Category: Latest News

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.

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“The law extends but does not limit freedom.” Sterling Law wins the lawsuit against the UK Home Office

Prior to being disappointed because of having lost the case, we would advise to attentively check the grounds which the Home Office based its decision on.

The situation that will be presented below shows that even the Home Office can show low consideration of the specific case. An individual has referred to Sterling Law to provide legal representation in the case due to the refusal of her application for an EEA Residence Card as confirmation of her right to reside in the UK with her husband of British citizenship.

Our Client is a woman (further Appellant) who got married to a British citizen in 2013 in Afghanistan. By the date of the hearing, they were expecting the birth of their first child. In 2016 her husband was offered a good job in the Netherlands, so the family decided to relocate there permanently. He was the first who moved to start his new job and a few months later, the Appellant joined him. She applied for EEA Residence Card in the Netherlands as a confirmation of her right to stay with her husband as a family member. She has issued a Residence Card in the Netherlands. Everything seemed to be in order: well-paid job, new rental apartment, studying a new language, life was filled with new colors. The family could see a lot of bright prospects for their future in the new country. They did not have intentions to leave the  Netherlands. However, life often has its own plans. Sometime later, they got news that the Applicant’s husband’s mother has seriously got sick in the UK. Taking into account the cultural specifics of the Appellant’s husband’s nationality (he was Afghan), the son was obligated to take care of his senior parents, especially if they were unwell. The family had no other choice but to go back to the UK to take care of the husband’s mother. She had limited capability of moving around the house and was suffering from instant pain in her joints. The Appellant provided significant help to her husband’s mother, such as feeding, cooking, helping to go to bed, etc. Upon arrival to the UK, the Applicant applied for a UK Residence Card as a confirmation of a right to reside in the UK with her British husband. However, the Home Office refused in issuing the Residence Card based on her situation assessment, saying that the Appellant could not meet the requirements of British immigration law.

We would like to provide the grounds of the Home Office refusal:

The Home Office concluded that the Applicant’s relocation to the Netherlands was not genuine, and was done in order to “circumvent domestic immigration laws”. In other words, the Home Office claimed that the Appellant decision to move to the Netherlands was something like a staging show with the only aim – to circumvent British law and to eventually receive UK Residence card. Secondly, the Home Office claimed that it was solely the Applicant’s initiative to come back to the UK, not her husband’s intention.

Moreover, it was concluded that the Applicant did not show that the center of her and her husband’s life was transferred to the Netherlands, practically no integration into new society has been conducted. And the accommodation they rented was just on a temporary base.

Sterling Law was appointed to represent the Appellant in this case, where we initially pointed out on the Home Office low consideration of the case and the numerous obvious evidence provided by the Applicant.

The first and furthermost fact is that throughout the entire Decision Letter the Home Office repeatedly referred to the Applicant has lived in “Ireland” instead of the Netherlands. This could not be considered just a minor error, but an example of how poorly the application was considered by the Home Office.

Based on the provided tenancy agreement, it was clearly seen that the Appellant’s family were planning to stay in the Netherlands not temporarily, but for a long period of time, if not permanently.

Numerous medical check-ups of the Appellant’s mother-in-law showed that she was indeed unwell and needed constant everyday care. Thus, the initiative of their relocation back to the UK was fully belonged to the Appellant’s husband, as it was his mother who needed help and physical support.

Later, the court concluded that relocation to another country could not be just a staging show, as it has been done so much by the family to move the center of their life to the Netherlands: find a new job, rent an apartment, study a new language, integrate into society. No doubts, the appeal was allowed by the Court. The Applicant was granted the UK Residence card.

Sterling Law was more than satisfied that the justice was served. We highly recommend to read through the Home Office decisions attentively, there can be some minor errors which do not influence the actual decision, but at the same there can be mistakes that completely change the outcome of the case, and even worse if this outcome is refusal or rejection of your application, like in the case described above.

This case reaffirms the statement of the prominent English philosopher John Locke, who said that “the end of law is not to abolish or restrain, but to preserve and enlarge freedom.”

 

Domestic violence – Indefinite Leave to Remain

A VICTORY FOR OUR CLIENT IN THE FIRST-TIER TRIBUNAL

Our lawyers won the appeal regarding indefinite leave to remain in the UK on the human right grounds.
Our client, a national of the Russian Federation, has lived and worked in the UK as a consultant for more than 3 years. Throughout her leave she held a spouse visa under the Immigration Rules (part 8, Appendix FM) as she was married to a British Citizen who is settled and present in the UK. The client had a complicated relationship with her British spouse (former), she was persuaded by former husband to apply for the spouse visa rather than a working visa that was also an option at that time. Our client’s spouse had regular mood swings, behaved with the client aggressively from time to time, forced her to leave the matrimonial house against her will and even forced her to make an act that was against her religion. Also, the client’s husband threatened to inform the Home Office that their marriage is over if she did not follow his instructions. After these events, our client had mental problems, was in continuous grief, sadness, stress, and regret; could not work properly. In addition, she suffered financial abuse since she was forced to transfer money into the spouse’s account, most notoriously, former husband did not give access to that funds.
Our client made an application for indefinite leave to remain in the UK as a victim of domestic violence that was initially refused by the Home Office, and she had been divorced 5 months before the final hearing.
In the Appeal case, our team provided the successful representation of domestic violence. The appeal was allowed and the right for indefinite leave to remain as a victim of domestic violence was granted.

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.

INVESTIGATING MISCONDUCT – How important is a proper investigation after an allegation of misconduct at work?

Kuldeep S. Clair, our senior Consultant Solicitor in Employment Law and Civil Disputes offers his views: 

In employment cases, it is generally crucial for there to be a fair investigation before an employee is dismissed for an allegation of misconduct. All relevant evidence must be heard. The employer must show that he has not acted unreasonably, or for underhand motives when dismissing. The reason and evidence should be clear, or at least as clear as it is possible to be, in the circumstances.

A warning should generally also only be given after an investigation which is proportionate to the seriousness of the wrongdoing which is being alleged.

A recent case in the Employment Appeal Tribunal demonstrates how this is a soft, and case-by-case principle, last week, in the case of Beattie v Condorrat War Memorial & Social Club. The claimant employee had been dismissed after the employer took into account a previous written warning which had been given without a full detailed investigation. The claimant challenged the earlier warning as being unfair on procedural grounds. Part of those grounds was justified in principle.

The tribunal held that the dismissal was basically unfair, but that her damages ought to be reduced to zero, on the basis that the result would have virtually certainly been the same, even if a proper investigation had been carried out.

This is what is known to employment lawyers as a ‘Polkey reduction’ to the compensation. In this case, the reduction was by 100%. (It is possible for a reduction to be of any percentage that the tribunal believes is just.)

The Employment Appeal Tribunal also upheld the earlier tribunal’s decision of awarding no damages. It said that it was not appropriate in this case for the tribunal to start questioning the earlier decision of the employer to issue the warning. The tribunal should only be concerned with the decision in front of it unless it was obviously completely perverse. But in this case, the employee had accepted at least some responsibility for the offense for which she had received a warning.

Citing the above case probably makes a client little wiser about what to do in an individual situation. But it highlights the need for advice, based on fundamental principles, being tailored to the individual situation every time.

 

Kuldeep S. Clair

Consultant Solicitor

Employment, Dispute Resolution, and Litigation

Sterling Lawyers Limited

(usual contact details inc mobile no.)

EU National’s Children and British Passports

Since the June 2016 referendum, when most British voted for Brexit, EU nationals became concerned about protecting the interests of their children and started to look for options of securing a UK passport. Let’s get into more details.

According to the general rule, children born in the UK automatically acquire a British passport. However, depending on the date the child was born different rules might apply.

For instance, those children who were born in the UK from October 2000 to April 2006 must prove that one of their parents held permanent residence or indefinite leave to remain/enter at the moment they were born. Only, in that case, they will be able to get a British passport. Permanent residence card or a letter from the UK Visas and Immigration are enough evidence to be provided to the British immigration authorities. However, most parts of EU nationals did not apply for such documentation, mostly because of the lack of immigration law knowledge, so their children losses the right to obtain a British passport automatically. Such a pity, but due to non-acquaintance the parents will have to apply on behalf of their children and register them as British citizens.

 

Those, who were born after April 2006 can obtain British passport if they can prove that their parents were exercising Treaty Rights by residing in the UK for at least of 5 years before the child was born. EU parents who have not completed 5 years residence in the UK prior to giving birth will withdraw their children’s right to become British at birth. Nevertheless, this category of children will have a right to register as British citizens following the terms and conditions of the British Nationality Act 1981. It should be noted, that such application is rather high-priced and would cost nearly GBP 1000.

We often get lots of questions from the clients in the cases, where one child (usually the eldest one) was born outside the UK and the youngest – in the UK. In that case, the younger child will have two options: either to be British at birth or to register through automatic entitlement, which was described in the previous paragraph.

Holding British citizenship, you can always come back to the UK to live, study or work. As parents are highly concerned about their children education, you can get a British education, which is undoubtedly one of the most efficient in the world. Sure enough, British passport is one of the most beneficial nowadays and can be counted as a great investment into your child’s life providing lots of advantages and opportunities for a better future.

BASIC GUIDANCE ON CHALLENGING HOME OFFICE CIVIL PENALTY NOTICE

Penalty Notice, two words but so much damage. Businesses suffer from lower reputation, fines are expensive, and the competitors are thriving. Failure to conduct the lawful immigration checks leads to the issue of the penalty notice. There are many real-life examples regarding this matter and even more regarding other cases.

So, What is a Civil Penalty Notice?

It is a Document issued by  the Home Office, informing the organisation that they employed a person who has no legal right to work in the UK. The Civil Penalty regime was created to ensure employers comply with the UK’s immigration laws and regulations. It is set to punish both, the illegal employees and the organisation that hired them. Many employers received civil penalty notices by unknowingly hiring illegal immigrants, meaning that they have failed to complete the correct Right To Work checks. If that occurs, fines can go up to 20,000£ per worker. This is a big fine that can even end some organisations. Employers who in fact knew that they were hiring an illegal immigrant face up to 5 yeas of imprisonment and an unlimited fine.

Grounds for challenging a Civil Penalty Notice

Each organisation has 28 days to respond to the penalty. It starts with an employer making a formal objection to the Home Office. If an employer has grounds for a challenge and evidence to support their case , the fine may be reduced or withdrawn at this stage. If this fails, an appeal can be made to the court.

The ‘Statutory Excuse’

An employer who can prove they carried out correct Right To Work checks on an employee named in the Civil Penalty Notice has a ‘Statutory Excuse’ and does not have to pay the fine.

That is why it is so important to complete the Right To Work checks and have a robust compliance system in place. If the employer has completed the checks and has evidence proving so , they may not be required to pay the penalty. Even further, the Immigration Enforcement will not publish businesses name, reducing the reputation damage.

Employers have to understand that Immigration Law is what everyone has to follow. Employers must ensure that Right To Work checks are complied with and the evidence is retained. Objecting to the notice and processes following that are worse then just simply following the Home Office requirements.

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!