Month: February 2019

One year without a parent. How immigration policy destroys a child’s childhood

A controversial and interesting case has been recently represented by Sterling Law.
Apparently, according to the Home Office, the evidence of having a child is not strong enough to recognize marriage as genuine and issue a Residence Card for the applicant.

Sterling Law presented the rights of the Appellant, who is a Ukrainian citizen. The Appellant applied for a Residence Card the grounds of being a spouse of EEA national, exercising treaty rights. However, the application was refused based on the results of the marriage interview. The Appellant and her spouse of Lithuanian nationality were interviewed separately. After the interview, a few discrepancies were detected, namely:

1) The Appellant stated that her future husband proposed to her in summer 2014, when her husband mentioned the date of September 2015.
(How is it possible not to remember when you were proposed?)
2) Also, discrepancies were found in Appellant’s sister’s name.
(Is it possible to forget your wife’s sister’s name because you are nervous at the interview?)
3) The appellant was not able to name the amount of mortgage, that her husband took. (Seems like there is not much trust in this couple, right?)
4) And finally, the couple did not purchase the engagement ring and did not celebrate the wedding.
(Obviously, they did not need it as it looks like a marriage of convenience, doesn’t it?)

Having such discrepancies at the marriage interview, made the HO assume this couple is not in a genuine relationship.

The couple, however, has a common child, as well as numerous photographs, where all the family members (including relatives) were together. Both parents can be seen on the photos of different baby’s age and have undoubted evidence of cohabitation.

Is the fact of having a common child not strong enough to consider that the marriage is genuine? – this is the main issue that was raised in this case.

The fact, that the appellant and her EEA national husband have a child did not influence the Home Office decision. Based on the above-mentioned discrepancies, the Appellant of Ukrainian citizenship was refused in issuing a Residence Card. The marriage was deemed as the one for obtaining citizenship rights. Moreover, the burden of proof was put on the Appellant, which contradicted the case law.

The Appellant had to wait over a year for another hearing to present more evidence and proof of cohabitation.

Justice prevailed! How the Immigration Officer nearly ruined the Albanian family?

Attention! Obviously, genuine marriage may be still questioned by the Home Office and result in refusal of a residence card issuing – this is where you will need Sterling Law to protect your rights.

Sterling Law has received a request for legal assistance from a person of Albanian nationality. He entered the United Kingdom illegally back in 2011. Later, in 2017 he started to cohabit with his future wife – a woman of Romanian nationality, as a result, they got married in 2018. Our client applied for a residence card, based on the fact, that the Sponsor (his future wife) was an EEA national exercising treaty right in the UK. However, not only his application was refused, but he was also detained after the marriage interview. The main reason for refusal was the fact that there were a number of inconsistencies in their answers at the interview, such as:

– the date on which the Appellant proposed;

– who lived with them in their flat;

– what they did in spare time etc.

The Home Office misinterpreted the facts and claimed that body language of the parties at the interview “didn’t feel they were too invested in the relationship”. Also, the Home Office claimed that the couple was prepared for the interview by a solicitor.

Here is the question appears: is the Home Office qualified to assess whether a foreign national is genuinely in a relationship by assessing their body language?

In any event, it was concluded that there were reasonable grounds to suspect that the marriage was of convenience, even though the marriage right was granted.

Sterling Law put much effort into this case and the Appellant was released on bail and got married to his Sponsor. Seeking justice, the Appellant appealed on the grounds that the refusal breached his rights under EU Treaties. He managed to provide additional evidence, such as witness statements, bank statements, social network posts and common photographs. The Appellant endeavoured to prove that his genuine marriage was genuine. He also provided all the details as to how his wedding was planned, where the rings and wedding clothes were bought. One of the strongest evidence was that the Appellant’s spouse had recently visited Albania, where she stayed with her husband’s parents.

At the final hearing, the Judge was rather straightforward in his statements and expressed “serious concerns about the conclusion drawn by the Immigration Officer who conducted the marriage interview due to a lack of objectivity”. The Judge also admitted, “just how many men would be able to remember the precise date on which they proposed?”. As for the fact that the Appellant was prepared for the marriage interview by the solicitor, the Judge pointed out: “what does he expect a solicitor to say to people on this position and how was the interview allegedly planned?”. And finally, it was reasonably noted that “if this is a marriage of convenience the parties have gone too extraordinary lengths to cover their tracks in sending the Sponsor to Albania and bringing back photographic and documentary evidence of meeting Appellant’s family.” Taking into account that the burden of proof was on Respondent (according to case law Papajorgji Greece (2012) UKUT 38 (IAC)), the Respondent failed to satisfy the burden and establish reasonable grounds to suspect this marriage is one of convenience.

The Judge confirmed that the marriage was genuine and the appeal was allowed.

Sterling Law was glad to successfully assist its client of Albanian nationality to win all the stages of the process: firstly, to get the Appellant released on bail, secondly, to prove his marriage was genuine and finally to obtain a residence card.

Sterling Law at Jessup competition 2019

Very important event for Sterling Law will take place on the 15-16th of February. One of our Associates Nozima Rakhimjonova will be a judging at the United Kingdom National round of Phillip C. Jessup competition – the world’s largest moot court contest.

The Jessup competition has been held every year since 1960. It is designed for law students, where participants receive a hypothetical legal dispute between countries. Teams shall prepare written and oral pleadings for the applicant and respondent. It is a simulation of a real court hearing before International Court of Justice. Evidently, judicial organ of the United Nations consists of panel of judges, one of whom will be our prominent Associates Nozima.

Ms.Rakhimjonova holds a law degree from the University of Westminster and Master’s degree in International Business, Corporate and Finance Law at the Liverpool John Moores University, both courses were completed with distinction. Nozima deals with various cases in the sphere of commercial litigation, dispute resolution and contracting matter under supervision. Being an Associate for Sterling Law, Nozima successfully represented number of cases related to civil, commercial and immigration matters. She regularly produces publications for prestigious editions.Also, Nozima is a member of the Inner Temple – professional association for barrister and judges in London.

Sterling Law is proud to be working with such prominent legal team!

Legal impact of ‘Brexit’ on the United Kingdom

The result of the British referendum, also known as the EU referendum, established a new reality, in which almost 52% of the British voted for “Leave” the European Union membership. However, the official withdrawal from the EU is planned in March 2019. Terms and conditions of ‘Brexit’ still remain unknown, but it obviously will be impossible to avoid significant changes in laws, regulations, taxes, court jurisdictions, whatever form ‘Brexit’ will take.

One of the AI legal companies has performed an interesting investigation using technical tools to measure the impact of hard ‘Brexit’ on British law. The results were overwhelmingly impressive.

    • Approximately 12% of UK case law will fall under reckless risk in comparison with the last year due to EU legal issues that became part of the UK cases.

    • Nearly 40-50% of UK Supreme Court judgements involve EU law, which clearly indicates that UK Supreme Court base its decisions on EU law, from which over

6% of UK Supreme Court decisions were entirely based on EU law.

This was a complex research, which involved over 300,000 cases to be analyzed on the subject of EU law influence on the British court system. Provided statistical results raise a considerable degree of uncertainty. However, data analysis obtained by using machine learning techniques serves as a progressive tool which can objectively improve the law.

Brexit may lead to the situation where EU case law, which British courts referred to before, will be invalid. This opens an enormous gap in the litigation area. Nobody knows how long it will take to replace the legal framework and judicial system in particular. The truth is that it may be very complicated to dispose of EU law, which along the decades has deeply rooted into the UK domestic legal system.

Right of residence granted to an Extended Family Member of EEA National after refusal based on insufficient evidence

Turkmenistan National has appealed against the decision made to refuse his application for a residence card as an Extended Family Member of European National who is exercising treaty rights in the UK. The client was in unmarried partnership when they applied for a residence card, which was refused on the basis that the client has not provided enough evidence to prove a durable relationship with their partner. Their relationship began and progressed as a long distance relationship due to the clients return to Turkmenistan. The client has kept in contact on regular basis and continued the long-distance relationship with their partner. Three years later, the client has returned to the UK and started living together with their partner.

The Home Office had refused the initial application. This was done on the basis that the Applicant has failed to evidence that their relationship with the sponsor was durable, as they failed to submit sufficient evidence to prove they stayed in contact while being in a long distance relationship. Furthermore, the Home Office argued that the evidence the client provided to prove that they started living together was insufficient, as they only provided one gas bill.

Our lawyer Nollienne appealed against this decision, arguing that the client has submitted a significant body of documents which included different identity documents, payslips of their partner showing that they are exercising their treaty rights in the UK, variety of letters proving cohabitation with the sponsor, such as bank statements, utility bills, phone bills. Also, messages and conversations between the applicant and their partner were submitted together with photographs, proving their relationship.

The Judge was satisfied with the evidence submitted, as it was heard that the client and their partner have started introductions between their family members, showing clear intent to marry. With the consideration of all of the documents submitted and the oral evidence given in court, confirmed the durable nature of their relationship. Consequently, the Judge allowed the appeal, stating that the Appellant is entitled to be issued with a Residence Card.

Nollienne Alparaque 

Email: nollienne@sterling-law.co.uk

Tel. +44 (0) 20 7822 8535
Mob. +44 (0) 0781276 9389     

Supreme Court clarifies meaning of “reasonableness” and “unduly harsh” in children’s cases

An interesting judgment was handed down in KO (Nigeria) and Others v Secretary of State for the Home Department [2018] UKSC 53 where the question of “reasonableness” and “unduly harsh” when assessing the effect of deportation on a child was answered.

It has been clearly set out in s117C of the Immigration Act 2014 that it will be in the public interest for foreign criminals to be deported, the more serious the offence the higher public interest. The prime question is – will it be “unduly harsh” to deport a qualifying child  (child with more than 7 years of residency in the UK) of the foreign criminal? It was held that the Tribunal should not take into account parental misconduct but should carry out a more child-focused assessment. The phrase “unduly harsh” requires to focus on a more serious impact on the child, an impact that is severe. This essentially brings beneficial consequences because a child should not be held responsible for the conduct of the parent.

S117(6) of the Immigration Act 2014 focuses on those who are not liable to deportation. It is set out that the public interest does not require a removal so long as the person is a parent of a qualifying child and it would not be reasonable for the child to leave the United Kingdom. The same approach of assessing “unduly harsh” should be used to assess “reasonableness” namely the criminal or misconduct of the parent should not be taken into account.

It is enlightening to see the court provide a clear assessment that portrays the importance of the principle that children should not be held responsible for the conduct of their parents. The case of KO provides reassurance to families and properly promotes the best interest of the child.

Adult dependent relative

One of the strongest misconception related to immigration is to assume that only direct family members can apply for Family visa to the United Kingdom. Direct family members usually imply fiancé, spouse, child, parent. However, according to the UK Immigration regulations, a person can apply for Family visa if he is ‘an adult person coming to the UK to be cared for by a relative’. Care can be provided by such relatives as a parent, grandchild, brother, sister, son, daughter or others who are living in the UK.

Certainly, there is a number of requirements applied to the caregiver in the UK, namely:

  • to be living in the UK permanently;

  • to be a British citizen;

  • to be settled in the UK;

  • to have refugee status or humanitarian protection in the UK.

Adults who are eligible for this type of visa will have to prove to they are an essential need for long-term care due to a serious health condition, disability or advanced age. One of the most important requirements for the applicant is that he is not able to receive such treatment in his home country because it is not available or not affordable. However, one limitation for the applicant is applied – he cannot claim public funds for at least 5 years period. It means that the applicant will not be able to pretend to most benefits, tax credits or disability living allowance that are paid by the state. This is the Receiving party (British caregiver) who is taking responsibility for the applicant in all financial matters. To apply for Family visa as an adult dependent relative, the Applicant must be located outside the UK and the age must be 18 or over. If the paperwork was done correctly and the applicant was lucky enough to obtain a family visa as an adult dependent relative, his stay in the UK is considered as unlimited, as long as he joined British family living in the UK without a breach of continuity.

It should be noted that the application process is rather complex, which requires much attention and knowledge. The applicant will have to prepare not only his personal information consisted of at least 16 documents but also nearly the same amount of documents for his Receiving party not including proof of relationship with the British caregiver. The best way to cope with the paperwork is to ask an experienced lawyer for legal assistance. This way, the applicant will be ensured that all paperwork is completed correctly, which increases chances for a positive result in application consideration. Sterling Law highly recommends requesting legal assistance from qualified and licensed lawyers, who have long-term practice in immigration law and will be able to find the right solution in any unpredicted circumstances.