Month: June 2019

Applicant who has resided in the UK for 20 years continuously granted leave to remain in the UK

Leave was granted in under 3 months.

Successful Article 8 Human Rights Application under paragraph 276ADE (1) of the Immigration Rules, which provides for Applicants who have resided in the UK for a period of 20 continuous years to be granted leave in the UK:

Paragraph 276ADE (1) (iii)

276ADE (1). The requirements to be met by an applicant for leave to remain on the grounds of private life in the UK are that at the date of application, the applicant:

(i) does not fall for refusal under any of the grounds in Section S-LTR 1.1 to S-LTR 2.2. and S-LTR.3.1. to S-LTR.4.5. in Appendix FM; and

(ii) has made a valid application for leave to remain on the grounds of private life in the UK; and

(iii) has lived continuously in the UK for at least 20 years (discounting any period of imprisonment)

However, the difficulty many Applicants face in making an application under 276ADE (iii) is one of evidence. The burden is on the Applicant to show that they have resided in the UK for at least 20 years continuously when submitting an application. Therefore, it is key that any applications under 276ADE (iii) are accompanied by sufficient evidence.

This did not prove to be an issue for our client as, due to the meticulous and thorough work of Oksana Demyanchuk and her team, the Applicant was able to submit more than sufficient evidence to satisfy the Home Office that they met the requirements of 276ADE (iii), whose application was approved by the Home Office at the first instances in under three months.

In granting leave to remain, the Home Office noted that

“we are satisfied that you meet the requirements of paragraphs 276ADE (1) of these Rules”.

This means that now, after 20 years of uncertainty our client has the leave to remain in the UK.

 

Contact us should you have any immigration related question:

 

Oksana Demyanchuk

Email: oksana@sterling-law.co.uk

Tel. 020 7822 8535

 

Michael Carter

Email: michael@sterling-law.co.uk

Tel. 020 7822 8535

 

KAFALA CHILDREN ARE ENTITLED TO FACILITATED ENTRY

SM v Entry Clearance Officer, UK Visa Section (C-129/18 SM 26 March 2019)

 

The UK Supreme Court asked the CJEU to clarify whether an Algerian child resident in Algeria but guardianship of whom had been awarded to a French couple residing in the UK under the (informal adoption) Kafala system was entitled to join the parents in the UK under the EEA family permit rules.

The CJEU confirmed that the concept of a ‘direct descendant’ of an EU citizen does not include a child who has been placed in the permanent legal guardianship of an EU citizen under the Algerian Kafala system since it does not create any parental-child relationship and the child does not automatically become the guardian’s heir.

The CJEU, however, did find that the child is an ‘other family member’ under Article 3(2)(a) Directive 2004/38. The court stressed that the existence of a family tie once established, must be enabled to develop and it is for the state to establish legal safeguards that render possible the child’s integration in his or her family. This decision limits the discretion of Member states to exclude kafala children under Article 3(2)(a) Directive 2004/38. The CJEU call on the state authorities to assess whether the family is leading a genuine family life, that the child is dependent on the guardians in the light of the duty to respect family life and to take account of the best interests of the child.

Finally, this CJEU decision warns the Member States no to seek to rely on the effectiveness of the obstacles which they themselves have created to the enjoyment of family life between parents and a Kafala child to justify finding that family life has not been sufficiently evidenced.

 

VICTORY IN A COMPLICATED DEPORTATION CASE

Our client, an EEA national, came to the UK with his family less than 5 years ago. He was diagnosed with mental health conditions, as a result of which he committed the robbery whilst his mental health was unstable. Our client spent some time in custody which was a difficult experience for him. When he was released, he engaged well with the Probation service and drug agency (since he also had a history of substance abuse). Moreover, he took support from his Church and family to improve and stabilize his mental health.

However, the Home Office decided to deport our client relying on the public policy grounds (Regulation 23 (6) and 27 (5) 2016 regulations).

 

The public policy and public security requirements of the United Kingdom include restricting rights otherwise conferred by these Regulations in order to protect the fundamental interests of society, and where a relevant decision is taken on grounds of public policy or public security it must also be taken in accordance with the following principles—

(a) the decision must comply with the principle of proportionality;

(b) the decision must be based exclusively on the personal conduct of the person concerned;

(c) the personal conduct of the person must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, taking into account past conduct of the person and that the threat does not need to be imminent;

(d) matters isolated from the particulars of the case or which relate to considerations of general prevention do not justify the decision;

(e) a person’s previous criminal convictions do not in themselves justify the decision;

(f) the decision may be taken on preventative grounds, even in the absence of a previous criminal conviction, provided the grounds are specific to the person.

 

Sterling Law successfully represented interests of the client in the Appeal. Notwithstanding the facts of poor representation of our client by his previous lawyer and numerous detentions since November 2018, Sterling Law managed to achieve a positive result in this case.

The Judge allowed the appeal noting that

  • removal of our client would be disproportionate and would cause potential for relapse;
  • there is a low risk of re-offending;
  • our client does NOT represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.

 

If you or your family member has been detained or is facing deportation, contact us for professional legal advice:

+44 (0) 207 822 8535

contact@sterling-law.co.uk

ANOTHER VICTORY FOR OUR CLIENT IN AN ALLEGED ‘MARRIAGE OF CONVENIENCE’ CASE

Excellent news! After seven years of fighting with the Home Office, our client obtained Permanent Residence.

 

Our client, a national of Belarus, has been residing in the UK for more than five years as the family member of her EEA national husband. They had a genuine family relationship before their separation. Our client even became a stepmother to her husband’s younger children, collecting the youngest from school regularly and taking her to the dentist.

Having overstayed her visa for agricultural work many years before, upon entering into a relationship with her husband, she applied numerous times for a residence card and later for a permanent residence to obtain legal immigration status in the UK. However, the Home Office refused all her applications stating that our client’s marriage is a marriage of convenience.

The Home Office relied on an attempted home visit and neighbours’ interview when the appellant and her husband were not in. However, disclosure of records from that visit resulted in the ‘unsigned, undated typed note’ confirming that no proper interview (that can be used as an evidence of marriage of convenience) actually occurred.

 

Our client’s first appeal, lodged six years ago, was dismissed because the judge found that she was in a marriage of convenience. Nonetheless, she refused to give up and continued fighting for her right to live in the UK.

By the time of the latest appeal regarding our client’s permanent residence application, our client’s relationship with her husband had ended and she was undergoing divorce proceedings. However, the Judge was satisfied that the marriage had been genuine all along and our client’s marriage had endured for over five years, thereby resulting in our client acquiring permanent residence.

 

Sadovska and Another v SSHD [2017] UKSC 54:

If the appellant was not party to a marriage of convenience, she acquires permanent residence pursuant to paragraph 15(1)(b) of the 2016 Regulations.

 

Thus, the Judge allowed the appeal noting that:

          Although the marriage undoubtedly provides our client with an immigration advantage, this does not result in its characterisation as a marriage of convenience.

 

Similar immigration problem? Do you believe the Home Office made a wrong decision? Contact our experienced lawyers for professional advice.

Book consultation here:

Or book a free 15 min phone call with us!

Or just email us:

contact@sterling-law.co.uk

ALLEGED MISUSING THE RIGHT OF RESIDENCE IN THE UK

Excellent news! The appeal regarding removal directions for our client was allowed!

Our client, a national of Pakistan, married an EU national who is exercising treaty rights in the UK and has a permanent residence here. After entering the UK with an EEA family permit our client successfully obtained an EEA residence card. A year into the marriage, the wife’s sister tragically passed away in Brazil leaving behind four minor children. Deeply affected by this loss, our client and his spouse decided to adopt these children. So our client’s wife went to Brazil for around 6 months to resolve various matters regarding the adoption.

At the date his wife was returning to the UK Immigration Officers came to our client’s home and interviewed him.

  • His request to postpone the interview (he was not feeling well) was ignored.
  • The immigration Officers did not make any notes regarding this request.
  • They did not pay attention to the fact that our client’s wife returned to the UK on the interview date and it would be useful to interview her as well before making any immigration decision.
  • Moreover, Immigration Officers even made several offensive Islamophobic remarks regarding our client’s appearance.

Relying on the interview records the Home Office made removal directions for our client on the grounds that

he misused the right to reside in the UK since his EEA sponsor left the UK just one month after his arrival in the UK and has not returned since (that was wrong).

 

Sterling Law successfully appealed this decision pointing out that there was a specific reason for the wife’s absence (adoption). The judge allowed the appeal and found that the Home Office decision was disproportionate.

Thanks to our lawyers Jekaterina Trubina and Shakir Hussain our clients are able to continue their family life in the UK and care for the wife’s sister children after adoption.

 

Similar immigration problem? Do you believe the Home Office made a wrong decision? Contact our experienced lawyers for professional advice.

Book consultation here:

Or book a free 15 min phone call with us!

Or just email us:

contact@sterling-law.co.uk

A wife, who’s British husband suffers from cancer allowed to stay in the UK

Our client, a Brazilian national, came to the UK on a student visa. Although her applications for leave to remain were unsuccessful, she remained in the UK. She met her British husband several years later and after he was diagnosed with Lung Cancer. After that our client started to provide him with required daily care. Our client applied for leave to remain under the 10-year partner route. However, her application was refused on the basis that the ‘insurmountable obstacles’ requirement was not met.

What is ‘insurmountable obstacles’?

In accordance with para EX.2. Appendix FM of the Immigration Rules, insurmountable obstacles are defined as ‘the very significant 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’.

Sterling Law successfully appealed the Home Office refusal. The Judge considered all the evidence that Sterling Law put forward. As a result, the court decision favoured our client.

 

There are genuine insurmountable obstacles in this appeal:

 The Sponsor has lung cancer

 He is still unwell since his operation and chemotherapy,

He needs very regular checks and follow-up appointments which could not take place in Brazil.

Neither the spouse nor the appellant has connections in Brazil AND  

…they have no means of making an income

BECAUSE the appellant has been living in the UK for around 17 years.

 

It would be not fair to remove our client from the UK. The harm to her private life would not be proportional.

Although our client overstayed her last granted leave for several years, she:

has no criminal convictions,

speaks very good English,

has integrated into life in the UK

is not dependent on the public purse.

 

Bearing in mind these facts and the amount of care our client provides to her British husband, the Judge found that

there is more than mere hardship in this appeal’,

and then went on to conclude that ‘I do not find it reasonable to expect the appellant to be removed from the UK’.

Thus, the appeal was allowed and our client was subsequently granted leave to remain in the UK by the Home Office.

Similar immigration problem? Do you believe the Home Office made a wrong decision? Contact our experienced lawyers for professional advice.

Book consultation here:

Or book a free 15 min phone call with us!

Or just email us:

contact@sterling-law.co.uk