Written evidence submitted by Gregg Brain

15 AUGUST 2016

Thank you for inviting us to give evidence to the Select Committee. We are grateful that you see our situation as worthy of your time and attention. We hope that you will also see that while our situation has received significant media exposure, there are hundreds or thousands of others in a similar situation. Many of these families are remaining silent for fear of retribution from the Home Office, on whom they are completely dependent for their next visa application.

I hope to be able to answer your questions on our experience attempting to navigate the Home Office immigration labyrinth, as well as highlight the opportunity for Scotland that is represented by Clearances descendants such as ourselves.

Scotland, and particularly the Highlands, has an enormous resource lying almost entirely untapped, completely idle. This resource is just waiting to help reinvigorate the Highlands; all that needs to happen is for the door to be opened.

The Scottish diaspora is an enormous population. Just in the USA, Canada and Australia, there are more than 12 million people claiming Scottish descent1,2,3. There may be as many another 2 million diasporic Scots scattered in other countries around the world. In my personal experience, Highlanders are disproportionately well- represented in these figures; for every Livingstone descended from a Paisley family, there are several MacLeods, McKinnons and Gunns from the Highlands and Islands.

Any of members of the Select Committee who have been in one of these countries to see a Scottish festival or highland games on the 1st of January will know, there is ‘none so Scottish as a diasporic Scot’. The vast majority of those 12 million are nursing a dream that one day they will return to the home of their ancestors, to live and work in the Highlands.

Of course, for something like 99% of these people, a dream is all it will ever be. Even if you were to give them a visa and an airline ticket, they would find some excuse to stay where they are.

However, even if just 1% would take up an opportunity if an immigration pathway were opened up for them, then that represents over 100,000 diasporic Scots who would make their way back here to live and work. The population and demographic decline of the Highlands could be reversed in a generation, and resolved in three.

The Clearance memorials all over the Highlands – the silent desolation of ruined villages lying in empty glens – could once again be filled.

1 http://www.factfinder.census.gov.

2 http://www12.statcan.ca/ - 2006 census; ethnic origins data

3 http://www.abs.gov.au – 2011 census; “Cultural Diversity in Australia

The value of this resource is implicitly conceded by the UK Government when they acknowledge the enormous economic value the UK receives by way of international tourism to Scotland, significantly by diasporic Scots visiting their ancestral homeland.

This ‘1%’ are people who speak the language, would be willing to work to support their dream and, given their passion, would put extraordinary efforts into assimilating into their ancestral communities. Cultural dissonance would be non-existent, and returns to country of origin correspondingly low.

Demographically, they are likely to have either a trade or profession to be able to finance such a move across the globe, and therefore will have a skillset to support themselves on arrival. They are likely to be young, and single or relatively recently married, therefore more likely to be mobile. For the same reason, they will probably have no children yet, or very young children.

As the previous witness Mr Danter rather bluntly requested, these young incomers would be the foundation for the ‘breeding pairs’ so desperately needed by the Highlands and Islands.

I have to say that by the time this submission is received and read, I am hopeful that my family will have the visas we need to stay. As a result, I anticipate that this statement will actually be of very little value to us personally.

I have, however, spent dozens of hours crafting it, in the hope that it will be the best contribution I can possibly make to the Committee. The reason for this is that there are hundreds of other incomer families who have not been given the opportunities that we have to speak to you on the experience of dealing with the Home Office, and there is a desperate need to expose the manner in which the Home Office interacts with their clients.

Indeed, I have spoken to many individuals and families who see themselves as being extraordinarily vulnerable, and dependent on the continuing good graces of the Home Office as they continue to negotiate the immigration labyrinth. They have told me that they are too frightened to speak up, for fear of retribution in the form of refusal on their next application.

I will of course detail our experiences, and present our perspective on the difficulties of dealing with the Home Office. I will also, however, give some details of a couple of other families in Scotland who have come to our attention. This is so that the Committee can appreciate that the Home Office treatment of us is, far from being unique, quite possibly the norm.

FUNDAMENTAL JUSTICE

The central platform of our position has always been one of fundamental, or natural, justice.

It is this: that a deal with the UK Government, once offered and accepted, cannot be unilaterally abandoned by one of the parties.

We had researched options for several years, following online and televised releases promoting the Highland Homecoming, Fresh Talent and post-study work visa programmes. These Home-Office backed programmes required students to undertake three, or four-year courses of study at accredited universities, after which a two year work visa would be available.

During this two-year post-study period, the graduate would work and demonstrate their value to their prospective employer, convincing this employer of the value in embarking upon the significant logistical headache and expense of sponsoring the graduate for a Tier 2 visa. I repeat for emphasis that this was a Home-Office backed programme.

As you can see, this course of action can take as much as six years to complete the ‘in country’ component. Of course, it is also necessary to invest perhaps a year, or even more, so that families such as ours can realistically plan and execute the move from, for example, Australia to the UK.

We successfully planned and executed this multiple-year course of action. Again, at the risk of irritating the Committee, I re-state that this timeframe was required and actively envisioned by the Home Office-backed plan.

You can therefore imagine what an outrageous breach of trust we experienced when we read the then Minister for Immigration (Mr Brokenshire’s) letter stating:

“Applicants should never assume that provisions in place at the time of their initial entry to the UK will continue to be viable options in future years.”4

The UK rightly prides itself on being the birthplace of the rule of law. In front of the Members of the UK Parliament to whom we were called to give evidence, an assumption of honesty and justice in dealing with the UK Government should simply be beyond question. To even be able to raise such a question should be offensive to the Members of this Parliament, who should feel compelled to remedy the injustice.

We worked and sacrificed for years. We upheld our end of the bargain. We had expected that Mr Brokenshire would express shame for the actions of his department, and offer to immediately remedy the situation. Instead, the former Minister chose to chide us for our naivety, committing our lives here based on an assumption that the UK government would deal with us honestly. This is an outrage which cannot be tolerated by a just nation.

We have been told that many other students have had to leave, based on this retroactive change to the visa structure. With respect to the undoubted accuracy of this comment, the fact that others have meekly accepted this rank injustice does not make it right.

We appear to be the last ones in the UK in this predicament – an assertion that the previous Immigration Minister declined to verify, despite our request.

4              Immigration Minister’s letter to Ian Blackford MP, 12 April 2016, page 2, paragraph 5

Even if we are unique, we are not too few to deserve justice.

As the Committee is aware, our situation has received global attention. Through social media we have been contacted by hundreds of people suffering various challenges at the hands of the Home Office. To our knowledge, the number of other people who have come forward, claiming to be in the same situation as us, makes for a very easy count:

Zero.

There is no ‘floodgate’ waiting behind us.

We have been told on more than one occasion of the transitional arrangements that were put in place at the conclusion of the post-study work visa, but only applied to those students who were in their final year in 2011/2012. This step highlights a central point that the Home Office has so far failed to recognise.

By implementing this transitional arrangement, the Home Office has conceded the very point I’ve been making all along – the moral imperative that these students deserved justice, and simply had to be given what they were promised. However, there were many students not in their final year of study, such as Kathryn, who (with her family) had committed just as much of their lives to the process as final year students. This group students were not afforded the integrity of the Home Office transitional response.

Having conceded that some are worthy of justice and integrity, there can be no defence for denying this same justice to others.

Since our testimony on 4 July 2016, the Home Office has introduced a pilot programme for a select few universities in England. The Home Office has publicly denied that this pilot is a ‘post-study work visa’ – despite the fact that it is designed to allow students to work after completing their studies, with a view to obtaining a Tier 2 visa. The current Minister for Immigration, Mr Robert Goodwill MP, has even described the ‘pilot’ as “post-study work arrangements” in correspondence with us.

With respect, the Home Office denial is simply playing with words.

In any event, I ask the Select Committee to indulge me for a moment, and imagine that the Home Office is to be completely honest with these prospective students.

Imagine that the Home Office promotes a programme to encourage Masters candidates, and perhaps their families, to leave their homes. They are induced to pay the significant visa application fees, meet the Home Office requirements regarding maintenance for the requisite 90 days prior to making that application.

Imagine that they are urged to pay the full-freight international student tuition fees to their chosen University, pay to freight their personal belongings (leaving them without these belongings for weeks or months), and purchase return airfares (a pre-requisite for the visa application) to move around the world to the UK.

Imagine that these students are inspired to plan and execute a move to the UK – to spend a year and a half investing their lives in their adopted communities, working and paying taxes. But with one simple proviso. These students are provided with an honest caveat. The one that was only belatedly provided to us in April of this year:

“APPLICANTS SHOULD NEVER ASSUME THAT PROVISIONS IN PLACE AT THE TIME OF THEIR INITIAL ENTRY TO THE UK WILL CONTINUE TO BE VIABLE OPTIONS IN FUTURE YEARS.”5

I don’t think I need to detail for the Committee the likely response of prospective international students to such a caveat, honestly presented.

A CULTURE OF ‘INVENTIVE REFUSAL’

Just counting from March of this year, a review of our correspondence with the Home Office has identified 15 errors of fact, law, or distortions of the truth so egregious that a further error has been committed in relying on them for public statements or decision- making. These errors have been fully referenced, described and substantiated in Annexure “A”.

Tellingly, every single one of these 15 errors supported a position of refusal – not one error was ever in our favour. That this could occur as a result of random chance is staggeringly unlikely.

In fact, the probability can be easily calculated. The probability of random chance driving all 15 errors against us, and not one in our favour, is less than one chance in 32,0006.

Given the above, it is frankly ridiculous to entertain any conclusion other than the existence of a deliberate culture of ‘inventive refusal’, in addition to a culture in which such errors are permitted, or perhaps even encouraged.

Mr Brokenshire’s most recent letter on our case contains a further two similar self-serving errors7 – attempting to bring forward the dates of the official announcement of the visa discontinuation by three months, and the implementation of the change by more than a year, to try and bolster his position.

Since testifying, we have received a 2 August 2016 letter from Mr Goodwill MP, containing a further five errors. It is all too easy to believe that this culture is being encouraged from very senior levels.

For whatever reason, my family is simply the one that the press has chosen to highlight. We have not courted the media; we have not approached a single journalist with a story. All we have done is made ourselves available to those who wished to talk to us. There are, however, hundreds or thousands of other families who have not been given

5              Immigration Minister’s letter to Ian Blackford MP, 12 April 2016, page 2, paragraph 5

6              http://calculator.mathcaptain.com/coin-toss-probability-calculator.html

7              Immigration Minister’s letter to Ian Blackford MP, 4 July 2016, page 1 paragraph 4

the voice or platform provided to us. We feel some level of responsibility to bring their situation to the attention of the Committee.

These families are battling not just the complex rules, which would be difficult enough, but at some level justifiable. They must also overcome this culture of inventive refusal, which is simply wrong. I can provide details of a couple of families in Scotland, as those details have been related to me, to illustrate the point:

• The Johnsons, in Tain. Mr Scott Johnson, a US citizen, was recovering from a heart attack when he made his application. Given that he was convalescing after a myocardial infarction, it can easily be seen that no airline would risk flying him to his home country – one is never so far from emergency medical aid as when on a transoceanic flight.

The Home Office, however, cited as one of the reasons for refusal that his application should have been made from the USA. The refusal letter stated, quite correctly, that the USA has excellent medical care available, while completely ignoring the obvious point that he could not get there. This family were in a grotesque situation, in that Mr Johnson’s wife and daughter – both British citizens – for a time had their passports confiscated, and were effectively told they could have them back when Mr Johnson withdrew his application.

• The Zielsdorfs, in Laggan. This family received from their local community over 60 letters of support for their business visa application. The business has ties to a popular TV show, and saves locals a 40-mile round trip for such basics as milk or a newspaper. Their shop is now a social hub, not just for the village, but for the rural community for miles around.

The Zielsdorfs also asked for, and obtained, written Home Office assurances that the manner in which they proposed to meet some of the business visa requirements was acceptable. Having met the requirements as agreed, the Home Office then rejected the application, stating that, inter alia, these specific requirements had in fact not been met – prior written agreement notwithstanding.

• There are also the Beard family of Spean Bridge, the Phillips family in Glasgow, and Olivier Monongo and his family. These are families that have businesses in Scotland, caring for elderly family here, or have been volunteering to assist some of the world’s most downtrodden. All of them have been refused by the Home Office, or been actively penalised for their altruism. This extends to the perversity of using time spent with the Red Cross as the reason to accuse the applicant of being of ‘bad character’. It is for these people, and the thousands standing silently behind them, that we hope to speak.

NO REASONABLE EXPECTATION OF REMAINING IN THE UK

With reference to the Home Office position that we could not have formed a reasonable expectation of remaining in the UK beyond the period of Kathryn’s studies, I refer the Committee to the various programmes promoting the Home-Office backed post-study work visa to indicate exactly what our expectations were.

The expectations of a long-term right to stay was even admitted by Theresa May, as Home Secretary, when she said that there was an almost guaranteed path through a Tier 2 visa to Indefinite Leave to Remain. She has also been quoted in the media:

"Mrs May, in a written statement to Parliament, said: "Up to this point, settlement in the UK has been a virtually automatic consequence of five years' residency as a skilled worker (Tier 2) … She added: "The volume of migrant workers settling in Britain has reached record levels in recent years."8

Had the Home Office acted honourably, Kathryn would have had two years to secure a Tier 2 complying job through a Post Study Work Visa (which has now been taken from her). By that stage, she could have had at least 12 months experience in a position relevant to her study and would have made herself valuable enough to an employer to go down that route to a Tier 2 visa and possibly command the premium

£20,800 salary.

Please keep in mind Mrs May’s statement when I point out that Kathryn has in fact achieved at least two job offers that would qualify for a Tier 2 visa in just ten months. The first of these offers predated any media attention highlighting our situation, so there can be no question of us achieving this goal. Even the current Prime Minister shared our expectation that we would have achieved Indefinite Leave to Remain, and any assertion to the contrary is simply not sustainable.

Ms May, as Home Secretary, has also previously stated in evidence to this Committee:

“And as I’ve said, we want to ensure the brightest and the best can come to the United Kingdom. Those who wish to contribute to our economy and our society. We want to make sure we’re fair to those who do the right thing, who’ve come here - and done it in the – in the right way…”9                                                                       [bold added for emphasis]

Our situation is no more complicated than has been described by the current Prime Minister. Fairness is all that we have ever asked for. All we ask is that the UK government honour the commitment it made to us regarding a two-year post-study work visa, when we committed our lives to the UK.

As I stated in my oral testimony, I fully recognise the right of a sovereign state to change its immigration policy, to best meet a constantly evolving national interest. That said, the state has an obligation to deal honestly – not just with its citizens, but incomers who have complied in good faith with the programmes offered.

I understand that the current Immigration Minister cannot give us a two-year post-study work visa, as such a visa no longer exists – at least, not for the university and course

8              http://www.bbc.co.uk/news/uk-politics-17204297, 29 February 2012.

9              The Home Secretary Theresa May, giving oral evidence to the Home Affairs Select Committee, 16 December 2015

that Kathryn attended. This is not our fault; we have done nothing to deserve a retroactive cancellation of the programme offered to us.

However, as has been stated above, when our application for an FLR(O) was rejected, the rejection letter contained several errors, both of fact and law. This application could legitimately be reviewed, and a visa granted under the FLR(O) guidelines for a period of two years, with the right to work for both my wife and myself. During this period, Kathryn would then be able to pursue and, I am confident, obtain a Tier 2 work visa without the extraordinary time pressures currently imposed upon us.

CORRECTING THE RECORD

I would also like to correct the record presented to the House of Commons during the Urgent Question on our situation on 26 May 2016.

We were struck by the fact that Mr Brokenshire listed every transaction we have had with the Home Office, save one. He then twice repeated that we arrived in June 2011, after the March 2011 ‘announcement’ that the post-study work visa was to be discontinued. In this he is correct. He seemed anxious to communicate to the House that we knew of the change before we got here, and therefore arrived on the 'new deal'.

It also clearly demonstrates that he had been very thoroughly briefed on our file.

That being the case, it is difficult to believe that he did not know of the one transaction he omitted, the one that completely undermines his point. Our visa was applied for, granted and issued in 2010, the year before this visa cancellation was decided and announced. Just to get to this point in 2010, we had been required to commit over

£20,000 in visa fees, legal fees, maintenance funds and booked return airfares for two adults and one child. For context: in 2010, £20,000 was a substantial deposit on a house in Inverness.

By March 2011, we had exchanged contracts on our home in Australia, our furniture and effects were already in a shipping container half way to Scotland, and non-refundable flights had been booked and paid for. We were very thoroughly committed on the 'old deal'.

I also state that despite having to provide several points of contact in our visa application, and the Home Office no doubt having accurate figures of exactly who had applied for and been granted a student visa, we were not proactively made aware of this ‘announcement’.

As I testified before the Committee, we became aware of the discontinuation of the post-study work visa some time in 2012, when the change was covered in the media. With my knowledge of fundamental legislative principles, I was quick to reassure my wife that the change could not be retroactively applied to us; it must apply only to those who arrive after the date the change came into effect.

Although setting out the above for the sake of an accurate record being presented to Parliament is very important, I must also confess that it doesn’t really impact on our situation.

Mr Brokenshire’s oft-repeated comparison of the dates of the announcement and our arrival in the UK, and when we became aware of the change in the visa pathway, is of tangential relevance at best. It’s a red herring introduced by Mr Brokenshire to the House of Commons and the public debate of our situation, and helps no one. It once again falls to us to put this non-issue to rest, at the risk of boring or irritating the Committee.

It has been put to us that we have had years to adjust our plan to the new visa parameters. Disappointingly, this argument has even been aired by the current Minister for Immigration, who has said:

“Although the family have said they were unaware of the announcement until 2012, they have still had a number of years in which to search and apply for jobs which would qualify under Tier 2.”10

With respect to the Minister, he has been very poorly briefed. Otherwise, he is willingly presenting an argument which is so far short of an honest assessment of the situation as to be unbecoming of a Member of Parliament.

The Minister (or his advisors) know only too well that had Kathryn applied for and accepted a job that complied with the Tier 2 visa requirements, she would have breached at least three visa conditions applicable to her student visa: