IN THE COURT OF APPEAL Case No: €4/2013/2086 CIVIL DIVISION BETWEEN: THE QUEEN on the application of wm Respondent/Cross Appellant -and- SECRETARY OF STATE FOR THE HOME DEPARTMENT AppellantiCross Respondent -and- MASTER AF Interested Party/Cross Appellant WITNESS STATEMENT OF SONEL MEHTA |, SONEL MEHTA, founding trustee of BritCits, a campaign group and registered Charity, will say as FOLLOWS: Introduction 1, Lam the founding trustee of BritCits. My fellow trustees are Steven Green and Stuart ‘Adams, Steven has been a key component of BritCits since its inception as a campaign group in August 2012 and as a human rights charity in December 2013, Aim of this Witness Statement 1. In this statement, | set out objectively a, The actual impact of the financial requirements under the rules by reference to real-ife cases, b. The response to the financial requirements under the rules, and ©. The chilling-effect following the implementation of the rules. 2. | have exhibited to this statement a number of documents referred to as Exhibit SM. ‘Where necessary | refer to the page numbers of the exhibit in square brackets, BritCits 3. | formed BritCits in response to amendments to the UK's Immigration Rules for non- EEA partners (‘the Rules"), which came into force on 9 July 2012 less than a month after they were announced on 12 June 2012. 4. On 9 July 2012, | attended a session organised by the Joint Council for the Welfare of Immigrants (JCW), held in the Grand Committee Room of the Houses of Parliament with hundreds of attendees. A number of speakers, including MPs, expressed dissatisfaction with the amended Rules. The consensus at the time (before the impact was really felt) was that the Rules were unfair and would cause devastation to families, particularly children5. 10. 4 | recall an air of disbelief in both the amendments and the lack of proper Parliamentary scrutiny. | do not believe that Parliament had or intended to endorse rules which would so obviously impact on families causing them immense hardship and long-term damage. ‘Some of those affected by the Rules tured to social media to vent their frustration and distress, Each story was heartbreaking. Almost every single person | came across was a British citizen, hence the name ‘'BritCits’. The impact of the Rules is equally felt by refugees and settled migrants. Typically though these groups are less vocal, less social media savvy and more afraid to speak out against the authorities. Despite frantic Facebook activity and blogs popping up on the websites of various migrant groups, | was dissatisfied with the lack of any real action, so formed a group to consolidate and put more weight behind our experience. BritCits does not advocate free borders. It recognises the important economic aim in ensuring that non-EEA partners not have recourse to public funds. However given the impact on certain groups more than others we are firm in our belief that the Rules must be fair and accessible to all (which they currently are not) and must not be allowed to separate families. Anyone who takes the time to hear from people affected by the Rules will be left in no doubt as to the level of harm they are causing, in some cases, irreparable. BritCits has a growing membership of over 600 registered individuals, each directly affected by the Rules. There are hundreds more who liaise with us through our website (with around 7,000 page views a week), Twitter, Facebook, Linkedin and meetup group and other forms of social media. | BritCits gathers information from families with a view to understanding the impact of the rules on them. We have liaised with hundreds of British sponsors who wish to retum home but find themselves trapped overseas solely because they have non-EEA partners, BritCits also actively engages with more experienced NGOs under the Divided Families umbrella (which includes JCWI and Migrants Rights Network) and are part of Movement Against Xenophobia. We have held demonstrations, contributed to the APPG report on migration and have been invited to speak at events by various organisations. | believe that our members have come to rely on BritCits as a sanctuary of support. Commonly, members feel guilt at not being able to meet the requirements of the Rules and resentment towards a government they believe is no longer listening to them resulting in the inevitable sense of betrayal Affected members often draw comparisons with EEA nationals who do not have to meet the financial requirements when migrating to the UK to demonstrate the perversity of the rules, British members frequently question what benefit being British provides if in practical terms they are prevented from living in their country of nationality. The knock on effect on British children of affected families is self-evident, with their being denied the right to a British education and NHS healthcare notwithstanding their entitlement to it, only because one parent is in a relationship with a non-EEA national and does not eam the minimum income threshold or cannot demonstrate they have done so for at least six months. The actual impact of the financial requirements under the rules by reference to real. life cases12 13 14, 15, 16. 17, The term ‘financial requirements’ in the context of this statement means the applicable threshold and the specified evidence required to discharge it The examples that | give below are based on information shared with us by BritCits members and others directly affected by the Rules (je. refusal notices and other communications between families and the Home Office, border officials, Entry Clearance Officers and MPs and material disclosed to us by third parties including migrant groups and lawyers). In practice the Rules have resulted in British citizens with non-EEA partners adopting drastic courses of action including: a, Being forced to leave the UK to set up home with their non-EEA partner outside of the EU, b. Moving to another EU Member State, with a view to then return to the UK with the non-EEA partner under the provisions of EU law, ©. Continuing to live outside the UK/EU even though it might be contrary to the best interests of the children to do so, d. Enduring prolonged periods of separation until such time as the UK partner finds and maintains employment which meets the financial requirements, Taking multiple jobs despite the negative impact upon children, Not making an application until such time as they believe the rules can be met, Not making an application in the hope that the rules will be amended pending the result of this case, and Making applications (particularly after the High Court’s judgment in this appeal) with the hope that an appeal of the inevitable refusal to the Firsttier Tribunal would be successful on Article 8 grounds. = ene ‘Ai[20] | have exhibited a document titled ‘Adverse Impact of UK's Immigration Rules’. This 1s a portfolio summarising 113 reallife examples of families directly affected by the financial requirements: 49 of these case studies involve children. For every family willing to share their story publicly there are countless others who fear repercussions in speaking out lest it jeopardise future visa or job applications. These disparate groups are bound by a feeiing of victimisation by the very authority which is supposed to represent them, At[157]I have exhibited a representative range of actual Entry Clearance and Leave to Remain Decisions, refused on the basis of failing to meet the financial requirements. Based on our evidence it would appear that in applying the financial requirements, decision makers are: not conducting a fact sensitive case-by-case approach in their decision making, not assessing Article 8 outside of the rules, not considering the possibility of exercising discretion outside of the rules, not considering the best interests of affected, often British, children, not being holistic in their approach to fair decision making, being inflexible and rigid in the assessment of the application with reference to an automated tick box exercise set out in the rules, not looking at the overall financial position of applicants and making errors because of the complexity of the rules which ECO's themselves seem to find difficult to implement. ze To minimise the length of this statement | have not referred to the exhibited refusal notices individually and instead summarised them. Itis clear from these refusals that in practice, an individual fact sensitive approach is not being adopted. Rather, theyappear to result in a tick-box exercise; applications that fail to submit even just one of the specified documents are refused irrespective of how insignificant the missing document may be, that it cannot physically exist or that other evidence produced, such as payslips and proof from the employer, prove that the financial requirements are in fact satisfied. In practice, not only is there no flexibility, but there appears to be a genuine lack of understanding amongst decision makers as to the purpose of required documents. Inflexible approach in decision making 18, ECOs routinely refuse applications because of the absence of a P60, or where a P60 shows a lower salary less than the minimum income threshold. They seem unable to understand that any P60 is likely to relate to a historical tax year, not the evaluation period; P60s are only issued by employers at the end of the tax year. [231] 19, Where the sponsor or potential sponsor has multiple jobs, is self-employed, has changed positions during the period of consideration of their earnings or takes leave from work for purposes such as matemity or illness this complexity is magnified Paragraph 5.1.4 of the guidance mandates that someone who is in employment must submit payslips covering six months. [253] The Rules penalise sponsors who may have a variable income or fall ill, by annualising the lowest amount eamed in the evaluation period, despite that total income over the six month period is in excess of £9,300. See [197] 20. The rigidity of the approach is magnified by paragraph 3.2.1 which states that decision makers are not allowed to exercise any discretion or flexibility with regard to the level of financial requirement which must be met. This leads to absurd refusals entirely in accordance with the rules: one sponsor who earned £0.69 per week below the income threshold, was refused entry notwithstanding that the couple had significant savings [173]. On appeal before the Tribunal the presenting officer suggested the British sponsor and her British baby could live in Pakistan 21. The Rules prevent the self-employed from being able to combine income with savings to make up any shortfall (Guidance at paragraph 9.3.9). Additionally those in self-employment have to discharge more onerous documentation requirements and evidence pay over at least one full financial year. In practice, however, those who commence selemployment for example on 1 May, may need to work for nearly 24 months before being eligible to sponsor their non-EEA partner/spouse, regardless of their actual earnings. 22. The range of absurd refusals that we are aware of can be summarised as follows: a. Refusals where sponsors did not submit a P60 despite proving their income through payslips, bank statements and letters from employers. b, Refusals where the decision maker adopts the lowest income as shown on the sponsor's payslips over the six month period, even where any dips are the result of illness or absences from work (often to visit the partner). Where months 1-5 have been at the required threshold, if in month 6, there is a dip in earnings, the decision maker has refused the application and the sponsor must wait another 6 months before reapplying . In the case of a self-employed sponsor who met the financial requirements the visa was refused on the basis that the origins of cash earnings when deposited ‘were not specified.d. Refusals where sponsors fall short of the income threshold by less than £1 per week are refused. . Applications where savings between £1,000 and £16,000 are ignored. Applications where savings held in financial instruments (bonds, ISA’s, investments) even where typically accessible within a short period (10-14 days) are ignored because they are not cash savings. 23, BritCits member Rachel told us that her immigration solicitors considered there were contradictions between the paragraph 18(e) of Appendix FM-SE, (stating non- salaried’ employment is excluded from the calculation of gross income) was inconsistent with paragraph 9.3.5 and chart on page 14 of the guidance, (which confirm that both salaried and non-salaried income can be combined with that from self-employment to calculate gross income). [250] Consideration of Art 8 ECHR/Exercise of discretion and appeal before the Tribunal 24. We have never seen a grant of leave to enter/remain outside of the Rules pursuant to Article 8, the best interests of affected children or the exercise of discretion. It is ‘common, however, that such refusals are overtumed by the Tribunal. 25. But appeals are time consuming, very expensive, subject to long delays in listings and extremely stressful for families. Appeals against in-country decisions currently take 6-8 months; out-of-country appeals currently take 9-12 months, during which time families are forced to be apart. The SSHD frequently appeals FTT determinations.{378). For many, the time and costs associated with appealing to the Tribunal means that appealing even incorrect decisions can be prohibitive; thus the sponsor is forced into exile or lives apart from their partner and/or children. In our experience, reliance therefore on a judicial system to correct systematic errors made by decision makers in applying Rules cannot be regarded as an appropriate remedy. 26. Ironically, despite the government's claim that they want to make sure that those who choose to make a life in the UK can afford to do so, some members report that trying to eam a higher income has in practice resulted in their finding themselves worse off financially, through increased childcare costs, maintaining a home in the UK and overseas, along with travel costs for the regular trips some are able to make in order to maintain their families. 27. Our members and the hundreds of others who have been in touch have found the financial threshold too high and the requirements too onerous and complex. This is in direct contrast to the government's claim that Appendix FM would add certainty, with fewer incorrect refusals and appeals. What is clear in practice is that the Rules do not meet their stated intention of a ‘clear system to ensure faimess, consistency and transparency.” Our members assert that decision makers are incapable of applying the Rules fairly and correctly. The only consistency we have seen is in the level of poor decision making. 28, Our members repeatedly ask how the Rules can be valid where lawyers have such trouble understanding them and decision makers have trouble applying them. The * Paragraph 18(e), Appendix FM defines “Non-salaried employment” as employment “paid at an hourly or ‘other rate (and the number and/or pattern of hours required to be worked may vary}, or pald an amount which varies according to the work undertaken". Salarled employment Is defined as employment “paid at a minimum fixed rate (usually annual) and! is subject usually to a contractual minimum number of hours to be worked." F Hansard HC, 19 June 2012 Column 823examples that we have seen corroborate the fact that decision makers and sometimes even Home Office Presenting Officers (who appear at appeals) have not been able to implement the Rules correctly. Third party support 29, Members have expressed considerable concern that third party support is not permitted. The case examples that we have seen positively refute the government's, claim that "Promises of support from a third party are vulnerable to a change in another person's circumstances or in the sponsor or applicant's relationship with them: that is not the basis for a sustainable system." (Home Affairs spokesman in the House of Lords, Lord Taylor of Holbeach) [445] From the information that we have had there is a strong case to suggest that tinancial support from parents and family members is more reliable (and certainly no less reliable) than income from employment. This view is echoed by Lord Avebury who said in response to Lord Taylor's statement ‘the sponsor's parents might suddenly tum against their son or daughter and the spouse, but equally, the holder of an £18,600 job might be sacked or become redundant, or develop an incapacitating illness. One can never be absolutely certain the family will be self-sufficient indefinitely; that’s not how life works... itis totally unreasonable not to take [third party support] into account in the Rules.” [455] 30. BritCits member Clint, a British citizen from Cambridgeshire has a wife and British baby living in the Philippines. As a security guard, Clint eams around £14,000 a year inline with the average salary for a security guard. Clint wishes to live in the UK with his family. He has responsibilities towards his elderly parents in the UK, but also to his wife and child, Those mutual responsibilities can only be met in the UK. Notwithstanding the rent and bill free accommodation that is available to Clint and his wife and baby the Rules ignore this and still require him to show a minimum income perversely factoring in an additional allowance for accommodation even though it is not applicable in his circumstances. 31. The response of the former Immigration Minister, Mark Harper, to us on this not uncommon situation was "We believe it is important that the sponsor, or the couple if they are both in the United Kingdom, should be able fo support themselves independently from resources that are under their control, not under the control of someone else.” [457] Forms of finances and investments not permitted by the Rules 32. The disqualification of assets such as investments, bonds and property being used towards the financial requirements is a huge source of consternation. —BritCits member Mark is a pensioner. His wife Mercy is from Nigeria, a fashion designer who speaks six languages fluently. She would be an asset to the UK. Mark does not earn over £18,600; not too many pensioners do in northern England. However Mark ‘owns two properties outright in Liverpool. Notwithstanding that the value of the properties disqualifies Mark from claiming benefits and there is therefore no risk to ‘the public purse, he cannot use his assets towards showing that he has the means to look after his spouse. In order to meet the Rules, Mark would need to first sell a property, hold the proceeds from the sale as cash for at least six months before his Wife could apply to enter, Sponsors who own outright just one property in which they live, and as a result are ineligible for benefits, do not have the luxury of even being able to sell it to realise the value.33. The absurdity of the rules is further highlighted by the case of an Australian man earning £250,000 in Dubai, owning a £3.5m property in the UK but unable to live here with his British wife and children in the UK because she is not employed, laying false to the former Immigration Minister's claim on 29 October 2012 on BBC Radio 4 that changes to the family route were to clamp down on benefits abuse, not to reach an immigration target and that British people were welcoming of people coming here to contribute, not claim benefits. 34, We have seen no evidence of benefit abuse by non-EEA partners who are already prohibited from recourse to public funds; the endorsement on the visas adequately prevents access to benefits, let alone abuse. 35.As one member put it, the absurdity of the Rules is that a sponsor who eams £18,600 but may have a large credit card debt, lives in a rental property and has no assets at all is entitled under the rules to sponsor a non-EEA partner; however one who receives a pension of a lower amount but with a mortgage-free residential property and no debt could not. The so called ‘bright-line’ does not take into account ‘a whole set of factors that vary from case to case. This is why everyone affected by the rules feels greater offence that the rules do not allow individual case assessment. Specific groups 36. It is dificult to summarise in a single witness statement each and every example of the impact of the Rules on those directly affected. | focus on the impact of the financial requirements applied to (a) female sponsors, (b) families involving children, (©) British sponsors living abroad, and (d) British sponsors separated from their non- EEA partners/spouses. In many cases there is considerable overlap. Female sponsors 37. In practice, a considerable number of our female members with non-EEA partners have complained at being forced to delay plans to have children, both at the entry clearance stage where the onus is solely on them alone to demonstrate the income threshold and during the unprecedented long probationary period of five years, where having children could mean the entire burden then falls on their in-country partners. For older members the concem is that the rules expose them to the real possibility of losing out on the opportunity to have children altogether. 38. We have heard reports of miscarriages from stress, caused by the pressure placed on one person to meet the income threshold and enforced separation from loved ones. In one publicised case a female sponsor felt pressurised into having an abortion just so she could continue to meet the financial requirements. [463] 39, Female sponsors with young children are forced to retum fulltime to the workforce often taking just a fraction of their statutory maternity leave in the aim of having their partner by their side. The reality is that by the time the partner is in a position to sponsor the application the parents are prevented from sharing important first moments such as baby's first tooth, first words, first steps; moments that can never return, Returning to work very soon after childbirth may also impair bonding with young children. Impact on children 40. Too many families now have a parent known simply as “Computer mummy" or “Skype daddy". One member, Sarah, told us of how her two year old daughter onco 7screamed hysterically (daddy has legs’, when her father stood up during a Skype call as she had never seen his legs. Another member (Andy) has two sons and made a video of -~—their_— enforced ~—separation from ~—their_— mother: http://www.youtube,com/watch?v=vhHpac4KBxY 41. Leah, a British citizen married to an American for over seven years lives in the UK with their six year old daughter; her husband lives in the USA. The three have not been together for two years as the family cannot meet the financial requirements of the Rules. Leah's daughter has no memory of her father’s touch. Leah is a carer for her grandfather and therefore cannot relocate to USA. She is on benefits and juggles volunteering, job hunting, being a full-time mum and caring for her grandfather simultaneously. Under the Rules Leah's husband will never be admitted to the UK and she cannot leave her grandfather to live with him in the USA, 42. BritCits member Lisa has a Prohibited Steps Order in place by her ex-husband on their children, She cannot take them out of the UK, but as she does not eam £18,600 her husband, a Moroccan citizen, is not allowed in the UK. Were Lisa to try and honour both these relationships the danger is the children would end up with a mum not always around and the guilt that she sacrificed her marital relationship for them. 43. On 19 June 2013, the former immigration minister Mark Harper stated “Our rules and policy on leave outside the rules take into account a child’s best interests. | will give an example. In exceptional cases, those circumstances can be taken into account. Since | have been doing this job, I have authorised the grant of leave outside the rules to an applicant who, with their British partner, was unable to meet the income threshold but had serious concerns about the health and welfare of a child.* [467] This would seem to indicate that firstly ministerial authority is required for the grant ot leave outside of the Rules and that secondly itis only in exceptional cases (and the minister was only able to refer to one) that the best interests of affected children will lead on to such a grant. 44, Alternatively the best interests of affected children will only lead to a grant of leave outside of the Rules in cases where the effects of refusal will be “unduly harsh’ according to Lord Taylor (see HL debate on 4 July 2013): ‘We do not know how many children are affected by the rules. Where the effects of refusal under the rules would be unjustifiably harsh, there is a provision to grant leave outside the rules on @ case-by-case basis if there are exceptional circumstances,” It is unclear as to how ‘unjustifiably harsh’ is defined. See for example the facts of Emma's case which did not meet this definition [513]. 48. It is unsurprising that the best interests of affected children are being routinely ignored by decision makers. See the Vine Report April - October 2012 The SSHD's policy on guidance for caseworkers deciding on partner entry clearance applications, as set out in the Immigration Directorate Instructions Chapter 8 Section FM 3.1, does not contain guidance on granting leave even where a child's best interest would require it, The policy says ‘Ifthe higher financial requirement and other requirements are met, the child can be granted leave in line with their migrant parent. If the migrant parent and child are applying together, and the higher financial requirement and other requirements are not met, all the applicants will be refused,’ British citizens living abroad 3 Hansard 19 Jun 2013 : Column 276WH “Hansard 4 July 2013: Column 140646. In practice, it is clear that the income threshold has also been an insurmountable obstacle for British citizens living with families abroad (very often with minor children) ‘who wish to return home. Often this is because of the different cost of living reflected in salary levels, 47. BritCits member Ben is a British teacher living and working in Indonesia. In his eight years there, he has risen from being a teacher to Head Teacher, and then Director of Studies in a successful private language school. He has a wife and two British children. He does not meet the income requirements and according to the Rules, his savings of £40,000 is insufficient. In his view, surely someone who can make a successful life in a foreign country would be able to replicate that back home, given familiarity and family support. Ben's parents live in a property which is fully paid off and are willing for Ben and his family to live there rent-free for as long as they need to. (569] 48. Ros is also a British teacher working and living in Thailand with her same-sex Thai partner and their two British daughters. Whilst Ros does earn in excess of £18,600 she is unable to return to the UK with her partner because as set out at paragraph 5.2.1 of the guidance she would need to provide evidence of a full ime job which she would start within three months of her arrival paying an annual salary over the applicable threshold. The Rules irrationally expect Ros, and others like her, to find {ull time employment from overseas, even where in existing jobs they earn over the threshold. [570] 49. It astounds members who are in this position that in order to return to their own country they must first endure a lengthy separation from their non-EEA partner, expose British children to a single-parent upbringing whilst they move back to the UK to find an £18,600 job (in the current climate), and higher if there are non-British children involved, and then work for a continuous period of at least six months before being able to apply for entry clearance for their partner producing a P60 which is only issued once a year as proof of income. This approach, required by the Rules, is simply ignorant to damage caused by enforced single parenthood to the parent forced to work long hours to meet the income threshold whilst juggling childcare, and to the affected child having to endure an upbringing in these circumstances. 50. With Ben's Indonesian work visa due to end, he has to return to the UK. His eldest child, a daughter aged six, will have to return with him as she is already enrolled in a local primary school. His wife whose visa application has been put on hold will not be able to join them. His youngest child, a son aged two, will stay with his mother. Therefore not only will husband and wife be separated, but brother and sister, mother and daughter, and father and son. 51. Ros is keen to retum home for the sake of her children. She recognises the best interest of the children require them to be in the UK not least because Thailand does not confer parental rights to her same-sex partner in the event of her death. She cannot do so however because of the inherent difficulties in the Rules. 52. Ironically Ros’ only other sibling lives in Tanzania with his non-EEA fiancée. He too does not eam £18,600 either and is therefore also prevented from returning. Their parents, both British citizens, are compelled to travel to Thailand and Tanzania for limited holidays in order to maintain family life with Ros and her brother which is constrained by difficulties of travel, age and limited finances.53, Two of our members, Lara” and her husband British citizen David", a self-employed lawyer, wish to return to the UK from South Africa after seven years there. They are prevented from doing so finding that further to the above stated difficulties, self- employed people also have to deduct from their permitted income tax-deductibles, which is included in the permitted income for salaried employees. David feels as if he is prevented from retuming home because he must already have a job lined up here, and the Rules make no allowance for the returning citizen to engage in self- employment in the UK. To them, like many others, the family rules have been amended to align them with the Points Based System; British citizenship and the right to live in Britain feel worthless. Sponsors in the UK 54, BritCits is concerned about the impact on the mental health of those affected by the Rules. As a result of the predicament they find themselves in and the pressure to earn a level of salary that is often not needed to fund daily life, several of our members have been diagnosed with depression. This condition exacerbates the difficulty in maintaining a job for the requisite period of time, whilst often working increased hours to the point of exhaustion, working second jobs to meet any shortfall in the income threshold, sacrificing family life with other family members and paying for increased childcare costs. We have even heard of threats of suicide on Facebook groups, with people indicating they are so exhausted with the continued battle with the Home Office. 55, BritCits member Karen works as a support worker for a registered charity helping vulnerable adults and their children. As her salary alone did not meet the requirement Karen worked over 65 hours per week with only four days leave over eight months. Her children suffered as she was ‘always at work’. The family was very unhappy as a result and Karen’s stress and strain led to her suffering a miscarriage - the loss of which she had to face alone. After all that the ECO refused entry clearance because the income threshold was met using overtime payments which in his view "cannot be guaranteed’. This is despite section 5.5.5 of Appendix FM stating ‘Overtime, commission-based pay and bonuses will be counted as income from employment where they have been received in the 6 or 12 months prior to the date of application as applicable.” The response to the financial requirement under the rules 56. The human cost of the amended rules is unquestionable and demonstrated by the high levels of media coverage featuring families separated by the Rules since July 2012 together with the emergence and popularity of groups like BritCits. MPs report their immigration casework load is at the highest levels some have seen. See [639] and in particular the comments left by the readers. There is a common theme that the Rules are devised so as to keep levels of migration to a minimum, separate families, mock the very values we should be protecting and violate the sanctity of marriage - a sentiment echoed by the head of the Roman Catholic Church in England and Wales, Archbishop Vincent Nichols, in December 2013, following his meeting with Steven Green, several BritCits members and MRN. Indeed, many see the family immigration rules as one area the government can control the number of visas granted, because of free movement within the EEA and student and work visas considered vital to the economy. 57. The Children’s Commissioner for England has indicated best interests of children were not considered as part of the decision-making procass, which has “particularly serious consequences for very young children.” [643] 1058, At a House of Lords debate on 4 July 2013 | witnessed opposition to the Rules from peers across all three of the main political parties along with a reminder that these Rules were in violation of the Coalition's election manifesto. Statistics were provided to show it is not unreasonable for British citizens to meet their partner overseas, given the high propensity for travelling overseas for work or holidays, and thus these citizens because of these Rules find themselves as ‘marriage-exiles’, with British children unable to have access to a British upbringing and British grandparents prevented from nurturing and spending time with their grandchildren, 59. Hansard records indicate peers in the House of Lord believe a more appropriate income threshold would be one in line with the national minimum wage without the onerous evidential requirements attached to it, 60. | also exhibit the All-Party Parliamentary Group on Migration’s inquiry report chaired by Baroness Sally Hamwee to which BritCits contributed understand the report was presented to the Immigration Minister and Lord Taylor of Holbeach. The findings have not been accepted by the SSHD. Indeed Lord Taylor's view is that the rules are having ‘the right impact in respect of [the government's] aims. If so, the impact being felt by the families affected by these Rules and summarised in this, statement must have been intended and what SSHD positively designed to achieve. See also his letter to Baroness Hamwee dated 5 August 2013 at [695] 61. There have been a number of parliamentary debates and meetings highlighting areas of concern. ‘The general view is that the financial requirements are too onerous. and thus unattainable for the average working person. Sarah Teather MP called the Rules ‘bonkers’, and ‘divorced from real life’. Kate Green MP stated the Rules were ‘not going to save the UK money and were not in the interests of children or families. Fiona MacTaggart MP was clear that there should not be a means test on love, 62. Public response also shows severe opposition to Rules. Stephen Bowen, from the British Institute of Human Rights pointed out that the right of a British child to live in the UK was a constitutional right and families should not have to face the horrendous choice between self-exile or divided family. Other opponents of the income threshold include Conservative think tank Bright Blue, See http://family migrantsrights.ora.uk/ 63, Research carried out by MIPEX also indicates that the income threshold under the Rules is only second in the region to that of Norway's, (although income levels in Norway are generally higher), with higher income thresholds having ‘a disproportionate impact on limiting the number of family reunions, especially for low- income and vulnerable groups... The OECD also found that for every extra year a child spends in country of origin instead of country of destination has a negative impact on language learning and social adjustment. It concluded that family reunion should be facilitated as soon as possible. [725] The chilling effect 64. BritCits is aware that in practice numbers of applications have fallen, decisions granting leave to enter or remain are down and numbers of people leaving the UK to be with family members is up. 65. The income threshold is considered so high that even British citizens in longstanding {ull time employment find themselves unable to meet it. It has been set significantly HL debate July 2013. 11higher than the national minimum wage (currently at £13,124 for a 40 hour working week, working 52 weeks a year). Sponsors living outside London and in particular those who are women, from ethnic minorities, refugees or young, face the most difficulty in meeting the threshold. This is supported by research conducted by Oxford University’s Migration Observatory which found that the following would not qualify to bring in a non-EEA partner - 81% of women = 32% of men - 51% in Wales = 48% in Scotland = 47% in UK = 46% in England = 29% of Londoners = 58% of those aged between 20 and 40 compared with 35-45% of those aged between 30 and 60. 66. This assessment has proved to be fairly accurate. In response to a Freedom of Information request dated 24 April 2013 made by a member of the Bar to the Home Office, comparing the number of visa applications received and subsequently granted in the six months before and after 9 July 2012, broken down by the gender of the applicant the following can be seen®: a. A dramatic reduction in the total number of applications received after 9 July 2012 (to 42% of the levels prior to the rule change); b. An even greater reduction in granting of applications received after 9 July 2012, from 18,331 to 3970 (to a level of 21% of applications issued prior to the rule change), c. Ayet greater reduction in granting of applications received after 9 July 2012, from 5,727 to 939 in respect of male applicants (to a level of 16% of applications granted to male applicants prior to the rule change), showing female sponsors are having greater difficulty in meeting the Rules. [731] 67. Following the High Court's judgment in this case we are aware that there was a surge of applications submitted by those eaming less than the applicable threshold but in combination with the factors identified in the High Court's judgment. We understand that a number of such persons were advised to apply in light of the judgment. 68. BritCits is aware of a significant number of applications that have been put on hold as part of the SSHD's policy published on her website after the hand down on 5 July 2013 [733] Wording to the same effect still appears on the Home Office website. It would seem that the ‘pause’ was not to consider the implications of the judgment but rather to prevent decision makers applying the law as it stood in light of the High Court's judgment. It now appears that the SSHD’s policy is to place on hold all partner applications until the ‘Courts’ (not necessarily just this Court) have decided the outcome of this case. The SSHD recognises that this may not be for several months at least. * httosu//wwnw.vhatdothevknow,com/request/gender of spouse and partner apoHoutgoing-30545769. | am also additionally aware of cases that do meet the income threshold and have provided evidence in accordance with Appendix FM to demonstrate this but have nonetheless been placed on hold pending the finality of this litigation. Reduction in net migration 70. The SSHD appears to be indifferent to the anguish and suffering caused to British and settled families, consistent with what many believe to be the true intention of the rules, namely to drive down net migration before the general election. 71. Having a policy aim which by definition necessitates encouraging the emigration of citizens should not be acceptable. This belief is echoed the Children’s Commissioner who stated fairness had been sacrificed to achieve one goal — and that was numbers’. See also the Commissioner's briefing on the APPG report[735]. Lord Avebury stated "The Government want to get total net immigration down to below 100,000 by hook or by crook, and they do not care if in the process they divide thousands of families by excluding spouses and elderly parents.” His view is that these Rules were put in place not for economic reasons but because of the net migration target. Sarah Teather, an MP within the government, publicly confirmed her view that the rules are only about driving down numbers based on an arbitrary cap, stating they fail even on their own criteria with regards to the economic impact on UK’ 72. That net migration must be brought down to tens of thousands is a key policy of this government was further highlighted by James Brokenshire, who in his first tweet as Immigration Minister referred to “continuing to reduce net migration to sustainable levels’. [741] See also the inadvertent admission by the then immigration minister Damian Green in his interview with BBC Newsnight. [743] See also the Immigration Minister's answer to a written question on 15 October 2012 (Hansard Col 90W\). [744] 73, Families unfortunately prove to be an easy target. They are not big companies whose voice the govemment hears when tightening of immigration for skilled migrants proves bad for business. They are not universities who have the power to lobby the government when the very significant financial threat to UK's economy from the treatment of international student comes to the fore. They do not have limitless funds to fight the Home Office for their rights ~ when so often even a win at first tier tribunal sees the Home Office appealing. Indeed whilst companies refused a visa for an employee may find a replacement in a British or EEA citizen, or a visa holder, families are not so easily substituted, 74. Disallowing a non-EEA family member the right to live in the UK with a British partner and British children often translates into the departure of the entire family unit from the UK, of indeed, preventing them from even entering the country. A boon for the net migration target but it would seem, at the cost of our economy, values, richness of culture and from what | am told by those affected by these rules, confidence and trust placed in both, our parliamentary and judiciary systems. 75. To those families affected by the Rules, which goes wider than just the Britcits membership, the financial requirements are wreaking havoc on family life and have been devastating. In some cases the Rules have forced families to make the difficult decision to relocate overseas, others have been unable to return to look after elderly ’ Said at a parliamentary meeting 09.07.13 hosted by the MRN (taken from my notes) ® Hansard 23 Oct 2012 : Column 189 ® ata parliamentary meeting 0307.13 hosted by the MN (taken from my notes)76. 71. 78. 79. 80. relatives or provide their British children with access to a British education and upbringing. Too many have experienced, and continue to do so, lengthy periods of separation intensified by the pause on applications on applications impacted by the financial requirements and severe delays in processing those which meet them. ONS Statistics reveal a 25% drop in non-EEA partner entry clearance visas issued in the year ending September 2013 from the previous year. ONS data for 2012 shows that the refusal rate for non-EEA partner entry clearance applications rose significantly in 2012, from 19% in Qt to 46% in Q4. In Q4 of 2012, 5,758 non-EEA partner entry clearance applications were refused - approximately 480 refusals per week. In order to try and give the Court a snapshot view, BritCits has conducted a poll over the period 8 February 2014 to 16 February 2014. The poll was shared with our members, promoted on Facebook groups, immigration forums and Twitter, with a few choosing to complete the poll on paper at a We Are Family event hosted by MRN on 14 February 2014. In order to prevent manipulation we have restricted the number of entries per IP address to one and a summary of the poll can be found at [745Jand the comments left by the respondents at [747] Over 8 days 532 respondents completed the poll with the results as follows: a. 83% were British citizens and 15% the non-EEA spouse of a British citizen/residentivisa holder, b. 57% said they had left or were seriously thinking of leaving the UK for their family to be together, ©. 24% indicated that they were in exile, as to retum to the UK would mean breaking up their family, d. 51% said they have chosen not to submit an application for themselves or their partner, because they know it would be refused. e, 26% indicated there were children impacted by these rules. The decision not to submit an application is an informed one as our members share their trials and tribulations with the Home Office. Members are aware there is no consideration of Article 8; no discretion allowed for; no acting in the best interest of children. Additionally, those within the 51% indicated it makes no sense fo submit an application, paying a substantial amount in fees, (which over the course of the application from entry clearance to settlement, under the current fee schedule can be in excess of £3,000 per applicant), only to find their application has been put on hold. This tends to be coupled with a very real fear that any refusal will militate against the granting of leave in subsequent applications even if that were to be as a family visitor and impact not only future travels to the UK but other countries. Indeed, we have seen cases where the Home Office refuses family visit applications, touting them as an attempt to circumvent the rules leaving [British] sponsors in a catch-22 situation whereby if they take time off work to go see their partner they run the very real risk of failing to meet the financial requirements, but their partner is not permitted to even visit them, The ongoing level of uncertainty as to when Home Office/ECOs will process applications given an expectation that whatever the result of this case it may go to Supreme Court further strengthens the resolve to not apply. This in tum has led to more and more making the decision to either leave the UK or not return despite their need and desire to do so. This is reflected in the fact that providing information on exercising free movement rights is a growing part of my workload in BritCits. In most cases | am asked about 14a 82. 83. 85. 86, 87. the Surinder Singh route and in others families simply want to move to another country for good where they feel welcome and accepted. Moving countries is not a decision made lightly, given the sant expense and upheaval caused, especially to children. Where someone has a secure job in the UK, albeit one that does not pay £18,600, the decision is even more difficult and uncertain for the financial security of the family. Families to whom | have spoken have expressed concems about obtaining work in other countries particularly if they do not speak the local language. An increasing number of people are nevertheless ‘choosing’ to leave the UK and in many cases with a view not to return. | consistently hear it expressed that not being in the UK is the only way to maintain families and a deep sense that the Rules afford British citizens with fewer rights in UK than under EU law. | cannot overstate the damage both the Rules and the way in which they are implemented has caused couples, children and entire families and the resentment the SSHD's treatment of families is fostering towards the government and UK. The point and intention of this statement is to try and give this Court an idea as to the breadth and extent of the suffering caused by these Rules. | am aware that the financial requirements have led to the relationship breaking down due to the intense pressure felt by an imposed separation. |. Many of our members are angry with the misuse of the recommendation put forward by the Migration Advisory Committee, whose report MPs use as justification for the £18,600 income threshold. According to MAC's report, the £18,600 is the threshold should be set for a couple, as it is the amount at which a couple settled in the Uk cease to be able to access income-related benefts. Placing the entire burden therefore on just one partner is not in accordance with this recommendation. The rigidity of these rules is echoed by Loz, a British citizen working at a university, after 10 years serving her country in Iraq in the British army, she found herself unable to sponsor her American husband because her salary was below the threshold by £6.40 a month, a threshold she was solely response for meeting, though one which was recommended in relation to a couple's earnings. The individuals who | believe are most affected by these rules though are the ones for whom a salary of £18,600 is just as unattainable as if it were £1million. They tend to be the people we come across in our daily life to whom we perhaps do not give a second glance; baristas, care and charity workers cleaners, nurses, security guards, supermarket workers; even ECOs. The Home Office does not seem to understand that by definition, not all can eam an average or above average salary, though this by no means makes them less entitled to a family life in their own country. BritCits has unsuccessfully sought to obtain from the SSHD statistics evidencing the considerable decline in the number of applications and spouse/partner visas granted following the amendments to the rules. We have found exercising rights under the Freedom of Information Act a farce when it comes to the Home Office, with it being near impossible to obtain any meaningful information, There is a repeated breach of the mandated 20 working days for provision of a response and when that response does come it is typically to the effect that it would take over 24 hours work to respond to the request and therefore would incur disproportionate costs in doing so. Lam aware that MiV’s solicitor has asked the Treasury Solicitor for confirmation of the numbers of applications that have been put on hold in line with the SSHD’s policy. At the date of completing this statement no reply hac! been given. 15Conclusion 88, From the material | have read, discussions | have had with members and others affected by the amended rules, as well as conversing with fellow campaigners and professionals, the consistent theme that arises is that the SSHD is either (a) ignorant as to the real life impact of her income threshold and financial requirements on family life, or (b) indifferent to it notwithstanding the misery that it has caused and continues to cause, 89. It must by now at least be abundantly clear to her the devastation these Rules are causing families, whether they include British citizens, residents or refugees given: | the APPG on migration report, number of letters our members alone have written to | their local MP who has in turn raised these concerns with the SSHD personally and/or the Immigration Minister, demonstrations held outside the Home Office, Mr Justice Blake’s ruling, the volume of appeals clogging up the courts, stalistics showing not just a decrease in the number of applications, but that @ smaller proportion of them lead to the issuance of a visa, rise in British citizens exercising ) their treaty rights to use the Surinder Singh route to return home, increasing number of media reports from around the country showing the incredulousness of the rules, the Children’s Commissioner citing long-term damage to children separated from thelr parents. The list goes on. The SSHD is neither ignorant nor unaware. After all, | the rules are working just as she intended. 90. The experience of BritCits members is that (i) income threshold is set at too high a | level, (i) the Rules are too strictly applied by decision makers without consideration of Article 8 ECHR or discretion (il) the evidential requirements are too onerous and complex and rigicly applied (iv) the Rules particularly adversely affect women, those | living outside London and the South East and the young. It Is likely to be having a similar effect on refugees also who remain silent victims. 91. 1am aware that the SSHD asserts she has introduced these measures in furtherance of social and economic policy and to promote sustainable migration. How can keeping couples, parents and children apart be sustainable? The impact felt by a wide range of people is just too intrusive, There are many things that the SSHD's policy makers could have thought about implementing to make the Rules workable and fair such as those set out in Mr Justice Blake's judgment. These have been ) ignoted with litle regard to how disproportionate and disastrous the consequent | interference in family fe has been as a general measure. Statement of Truth | believe the facts stated in this witness statement are true Print Name; SONEL MEHTA, Dated this 19" day of February 2014 16