Category: Successful Cases

Spouse Visa Refusal Successfully Challenged

Oksana Demyanchuk, Immigration lawyer (OISC Level 3) successfully represented the client in a difficult case and helped to challenge the Home Office’s refusal of the UK entry clearance – spouse visa application.

The basis of the spouse visa refusal was that the appellant has previously entered the UK on false documents and that she had used deception in a previous application by failing to declare that she was previously refused entry clearance.Therefore, deception was alleged by the Home Office and her application refused under both Appendix FM and paragraph 320(11) of the Immigration Rules.

After hearing the evidence from the sponsor of the applicant and upon reviewing evidence put forward by Sterling & Law Associates LLP, the Judge allowed the appeal on the grounds of Article 8 of the European Convention on Human Rights.

Private & Family Life

Article 8 of the European Convention on Human Rights provides a right to respect to individual’s private and family life. It was held that if our client’s husband relocates to Ukraine he would potentially be subject to military service. Our client was subsequently granted an entry clearance visa, as it was held that her husband cannot be reasonably expected to relocate to Ukraine to live with his family.

The judge had also taken into account the fact that the appellant had previously voluntary returned to  Ukraine and her intention to set matters right by making the proper entry clearance application from abroad.

The appeal was allowed on Article 8 of the ECHR grounds.

Tier 2 Dependent Entry-Clearance Success for Unmarried Partner

Just this week, the Home Office gave the all-clear for an entry-clearance to our client as an unmarried partner from Ukraine. The casework in this representative matter was led by Jelena Ivanova, Immigration lawyer (OISC Level 3).

What makes this case more interesting is that it serves as a positive example for many young couples who wish to relocate to join their partners currently residing in the UK, without bearing all the restrictions of being married.

This is a hopeful success story. The client’s partner received a job offer in the UK and was granted a a Tier 2 (General) visa to come to the UK. Our client did not wish to separate from her partner for an uncertain period of time and thus, applied for a Tier 2 (General) dependent visa as an unmarried partner. Our client and her partner have been in a relationship for more than 2 years, with no immediate plans to get married as they are a young couple who wish to focus first on developing their relationship together by spending time with each other. A phenomenon which is becoming increasingly popular. There is now a significant increase in immigration applications being received that are for the Applicant to join or be sponsored by their unmarried partner currently residing or working in the UK.

For our client, an unexpected matter in this case is that whilst in the Ukraine, our client had lived together with her partner at his parents residence. The evidence of cohabitation for at least 2 years that was subsequently provided in support of this application was of a limited nature. It was simply a witness statement from the client’s partner’s mother attesting that they were living together, accompanied by a copy of the tenancy agreement of their Ukrainian residence.

Unmarried Partner Applications

Note that in such applications the general rule for unmarried partner applications is that evidence of cohabitation must be provided for at least 2 years. However, it is true that residency and accommodation arrangements between couples or partners may vary depending on the country the Applicant(s) have previously resided in.

Therefore, it need not necessarily be the same as in the UK. In these events, alternative and convincing evidence can and have been considered as proof of the relationship of unmarried partners by the Home Office.

This successful case of Sterling & Law Associates reasserts that entry-clearance to the UK for couples is not limited to Applicants being married partners. There are many successful cases such as this, where alternative routes and applications exist for unmarried couples to gain UK entry-clearance.

Immigration Assistance

For expert advice and assistance in relation to your particular immigration case, please contact our immigration lawyers on Tel. +44(0)20 7822 8535, Mobile / Viber: +447463382838, by e-mail: contact@sterling-law.co.uk or via our online appointment booking form.

Rights of Former Husband of an EEA National Restored after Refusal and Revocation of Residence Card

Our client, a citizen of Ukraine, applied for a retained right of residence on the basis that he is a former husband of an EEA National who was exercising treaty rights at the time of divorce and subsequent to divorce he has been residing in the United Kingdom as a qualified person.

The marriage lasted for three years and both the client and his ex-wife have been residing in the United Kingdom.

The reason for the refusal was based on insufficient evidence of retaining rights of residence following the divorce from the wife according to regulation 10(5) of the Immigration (EEA) Regulations 2006.

In particular, the Home Office was concerned as to whether the ex-wife’s business was genuine and economically active. Based on this reason the Home Office revoked the residence card of the client.

Following the decision of the Home Office, the client instructed Sterling and Law Associates LLP to lodge the appeal on his behalf based on the breach of the rights under the Community Treaties, s 84(1)(d) Nationality, Immigration & Asylum Act 2002. In addition, it was claimed that the decision of the Home Office was unlawful under section 6 and 8 of the Human Rights Act 1998.

During the appeal hearing, the Immigration Judge considered all the evidence and submissions made by Sterling & Law Associates LLP on behalf of the client and noted that the sole issue in the matter was whether the Appellant’s ex-wife was exercising her treaty rights at the date of divorce.

The Judge confirmed that concerns as to the discrepancies in the documents of the ex-wife’s company as a genuine trading business were not sufficient to justify the Home Office’s position.

The appeal was allowed under Article 8 of the ECHR on the human rights grounds.

The casework in this successful appeal case was managed by the Immigration lawyer, Oksana Demyanchuk, who ensured that our client can continue his stay in the United Kingdom in accordance with his retained rights.

Immigration Assistance

For expert advice and assistance in relation to your particular immigration case, please contact our immigration lawyers on Tel. +44(0)20 7822 8535, Mobile / Viber: +447463382838, by e-mail: contact@sterling-law.co.uk or via our online appointment booking form.

Insurmountable Obstacles Proved in a Delicate Human Rights Appeal Case

Oksana Demyanchuk acted successfully in a complex human rights case involving insurmountable obstacles to family life outside the United Kingdom.

The client is a Ukrainian national who initially applied for Leave to Remain in the UK on the basis of her partner and private life. The application was subsequently refused by the Home Office and appealed to the Immigration Tribunal.

During the appeal process, the client (Appellant) had to show that there were insurmountable obstacles if she and her partner had to continue their family life outside the UK as well as a breach of her and her partner’s human rights.

Insurmountable Obstacles

As the Appellant had a successful appeal and was consequently granted leave to remain in the UK, her circumstances help to define what insurmountable obstacles would amount to.

The immigration Judge explained that insurmountable obstacles mean that the Appellant and her partner would be faced with very significant difficulties if they had to continue their family life outside of the UK, which could not be overcome or would entail very serious hardship for either the Appellant or her partner.

Her partner entered the UK lawfully as a student, lived in the UK for a period of over 19 years and has indefinite leave to remain. He held consistent employment throughout this time and bought a property where he lives with the Appellant and their children. On top of this, her partner recently underwent serious heart surgery, and was still recovering. The Appellant’s main responsibility was caring for her partner. Additionally, the Appellant plays a strong role in the upbringing of her grandchildren. It is therefore accepted that the Appellant has a close family unit within the UK.

Moreover, it is noted that the Appellant does not hold any property in Ukraine, nor does she have any immediate family, friends or neighbours in Ukraine. It can be seen that the Appellant has taken on a strong role as a carer within the family. In the case of Beoku-Betts [2008] UKHL 39, it was stated that when deciding an appeal on human rights grounds, it is important to take into consideration the effect that the decision would have on other family members with respect to their family life. In regard to this, strong considerations were made on the best interests of the children involved, specifically the Appellant’s grandchildren.

Additionally, the Appellant proved that she is able to speak and communicate in English. The Appellant does not and has never claimed state benefits. Furthermore, by allowing her to stay in the UK to take care of her partner, her partner would not have to seek help from social and health services thus helping to reduce the strain on public services. It should be noted that she is the only member of her family with an illegal status in the UK, the remainder of her family unit holds the legal right to remain and reside in the UK.

For this reason, it was acknowledged that our client and the family members would face extremely serious hardships if she was forced to return to Ukraine. Our client would have no employment, home, friends and family and thus have significant obstacles in reintegration back in her country of origin. Moreover, our client’s partner and the entire family unit would suffer without the care of the Appellant.

The appeal was allowed by the First-tier Tribunal under the Immigration Rules and the European Convention on Human Rights (1950)

This successful appeal ensures that our client will not be torn away from her partner and will now be able to stay in the UK with her partner.

 

Refusals & Appeals: Immigration Assistance

For expert advice and assistance in relation to your particular case, refusals and relevant immigration law requirements, please contact our immigration lawyers on Tel. +44(0)20 7822 8535, Mobile +44(0)74 6338 2838, by e-mail: contact@sterling-law.co.uk or via our online appointment booking form.

Spouse Visa

Spouse Visa Granted in 2 Months after 5 Years Illegally in the UK

One of our recent successful applications was an Entry Clearance Spouse Visa submitted by our client in Ukraine. Our client has been an illegal entrant for over five years and had previously been refused a visitor visa to the UK. Despite these breaches and significant defects of the client’s previous immigration record, his spouse visa application was successful.

Our client first met his spouse in 2015 and their relationship developed in the UK. The couple started living together in March last year and our company was instructed to assist the client with his voluntary departure from the UK so the couple could legally register their marriage in Ukraine.

His partner holds permanent resident’s status in the UK, which sufficient for the right to apply for the spouse visa from outside the UK.

According to the UK Immigration Rules, the partner does not need to be a British citizen to be eligible for sponsoring a spouse visa application. 

Following their marriage, spouse visa application appointment was booked at the Kyiv Visa Application Centre in February 2018. The application included details of all facts the client’s previous illegal stay in the UK and his voluntary departure. The Entry Clearance Officer requested several documents afterwards to confirm the Sponsor’s employment which were subsequently provided.

The application was decided in the middle of April, which is less than in two months after the appointment and submission of the spouse visa application.

Spouse Visa Application Process

Spouse Visa applications normally considered within 12 weeks. Having said that our client had paid for premium service, at a fee of approximately £573, where they have a 30-day timescale in which to make a decision on the application.

The procedure for the application is simple, application form needs to be filled out and appointment in the relevant country should be booked. Once you have attended the appointment, the relevant documents are sent to Sheffield processing centre or scanned at the Visa Centre. The decision will be made either within 12 weeks or 30 days depending on whether standard or premium service was paid.

Financial Requirement

If no children are involved, the threshold of the sponsor’s annual income of £18,600 must be met. In this particular case, our client’s spouse was working for the same employer for more than 6 months so we had submitted payslips, bank statements for the same period and letter from employer.

Alternative Options:

  • Alternatively, if a sponsor is able to show total amount of savings £62,500 that were held for the past 6 months confirmed by the bank statements or other evidence of source of funds, that would also be sufficient to satisfy the financial requirement.
  • If, however, your employment does not meet the £18,600 annual salary, it is possible to show a combination of savings and employment.
  • In case of self-employed, you would need to provide documents for the financial year as self-assessment tax returns, invoices, bank statements and so on as evidence of your self-employment activities.
  • Please note that other documents need to be provided, particularly evidence of your relationship and marriage with your spouse.

Spouse Visa Timing

This case demonstrates that it is possible to return to the UK as a spouse of a British citizen or a settled person even after having stayed in the UK illegally. In this particular case, it took only 2 months to secure our client’s right to enter the UK from outside. Therefore, it is always worth considering taking your application from outside the UK rather than fighting from within the UK where you may become liable to be detained.

The casework in this complex and sensitive spouse visa matter was successfully led by the immigration lawyer Aliya Rimshelis.

Immigration Assistance

For expert advice and assistance in relation to your particular immigration case, please contact our immigration lawyers on Tel. +44(0)20 7822 8535, Mobile / Viber: +447463382838, by e-mail: contact@sterling-law.co.uk or via our online appointment booking form.

Daiga Barzdina

Home Office reliance on testimony from hospitalised spouse deemed abuse of Human Rights

Successful immigration lawyer – Daiga Barzdina

Our client is a Ukrainian national who was granted a 5-year residence card on the basis of his Lithuanian spouse. When he applied for the Permanent Residence Card based on the same relationship, the Home Office refused his application on the sole ground that they deemed the marriage to be one of convenience.

In deciding this dispute, the Judge first had to determine whether an interview with the spouse should be excluded and then to consider the question of the marriage of convenience.

This is because the evidence used by the Home Office in coming to their conclusion relied mainly on their visit to the Appellant’s home and a telephone call to his wife on the same day.

Excluding Evidence

We argued that the telephone call made by the Home Office to the client’s spouse should be excluded from the evidence, relying on Elsakhawy (immigration officers: PACE) [2018] UKUT 86 (IAC). Judges can refuse to allow evidence that, if admitted, would have an adverse effect on the fairness of the proceedings.

In this case, the client’s spouse was in the hospital, having had suffered from strokes, heart attacks, and brain damage. The interview was conducted when the client’s spouse was being treated as an in-patient in the hospital. In the interview notes, it could be seen that the client’s spouse was disoriented as she could not spell her own name, her address, full name or even that she was married.

The judge held that this was a complete abuse of her rights and completely unnecessary because the investigation/inquiry could have been made when the client’s spouse had recovered from her condition. For this reason, the interview was excluded from the final consideration of the case.

Marriage of Convenience

A marriage of convenience is a marriage entered into for the predominant purpose of securing rights of residence in the UK. When the Home Office is considering whether a marriage is one of convenience, it is for them to prove that this is the case. The case of Papajorgii (EEA spouse – marriage of convenience) Greece [2012] UKUT 00038 (IAC) states that the important question is whether it is more likely than not that the marriage is one of convenience when it was entered into.

Without the interview of the client’s spouse, the main evidence that the Home Office was relying on was a home visit where they interviewed the client, saw that the Appellant might be living alone and that the house did not seem to be occupied by a female. They also saw a name on a mobile phone and documents relating to a divorce in Ukraine prior to his current marriage.

Following the home visit, no further enquiries were made, and the Home Office immediately decided that the Appellant’s marriage was one of convenience. This was not enough to show that the Home Office had a justified suspicion that the marriage was one of convenience when it was entered into, especially when our client was previously granted a Residence card on the basis of this relationship.

The appeal was allowed, and the determination of the First-tier Tribunal was promulgated on 27 April 2018. Following this appeal, our client has been issued with a Permanent Residence card and will continue to stay and reside in the UK.

The casework in this sensitive matter was handled by the Immigration lawyer, Daiga Barzdina.

Immigration Assistance

For expert advice and assistance in relation to your particular immigration case, please contact our immigration lawyers on Tel. +44(0)20 7822 8535, Mobile / Viber: +447463382838, by e-mail: contact@sterling-law.co.uk or via our online appointment booking form.

Entry Clearance Refusal of Six-Year-Old Child under Sole Responsibility Successfully Appealed

The Appellant, a six-year-old child, applied for entry clearance as a child whose mother has sole responsibility and stays in the UK as a partner of a British citizen under Section EC-C of the appendix FM of the Immigration Rules . The child was consequently refused by the Entry Clearance Immigration Officer. The refusal was successfully challenged by Sterling and Law Associates LLP at the First-tier Tribunal in April 2018.

The reason for the refusal was based on relationship requirement, in particular, due to lack of evidence of sole responsibility. Other requirements were uncontested by the Entry Clearance Officer.

Our client appealed on the grounds that the decision is not in accordance with the Immigration Rules and is unlawful under section 6 of the Human Rights Act 1998 as being incompatible with the Convention rights.

The mother of the appellant submitted that she has sole practical responsibility for the child from the age of two and that the appellant has no contact with the biological father for more than two years. In addition, the appellant`s mother took all decisions about the child as no one has had any significant input in child`s life since then.

Sole Responsibility

Following incorrect application of the test in the assessment of the sole responsibility by the Entry Clearance Officer in our client`s case the leading authority regarding the sole responsibility which has been applied in the court was TD (Paragraph 297(i)(e): “sole responsibility”) Yemen [2006] UKAIT 00049 which establishes that “sole responsibility” is a factual matter to be decided upon all the evidence. Last but not least, the Entry Clearance Officer failed to exercise the statutory duty under s55 of BCIA, which considers the welfare of the child.

Following the above, the Immigration Judge found that the Appellant`s mother has sole responsibility for the child. The Judge also confirmed that the decision interferes the family life of the mother and the child and that Article 8 of ECHR is engaged.

The appeal was allowed under Article 8 of the ECHR on human rights grounds, and the determination of the First-tier Tribunal was promulgated on 18 April 2018. This successful appeal ensures that the child can enter the United Kingdom to join mother and stepfather.

Refusals & Appeals: Immigration Assistance

The appeal was straightforward, with little opposition and clear facts, the family were granted their leave to remain in the UK. The Home Office may make mistakes in their decision-making, so it can be worth bringing your refusal to court to overturn any errors they may make.

Therefore, for expert advice and assistance in relation to your particular case, refusals and relevant immigration law requirements, please contact our immigration lawyers on Tel. +44(0)20 7822 8535 or by e-mail: contact@sterling-law.co.uk or via our online appointment booking form.

Straightforward Appeal with Little Opposition: Family Granted Leave

The Appellants include the father, mother and child, who are Philippine nationals, and were refused leave to remain in the UK. The appeal determination is simple, having been made in accordance with Paragraph 276ADE(iv) of the Immigration Rules and Article 8 of the ECHR, the only question that needed to be answered is whether it would be unreasonable to expect the child to return to the Philippines.

When answering the question at hand, it was stated by the Judge that “the Respondent does not identify a particularly clear or strong reason on which to refuse.”

The father entered the UK in November 2007, with the mother and child following in April 2009 as dependants, therefore the appellants had lawful residence for the entire period that they were in the UK.

Unreasonable for the Child to Leave

Moreover, the child entered the UK when she was six years old, having spent nearly nine years here, which is more than half her life. As the child spent her formative years here and having followed Azimi-Moayed [2013] UKUT 00197, when considering reasonableness, the residence of a child over the age of seven is likely to be more significant to a child than the first seven years of life. This places further emphasis on MA Pakistan [2016] EWCA Civ 705 that when a child has been in the UK for seven years or more, significant weight needs to be given on those years, there has to be powerful reasons to refuse leave one that has been established.

Finally, as the parents have proved that they have a genuine and subsisting parental relationship with a qualifying child and public interest does not require their removal, the parents are also granted leave to remain on the basis of their child.

The appeal was allowed under Article 8 of the human rights grounds, and the determination of the First-tier Tribunal was promulgated on 30 January 2018. This successful appeal ensures that the child can continue to strive in her education in UK accompanied by her parents.

Refusals & Appeals: Immigration Assistance

The appeal was straightforward, with little opposition and clear facts, the family were granted their leave to remain in the UK. The Home Office may make mistakes in their decision-making, so it can be worth bringing your refusal to court to overturn any errors they may make.

Therefore, for expert advice and assistance in relation to your particular case, refusals and relevant immigration law requirements, please contact our immigration lawyers on Tel. +44(0)20 7822 8535 or by e-mail: contact@sterling-law.co.uk or via our online appointment booking form.

Complex asylum appeal of Ukrainian national subject to conscription won

Sterling & Law Associates LLP continues to receive successful decisions from the Immigration Tribunal in the asylum cases.

Recently, we have successfully appealed a refusal of an asylum claim of an Ukrainian national who was subject to mobilisation in Ukraine and was summoned to join military service. The case was based on the applicant’s fear of returning to Ukraine because of the potential persecution by the Ukrainian authorities for his unwillingness to undertake military service and fight in the Russia-Ukraine war.

The asylum claim of the Appellant went through many difficulties due to his extradition to Hungary and return to Ukraine. This separated the appellant from his dependent wife and two children in the UK.

Upon his return to Ukraine, the Appellant was stopped by the border force and was detained for a short period of time. After release, he continued to receive summons. He had a strong reluctance to serve in the Ukrainian army and returned to the UK to be with his family. The second attempt to claim asylum ended with a refusal.

One of the reasons was the Home Offices`s disbelief that the applicant was still subject to undertake military service. Moreover, it was not accepted that his return to Ukraine would result in persecution or mistreatment. Another reason was the appellant’s failure to claim asylum as soon as he arrived to the UK.

Asylum Grounds

After the assessment of the Home Offices`s Country Guidance and Note dated April 2017 about Military Service in Ukraine, the Immigration Judge accepted that the Appellant fell within the criteria for those who are subject to military service in case of return to the country of origin.

The Judge found that the Appellant holds strong views against signing up for military service because “he is was not trained to fight at the front line and he is concerned what fill happen to his family if he is killed or injured“. Further, the real risk of arrest and persecution upon returning to Ukraine and the potential detention and imprisonment conditions according to VB Case led the Judge to a conclusion that would constitute a breach under the Article 3 ECHR.

On this basis, the appeal was allowed on human rights grounds. The decision was promulgated on 19 March 2018.

 

Asylum & Immigration Assistance

For expert advice and assistance in relation to your particular immigration case, please contact our immigration lawyers on Tel. +44(0)20 7822 8535, Mobile / Viber: 074 6338 2838, by e-mail: contact@sterling-law.co.uk or via our online appointment booking form.

Family with 7-Year Old Child Born in the UK Granted Leave to Remain

The Appellants are parents of a child born and raised in the UK. The parents entered the UK in 2007 and 2008 as either students or dependent spouses throughout their leave to remain in the UK with short periods of overstaying. They subsequently applied for leave to remain on the basis of their private life in the UK.

Following a decision by the Home Office to refuse the appellants’ applications for further leave to remain in the United Kingdom (UK), a successful appeal was heard at the Immigration and Asylum First-Tier Tribunal that granted leave to remain to the parents of a child born and residing in the UK for seven or more years.

Their application was initially refused because the Home Office stated that they did not meet the requirements set out in the Immigration Rules for the private life route, namely because the Home Office asserted that there would not be significant obstacles to their reintegration in Uzbekistan.

Having said that, the case concentrated on the child born in the UK where the decision must be made in accordance with Section 55 of the Borders, Citizenship and Immigration Act 2009 that the best interests of the child is the primary consideration. For this reason, a compelling argument was made for the appellants with regards to their child, namely that the child born in the UK would face severe discrimination in Uzbekistan or Russia due to language and cultural barriers, as well as having developed strong ties in the UK due to the child’s educational and cultural upbringing in the UK.

Additionally, Section 117B(6) of the Nationality, Immigration and Asylum Act 2002 states that the public interest does not require a person’s removal where that person has a genuine and subsisting parental relationship with a qualifying child and it would not be reasonable to expect the child to leave the UK.

The appeal emphasised on the case of MA (Pakistan) [2016] EWCA Civ 705, which states that the fact that the child has been in the UK for seven years is given significant weight in the proportionality exercise and that this establishes a “starting point that leave should be granted unless there are powerful reasons to the contrary”. In summary, it was decided that the child’s best interest is to remain in the UK and that the parent’s poor immigration history of short periods of overstaying was not a powerful reason to the contrary.

Child born in the UK

Moreover, the case shed a light on what it means to be a ‘qualifying child’ who ‘has lived in the UK for a continuous period of seven years or more’. The Immigration Judge held that ‘continuous period’ is not interpreted so absolutely in the Immigration Rules whereby applicants can make visits outside the UK, not more than six months at any one time, and it would not count as a break in the continuous period of at least seven years required.

This case is a significant decision as it further reinforces the idea that it is unreasonable to remove a child that was born and residing in the UK for seven years or more from what they consider to be their country of origin. As such, both parents were successfully granted leave to remain on the basis of their child.

The appeal was allowed on human rights grounds, and the determination of the First-tier Tribunal was promulgated on 21 March 2018. As a result of this successful appeal, the parents can continue residing and enjoying their family life in the UK with their child.

Immigration Assistance

For expert advice and assistance in relation to your particular immigration case, please contact our immigration lawyers on Tel. +44(0)20 7822 8535, Mobile / Viber: 074 6338 2838, by e-mail: contact@sterling-law.co.uk or via our online appointment booking form.