Tag: Appeal

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.

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.

Flawed UK Immigration System: State of Decision Making by the Home Office

There is a clear problem with the UK Immigration System with bad decision-making being made by the Home Office, often leading to lengthy delays, unreasonable refusals and having a distressing impact on applicants, their families and businesses.

As Joe Egan, President of The Law Society, elaborated “Almost 50% of UK immigration and asylum appeals are upheld – clear evidence of serious flaws in the way visa and asylum applications are being dealt with.

We understand that the Home Office is faced with a large workload that is disproportionate to the time and resources that have been allocated to them. Moreover, as the Home Office spokesman explained, some appeals are frequently allowed because of new evidence being brought to light that was not available beforehand.

The errors and delays are issues that need to be addressed as the UK Visa and Immigration service is currently being faced with a flood of applications due to Brexit.

Sterling & Law Associates LLP has dealt with numerous immigration cases across the different practice areas, as such we have seen many circumstances that demonstrate the irresponsible decision-making of the Home Office in their refusals and litigation.

Home Office’s Mistakes

Here are some examples of the typical mistakes summarised on the basis of our previous casework:

  • Our client had already left the UK, due to a removal order from the Home Office, and was applying for a Spouse visa from abroad as she had an appointment scheduled in the middle of January at the visa application centre. However, the Home Office decided to make a visit to our client’s husband’s address, while his two children were home, at around 6 in the morning on 2 January with two vans and one car filled with immigration officers to search and remove our client from the UK. Records should have shown that our client was no longer in UK, however this was not the case. Moreover, our client’s subsequent application was then refused even though they admitted that all the requirements were met because the Home Office stated that they were uncertain of our client’s nationality, despite an original valid passport being provided.
  • Similarly, another application was refused on the basis that the passport was not enclosed however the Home Office had previously retained the passport therefore the passport was in their possession.
  • On another occasion, an applicant was applying for a Spouse Entry Clearance Visa to allow her to enter the UK to pick up her Biometric Residence Card. The Home Office had issued her the visa but failed to inform our client and as a result the Visa application centre had held her passport for three months. They only contacted our client to inform her that if our client does not pick up her passport, they would throw it away. Our client was overjoyed because she was issued with her visa however, we soon realised that the visa she was issued with was already expired. Spouse Entry Clearance Visas are only valid for 30 days and as 3 months had passed, we had to request the Home Office to re-issue the visa.
  • Likewise, the Home Office had issued our client with their Biometric Residence card however the Home Office had mistakenly sent it to the wrong address. The letter and the card were received at the client’s sponsor’s employer’s address.
  • Another common example that we have been faced with is inattention to the documentation that was sent with the application. For instance, the Home Office refused a family permit stating that there was lack of evidence that the applicant and the sponsor was related, despite a birth certificate being provided to prove their relationship. Alternatively, the Home Office refused a family permit due to lack of evidence of financial dependency, however regular receipts of money transfers were provided with the application. These cases are currently going through the appeal process to ensure our clients receive a successful result.

These situations reveal a number of flaws in the UK immigration system.  The applications are not being given sufficient consideration, often due to severe time constraints from lack of resources.

The Home Office needs to be given more help through greater number of staff and funds. This in turn would enable the Home Office to take greater care in considering applications, provide better record keeping and updates with regards to our clients and their applications. This ensures that mistakes in refusals, informing clients of the results and administrative errors are minimised.

Home Office & Refusals

A summary of these cases has been provided by the the Immigration Law Practitioners’ Association to show how the Home Office causes careless and unreasonable decisions.

  • Firstly, there have been cases of clients facing deportation who asserted that they were British but unable to prove this to the Home Office. Despite the Home Office holding information with regards to these applicants on file, for instance information that proves that they are British, the Home Office forgot to consider this and instead subjected them to unlawful detention and deportation. Subsequently, using Subject Access Requests (SARs), such information was brought to light therefore their status was confirmed, and they received compensation.
  • Secondly, there have been cases where clients made an immigration application only to have the Home Office make a mistake on their identity such as mixing them up with another applicant with similar names, similar details and/or similar nationalities. The cases were often resolved with the use of a SAR to demonstrate that the details have been mixed up, although despite complaints being made, the Home Office often repeated the mistake in a further application.
  • Thirdly, the Home Office has often made wrong assumptions or declarations on the facts of an applicant’s case. For example, the Home Office had wrongly declared that an applicant was an illegal entrant less than 10 years before his application therefore refusing his application to naturalise as a British citizen. Another example is where the Home Office refused an application stating that the applicant had failed to notify them of a change of sponsor however an SAR proved that there were records of such a letter being received. The Home Office failed to look at the documents available to them, leading them to hold incorrect notions regarding the applicant.
  • Fourthly, there has been several evidences of the Home Office’s bad conduct such as tampering with documents to remove information that was contrary to their arguments or refusing an asylum claim even though investigations for the case was still ongoing at the time of the decision. Moreover, there have been cases where the SAR revealed that one immigration officer had decided to grant a positive decision only to have the opposing decision being made the following day. This shows the unpredictability and unreliable nature of the decision-making.
  • Finally, the Home Office often fails to act on a decision that may have been pending for several years. For instance, applications simply were not actioned at the Home Office, the Home Office failed to implement the decision or failed to inform the client regarding the decision. More often than not, the Home Office may have forgotten about a particular case.

If you want further illustration, the Immigration Law Practitioners’ Association has written a briefing document where pages 8-12 elaborates on various case studies of bad conduct on behalf of the Home Office.

Subject Access Requests

Many of the cases above were resolved following the use of subject access requests (SARs), which allow legal representatives to request, on behalf of their clients, the details and information held by the Home Office with regards to their client. It often reveals mistakes made by the Home Office, therefore it is important that the right to SARs is not removed. It is therefore of significance that the immigration control exemption be removed from the Data Protection Bill 2017.

In conclusion, the Home Office often makes errors. This frequently leads to a refusal in the first instance and the appeal being upheld. The fact that around 50% of appeals are upheld demonstrates that the Home Office needs to address their faults.  It is important to shed a light on the miscarriages of process and justice caused by the Home Office to force them to make changes to their flawed immigration system.

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.

Sole Responsibility Refusal Successfully Appealed in One Month

Another fantastic result for Sterling and Law Associates at the appeal hearing today. The case concerned 4 years old child who was refused UK visa to join her mother and stepfather in the UK. The reason for refusal was the issue of sole responsibility, despite the fact that child does not know her biological father.

As a result of unjust refusal by the Home Office, the little girl was separated from her mother and step-father and was temporary left under the care of her elderly grandmother, in Kyrgyzstan. Unfortunately, the grandmother was unable to properly look after child because of her health problems.

The appeal process usually takes 10-12 months from lodging the appeal until the successful outcome. However, in this case it was clear that any delay would have a negative effect on the child’s well-being.

When clients instructed Sterling and Law Associates in March 2018, our team worked really hard  to expedite the appeal and to achieve the positive outcome as soon as possible. The hearing was heard today, only 4 weeks after lodging the appeal, and the appeal was allowed almost immediately after just 15 minutes.

As a result, the child can finally be reunited with her parents in the UK without having to wait for the prolonged period of the appeal process.

The casework on behalf of Sterling & Law Associates LLP was handled by the immigration lawyer (OISC Level 3) Jelena Ivanova.

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.

Successful appeal against refusal to issue Residence Card to Spouse of EEA national

The case resolved around a refusal by the Secretary of State (Respondent) to issue an EEA Residence Card to a Georgian national (Appellant) who is a spouse of an EEA national.

The reason for the refusal was that the Respondent was not satisfied that the relevant EEA national exercised Treaty rights.

The Home Office argued that there were discrepancies in evidence of work, relying on the case of Begum Pakistan [2011] UKUT 275. However, the Judge did not accept the Home Office’s argument, finding that the evidence provided was sufficient, and that the witness statements were credible, including the ones describing the EEA national’s employment circumstances and history in the UK.

As a result, the Appellant’s spouse was determined to be a worker for the purposes of the EEA Regulations, and the Appellant has successfully discharged the burden of proof.

Accordingly, the appeal was allowed.

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: contact@sterling-law.co.uk or via our online appointment booking form.

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.

Successful Appeal against Refusal to Issue a Residence Card to Spouse of EEA National

Sterling & Law Associates LLP were successful in the appeal case at the First-Tier Tribunal (Immigration & Asylum Chamber) challenging the Home Office’s refusal of a client’s application for residence card.

The appellant, a citizen of Colombia, entered the United Kingdom in April 2013 as a student. Later, he extended his visa for two more years. During the term of his visa he married a Lithuanian national and later applied for a residence card as a spouse of an EEA national under Regulations 7 and 17 of the Immigration Regulations 2016.

During consideration of the application, the couple was interviewed by the Home Office on their marriage and life together. The application was then refused on the basis that it had not been shown that the sponsor was working in the United Kingdom and, thus, was not recognised as a qualified person.

There are 5 status categories recognised as a qualified person: job-seeker, worker, self-employed person, self-sufficient person or student.

In this case, no evidence of employment was provided at the date of application because the sponsor had just changed her job. The sponsor, however, had a long history of employment with some short intervals when she was unemployed but registered as a jobseeker. These particular issues were addressed at the hearing and sufficient evidence was provided on behalf of the client at the tribunal.

Upon consideration of the appeal lodged by Sterling & Law Associates LLP on behalf of the client, the Judge held that the sponsor was a worker and that the evidence provided was credible and sufficient.

Therefore, the appeal was allowed on immigration grounds.