Day: March 25, 2019

Domestic Violence Retained Rights Appeal Allowed!

Another fantastic result from Oksana Demyanchuk and her client after another successful appeal to the First-tier Tribunal.

The client, in this case, came to Sterling & Law Associates LLP after her marriage to an EEA national had broken down on grounds of domestic violence. Accordingly, an application for a residence card on the basis of the retained right of residence was made to the Home Office.

However, this application was refused as the marriage between our client and her EEA national Sponsor has not lasted for at least 3 years and the Home Office was not satisfied that our client had been a victim of domestic violence as there was little documentary or no independent evidence to corroborate our client’s claim to have been the victim of domestic violence.

Accordingly, Oksana lodged an appeal to the First-tier Tribunal against the decision of the Home Office, asserting that the client’s claim to be the victim of domestic violence was credible and therefore the Home Office decision was unlawful.

As is often the case in matters involving domestic violence, our client had little tangible evidence to demonstrate that they were a victim of such violence. Therefore, Oksana has placed particular attention and emphasis on the witness statements in the appeal.

The Judge, accepting that evidence in cases of domestic violence is not always available, found that the evidence of our client and witnesses was credible and gave a detailed picture that our client was, in fact, a victim of domestic violence. In doing so the Judge noted the following:

“I am not confined or restricted to independent documentary evidence such as that which the respondent may usually seek in cases involving or alleging domestic violence. The absence of police and medical reports are not necessarily indicators that the appellant did not suffer or was not the victim of domestic violence.

There are a whole host of reasons why those who suffer domestic violence, and especially women victims of male perpetrators, are reluctant to report to the police and the authorities that they are such victims. The reasons can be multifarious and complex and this is well documented in much research and studies in the area of domestic violence.

Appeal allowed for refusal of permanent residence as derived from being an EEA national exercising treaty rights in the UK for a continuous period of 5 years

Under Regulation 15 of the Immigration (European Economic Area) Regulations 2016, EEA nationals and family members of EEA nationals acquire the right of permanent residence after residing in the UK and exercising treaty rights for a period of at least 5 continuous years. Sterling law represented clients who were refused the right of permanent residence in the UK on this basis. The first appellant was an EEA national who was denied these rights along with their third-party national spouse who was refused the right of permanent residence as the spouse of an EEA national.

It was said that the reason for refusal was that the main appellant had not satisfied that they were exercising treaty rights for a continuous period of 5 years.

The bundle prepared by Sterling Law on behalf of the appellants showed that the reasons for refusal were unfounded. It was proved that the main appellant satisfies and had established treaty rights as an EEA worker in the UK. Evidence was provided by way of bank statements and pay slips for a period of just over 5 years. It was also found that the appellant was a job seeker as established by Hoekstra (nee Unger) case 76/63 (1964) ECR 177 which held that the EU law protected the ‘present worker’ but also ‘one who has left his job, and is capable of taking another’, as the main appellant was unemployed for two months within the 5 year period. It was also found that the second appellant (as the spouse of the main appellant) also exercised their treaty rights in the UK by proof of residence and employment for a period of 5 years and therefore is also entitled to permanent residence.