Appeal allowed on grounds of private and family life despite deception in previous immigration application

An Uzbekistan national (Appellant) was refused a leave to remain in the UK when she could not demonstrate that she meets English language requirements, and subsequently refused a right to remain in the UK on the basis of her family life in the UK for the use of deception in her previous immigration application through using a proxy speaker during the English language test.

However, the refusal by the Secretary of State (Respondent) was successfully challenged and appeal was allowed on the human rights grounds.

The Appellant used deception when undertaking English language test for her student visa application and its extension.

The main question for the Judge was whether it is in the public interest to allow someone who has used deception in order to extend her leave to remain in the UK under Article 8.

The Judge has noted that it was important to consider the history of proceedings: an appeal to the refusal was initially allowed but reconsidered by the Respondent and the decision reversed. Furthermore, the issue of deception had been considered by the First Tier Tribunal and the Upper Tribunal in previous proceedings.

The Appellant formed a family life in the UK with her husband, in the belief that the issue of deception had been determined in the previous proceedings. This, together with the interference in the family life of the Appellant’s husband, were the material reasons to allow the appeal.

However, the Judge noted that he would not normally allow the appeal on these facts, had it not been for the history of the proceedings and insurmountable obstacles the Appellant’s husband would face if they had to move to Uzbekistan. 

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/Viber: 074 6338 2838, by e-mail: or via our online appointment booking form.

Leaving the EU – Impact on Human Rights: Conference Summary Report

Sterling & Law Associates LLP were delighted to attend and participate in a high-level conference “Leaving the EU – Impact on Human Rights” organised by New Europeans[1], together with the European Association for the Defence of Human Rights (AEDH)[2], Britain in Europe[3] and Brunel University Knowing Our Rights project[4], and held in London on 16 March 2018 at Europe House

The event was organised to discuss the potential impact that Brexit would have on a number of our individuals’ rights and examine areas of human rights under threat for EU citizens and UK citizens.

The conference shed some light on key contentious areas such as workers’ rights, data protection, and family life among others. These are increasingly important topics to discuss as we move nearer and nearer towards the exit date of UK from the EU, especially when those in charge fail to provide specific indications into the details of these niche areas.

Brexit implications for human rights

There is a great fear that Brexit will lead to the regression of many of our rights. In the current state, a number of our fundamental rights derive from the European Convention on Human Rights (ECHR) and the European rules, regulations and directives. The Withdrawal Bill that proposes to implement Brexit could seek to remove several of those rights. For instance, in terms of employment law, the EU sits at the heart of workers’ rights[5] having brought about greater health and safety regulations that reduced the number of work days loss to absences and sick days, bringing about equal pay for equal value work and ensuring our right to parental leave. The Withdrawal Bill could possibly see the removal of these rights.

Data Protection Concerns

When it comes to data protection[6], the General Data Protection Regulation[7] (GDPR) proposed by the EU that comes into force on 25 May 2018, which has been implemented in the UK through the Data Protection Act, could lose all strength and meaning following Brexit. From an immigration perspective, the Data Protection Act includes an exception to the regulation for ‘effective immigration enforcement’. This means that if an individual is suspected of breaching immigration controls, the Home Office and other governmental agencies would be able to obtain and use personal data, that had been collected for purposes unrelated to immigration, to make a decision in regard to an individuals’ immigration status. This exemption could also mean that the Home Office would not be obliged to respond to Subject Access Requests (SARs) from people who wish to know what data has been held in relation to their previous immigration applications or situations at border controls. This is distressing because SARs are often used by legal practitioners to acquire necessary information to advise their clients on their specific circumstances, particularly when their clients do not have a clear record of their previous situations. Brexit could mean that the UK could get away with including such a wide-ranging exception into the legislation.

Photo by New Europeans


Family and private life

The conference also delved deeper into the impact that Brexit would have on our family and private life[8]. Research and analysis is currently being carried out into the effects on different categories of families. In the UK, 12% of all children born in the UK have at least one parent that is from the EU. After the referendum, there has been a sharp increase in the number of EU citizens in the UK applying for permanent residence applications and citizenship applications. However, while it might give you some peace of mind before the exit, the permanent residence card or document certifying permanent residence will not be considered valid after Brexit. EU citizens in the UK and their family members will have to reapply for a ‘settled’ status in the UK. However, as the exact details and processes are yet to have been announced, the rights of the EU citizens in the UK and those of UK citizens abroad in other EU countries have not been guaranteed. Brexit is seeking to remove EU citizens’ and their families’ free movement and automatic rights within the UK and create an entirely new system that has yet to be executed.

These alarming possibilities after Brexit gives rise to the question, as brought up by a participant at the conference, of whether the stripping of our access to these rights given to us through the EU would amount to an infringement of our human rights in itself.

Despite what has been mentioned in this article, no one knows for certain what is going to happen to our human rights after Brexit, let alone anything else relating to the UK, EU and Brexit, but it is important to keep updated on the news to ensure that we are all prepared for the big change coming our way.

Throughout the entire conference, it has been evident that Brexit has and will bring about an unjustifiable amount of uncertainty into our lives. This uncertainty underlines the discussion with ifs, doubts and questions that cannot be answered with a simple response. It is clear that the complexity of the matter, namely what effect Brexit will have on our fundamental human rights, cannot be easily resolved. However, what we can take away from this event is that there are several organisations and individuals that are currently fighting to ensure that our intrinsic human rights are not infringed.

It is our goal at Sterling & Law Associates LLP to help individuals and families to navigate this complex area of law and to keep EU nationals updated on any changes that may affect their life.


[1] New Europeans is a civil rights organisation that campaigns for freedom of movement, non-discrimination and the principle of solidarity in Europe. This is done by giving a platform to European and non-EU citizens a voice in local communities to join and take part in the Europe-wide debate regarding the challenges that we are currently faced with.

[2] AEDH is a European network of over 30 individual and organisation members to defend and promote human rights in the EU.

[3] Britain in Europe is a think tank based at Brunel University London that brings together academics, legal practitioners, and human rights NGOs across Britain and Europe to conduct research and influence public policy.

[4] The project aims to provide analysis and insight into understanding the impact and application of the European Convention on Human Rights in the UK.

[5] This topic was discussed by Hannah Reed from the Trades Union Congress (TUC).

[6] This topic was discussed by Gracie Bradley from Liberty, a UK human rights and civil liberties campaign group.

[7] The GDPR was proposed to unify data protection rules for individuals within the EU. It seeks to protect personal data that is stored on computers or filing systems for example by ensuring that organisations that hold your personal information need to notify you if they share it and be transparent about how they process and use that personal information. The reason why this regulation is seen to be a move forward in this area is that there are real risks that can arise from non-compliance such as fines of up to 2% – 4% of the company’s global turnover.

[8] This topic was discussed by Dr. Nando Sigona from the Institute for Research into Superdiversity at the University of Birmingham.

UK Visa Fees

UK Visa Fees from 6 April 2018

A number of changes to the UK visa fees will come into effect from 6 April 2018.

The key changes to the Home Office fees are outlined below:

  • Increased UK visa fees on growth routes (work, study and visit) by 4%.
  • Increased fees on most non-growth routes (nationality, settlement, family) and most associated premium services by 4%.
  • The fee for the overseas optional ‘Priority Visa’ service for entry clearance will increase by 15%.

The government has not made any changes to fees under the sponsorship system. UK visa fees for entry clearance to enter the Channel Islands and Isle of Man will rise in line with fee changes seen in the rest of the UK.

UK visa fees for all applications made from outside and within the UK



Outside / Inside UK before 6 April 2018


Outside / Inside UK after 6 April 2018

Tier 1 Investor £1,561 £1,623
Tier 1 Entrepreneur £982 / £1,228 £1,021 / £1,277
Tier 1 Graduate Entrepreneur £349 / £474 £363 / £493
Tier 2 – 3 years £587 / £677 £610 / £704
Tier 2 – 5 years £1,174 / £1,354 £1,110 / £1,408
Sponsorship License Application  £536 £536
Tier 4 £335 / £457 £348 / £475
Tier 5 £235 £244
Family Settlement (Spouse Visa) £1,464 / NA £1,523 / NA
FLR (FP, O, M, S) NA / £993 NA / £1,033
MN-1 (Registration child – British Citizenship) £973 £1,012
AN (Naturalisation – British Citizenship) £1,282 £1,330
Indefinite Leave to Remain (Settlement) £1,464 / £2,297 £1,523 / £2,389
Other dependant relative £3,250 / NA £3,250 / NA
Visit visa – short up to 6 months £89 / NA £93 / NA
Visit visa – long up to 2 years £337 / NA £350 / NA
Visit visa – long up to 5 years £612 / NA £636 / NA
Visit visa – long up to 10 years

£767 / NA

 £798 / NA
EEA Applications (all forms)

free / £65

free / £65

A full list of the new UK Immigration, Visa and Nationality Fees can be found on

Other relevant changes and updates

NHS Immigration Health Surcharge will increase to £400 a year in 2018

New Fees 2018: British Passport Applications

Deadline for employers (Tier 2 sponsors) – 5 April 2018

New Online Application System launched for Tier 2 migrants and PBS dependants

Changes to the Immigration Rules 2018

Immigration Assistance

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

Insurmountable obstacles rule featured in Appendix FM of Immigration Rules in cases concerning partner relationships

The application and interpretation of the “insurmountable obstacles” rule aims for a balance between the Article 8 rights and the legitimate aims of immigration control. The Rules therefore account for the cases where people apply for a leave to remain as partners and the following applies:

“(b) the applicant has a genuine and subsisting relationship with a partner who is in the UK and is a British citizen, settled in the UK or in the UK with refugee leave or humanitarian protection, and there are insurmountable obstacles to family life with that partner continuing outside the UK.”

“Insurmountable obstacles” are defined as very serious difficulties, which would be faced by the applicant or their partner in continuing their family life together outside the UK and which could not be overcome or would entail very serious hardship for the applicant or their partner. Therefore, the focus is on the difficulties to be faced by the couple in continuing their family life outside the UK.

Although this entails a high test, it does not mean literally insurmountable obstacles. In practice, interpretation of this rule is practical and realistic. In establishing insurmountable obstacles, the following factors may be taken into consideration, as per Jeunesse v Netherlands [2014] ECHR 1036:

  • Whether family life would be effectively ruptured;
  • Whether there are any ties in the Contracting State (and their extent);
  • Factors of immigration control (eg, history of immigration law breaches);
  • Public order

There are a few other considerations that can influence the application of insurmountable obstacles to a particular case.  

  • Firstly, it is important if the applicant’s stay in the UK is unlawful or precarious. This affects the weight attached to the public interest in removing the person from the UK. Accordingly, the weight of public interest is determined by the outcome of immigration control over the applicant.  This can be illustrated by two contrasting scenarios. If the applicant’s stay in the UK was unlawful and they would be deported as a foreign criminal, the public interest in their removal is elevated. By contrast, if it is certain that the applicant would be granted leave to enter the UK after being removed, the interest in such removal is diminished, as illustrated by the Chikwamba rule.
  • Secondly, a less stringent approach might be appropriate if the applicant and their partner were under a reasonable misapprehension of their ability to maintain a family life in the UK. In practice, this would apply, for example, in cases when someone is brought to the UK as a child and not informed of their immigration status.

Nevertheless, even though it is established that the test of insurmountable obstacles is high, the Agyarko case also notes that if the test is not met, but the refusal of the application would result in unjustifiably harsh consequences, the refusal will be disproportionate and a leave granted under “exceptional circumstances”. Therefore, despite a high threshold of the test, there are many factors that affect the decision of a court or tribunal when each individual case is being decided.

New Immigration, Visa and Nationality Fees 2018-19

Legislation was laid in Parliament on 16 March 2018 which sets out a number of changes to immigration, visa and nationality fees.

These changes will come into effect on 6 April 2018.

Careful consideration is given to individual fees to help reduce the funding contribution from UK taxpayers, whilst continuing to provide and invest in a service that remains attractive to our customers and competitive with other countries.

The key changes are outlined below:

  • Increased fees on growth routes (work, study and visit) by 4%.
  • Increased fees on most non-growth routes (nationality, settlement, family) and most associated premium services by 4%.
  • The fee for the overseas optional ‘Priority Visa’ service for entry clearance will increase by 15%.
  • For the fourth year running, there will be no any changes to fees under the sponsorship system.
  • Fees for entry clearance to enter the Channel Islands and Isle of Man will rise in line with fee changes seen in the rest of the UK.

A full list of the new fees can be found on

Successful appeal against a refusal to grant permanent residence on the ground of marriage of convenience

Sterling and Law Associates LLP have been successful in appealing a refusal to grant permanent residence to a former spouse of a EU citizen. The Secretary of State (Respondent) refused to grant permanent residence to a Ukrainian national who is a former spouse of a EU citizen because it was argued that the marriage was one of convenience.

The major reason it was deemed to be a marriage of convenience was that the Appellant had a post-divorce relationship with a woman and their child, whilst in a relationship with the EU citizen concerned. Moreover, the Appellant failed to give accurate and consistent responses to questions at the interview conducted by an Immigration Officer.

Marriage of convenience definition

The Judge carefully considered what is meant by “a marriage of convenience”, concluding that a marriage is considered one of convenience if it is contracted for the sole and predominant purpose of gaining an immigration advantage. It was noted that it cannot be considered a marriage of convenience simply because it brings such an advantage.

Even though the Appellant continued his relationship with previous spouse at the time, the Judge found that there was no suggestion they lived together at the time he was in a relationship with a EU citizen.

In fact, there was a significant amount of documentary evidence showing that the marriage was genuine.

Inappropriate behaviour of Immigration Officers during enforcement visit supported by Upper Tribunal Judgement

Appeal against removal directions on the grounds of undergoing a sham marriage is dismissed after the Upper Tribunal judge finds the claims about inappropriate behaviour of Immigration Officers (IOs) during an enforcement visit unfounded.

The Appellant is an Egyptian national entered into a marriage with an EEA national whilst overstaying in the UK after his 6-month visitor visa expired. The Appellant had removal directions issued against him after an enforcement visit to the place he was temporarily residing at.

It was alleged by the Appellant that the IOs were behaving in a threatening manner and did not follow the procedure required by law, namely the Police and Criminal Evidence Act 1984 (PACE) requirement to give the Appellant a criminal caution.

The Respondent disputed the allegations about the inappropriate behaviour of the IOs and argued that PACE guidance did not apply in the present case because the situation concerned an administrative rather than criminal procedure.

Having reviewed the evidence available, the Judge found that the Appellant’s claims and criticisms of the IOs’ conduct to be unreliable, and supported the Respondent’s argument that PACE guidelines did not apply to the present case, thus ruling that the IOs did not breach PACE by failing to give the Appellant a criminal caution.

The distinction between criminal and civil proceedings was crucial to uphold to avoid the confusion between the two very different sets of rules.

The case, nevertheless, is very helpful at reminding us about the procedure the IO need to follow when making an enforcement visit. It notes that the Secretary of State made a Codes of Practice Direction in 2013, which states that:

  • A person, suspected of an offence, must be cautioned before any questions about an offence are put to them. There is no need to be cautioned, however, if questions refer to other necessary purposes, such as obtaining information by a statutory requirement.
  • The person must be told that they are not under arrest and informed about how they may obtain legal advice.
  • The caution must be in the following terms: “You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in Court. Anything you do say may be given in evidence.”
  • The caution should not be given when the questioning is intended to establish basic facts such as identity, however the purpose of questioning must be identified.
  • If a reasonable suspicion that the person in question is liable to be held in immigration detention arises out of known information, person’s actions or information discovered during the enquiry, and the person must be arrested, they must be given the administrative explanation or criminal caution.
  • The arrest must be necessary to progress the case
    • It is unlikely that arrest would be appropriate if the person’s immigration status is known and no progression on the case will be made by arresting them.
  • The person under arrest must be informed that:
    • They are under arrest and not free to leave;
    • The reason for the arrest;
    • Why it is necessary to arrest them.
  • Where IOs use criminal powers to make an arrest they must comply with PACE
    • To have a criminal power of arrest, IOs must have a genuine intention to prosecute the individual and have reasonable grounds to suspect that the person has committed or attempted to commit a criminal offence
  • Where IOs use administrative powers to make an arrest, they must notify the person of their detention and reasons for it as per Immigration Act 1971.

Refusal of asylum to a Ukrainian national successfully appealed on human rights grounds

A Ukrainian national (the Appellant) was refused asylum claim by the Secretary of State (the Respondent), however the refusal was successfully appealed on the ground that the removal of the Appellant from the UK would breach his Article 3 ECHR right, which prohibits inhuman or degrading treatment or punishment.

The Appellant is a Ukrainian national with Russian background, illustrated by a Russian military card, who had continuously ignored summons for military service in Ukraine. After obtaining a UK visa, the Appellant claimed asylum on the basis of his fear of harsh treatment and possibility of being forced to fire upon “fellow Russians” upon his return to Ukraine. The Respondent has argued that the Appellant did not provide sufficient evidence of his Russian background or military summons, which were allegedly destroyed by his wife who stayed in Ukraine.

The Judge noted that ill-treatment is not as severe as prosecution, however he admitted that the Appellant would likely be treated as draft evader in Ukraine. Despite the argument that Ukraine offers some alternatives to military service, which the Appellant did not consider, the Judge noted, with reference to the case of RY 2016, that there was a reasonable degree of likelihood that the Appellant would be at risk of being detained as a draft evader, especially provided his Russian background.

Together with an expert confirming the genuineness of the Appellant’s Russian military card and one summon letter, the evidence and arguments presented led to the Judge finding that the refusal to grant asylum to the Appellant could breach Article 3 rights.

On this basis, the appeal was allowed.

Separation of a British child and Brazilian mother is a disproportionate interference with the mother’s human rights and child’s best interests

The case arose out of the Secretary of State’s (the Respondent) refusal to grant a Brazilian national (the Appellant) leave to remain on the basis of her family and private life in the UK with her British child.

The Respondent suggested that the Appellant leaves the UK and makes a new application to have a right to be in the UK, however the Appellant argued it would be an unreasonable interference with the best interests of her child.

The focus of the appeal therefore was whether there is a genuine and subsisting relationship between the Appellant and her British child, and whether it is unreasonable for the child to leave the UK.

Despite the fact that the child was born in Brazil and spent most of their life there, and the fact that the Appellant failed to demonstrate that there existed significant obstacles to their re-integration in Brazil, the Judge considered that it is important to consider the best interests of the child.

The Judge attached great weight to the fact that the British child needs to have contact with both parents and have no disruption to education, all of which would not be possible if the child had to return to Brazil, or if the Appellant had to leave the UK, even for a while. It was held that it was in the child’s best interest to stay in the UK to maintain relationship with their father.

As to the question of reasonableness of the requirement to leave the UK, the Judge held that it was not reasonable to require the child to leave the UK. It was highlighted that children are innocent in the choices their parents make [55]. This finding meant that the Appellant met the requirement of having a genuine and subsisting relationship with a child, and it would be unreasonable to expect the child to leave. This rendered the Respondent’s decision a disproportionate interference with the Appellant’s Article 8 rights.

This emphasises that the interests of British children are given considerable weight when determining the outcome of immigration matters of their parents.

For expert advice and assistance in relation to your particular case and relevant immigration requirements, please contact our immigration lawyers on 020 7822 8535 or book a consultation via our online appointment booking form.

Appeal allowed in a case of dependent parents of EEA nationals residing in the UK

Brazilian nationals (the Appellants) were refused their residence cards on the basis of being dependent family members (parents) of EEA nationals exercising Treaty rights in the UK, however the appeal against this decision by the Secretary of State (the Respondent) was allowed.

The Respondent refused to grant residency cards to family members of Italian nationals (Sponsors) on the grounds that insufficient evidence was presented to prove that their presence in the UK was in compliance with Immigration (EEA) Regulations 2006. It was also argued that the Sponsors did not provide evidence of “effective working” in the UK. Furthermore, the Respondent questioned whether the UK law recognises the Brazilian common law marriage between the Appellants.

The wider circumstances of the case also include complicated pregnancy of the Appellants’ daughter and inability of the Appellants to seek employment or provide for themselves otherwise due to health problems. It was the Sponsors who continuously financially supported the Appellants, both in Brazil and the UK, however there was insufficient evidence of it because it was not deemed appropriate by the family to collect such information.

The Judge ruled in favour of the Appellants, noting that in cases of dependency, there is a need to examine all the circumstances of the situation, as per Reyes (2013).

Dependent parents of EEA national: proof of dependency

Having considered the witness statements and evidence that was available, the Judge concluded that the Appellants were indeed dependent direct relatives of the Sponsors, who were indeed exercising Treaty rights. As to the question of recognition of Brazilian common law marriage, it was held that the UK law recognises such marriage, as per CD Brazil (2008) UKAIT.

This case shows that even in cases where there is insufficient evidence of dependency, with expert legal advice, there is a good chance to challenge the decision to refuse a residence card on the basis of being a dependent family member of an EEA national.