5 years for ILR rule implemented

[chibuya]

It is not a piont to figure out which law firm to do the job-

What it is important that is to get the legal action started

- Steve Kong did not demestate his skills as a JR expert

So we need to find a better law firm unless he could show us that he could do the job.

[alien]

As you have probably already learnt from the VBSI website, our today's meeting with Liam Byrne was postponed at last minute. Nevertheless, we still hope to see him this Thursday at 11am and today we had a chance to discuss the situation with several supporting MPs. They strongly suggest that the court case should not go ahead until we are sure that the lobbying approach is ineffective. Because there have been several instances when the HO pulled out of negotiations straight after they learnt that they are being sued - and then just waited till the court made a decision.

I feel this is a ridiculous stance. How long "until we are sure that the lobbying approach is ineffective"? Until it is TOO late to take legal action? Of course MPs have an interest in putting off a legal action - especially if whilst supporting the issue don't want to see their own government embarressed.... Opposition MPs have practically no power in this situation.

British people think there are too many immigrants already... I don't think there is a critical mass of support for this campaign.

Part of the Judicial Review process IS a process of negotiation and dispute resolution - and parties can settle at any time until the final hearing.

Has the VBSI actually taken proper legal advice? As the purported "voice" of immigrants can it at least say to those immigrants that it has or hasn't?

Your earlier post said "We are working out the JR route too and will let you know more about that as soon as the things get a bit clearer with the Minister's position on the issue". Is it that the VBSI feels its somehow empowered by not letting people know what's happening on this front? If so it must be the only NGO that does - in fact it just looks like an obvious bluff. Most NGOs would be a little more open.

Getting legal advice is not the same as taking court action. Don't get me wrong - if VBSI just lacks the resources or access to legal resources then that's understandable and I think it should say so so that those who might wish to "go legal" can.

This is a "rights" based society - and sometimes you have to enforce rights. Judicial Review deadlines are extremely tight. Negotiation is best done from a position of strength.

If people are unwilling to take up the opportunity society gives them to enforce their rights then they have only themselves to blame.

[mona-de-bois]

Eh... Sorry, I think you missed the point a bit.

So far Shephen Kong's approach is to sue them and Christine Lee's approach is to negotiate with them. a11 several times tried to put us away from SK and supported LC's aprroach. He even told that to his best knowledge SK is a bad guy who harmed CL once. But never told any specific information about it so we could ask SK if it's true and why that.

I'm saying that lobbying of the approach of one of the solicitors is a bad idea, even if you have communicated with one of them more than with the other. I'm asking for specific examples and proofs, not empty statements, why we shoud do that .

Btw, if HO doesn't already know about the JR which is already opened against them by SK, I'm laughing hard at their managament and structural abilities . I'm sure they know, and I'm sure the fact they have this information will be only to our advantage in the process of lobbying. However, now I realized, I don't understand what exactly a11 suggested we should or shouldn't do? Do not tell them that we're already suing them?

It's in addition to my previous question, not instead of it.

It is not a piont to figure out which law firm to do the job-

What it is important that is to get the legal action started

- Steve Kong did not demestate his skills as a JR expert

So we need to find a better law firm unless he could show us that he could do the job.

[mona-de-bois]

Dear alien, write to info@vbsi.org.uk and say you want to become one of the VBSI. They're very much in need of the people like you right now.

Has the VBSI actually taken proper legal advice? As the purported "voice" of immigrants can it at least say to those immigrants that it has or hasn't?

[chibuya]

Let us put it straight

- I think lobbying is useless - how could we trust these politicians again? ( not much to do with CL here, no matter who lead the lobby I felt it is not strong enough to turn things around given the general backgroud)

- I support legal action , not nessarily by Stenphen Kong though. Becuase I could not get evidence that he is a good JR lawyer . He may be a good immigration lawyer but JR is a different field. Just like a doctor who are specilised in heart desease are not nessarily an expert in brains.


I think we need to find a right lwayer - to get some real legal advice and this could be lead by VBSI

[mona-de-bois]

Dear chibuya, write to info@vbsi.org.uk and become one of the VBSI members also. I feel that without you in VBSI there won't be any legal advice or court case lead by VBSI. Ever.

Make the difference after all!

I think we need to find a right lwayer - to get some real legal advice and this could be lead by VBSI

[sowhat]

In my opinion legal actions should be the last resort and taken after all lobbying means are exhausted. According to the advice I was given our case is not partcularl strong, epecially for WP holders.

However we should be ready to go ahead with JR if the need arises.

[ssi]

I think we need to find a right lwayer - to get some real legal advice and this could be lead by VBSI

chibuya, please, join the VBSI and you will be responsible for obtaining independent (of CL and SK) legal advice. Mona, a11 never said that SK was a bad guy. It is gratifying to see that the VBSI has been elevated to the NGO status in your opition, alien. But our resourses are limited, and we cannot pay for top quality legal advice right now. The advice we've got from CL and some MPs was repeatedly posted here. When, and if, lobbying fails, one or more law firms will take legal action on behalf of their clients (not all WP/HSMP holders). It is expected that it will take a very long time for the action to come to a conclusion and the outcome is uncertain. By that time many of us will get ILR according to the 5-year rule. But, as a matter of principle, I think, we should persist with the legal action once started.

[rooi_ding]

All

I think you are forgetting that we all have choices in life the people from the VBSI are doing what the feel is the right thing to do. They are by no means influencing the direction that everyone should go.

The people who think that legal action should be taken can form a separate organization which will have a more aggressive approach.

The two organizations can draw from each other the info they need, but people should move away from blaming each other for not taking action or having some sort of influence on peoples decisions

To give people a heads up to what I already know and I discussed this in one of my last meetings with the VBSI. I have a friend who works in the IND in Croydon, he did some discrete inquires (but not on my behalf) and it would seem from him that the IND will not be backing down from there decision except if they were given direct orders from the immigration minister, So legal action might be the only route unless CL has some very persuasive powers

My final word would be to not fight amongst ourselves but to take action were you think action should be taken and to talk to each other and listen to each other.

[alien]

Just for the record:

Stephen Kong
Admitted to Law Society: 3rd Jan 2006

Christine Lee
Admitted to Law Society: 1st Feb 2002

Of course they may have been doing paralegal work or have been licensed in other territories before then. Also they are not working alone in their current practices.

Stephen Kong has at least done "the first step" of a JR on behalf of a client. Three cheers for that client!

I will come to the UK in August (15th?)- if somebody wants to meet me or perhaps go with them to meet a solicitor I'd be happy to. In case you missed it earlier, I'm not an immigrant and not a lawyer. So I can neither take action myself or represent someone else.

[chibuya]

I donot think i have been blaming VBSI here

I thought this forum is designated for people to express their own opionins.

I have no legal background - but I thought there is two ways

Lobby or legal action

I just felt that the lobby approach is too weak

For VBSI - I think a lot of respects should shown to them since they have been coming a long way


I am not sure what is the next now and just thought if I put my thought here could provide some ideas for anyone , or VBSI to think about..

[RobinLondon]

Alien,

I do not intend to be rude, nor do I wish you to take this in the wrong way, but I am a bit curious as to what your interest is in this case. You seem to be quite giving with both your time and your well-considered opinions on this matter. Now I don't want to dissuade you from your efforts in any way, but I believe that it might be interesting to know where your stake in this lies. If it's altruism that's leading you to help, that's jolly good. It'd be nice if the Home Office and the UK public at large were as interested.

Regards,

RobinLondon

[mona-de-bois]

chibuya, guys at VBSI are all non-professionals in this area. Just engineers, scientists, etc. who try to orginize themselves to defend immigrant's rights when they have free time. There are very few of them btw. No more than 10 people I think. Or even less. Come and do something at VBSI, I almost beg you! You have the energy and the guts needed.

I am not sure what is the next now and just thought if I put my thought here could provide some ideas for anyone , or VBSI to think about..

[alien]

Alien,

I do not intend to be rude, nor do I wish you to take this in the wrong way, but I am a bit curious as to what your interest is in this case. You seem to be quite giving with both your time and your well-considered opinions on this matter. Now I don't want to dissuade you from your efforts in any way, but I believe that it might be interesting to know where your stake in this lies. If it's altruism that's leading you to help, that's jolly good. It'd be nice if the Home Office and the UK public at large were as interested.

Regards,

RobinLondon

A while back a friend asked me about this rule change and I looked at this forum, the website as well as HO stuff. By coincidence I was studying judicial review as part of a law course at the time so I looked into this as a potential remedy - partly out of my own interest as a legal exercise and partly for her. What I have posted is basically a recycled version of what I told her.

Having been "processed" myself in other countries (the handle "alien" is what's printed on my Taiwan ID card!), I've got some sympathy for people working in the UK. There does seem to be a basic injustice in all of this - but its not likely to fire me up into any great acts of altruism. With respect, there are probably better causes to fight.

I do feel that governments increasing fail to do "the right thing" and that courts are willing to step in to provide "judicial remedies" where people's rights have been interfered with. My posts may have seem a little "robust" - but my worry has been the tight deadline on JR.

As for the "great" British public at large, most know little about these things. They like their Indian curry, Chinese take-away, Polish plumbers etc. But really they feel there are "too many foreigners" in the UK. They don't understand the detail about different terms- HSMP, asylum seeker, work permit etc. - and anyway they distrust the gov when it comes to representing the situation. Political ineptitude plus political correctness makes serious discussion by the media difficult.

In the end, its not my battle and I have other things going on in my life to spend too much time on it. Despite all this, I think things aren't so bad in the UK - its just I don't want to see them get worse. Where I am now (Taiwan), political campaigning by foreigners is prohibited - I could be deported if I became involved in a similar campaign here. And its 7 years to get ILR!

[easylife4me]

UK court will decide on NRI doctors’ work permit

PTI
Tuesday, July 25, 2006 20:46 IST

LONDON: In a positive response to NRI doctors protesting new immigration rules in the UK, a judge has permitted the hearing of their legal challenge against regulations which make it virtually impossible for non-EU physicians to get jobs in the government-funded National Health Service (NHS).

In a statement, the British Association of Physicians of Indian Origin (BAPIO) which has launched the legal battle, said the Department of Health and the Home Office have not followed due procedures, like appropriate consultations and undertaking of a Race Equality Impact Assessment when they brought about the new immigration rules.

The case is likely to be heard towards the end of August.

“This is excellent news and the first sniff of victory. This shows the strength of our case and that we have made out the legal argument well. The icing on the cake is that the court has also ordered that the hearing be expedited. This demonstrates that the court appreciated the hardships that a delay in resolving this matter could cause to the doctors affected,” BAPIO President Ramesh Mehta said.

BAPIO estimates that about 10,000 trainee doctors will have to leave the country half way through their training within months unless the rules are changed.

Raman Lakshman from BAPIO’s advisory council said, “Because of the new ruling, thousands of doctors who had passed the PLAB (Professional and Linguistic Assessments Board) test and were waiting for training jobs have lost hope and a large number have already returned home, angry. Things must change quickly to reduce the distress to those who are still here.”

Earlier BAPIO delegates were invited by Health Minister Lord Warner to discuss the concerns of international doctors.

Satheesh Mathew, who leads BAPIO’s London Division, said that the meeting was amicable and that they were able to raise many relevant issues with the minister.
Subsequently, BAPIO has met senior officials from the Department of Health to look at possible solutions.

Buddhdev Pandya, MBE, Honorary Corporate Advisor to BAPIO said: “The news from the Court is a good omen. However, we are happy that the Minister has opened dialogue with BAPIO which may have potential to resolve the problem.”

[wazman]

Alien,

Thanks for your entirely sensible and extremely valuable contributions to the forum. I'm one of those getting shafted by the new five-year rule. As you say, it's not an issue that will get any traction with the pollies, as there are no votes in being nice to migrants, but that game has to be played as part of JR.

The sensible thing is for the VBSI and this Kong fellow to put their heads together. Since the VBSI has already gone down the lobbying route, that would hopefully fulfil the requirement to try and resolve the issue through discussions first.

I despair for our hopes, though, since I don't know whether anyone will stump up real money for court proceedings, and charitable/activist groups involved with migrants aren't interested in helping skilled/working migrants because they have limited budgets and as far as they're concerned we can look after ourselves.

I'm on the fringe of this VBSI thing, mainly just to keep informed about who's doing what, and there's a certain amount of infighting, but please don't let that deter you from any help you can offer. Likewise with this immigration boards thing - some people just want to rant about the injustice of it all, and then accuse anyone who makes a sensible contribution of having an "agenda"! Hey, sorry, but we all come here with an agenda or interest of some sort.

Waz

[chibuya]

As said before, I will contribute money - if we start a court action.

[ssi]

A detailed stance of CL's team regarding the JR route has been posted on the VBSI website:
http://www.vbsi.org.uk/index.php?page=navleft_1col

[hvac2006]

A detailed stance of CL's team regarding the JR route has been posted on the VBSI website:
http://www.vbsi.org.uk/index.php?page=navleft_1col

We appreciate CL's team efforts in this respect but one thing which is clear that uptill now since last four months CL's team as well as VBSI team done their best efforts but unfortunately we did not got the positive result, it is mainly due to attitude of home office. Now is it possible that we can start JR any time we like or there is some time limitation for it, as we heard earlier that time period for JR is three months. If this is the case than we woulds have lost the legal battle before start, if SK would have not already applied for the JR. This very important point was ignored/overlooked by CL's team which was a legal point. Second thing about time, that out of one year four months allready passed and there is no chance that we can win the legal battle in these eight months, as it has been discussed number of time that it is not only extension of one year it is something else for which home office took one year, actual thing will come before end of the year and than might be very late. Legal battle is to resist any further changes beside getting any dicision against this illegal change.

[a11]

OK guys, I feel I need to update you more on the subject.

CL is an extremely experienced immigration lawyer with a huge portfolio of successful cases. Obviously, the JR route was the first thing she thought about. But she realised that a case against the law as such would be impossible to win. Because believe it or not, the law itself is not retrospective. Its effects are, but the law itself isn't. Arguing about this now makes no sense because there has already been three months after the law got implemented, so a JR on it isn't possible anymore anyway.

So the only way to go would be to seek JR for cases where people applied for an ILR after four years as before and (on the basis of the new law) their applications got rejected. These JRs can be submitted within 3 months of the rejection, irrespective of when the law was introduced.

CL has selected 20 rejection cases which she believes have a fair chance to be won. She has hired an (English) QC, a 'top-rank' cast of solicitors appointed by the Queen, to deal with them. She is going to fund him from her budget.

But she asked him to hold on to them until we meet with the Minister and see what happens. Because the way it happened before with cases against the HO, as soon as the HO learn that a case has been initiated, they refuse to talk and just wait until the court makes a decision.

If CL feels that lobbying the minister doesn't work, she asks this QC to proceed with the cases. However, winning even every one of them will be no guarantee for that the HO changes the law in general. One might still have to sue the HO to be able to get their ILR after four years. Of course, after strong precedents have been created, this will be a considerably easier thing to do.

VBSI as a group right now chose to cooperate with CL in her lobbying approach. Therefore, right now VBSI will not be openly mediating SK's or anyone else's JR unless we are convinced that the solicitors initiating them have very strong arguments in their support.

However, this does not mean of course that we will prevent anyone else to get organised and pursue this route as well as any other.

Everyone who prefers to be on the fringes of the 'VBSI thing' - and generally on the fringes of this battle: of course it always feels better on the fringes than on the barricades.

But I'm afraid, it's not a way to go if you want something to be done. Go ahead and do something, either within the framework of VBSI or outside of it.

[ssi]

Now is it possible that we can start JR any time we like or there is some time limitation for it, as we heard earlier that time period for JR is three months.

That's the other thing about JR. You can't bring a general JR so only the particular claimants will get the benefit of any judgment immediately. Other people may be able to claim precedent (that is all subsequent decisions should conform to the judgment of the high court) but they will have to wait until their decision is refused and appeal (still need to go to court individually).

http://www.hmcourts-service.gov.uk/cms/4319.htm "any claim form in an application for judicial review must be filed promptly and in any event not later than 3 months after the grounds to make the claim first arose."

My personal understanding is that 3 months is counted from the moment the IND/HO rejects a claimant's personal application for ILR. Please study freely available legal documents and/or ask for professional legal advice. If you prove me wrong, please let me know. I would be most grateful.

Second thing about time, that out of one year four months allready passed and there is no chance that we can win the legal battle in these eight months, as it has been discussed number of time that it is not only extension of one year it is something else for which home office took one year, actual thing will come before end of the year and than might be very late. Legal battle is to resist any further changes beside getting any dicision against this illegal change.

We cannot resist any further changes until they are actually implemented. But in the particular ILR45 case, there are people who are prepared to see the court action through no matter what. This will definitely send a message to the authorities that changes should be introduced very carefully and competently.

[alien]

I'm at the limit of my knowledge on these things - I coughed up everything I know. Just in case anyone is wondering, I agree entirely with the lobbying thing, just I disagree that going the legal route necessarily prejudices that. It could do, or if the case is strong it might do the reverse (ie prompt a "settlement").

Also, of course, if the lobbying works it is by far the best solution.

Some further points re the JR thing.

1) Costs. I'm uncertain to what extent public funds (ie legal aid) might be available, or funds from statutory bodies (race relations board) etc. Maybe not at all. Also in the event of a victory to what extent these may be awarded. (Or what happens in the event of losing the case). Its true it can be expensive if it goes all the way.

2) Time limit. I'm not sure if this necessarily runs from the date the rules changed, or the date a decision based on the new rules is made. Ie could it perhaps be from when a refusal is made as a result of the new rules - ie someone applies after 4 years, gets refused (cos its now 5 years) and then the 3 month clock starts ticking. I fear the court may not be so generous.

The time limit is the only reason why I've been pushy on the whole thing - I just want to further remark here that 3 months is the normal maximum. Under Civil Procedure Rules 54.5(1) JR claims "must be filed promptly and in any event not later than 3 months after the grounds to make the claim first arose". In other words the sooner the better.

3) BAPIO case . I outlined what I thought might be the strongest case - something to do failing to meet a legitimate expectation. The doctors seem to have gone for a failure to consult/do a facial equality impact survey or whatever. This, I believe has its origins the "leading" GCHQ case (1985 I think) where there was a failure for the government to consult before outlawing trade union membership and this was successfully challenged. (Though they lost in the end out of judicial deference to the executive on national security grounds.) I believe the court took the view that whilst there was not a particular legal requirement to consult, a legitimate expectation had arisen that consultation would occur before such a change. No doubt the BAPIO lawyers are aware of subsequent and perhaps more focused case law.

4) Stephen Kong - we haven't heard from him - I wonder how he's getting on. Based on a 3 month deadline starting from the rule change, I wonder if he has made the deadline. The last we heard he was waiting for a reply from the Treasury Solicitor - I don't think he had actually started the JR. For anyone that's keen here is a link relating to the expected protocol:

http://www.dca.gov.uk/civil/procrules_f ... ot_jrv.htm

He has his client and perhaps his client would prefer him not to be involved in this discussion.

5) Chistine Lee's position as per the VBSI website. I don't disagree with what she says (and in any case it would be disrepectful to do so). I would just add the following:

a) If a claim succeeded at the initial hearing phase, I wonder if the government would take action that could prejudice the final outcome. I might be naive, but the government might choose not to go any further with the rule change, or at least not apply the new rule until the outcome of the final judgement.

b) If there were victory in JR, I think the detail of the court's decision would be important. If it was clear that the rule (or its introduction) was unfair then I doubt whether other people in a similar position would have to bring an action case by case. I guess the government would change the rule. If they failed to do so, they risk the wrath of the courts as cases are brought one-by-one on a copycat basis. Courts don't like their time being wasted - costs could be heavy for the government and I'm sure there would be no shortage of lawyers willing to take the cases on a no-win no-fee basis.

[alien]

Apologies.. my post labelled "Wed Jul 26, 2006 5:23 pm" crossed the previous two posts from ssi and a11... so was written without seeing them!

[rg1]

If BAPIO can proceed with JR why can't we?

[rooi_ding]

No one said you could not proceed with JR, you only limit yourself by allowing others to lead you in the direction you dont want to go