designed to do just that. Whilst guys bringing in a Thai partner don't usually burden the state unfortunately many others do. From my own point of few the limit seems fair and i would want to be on at least that sort of income to consider getting a partner. It may not suit agencies making money assisting immigration into the UK or people wishing to bring immigrants into the UK but its a high court ruling so its a case of living with it. I doubt any government feels under any pressure about reducing immigration any where in the more established EU member countries. Live with its going to get tougher.

I agree with you Marston that those of us married to Thai's usually don't present much of a problem.

The cases I outlined from the court decision highlight a lot of the typical type of partner immigration that took place under the old rules.

Looking at the barrier of £18600 and allowing £8600 for accommodation community charges,electricity and heating I reckon you'd be lucky to have £10k to live on. \My wife and I could not exist on that.

However I'm sure a bit of latitude could be allowed for soemone who is just a couple of thousand short of the numbers.

Teresa May is a strong womam and she has managed to get rid of Abu Qatada today.

I doubt she'll backtrack on the current rules given the current elector mood on immigration.

I think that you will find that If a lot of people had £192 per week to live on after paying for utilities and housing they would be very happy. Considering that most people in the UK are struggling with money at the moment and have far less than that as disposable income

Edited July 7, 2013 by MaprangHolmes

[Foggy Bottom]

When I heard this on the news today I wondered if anyone would have posted anything about it.

Glad to see that TVE is on the ball.

Not glad to see that the usual suspects from both sides have already used this topic to yet again air there ignorant prejudices rather than discus this very important ruling!

Getting back to the actual topic; does anyone know if the appellants have been given leave to appeal to a higher court?

Yes they have, but the Home Secretary has also been given leave to appeal the recommendation regarding proportionality

[Foggy Bottom]

Quoted from the judgement document of the case linked above ...

Paragraph 100

British citizens are also in a different position from foreign sponsors generally. This is because they have an independent right to reside in their own country. This is not a right afforded by permission of the Secretary of State but it is a fundamental right of constitutional significance recognised by the common law before the legislation was codified in the Immigration Act 1971. This Act describes the right as the ability to reside without 'let or hindrance'. The right to enter one's own country is also a fundamental human right recognised by all civilised societies and reflected in Protocol 4 Article 3 to the ECHR and Article 12 of the International Covenant on Civil and Political Rights. An inability to continue to reside in the country of one's nationality because of the exclusion of a spouse of a genuine relationship is an interference with that right of residence.

and

Paragraph 103

In the context of justification of this interference I respectfully agree with the observations of Lord Justice Sedley in Quila in the Court of Appeal, that in the case of British citizen sponsors, we are dealing with a combination of factors: a fundamental domestic law right for the sponsor to reside in the United Kingdom without let or hindrance, a right for such sponsors to both marry and found a family, and a right to respect for the family and private life created as a result of the exercise of the two previous rights.

Edited July 7, 2013 by Foggy Bottom

[7by7]

Whilst guys bringing in a Thai partner don't usually burden the state unfortunately many others do.

People arriving on a spouse visa cannot claim benefits.

Do we have to go through this every time?

It appears we must; some people seem incapable of accepting the facts, even when they have been explained to them countless times!

Looking at the barrier of £18600 and allowing £8600 for accommodation community charges,electricity and heating I reckon you'd be lucky to have £10k to live on. \My wife and I could not exist on that.

You and your wife may not be able to; but many British couples have to!

The income support level for a couple where both are over 18 is just £112.55 per week, that's £5826.60 p.a.

Couples on income support don't pay council tax and have their rent paid through housing benefit or if they have a mortgage the interest (but nothing off the principle) paid by Support for Mortgage Interest; but they have to find the money for their electricity and other utilities from the £112.55 per week.

But, although it's on the high side, we'll use your £8,600 as an example. That comes to a total of £14,452.60 p.a.

So, either the income support level for a British couple is too low or this minimum income for an immigrant spouse/partner is too high.

Which do people think it is?

As in his determination the Judge suggests reducing the minimum sponsor's income to about £13,500 it seems obvious what his opinion is.

[Foggy Bottom]

Paragraph 140 in the judgement document (Yeah - I'm still reading it all) -

In my judgment, the aim of transparency cannot justify an agglomeration of measures that cumulatively very severely restrict the ability of many law abiding and decent citizens of this nation who happen not to earn substantial incomes in their employment from living with their spouses in the land of their nationality.

[Foggy Bottom]

WOOHOO - it took two hours of reading to understand why he said it, but the conclusion in Para 155 states -

"I conclude that there is substantial merit in the contention that the interference represented by the combination of the five (financial requirement) factors in the family life of the claimants on the assumed facts is DISPROPORTIONATE AND UNLAWFUL. "

There ya have it - the High Court Judge says the 12 July 2012 financial requirements for sponsors are UNLAWFUL !!!