MM & Ors v Secretary of State for the Home Department(2013) decision?- the Waiting Continues!

So, most of you would have heard about the Court of Appeal hearing (MM & Ors v Secretary of State for the Home Department (2013)) which is challenging the Income Threshold requirements for the family visas. For those who haven’t, please see my previous posts here and here .

Lots of people celebrated the high court’s recommendations that, among other things, the Income Threshold should be reduced to around £13,000, that third party sponsorship should be allowed, and that special consideration should be taken for certain groups who could not relocate and exercise right to family in another country; e.g.. refugees.

Home Office Appeal of MM and Ors v SSHD [2013] EWHC 1900 (Admin)

The celebratory mood following the High Court’s judgement was short lived, as the Home Office swiftly appealed against the Tribunal’s judgement and recommendations to the Court of Appeal. The Home Office did not stop there, but in addition, have since placed on hold all family visa applications which don’t meet the income threshold. The net effect has been that, as of the last audit late last year, as of December 2013 there were more than 3,000 visa applications on hold (see report). It was suspected that this figure has now risen to nearly 5,000.

In other words, affected couples or families will not be able to see each other, as they are unable to travel, as the applicant’s spouse or family visa is held by the Home Office, and the only sensible avenues are to continue their relationship online, or by the British spouse travelling to see them in their home country.

When to expect the Court of Appeal decision?

Given the background, it was no surprise that as we neared the court date in March, there was an optimistic mood, with a lot of people expecting that the rules would change following the hearing. I have been inundated with enquiries as to when the new rules are coming in and when the Income Threshold will be reduced. Lots of couples are waiting for the reduction in order to make their spouse visa application, and it is for this reason that I write this article.

The good news is that the case that was heard on the 5th March had some of the best experts and lawyers arguing in favour of such a reduction. I can confirm, having spoken to one of the professors who gave an expert report in the hearing, that the case has very good prospects for a positive outcome. However, as with many Court of Appeal cases, especially one of such magnitude where there is a lot of evidence to be considered, the decision is never given on the date, and is in fact given several months later.

After the decision

Of more concern; I am led to understand that, given the serious implications that any positive outcome would have, which will be seen as a deadly blow to Thresea May and co; it is almost certain that the Home Office will be appealing to the Supreme Court. This of course will prolong the nightmare for couples and families who are currently waiting for the court outcome, as the case may continue to be put on hold until late 2015, at which time the Supreme Court would hear the case and make the decision (assuming that the Government would not be bothered to expedite such a hearing).

Alternative Options

As a Human Rights Solicitor I am, of course, not writing this article just to rub salt into the wounds of those adversely affected, but with the aim of encouraging couples and families to look into other possible alternatives. For example, for young couples or those able to travel and have a European adventure, there is of course the Surinder Singh route, which the Grand Chambers last month widened, indicating that the route could be used by those who have stayed for as little as 3 months in another country and without having been economically active, as long as they have been a genuine resident. Please note that this has not yet been put into effect by the Government, and it is currently necessary for applicants to have been economically active, and to demonstrate that they have moved the centre of their lives to their chosen EU State.

For those who are directly affected by having had their visas put on hold, of course most of you know that you can withdraw your application, by requesting the return of your documents, to apply at a later date when you qualify. However, such a move will see you lose all of your application fee, which is non-refundable. An additional option, which I have been exploring with some of my clients, where someone is now in a position to qualify under the rules, for example if their earnings have increased, is to adduce new evidence in support of an application. This is something that is allowed until the final decision is made. The biggest advantage of this option is that there is no need to withdraw the application or re-pay the application fee.

Final word

I guess for those who are searching for an easy solution; there isn’t one. The politicians continue to hold a race to the bottom on matters concerning immigration and the Government continues to sacrifice citizen’s rights in a bid to meet unrealistic targets. While we wait for justice to be done in court, British Citizens continue to raise their children as single parents, and couples continue to live separately, seeing each other only through Skype, as the Government continues to chest thump as it prepares to bring in the new immigration bill, which will create an all out xenophobic environment.

One is left speculating an issue that, I hope, will be challenged; the legality of the Home Office putting such visas on hold for such a long period of time pending the court decisions. It is especially unfair that those couples who choose to withdraw their application and instead apply for a visitor visa, in a bid to see their family and share in special occasions such as the birth of their children, a funeral of a family member etc, have their applications refused on the basis that they have previously applied for settlement, which gives rise to suspicion that they may over-stay their visit.

In short, Aluta Continua- the struggle continues. Keep waiting, keep hoping, keep praying, and most importantly, keep campaigning and raising the awareness of those around you of the Government’s continuous curtailment of our family rights.

If you have been affected by this issue or any other UK immigration matter, please contact Tito, a UK Immigration and Human Rights Solicitor for a quick chat about your legal options – it’s free! Call 07544 669131 Or on Skype: tito.mbariti.

PS: Also see my Facebook page and thank you all; it has been one year since I started offering free Immigration Advice, and it has been quite a journey!