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Judicial Review-Private Life Route Unfair & Disproportionate

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Cent 2016
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Judicial Review-Private Life Route Unfair & Disproportionate

Post by Cent 2016 » Thu Mar 26, 2020 8:10 am

I am considering initiating a JR claim against the HO with regards to their immigration policy for the 20 years Private Life rule/route. This is the rule/policy where one could apply for an initial 30 months limited leave to remain after one has lived in this country for 20 years. Within this category, one would have lived in this country for 30 years before one could become eligible to apply for ILR.

I believe that the policy is unfair, disproportionate, irrational and discriminatory when compared to the rules/policies of other immigration categories. I consider that it contravenes Article 14 of the HRA 1998:

"Prohibition of discrimination"
"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status"
.

And the Equality Act 2010:
Section 29 (1a) "A person (a “service-provider”) concerned with the provision of a service to the public or a section of the public (for payment or not) must not discriminate against a person requiring the service by not providing the person with the service".
(2) "A service-provider (A) must not, in providing the service, discriminate against a person (B)—". (2a)"as to the terms on which A provides the service to B"; (2c) "by subjecting B to any other detriment". (6) "A person must not, in the exercise of a public function that is not the provision of a service to the public or a section of the public, do anything that constitutes discrimination, harassment or victimisation
".

I will submit that, while applicants of other routes such as spouse/marriage/partnership route are eligible to apply for ILR after 5 years, parents of a child under 18 are eligible after 10 years, etc. it is unfair and unreasonable that the Private Life applicants would wait until after 30 years. I would argue that it contravenes the Equality Act 2010 and the HRA 1998, those being the main grounds for my intended JR application. This is to test out the illegality, irrationality, procedural unfairness and incompatibility with the Human Rights of applicants in this category.

I welcome any thoughts, guidance, critiquing or pointing to a blind spot about this idea. Thank you in advance.

secret.simon
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Re: Judicial Review-Private Life Route Unfair & Disproportionate

Post by secret.simon » Thu Mar 26, 2020 3:14 pm

I would not get your hopes too high.

a) The court will keep in mind that a lot of your stay will have been illegal (outside the law itself; cf clean hands doctrine) and that it is ironic that a law-breaker comes to the courts for help in enforcing the law against others.

The courts may also take the view that there is a legitimate aim of discouraging breaking the law, and that illegal residence in the UK should draw a penalty in terms of acquiring permanent residence (i.e. you can't equate legal and illegal residence).

b) Courts tend to favour the government on matters of principle of immigration control-cf. the case regarding the Minimum Income Requirement (MM & ors. vs. SSHD), where the UK Supreme Court agreed with the government, stating that a rule that "causes hardship to many, including some who are in no way to blame for the situation in which they now find themselves, does not mean that it is incompatible with the Convention rights or otherwise unlawful at common law".

That requirement makes it difficult for spouses of British citizens to move to the UK and yet was ruled legal by the UKSC. If an immigration requirement that negatively impacts British citizens can be ruled legal, I would not give much chances for those impacting people illegally resident in the UK.

Paragraph 38 of that judgment also states "the Strasbourg case law has long drawn a distinction between the expulsion of “settled” migrants with rights of residence in the host country and the refusal to admit, or the removal of, migrants with no such rights."

c) You will need deep pockets to pursue such a case. The government may appeal this, maybe all the way to the UKSC. Even if you have lawyers who act without fees, keep in mind that there are court fees that need to be paid. And that if you lose, you will need to pay the legal fees of the winning side (i.e. all the government's legal fees).

d) Politically, keep in mind that the UK Parliament is supreme in terms of English law and that it is possible for the UK Parliament to disagree with the ECHR.

For instance, the European Court of Human Rights (ECtHR), which adjudicates on the ECHR, ruled in 2005 that prisoners should be allowed to vote, which the UK Parliament disagreed with for years. Finally, in 2017, a compromise was reached so that only a very small number of prisoners (fewer than 100 apparently), who were out of prison on remand or license, were allowed to vote. That compromise was acceptable to the ECtHR.

e) Some in the current government want to replace the Human Rights Act, which they see as too lenient, with a much more restrained British Bill of Rights (not to be confused with the English Bill of Rights 1689). A case such as the one you propose is only likely to provide political ammunition to people who want to get rid of the Human Rights Act and may end causing a loss of rights to a much wider group of people than who would gain from it.
I am not a lawyer or immigration advisor. My statements/comments do not constitute legal advice. E&OE. Please do not PM me for advice.

FXR_1340
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Re: Judicial Review-Private Life Route Unfair & Disproportionate

Post by FXR_1340 » Thu Mar 26, 2020 5:41 pm

Cent 2016 wrote:
Thu Mar 26, 2020 8:10 am
I am considering initiating a JR claim against the HO with regards to their immigration policy for the 20 years Private Life rule/route. This is the rule/policy where one could apply for an initial 30 months limited leave to remain after one has lived in this country for 20 years. Within this category, one would have lived in this country for 30 years before one could become eligible to apply for ILR.

I believe that the policy is unfair, disproportionate, irrational and discriminatory when compared to the rules/policies of other immigration categories. I consider that it contravenes Article 14 of the HRA 1998:

"Prohibition of discrimination"
"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status"
.

And the Equality Act 2010:
Section 29 (1a) "A person (a “service-provider”) concerned with the provision of a service to the public or a section of the public (for payment or not) must not discriminate against a person requiring the service by not providing the person with the service".
(2) "A service-provider (A) must not, in providing the service, discriminate against a person (B)—". (2a)"as to the terms on which A provides the service to B"; (2c) "by subjecting B to any other detriment". (6) "A person must not, in the exercise of a public function that is not the provision of a service to the public or a section of the public, do anything that constitutes discrimination, harassment or victimisation
".

I will submit that, while applicants of other routes such as spouse/marriage/partnership route are eligible to apply for ILR after 5 years, parents of a child under 18 are eligible after 10 years, etc. it is unfair and unreasonable that the Private Life applicants would wait until after 30 years. I would argue that it contravenes the Equality Act 2010 and the HRA 1998, those being the main grounds for my intended JR application. This is to test out the illegality, irrationality, procedural unfairness and incompatibility with the Human Rights of applicants in this category.

I welcome any thoughts, guidance, critiquing or pointing to a blind spot about this idea. Thank you in advance.
I guess you have a considerable number of years of being in the UK, maybe 20 years? How much income tax did you contribute during that time? Just askin...........

Sorry but your apparent arrogance is breathtaking. To take a position to challenge illegality from an apparent position of illegality is, as said, breathtaking. I wonder when/if you have questioned your own status?

blondesafari
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Re: Judicial Review-Private Life Route Unfair & Disproportionate

Post by blondesafari » Fri Mar 27, 2020 9:15 am

@FXR_1340 - I agree with you 100%! I find it appalling that people choose our beautiful country, live here illegally, then expect to be given a bonus of citizenship! Those of us who chose to come here legally, and contribute to the country, certainly so not agree with this.

FXR_1340
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Joined: Tue Oct 18, 2016 6:53 pm

Re: Judicial Review-Private Life Route Unfair & Disproportionate

Post by FXR_1340 » Sat Mar 28, 2020 8:06 am

blondesafari wrote:
Fri Mar 27, 2020 9:15 am
@FXR_1340 - I agree with you 100%! I find it appalling that people choose our beautiful country, live here illegally, then expect to be given a bonus of citizenship! Those of us who chose to come here legally, and contribute to the country, certainly so not agree with this.
It seems to be the modern way. Everyone wants Rights. Many dont want Resposibility.

avjones
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Location: London

Re: Judicial Review-Private Life Route Unfair & Disproportionate

Post by avjones » Sat Mar 28, 2020 11:10 pm

Discrimination under both the ECHR and the Equality Act 2010 is not straight forward in terms of immigration law. Immigration requirements by their very nature are discriminatory, and there are many exceptions for immigration decisions.

Other points to consider - do you have standing? That is, are you in some way affected by the policy in question? You can't bring a JR of a policy that doesn't have an impact on you, unless you are a collective body with an interest in the category in general.

This will be a complicated challenge.

Amanda
I am not, and cannot, offer legal advice to particular people. I can only discuss general areas of immigration law.

People should always consider obtaining professional advice about their own particular circumstances.

Cent 2016
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Joined: Sun May 15, 2016 5:38 am

Re: Judicial Review-Private Life Route Unfair & Disproportionate

Post by Cent 2016 » Sun Mar 29, 2020 5:56 am

Thank you to those who have commented on this post so far, as it is clearly a very controversial one and I can see that some people feel very strongly about it. But I am glad that it is generating some interesting debate and from well informed members of this forum.

However, to those of you who assume that I have been living here illegally, and or have been working illegally and therefore not paid tax, I say you are completely WRONG. I can confirm that I have been residing in the UK legally and I have paid, and continue to pay taxes through PAYE, annual self-assessment and corporation/business taxes. So, let me set that record straight.

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CR001
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Re: Judicial Review-Private Life Route Unfair & Disproportionate

Post by CR001 » Sun Mar 29, 2020 8:27 am

Char (CR001 not Casa)
In life you cannot press the Backspace button!!
Please DO NOT send me a PM for immigration advice. I reserve the right to ignore the PM and not respond.

FXR_1340
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Re: Judicial Review-Private Life Route Unfair & Disproportionate

Post by FXR_1340 » Sun Mar 29, 2020 10:13 am

Cent 2016 wrote:
Sun Mar 29, 2020 5:56 am
Thank you to those who have commented on this post so far, as it is clearly a very controversial one and I can see that some people feel very strongly about it. But I am glad that it is generating some interesting debate and from well informed members of this forum.

However, to those of you who assume that I have been living here illegally, and or have been working illegally and therefore not paid tax, I say you are completely WRONG. I can confirm that I have been residing in the UK legally and I have paid, and continue to pay taxes through PAYE, annual self-assessment and corporation/business taxes. So, let me set that record straight.
Happy to be corrected however the sentiment and the points raised remain valid. Delighted to learn appropriate taxes etc are being paid. If only those to whom you allude to in your OP did the same.

I cant understand why someone who is not affected is sticking their neck out unless it is from a professional stand point eg by a solicitor.

avjones
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Re: Judicial Review-Private Life Route Unfair & Disproportionate

Post by avjones » Mon Mar 30, 2020 12:22 am

Cent 2016 wrote:
Sun Mar 29, 2020 5:56 am

However, to those of you who assume that I have been living here illegally, and or have been working illegally and therefore not paid tax, I say you are completely WRONG. I can confirm that I have been residing in the UK legally and I have paid, and continue to pay taxes through PAYE, annual self-assessment and corporation/business taxes. So, let me set that record straight.
So you are not yourself in any way affected by the policy?
I am not, and cannot, offer legal advice to particular people. I can only discuss general areas of immigration law.

People should always consider obtaining professional advice about their own particular circumstances.

THO
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Vietnam

Re: Judicial Review-Private Life Route Unfair & Disproportionate

Post by THO » Wed Apr 01, 2020 2:21 pm

I also fail to see why Cent would want to take this action, action that will cost the UK HO time and effort to fight when they have precious little bandwidth as it is. Why is it you feel that anyone has the right to live here if they can hide and cheat their way to 20 years without detection.

These people are in a very large part, the reason visas are hard to obtain for everyone, and why they cost so much.

That said, I would advise you take the HO / Govt on, because you will loose for all the reasons pointed out so clearly by Simon, and that will teach you to bite the hand that feeds you.

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