Category: Successful Cases

Long Residence Applications: Gaps in lawful residence

The Immigration Rules regarding long residence provide that Applicants who have resided in the UK continuously and lawfully for 10 years are entitled to apply for indefinite leave to remain.


This begs the question: what if I have a gap in my lawful residence?


The Immigration Rules state as follows:


276B. The requirements to be met by an applicant for indefinite leave to remain on the ground of long residence in the United Kingdom are that:


(i) (a) he has had at least 10 years continuous lawful residence in the United Kingdom.


[…]

(v) the applicant must not be in the UK in breach of immigration laws, except that, where paragraph 39E of these Rules applies, any current period of overstaying will be disregarded. Any previous period of overstaying between periods of leave will also be disregarded where –


(a) the previous application was made before 24 November 2016 and within 28 days of the expiry of leave; or


(b) the further application was made on or after 24 November 2016 and paragraph 39E of these Rules applied.


R (Ahmed) v Secretary of State for the Home Department [2019] EWCA Civ 1070 dealt with Applicant’s who had a period of overstaying between lawful leave during their 10 years qualifying period. The Court of Appeal held that that application of 39E, namely the application of the 14-day or 28-day grace period, did not convert these periods into lawful leave. Therefore, an application could not rely on such a period of residence for the purpose of an application for indefinite leave to remain under the long residence provisions in 276 B of the Immigration Rules.


In essence, this meant that, if an applicant had any period of overstaying at all during their 10-year qualifying period, even in circumstances where that overstaying was within that permitted by paragraph 39E, their application would fall for refusal.


The decision of the Court of Appeal appeared to contradict the Home Office’s own guidance on Long Residence, which stated:


You may grant the application if an applicant: 


  • has short gaps in lawful residence through making previous applications out of time by no more than 28 calendar days where those gaps end before 24 November 2016 

  • has short gaps in lawful residence on or after 24 November 2016 but leave was granted in accordance with paragraph 39E of the Immigration Rules 

  • meets all the other requirements for lawful residence

leading to much confusion as to the correct interpretation of paragraph 276B.


In Hoque & Ors v. SSHD [2020] EWCA Civ 1357, the Court of Appeal has provided some welcome clarification. In this case, each of the Appellants had a period of overstaying during their 10-year period where the grace period allowed for by paragraph 39E applied.


The court of Appeal held that Masum Ahmed, which was concerned with past overstaying, was wrongly decided. [40]. In reaching this conclusion, the Court of Appeal relied in part on the Secretary of State’s own guidance on the point (citing Pokhriyal v SSHD [2013] EWCA Civ 1568 as authority to rely on guidance where the rules are ambiguous).


The Court of Appeal went on to criticise the confusion state of the Rules at paragraph 59 of the Judgement:


This Court has very frequently in recent years had to deal with appeals arising out of difficulties in understanding the Immigration Rules. This is partly a result of their labyrinthine structure and idiosyncratic drafting conventions but sometimes it is a simple matter of the confusing language and/or structure of particular provisions. This case is a particularly egregious example. The difficulty of deciding what the effect of paragraph 276B (v) is intended to be is illustrated by the facts not only that this Court itself is not unanimous but that all three members have taken a different view from that reached by a different constitution in Masum Ahmed. Likewise, the Secretary of State initially sought to uphold Masum Ahmed – contrary, it would seem to her own Guidance – but, as we have seen, shortly before the hearing executed a volte-face. (This illustrates a different vice, also far from unique, that the Home Office seems to have no reliable mechanism for reaching a considered and consistent position on what its own Rules mean.) Of course, mistakes will occasionally occur in any complex piece of legislation or quasi-legislation; but I have to say that problems of this kind occur too often. The result of poor drafting is confusion and uncertainty both for those who are subject to the Rules and those who have to apply them and consequently also a proliferation of appeals. The Secretary of State has already taken a valuable first step towards improving matters by asking the Law Commission to report on the simplification of the Immigration Rules, and I hope that action will be taken on those recommendations. But the problem goes further than matters of structure and presentation, and I would hope that thought is also being given to how to improve the general quality of the drafting of the Rules.


Oksana Demyanchuk

+44 020 7822 8535

oksana@sterling-law.co.uk

Michael Carter

+44 020 7822 8535

michael@sterling-law.co.uk

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EPC Contracts

We have reviewed the EPC contract and provided a legal opinion on force majeure clauses (re Covid-19) and its implications.

Engineering, procurement, construction and commissioning (EPC) contracts are the most common form of contract used to undertake construction works by the private sector on large-scale and complex infrastructure projects. Under an EPC contract, a contractor is obliged to deliver a complete facility to a developer who needs only turn a key to start operating the facility, hence EPCC contracts are sometimes called turnkey construction contracts. In addition to delivering a complete facility, the contractor must deliver that facility for a guaranteed price by guaranteed date and it must perform to the specified level. Failure to comply with any requirements will usually result in the contractor incurring monetary liabilities. The EPC contractor coordinates all design, procurement and construction work and ensures that the whole project is completed as required and in time. He also may or may not undertake actual site work.

Key features of an EPC contract are:

  • A “firm” contract price with limited ability for the contractor to claim additional amounts.
  • A fixed date for project completion with limited ability for the contractor to claim an extension of time (EOT).
  • Single point responsibility.
  • Contractor responsibility for proving the performance and reliability of the completed asset or facility.
  • A focus on the long-term performance of the asset or facility and its ability to generate revenue.

Xena Semikina

Senior Solicitor

xena@sterlinglawyers.co.uk

 

Michael Iatsukha

Trainee Solicitor

michael@sterlinglawyers.co.uk

 

 

 

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Refusal on Suitability grounds

Sterling Law successfully appealed refusal on Suitability grounds.

The client came to the UK on a visit visa, overstayed and became pregnant. The baby tragically died. She afterwards entered a relationship with a settled person and applied for leave on that basis. The application was refused and we successfully appealed to the First-Tier Tribunal.

The application was refused on Suitability grounds due to NHS debt from maternity services. However, the judge found it unreasonable not to exercise the discretion given the tragic and traumatic circumstances of losing the baby and the fact that the client was committed to settling the debt. It was held that the Suitability ground does not apply.

The appeal was allowed on Article 8 grounds outside the rules. Although the client did not meet the threshold of insurmountable obstacles, it was recognised that her return would be difficult, especially as she is currently pregnant and given her traumatic experiences.

You can contact us at contact@sterling-law.co.uk 

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Daughter-in-law of an EEA national can stay in the UK

Our immigration team achieved great success in representing a client in her appeal against the Home Office’s decision to refuse issuance of the Residence Card as an extended family member of an EEA national.

Our client, a Ukrainian national entered the UK as a Family Permit holder and was residing in the UK as an extended family member of an EEA national (her father-in-law was Portuguese).  Our client lived with her husband and son, whose residence in the UK was also dependent on the same EEA national.

The family applied for Residence Cards under the European Community law. However, the Home Office refused to issue our client and her family Residence Cards on the basis of insufficient evidence of dependency on their EEA sponsor.

In the refusal letter the Home Office stated that printed envelopes and package labels showing our client’s address were insufficient evidence to prove that she was part of the household of the sponsor in Ukraine or UK. Also, there was not enough evidence to demonstrate that she was financially reliant upon the sponsor in Ukraine or the UK.

The family subsequently appealed against the Home Office’s decision to refuse their applications.

Shortly after the appeal was lodged, the Home Office issued Residence Cards to our client’s husband and son as direct family members of the sponsor. The client herself, however, was refused.

The client contacted one of our experienced immigration lawyers, Nozima, who successfully represented her in bringing an appeal against the Home Office decision. Sterling Law submitted that the client was dependent upon the sponsor both in Ukraine and the UK and formed part of the sponsor’s household in the UK, moreover, she was financially dependent on the sponsor in the UK and thus, the refusal to issue residence card was wrong in all the circumstances. After reviewing all the ample evidence, the First-Tier Tribunal decided that the Home Office’s decision to refuse to issue a Residence Card to our client was wrong. The Tribunal stated there was sufficient evidence to show that our client and her family were financially dependent on the sponsor and that she was part of the sponsor’s household in the UK:

‘…money transfers from the sponsor to the appellant and her family members in the Ukraine … are significant in value and extensive covering a significant period of time…’

And:

‘substantial evidence of a reliable nature to demonstrate that the appellant is part of the sponsor’s household in the UK … includes official documentation including the application for National Insurance number, HMRC documentation, confirmation of residence of all parties from the landlord and registration with a GP at the sponsor’s address…’

Therefore, the appeal was allowed and the client was permitted to stay in the UK with her family and obtain residence card, which allows her to exercise more rights in the UK, including the right to work.

Are you an extended family member of an EEA national and have been refused/or want to apply for a Residence Card/ pre-settled status to stay in the UK? If you are in a similar situation or should you have any other immigration-related query or issue, please do not hesitate to contact us on contact@sterling-law.co.uk.

 

 

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ELDERLY MOTHER PERMITTED TO STAY IN THE UK WITH HER BRITISH ADULT SON AND HER GRANDCHILDREN

Excellent news; adult dependent relative appeal allowed by the First-tier Tribunal (Immigration and Asylum Chamber)!

Our client, an Indian national, came to the UK with her husband lawfully to visit their son and grandchildren, who are British nationals. Sadly, her husband passed away suddenly while they were in the UK. Our client had a history of dementia with Parkinson’s disease along with anxiety and depression, which made her return to India unachievable.

On the advice of her previous legal representatives, she made human rights claim on medical grounds, which was refused by the Home Office.

The client then contacted Oksana Demyanchuk to appeal the decision.

Oksana has successfully argued in her grounds of appeal that at the age of 72, being a widow, regard must be had to the massive degree of physical and emotional dependency that Appellant had on her family in the UK, it was submitted that the only conclusion that can be reached on whether the appellant enjoys a family life for the purposes of Article 8 ECHR is, not only that she does, but that the continuance of such a family life is essential for her to maintain any semblance of a satisfactory existence.

Oksana has placed further arguments with the reference to KE (Nigeria) [2017] EWCA Civ 1382, by emphasizing that the Appellant would face very significant obstacles upon her return to India for the following reasons:

…she has no relations or other support in India; without any support there, she will be unable to cope there and it is extremely likely that she will not have access to medication which will keep her ongoing medical conditions in check.

Accordingly, a notice of appeal was lodged with the First-tier Tribunal. At the appeal hearing, on the basis of the ample evidence prepared and submitted by Oksana, the Judge has accepted that:

  • our client has very serious health issues and is incapable of performing safe day to day self-care;
  • our client’s British son provides her with round the clock personal care and support all the time and this care is irreplaceable;
  • our client’s medical condition presents a very significant obstacle to her integration into India
  • after the death of her husband our client has no close family members in India who can provide her with necessary care;

Thus, the Judge allowed the appeal on the human rights grounds (article 8 ECHR) concluding that

This is one of those exceptional cases where the Appellant’s removal from the United Kingdom would be unjustifiable harsh.

 

Contact us should you have any immigration-related question please do not hesitate to contact us on oksana@sterling-law.co.uk.

 

 

Student loan for a non-EU national

Sterling Law has successfully challenged a decision by Student Finance England to refuse a student loan to a settled non-EU national because it was not believed that he met the lawful residence requirements.
To meet the requirements for a student loan, the student needs to meet certain residence requirements, which normally include having been lawfully resident in the UK for three years prior to the start of the academic year. Our client, a non-EU national, had received Settled Status under the EU Settlement Scheme and been lawfully resident since his arrival to the UK as a child. His immigration history was not without difficulties, having been incorrectly refused EEA Residence Cards more than once in the past. However, Sterling Law has been acting in his case for many years and always successfully challenged the Home Office’s unlawful decisions before successfully obtaining his Settled Status.
When our client applied for a student loan, Student Finance England requested his immigration history from the Home Office as part of their standard procedure. Unfortunately, the  Home Office provided information which misled Student Finance England to believe that our client had been an overstayer during the three-year qualifying period. Sterling Law appealed the Student Finance decision and successfully persuaded them to reconsider the decision. Our tactic was to approach the Home Office at the same time and to request that Student Finance be corrected in their mistaken view of our client’s immigration history. At first, we were met with the obstacles of Student Finance’s misunderstanding of the immigration rules and the Home Office’s refusal to accept responsibility. However, our persistence paid off and the appeal has been allowed by Student Finance England, who agreed to urgently process our client’s student loan for the academic year 2019/2020.
This case exposes a flaw in the student loan system which affects migrants disproportionately – that Student Finance England relies on limited information from the Home Office about an applicant’s immigration history. This personal data can be incomplete or misleading, or it could be misunderstood by Student Finance’s staff who are not familiar with the immigration system. This system causes incorrect student loan decisions where a person has a complex immigration history with any refusals in the past, particularly where they have been the family member of an EEA national. The ultimate successful result is very welcome and shows that any incorrect student loan decision is worth challenging.
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Leave to remain under the parental route

Two successful applications for leave to remain under the parental route.

Our clients both parents of children in the UK had no status in the UK when they approached Sterling Law.

One of our clients was the parent of a British child, although he was no longer in a relationship with the other parent, our client maintained a relationship with his child and was involved in her upbringing. The other clients were the parents of a child who had resided in the UK continuously for 7 years.

Accordingly, applications were made on behalf of our clients for leave to remain in the UK on the basis of their family and private life, and in particular on the basis of their parental relationship with their children.

In order to be successful in an application for leave as a parent of a qualifying child[1], it must be demonstrated by the Applicant that it would be unreasonable for the child to leave the UK. This is enshrined in section 117B of the Immigration Act 2014

117B (6) Immigration Act 2014:

In the case of a person who is not liable to deportation, the public interest does not require the person’s removal where—

(a)the person has a genuine and subsisting parental relationship with a qualifying child, and

(b)it would not be reasonable to expect the child to leave the United Kingdom.

 

Therefore, Applicant’s must ensure that they provide the Home Office with sufficient evidence to demonstrate their claim that it would be unreasonable for their child(ren) to leave the UK as this is vital to the success of the application.

In both the above cases, upon the advice of Oksana Demyanchuk, our clients were able to provide ample evidence that it was unreasonable for their children to leave the UK and therefore, their applications were successful and leave to remain was granted. Even more impressively, the applications were processed within 6 weeks!

 

[1] A qualifying child is a child that is a British citizen or has resided in the UK for 7 years continuously.

 

Oksana Demyanchuk

Email: oksana@sterling-law.co.uk

Tel. 020 7822 8535

 

Michael Carter

Email: michael@sterling-law.co.uk

Tel. 020 7822 8535

EEA Family member: permanent residence application after refusal

Our client, a non-EEA national, initially obtained a residence card as the spouse of an EEA national. Our client subsequently divorced from his EEA national spouse and obtained a residence card under the Retained Rights route. The client then applied for permanent residence, which was refused and a subsequent appeal was dismissed by First-Tier Tribunal as the Judge wrongly thought the client needed to be a qualified person, not his EEA national spouse during the time their marriage lasted. Permission to appeal on this basis was granted. 

Between the refusal and appeal, on behalf of our client, we applied for indefinite leave to remain under Appendix EU (also known as settled status). Our client successfully obtained ILR under Appendix EU. Despite this, the client still wanted to assert his rights under EU law and proceed with his permanent residence appeal.

In their Rule 24 response to the appeal to the Upper Tribunal, the Home Office asserted that the grant of IRL under Appendix EU to the Immigration Rules meant the appeal under EEA Regulations should be treated as abandoned. Sterling Law disagreed and made representations to the Home Office and Upper Tribunal on this basis. At the Upper Tribunal hearing, the Home Office conceded that an appeal under EEA Regulations cannot be abandoned by a grant of leave under domestic law. The Upper Tribunal agreed, and found as follows:

Our conclusions on the abandonment issue are as follows:

i. Under the 2006 Regulations, there was a provision under para 4(2) of Schedule 2 to those Regulations for appeals brought under section 82(1)

NIAA 2002 to be treated as abandoned where an appellant was issued with documentation confirming a right to reside in the United Kingdom under EU law. Following the changes brought about by the Immigration Act 2014, as of 6 April 2015, that abandonment provision was revoked and never replaced;

ii. There has never been provision under any of the EEA Regulations for an appeal against an EEA decision brought under those Regulations to be treated as abandoned following a grant of leave to remain or the issuance of specified documentation confirming a right to reside in the United

Kingdom under EU law;

iii. It follows that a grant of leave to remain following an application under the EU Settlement Scheme does not result in an appeal against an EEA

decision brought under the 2016 Regulations being treated as abandoned.

This means that, even if an individual has obtained leave under Appendix EU, they are still able to assert their rights under the EEA Regulation. Practically, this could have an impact on when an individual may be able to make an application for naturalisation as a British citizen, as a grant of permanent residence under EEA Regulation can be backdated, whereas a grant of indefinite leave to remain under Appendix EU cannot be. 

In this case, it meant that the client received a positive decision and had his right permanent residence in the UK acknowledged.  

 

Oksana Demyanchuk

Email: oksana@sterling-law.co.uk

Tel. 020 7822 8535

 

Michael Carter

Email: michael@sterling-law.co.uk

Tel. 020 7822 8535

 

 

Unmarried partner appeal allowed at First-tier Tribunal (IAC)

Unmarried partner appeal allowed at First-tier Tribunal (IAC)

Our client, a national of China, came to the UK as a student in 2001. After her leave expired she remained in the UK. Shortly afterwards, she entered into a relationship with a British national.

In 2018, having been in a relationship for many years, our client applied for leave to remain on the basis of her family and private life, on the grounds that she was the unmarried partner of a British national.

The application was refused by the Home Office and our client lodged an appeal. The Tribunal failed to list our client’s appeal after some time and, concerned as to what to do next, she approached Sterling Law.

A further appeal against the refusal was then lodged by Oksana Demyanchuk providing reasons for it being out-of-time and an appeal hearing was listed by the Tribunal.

Evidence was then complied to demonstrate that our client had developed a family and private life with her partner, his children and grandchildren in the UK. Furthermore, evidence was put forward that would face very significant obstacles to integration into China for a number of reasons.

It was also put forward that our client’s family life would be disproportionately affected by any removal because she could not return to China with her partner as a couple for many reasons, for example, one reason put forward was the fact that her partner was a business owner in the UK and the disruption caused to his business by him leave the UK would be devastating.

It was submitted on behalf of our client, given all the evidence provided, it would constitute a breach of our client’s Article 8 ECHR rights to remove her to the UK and therefore, the Home Office decision to refuse her application was unlawful.

The Judge of the First-tier Tribunal agreed, finding that:

When considering the issue of proportionality, I note that there is a strong public interest in the maintenance of effective immigration controls, a statement of principle given statutory effect in every question of immigration control arising under the Immigration Acts. However, given the insurmountable obstacles [her partner] would face combined with the fact that the appellant has not been to China in nearly 20 years, has no relatives to offer the couple support should they return, the lack of ties to China and all the other evidence in the round, I find that the respondent’s decision does amount to a disproportionate interference with the appellant’s family life and private life and is, therefore, unlawful under section 6 of the Human Rights Act 1998.

Therefore, the appeal was allowed on human rights grounds and under the Immigration Rules and after many years, our client’s status in the UK is now secure and the couple can continue their life together in the UK.

 

Oksana Demyanchuk

Email: oksana@sterling-law.co.uk

Tel. 020 7822 8535

 

Michael Carter

Email: michael@sterling-law.co.uk

Tel. 020 7822 8535

 

 

 

Jehovah’s Witness granted asylum in the UK

Our client, a national of the Russian Federation, is a practising Jehovah’s Witness and active member of the Church.

In August 2017, the Vyborg City Court in the Russian Federation ruled that a Jehovah’s Witness publication, the New World Translation of the Holy Scriptures, a translation of the Bible, and three Jehovah’s Witness brochures were extremist. The result of this was that Jehovah’s Witnesses became a banned religion in the Russian Federation on the grounds that they are an extremist organisation.

As reported by Amnesty International: those who continue to manifest their faith as Jehovah’s Witnesses including participating in worship, leading religious activities, recruiting others or fundraising despite the ban will be liable to criminal prosecution and can face imprisonment for up to 12 years.

Therefore, fearing persecution if he were to return to the Russian Federation on the basis of his religious beliefs, our client claimed asylum in the UK. The grounds on which a person can claim asylum are set out in Article 1 (A) (2) of the 1951 Convention Relating to the Status of Refugees, which reads as follows:

As a result of events occurring before 1 January 1951 and owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it

Based on the strength of the submissions and supporting documents provided to the Home Office by Oksana Demyanchuk, our client’s asylum claim was approved by the Home Office at the initial decision stage. In 2018, 67% of asylum claims in the UK were refused by the Home Office at initial decision[1], whereas over 50% of appeals before the Frist-tier Tribunal[2].  Therefore, we would recommend that asylum seekers in the UK always seek professional legal advice.

[1] https://researchbriefings.parliament.uk/ResearchBriefing/Summary/SN01403

[2] https://www.freemovement.org.uk/half-of-all-immigration-appeals-now-succeed/

 

If you require immigration help:

Oksana@sterling-law.co.uk

Michael@sterling-law.co.uk

Or call us on 020 7822 8535

+44 7 305 966 531 – Viber/Whatsapp

 

Oksana Demyanchuk and Michael Carter worked on the matter.

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