Irony about family visa in the new points based system announced today

[mani9743]

Hi

I am in the process of documentation for applying spouse visa for my wife. As most of you would know the huge list of documentation and the huge fees associated with the application. And most of us convince ourselves when going through this process that this is across the board for everyone and is for stricter immigration controls to check abuse of the system. However, I was going through the news about the new points-based announced today and was surprised how family visas(dependents) will be treated under the new points-based systems compared to what we are currently going through even after settling down here in the UK.

New Points Based System

So under the new points-based system, dependents (spouse, children) are given visa along with the applicant. There is no criteria, financial requirement etc. Only the applicant needs to qualify for the points-based system. Apart from the English language, skills requirement etc under the points-based system, the applicant has to have a job offer in the UK to qualify for point bases system. There is no minimum financial requirement or income in the past 6 months/one year to demonstrate. Now compare that to the process for spouse visa a person who is settled here or a British citizen has to go through. He has to satisfy financial requirements( 18600+extra for child etc), evidence of the relationship, spouse satisfying English language requirements, adequate accommodation etc etc. This is in spite of the fact that the person settled here himself would have cleared the points-based system at one point of time (like HSMP, Tier 2 work permit etc)

Seems like it is much easier to bring a spouse to the UK for a new immigrant under PBS compared to a British citizen or a person settled here. It seems quite strange.

Apologies if I have posted this in the wrong section.

[mmicky5050]

I was looking into some data on this from the Oxford Migratory group. The number of FLRMs and FLRFPs that have been issued in the last 7-8 years have remained steady at around 40,000 per year. We are a minor contributor to the overall migration. I have been on Tier2 too and the hassle and money my University had to go through to sponsor me was just unbelievable. The number of annual Tier2s are even lower at around 20k.

If they relax the rules for FLRMs, the numbers will balloon exponentially. The reason I suspect they haven’t proposed fiddling with FLRs is because the numbers are already petty.

My biggest gripe with the entire process is how exorbitantly expensive it is. Why do I have to pay 1k for this visa? The average ECO will barely spend a couple of hours per application. How does that justify such high fees? Why am I paying IHS? I am already paying for national insurance in my salary. So as a young migrant who has never used NhS, I am paying double.

When we went to apply for a UK passport for my newborn, it cost £90 and the passport arrived in the post within 3 days. When my partners gran just appplied for her UK passport renewal, the entire process was online - we took her pic with a phone, paid £90 and the passport arrived in post within a week. While I will need to pay upwards of 10k over the next 5 years to become a citizen.

I am ok with checks and balances as long as the system is fairly priced.

[secret.simon]

So under the new points-based system, dependents (spouse, children) are given visa along with the applicant. There is no criteria, financial requirement etc. Only the applicant needs to qualify for the points-based system.

Isn't that the case for PBS dependents already (as opposed to spouses of settled people, which is a completely different section of the Immigration rules)?

There is no minimum financial requirement or income in the past 6 months/one year to demonstrate.

Keep in mind that what was announced today was just a broad-stroke policy announcement. The details are still to be fleshed out. The Rules as they will be in December will have more detail than what was announced today.

I was looking into some data on this from the Oxford Migratory group.

Can you link to the specific sources/reports that you are referencing?

My biggest gripe with the entire process is how exorbitantly expensive it is. Why do I have to pay 1k for this visa? The average ECO will barely spend a couple of hours per application. How does that justify such high fees?

The Home Office's logic is that immigrants should pay for/support the whole immigration system, including immigration enforcement (Border Force), etc, not just their own applications.

And of course, the high fees does have a deterrent effect in discouraging people in migrating to the UK, which *is* the effect that the government wants to create.

I am inclined to agree with you about the IHS and double payment.

[mmicky5050]

Can you link to the specific sources/reports that you are referencing?

https://migrationobservatory.ox.ac.uk/r ... -to-the-uk

The Home Office's logic is that immigrants should pay for/support the whole immigration system, including immigration enforcement (Border Force), etc, not just their own applications.

Is this stated policy? Link please. If it is, then this is definitely open to a lawsuit.

[secret.simon]

Is this stated policy?

I am extrapolating, but the Home Office funding of the 2015 Spending review is predicated on a "fully self-funded borders and immigration system".

3.8 - As to honesty and rigorous transparency, the published BICS strategy for achieving self-funding included efficiency savings, through technology and automation, but stated that it planned that the bulk of the income would come from immigration and nationality fees.

3.12 - In 2016, the Home Office set out its intention to increase its fees for “growth routes” (which it identified as visit, work and study visa applications) by 2% each year for 4 years, equivalent to a compound increase of 8% by 2019-20, while for most “non-growth routes” (“settlement, nationality and other/family leave to remain”) the increase would be higher and be front-loaded: 25/18/0/0%, equivalent to a 47.5% compound increase over the 4 years.

I am intrigued. What would be the grounds for the lawsuit?

[mmicky5050]

Family based visas are different. A tax paying British citizen is the sponsor. Why should a tax paying British citizen who already pays into Home Office budget through his or her taxes be forced to pay twice? That’s unfair.

Second, there is an issue of rights. I am certain the high fees are the reason why many in the windrush generation never had a passport or other legal documents. One can make a claim that high fees are prohibitive to the rights of what would otherwise be classified as British citizens.

[secret.simon]

Second, there is an issue of rights.

You may be being wildly overestimating this aspect of the issue. This is not the United States, where everybody sues everybody on their rights (weirdly enough, that was a joke in a book on computer networking by a European (Dutch) professor).

I am certain the high fees are the reason why many in the windrush generation never had a passport or other legal documents.

Not really. Indeed till the late 1990s/early 2000s, most applications (including ILR, to the best of my knowledge) were free or charged very nominally.

The reason (in my opinion) that the Windrush generation happened is because the British have traditionally never enforced documentation checks and therefore there was no need for people to have or carry documentary proof of their right to reside in the UK. So, when the "hostile environment" came about in the early 2010s (part of which was the fantastic hike in fees), they had no such proof that was now required far more than just a few years ago.

One can make a claim that high fees are prohibitive to the rights of what would otherwise be classified as British citizens.

Such claims have been made, taken all the way to the Supreme Court and lost. Again, this is not the United States. British courts (certainly English courts) are much more restrained and deferential to the law as written by Parliament.

You may want to study two cases in particular.

MM & others vs SSHD (the SSHD in the title stands for the "Secretary of State for the Home Department"; the Home Secretary in common parlance) was a case decided by the UK Supreme Court in 2017, about the Minimum Income Requirement that British citizens and settled residents must meet to bring their non-EEA spouses to the UK. It is estimated that about 30-40% of the British population do not meet the Minimum Income Requirement. The UK Supreme Court ruled in the government's favour (see Paragraph 87 of the judgment).

R (ex parte PRCBC; O; and A) v SSHD [2019] EWHC 3536 (Admin) is a very recent case (from December 2019) about the registration fees charged for children who have a legal entitlement to register as British citizens (because they were born in the UK and had lived the first ten years of their life in the UK). The argument put forth was that by pricing the registration quite high (at about £1000 per child), the children were effectively deprived of their legal entitlement. The judge agreed and gave judgement against the government. But permission was also given to the government to appeal and the judgment was a declaratory judgement (i.e. advising the government that they need to look at the issue again) and did not quash the fees outright (see Paragraphs 119 and 121 of the judgment). That is a judgment in a case with people who are legally entitled to citizenship. I would imagine that the judgment in most immigration cases (where there is no legal entitlement) would be far more in line with the MM & ors. judgment referred above.

[geoeng]

The reason I suspect they haven’t proposed fiddling with FLRs is because the numbers are already petty.

I suspect it's also much easier politically to fiddle with the rules in a category that predominantly affects people outside the UK looking to come in rather than categories that directly impact both people already in the UK as well as their settled or British citizen sponsors.

A tax paying British citizen is the sponsor. Why should a tax paying British citizen who already pays into Home Office budget through his or her taxes be forced to pay twice? That’s unfair.

It seems a bit of an exaggeration to suggest the British citizen is forced to pay twice, they act as a financial backstop so that the government is not responsible for the cost of the non-British partner. Where the non-British partner then uses leave to remain to obtain UK employment, their income can be used in future applications to meet the financial requirement. British citizen sponsors are not required to pay anything unless their non-British partners are unable to, and even then it is an entirely voluntary process. To me this doesn't seem particularly different than any other British family: partners are financially responsible for each other and their dependants.

[mmicky5050]

Well, most British sponsors pay from joint family finances. There is an inherent assumption in the application that bills ought to be joint, bank statements too - so clearly the HO is looking at the sponsor and applicant as a joint entity. The sponsor is clearly contributing to the high fees.

Also, correct me if I am wrong - the law of double jeopardy originated from common English Law. Yes, Americans have adopted it to its extreme but its still part and parcel of English law. So, it’s not too far fetched to assume the tax funding the HO and the exorbitant fees are a form of penalty and thus constitute double jeopardy - hence illegal.

[mmicky5050]

Also, Article 8 of the Human Rights Act protects family life. This has been used on many occasions to successfully sue councils. So according to this you have a right to maintain your stable relationship. The case of fees is different from that of minimum income threshold which one can argue is for greater public good. How are higher fees facilitating greater public good?

[secret.simon]

the law of double jeopardy originated from common English Law. Yes, Americans have adopted it to its extreme but its still part and parcel of English law. So, it’s not too far fetched to assume the tax funding the HO and the exorbitant fees are a form of penalty and thus constitute double jeopardy

A little knowledge is a dangerous thing. Double jeopardy is a matter of criminal law. It has nothing to do with immigration law or any aspect of civil law. Just because you pay income tax does not excuse you from other taxes, such as VAT or estate tax, for instance.

And in any case, double jeopardy can be (and has been) set aside by Act of Parliament.

Also, Article 8 of the Human Rights Act protects family life. This has been used on many occasions to successfully sue councils. So according to this you have a right to maintain your stable relationship. The case of fees is different from that of minimum income threshold which one can argue is for greater public good. How are higher fees facilitating greater public good?

Firstly it is Article 8 of the ECHR, not of the Human Rights Act.

Secondly, it is interpreted quite narrowly in the UK, compared to other European countries. And in any case, the current government is quite hostile to the ECHR and is looking at limiting its already limited access in UK courts. The UK is a dualist country (i.e. international law can only be invoked in UK courts if incorporated by an Act of Parliament) and access to international law can be and is limited in UK domestic courts (and of course, individuals do not have any right to sue in international courts, only nations-states and other subjects of international law do).

Thirdly, the government takes the view that you can maintain a stable relationship outside the UK if you are so desirous of maintaining a stable relationship.

And, if compelled by the courts to grant leave in specific cases under Article 8, the leave granted leads to ILR after 10 years rather than the more usual 5 for people on a PBS pathway.

[geoeng]

So, it’s not too far fetched to assume the tax funding the HO and the exorbitant fees are a form of penalty and thus constitute double jeopardy - hence illegal.

I disagree. The application and IHS fees offer exceptional value for money and should not be viewed as a penalty but an investment in opportunity and future prosperity. If one wants an optional service from the government, it's not too far fetched to ask them to pay for that service.

How are higher fees facilitating greater public good?

It facilitates access to the UK without compromising the existing standard of living of those in the UK. If the government were to provide a cost-free immigration system, it would require funding either from increased taxes/fees from those in the UK or cuts to services. So either everyone pays for the few that want to bring in partners from other countries, or those who want that option have to pay a fee for that option.

[secret.simon]

How are higher fees facilitating greater public good?

It facilitates access to the UK without compromising the existing standard of living of those in the UK. If the government were to provide a cost-free immigration system, it would require funding either from increased taxes/fees from those in the UK or cuts to services. So either everyone pays for the few that want to bring in partners from other countries, or those who want that option have to pay a fee for that option.

Also, the government, since about 2010, has taken a user-pays approach (as opposed to funding from general taxation) towards public sector funding. For instance, you can see that in the fare increases in public transport, where the government is reducing the public (general tax-payer funded)subsidies towards public transport and increasing the fares of those who actually use the service.

[mmicky5050]

"A little knowledge is a dangerous thing."

Haha, this is getting personal, mate I am just a humble medic not a lawyer!

its really common sense - you dont need a law degree here. Double jeopardy has been around for hundreds of years. Yes there was an amendment in 2003 to account for very serious cases- where say one has been acquitted of murder but then later DNA evidence shows up to contradict the acquittal- there one can still be prosecuted for that murder. Or say an immigrant commits a very serious crime carrying sentence of more then 12 months, for which they can be jailed and then deported - hence double jeopardy.

No one is talking about murders and serious offences here. No sane Parliament or Judge will throw out double jeopardy otherwise, its a common sense law that has been around and is till part of the law. The VAT example makes no sense. You are not being taxed on the same service twice. The National Insurance tax from my salary and VAT cover two completely different items and services. There is nothing common there. Whereas, part of the taxes my family pays are used to cover the cost of Border Control/ Diplomat expenses while the FLRM fees are also being used to do the same. So my British wife is paying for the same service twice - hence she is being penalised twice.

It pays to read papers - there is a huge debate going on as we speak about banning forced deportations following serving of full sentences for serious crimes by immigrants - which is in essence double jeopardy. So even for serious offences, one can argue there is a case for upholding double jeopardy law - its not just hypothetical. My argument is much simpler -there are no serious offences involved so I see no reason why double jeopardy doesnt apply here.

Right to family life is also part of UK law my friend. Its covered under the Human Rights Act 1998. Besides we are still part of EU till the end of the year and what makes you think UK human rights laws will regress after Dec 2020?

"The application and IHS fees offer exceptional value for money and should not be viewed as a penalty but an investment in opportunity and future prosperity"

geong man I love you for all the help you provide here but this is beyond naive. Civil Service in the UK is notoriously incompetent. How is - an 8-week wait, systems crashing, questions that make no sense whatsoever because they dont have the sense to make algorithms to cover different facets of family based applications etc - exceptional service by any standard? Give yourself a few more years here and you will realise how blatantly incompetent the civil service including HO is. They let an American woman who killed a British citizen escape and are helpless in dispensing justice to a British family. Score of British citizens are trapped in a cruise ship, some have even been infected with Coronavirus and HO cant be least bothered. Then may I remind you of the sheer incompetence behind the windrush generation scandal? So excuse me - this is by no means exceptional.

"It facilitates access to the UK without compromising the existing standard of living of those in the UK."
I chuckled reading this. The high fees is not going towards NHS, or the council or the Met Police. It has zero impact on standard of living. Its most likely going towards maintaining the lavish lifestyles of diplomats.

May I recommend a comedy series from the 70s called Yes Minister and Yes Prime Minister? Its a fair depiction of how the British system really works....

[geoeng]

My comment was less to do with the value offered by the application process (as I wholeheartedly agree there could be much improvement) and more to do with what paying that fee gives access to for the next two and a half years, even if much of that also has to be paid for. For me, the additional minimum paid holiday allowance alone was worth the visa application fee with the significantly cheaper mobile/internet/tv service as a nice bonus. Everyone that immigrates to the UK with a partner (or for a partner as the case may be) must consider the fee to be worth it on some level otherwise they wouldn't have come here. If nothing else, the fees allow people to freely complain about civil service and government incompetence without fear of repercussions.

[mmicky5050]

Hold on - what minimum paid holiday allowance? And what cheaper TV, internet and mobile service?

This is news to me. Please elaborate

[geoeng]

The minimum paid holiday entitlement in the UK vs. those of other countries. Similarly, the cost of telecommunications services in the UK vs. those of other countries. Again, speaking broadly in global terms rather than specifically about the services provided for the visa fee.