Category: Successful Cases

Sterling Law sets precedent with Baigazieva [2018] EEA Retained Rights Case in the Court of Appeal

Baigazieva [2018] EWCA Civ 1088 is a case of Sterling Law that is an important new precedent on EEA retained rights of residence. The decision, given by Singh LJ of the Court of Appeal, has served a positive outcome to the appeal brought from the Upper Tribunal against the Home Office’s contention that the Appellant’s former spouse was not exercising treaty rights at the point of their divorce.

In doing so, the decision has also shed light by giving a new direction to a previously ambiguous interpretation of law under Article 10(5) of the EEA Regulations 2006, now revoked and replaced by EEA Regulations 2016.

Background: EEA Retained Rights of Residence

The Appellant, Ms. Baigazieva, applied for retained rights of residence on the basis that she was a former family member of an EEA national who was exercising treaty rights at the time of divorce after which she was residing in the UK as a qualified person.

The Home Office, notwithstanding the fact that she was previously issued a residence card as a family member of a qualified person, refused the application on the grounds that she did not provide sufficient evidence that she has retained a right of residence following divorce from an EEA national in accordance with Regulation 10(5) of the Immigration (EEA) Regulations 2006. Inclusive to the the issue of sufficient evidence not being provided, was the contention that the former spouse of the Appellant was not exercising treaty rights at the point of divorce.

Legal Issue

As such, the appeal turns on the correct interpretation of Regulation 10(5) of the Immigration (European Economic Area) Regulations 2006 (“the 2006 Regulations”). On 9 December 2015, when the Secretary of State the appellant’s application for a residence permit as a family member with a retained right of residence, the 2006 Regulations were still in force. However, on 1 February 2017, the 2006 Regulations were revoked and replaced by the Immigration (European Economic Area) Regulations 2016 (subject to transitional provisions) (“the 2016 Regulations”).

This case has set a much-needed precedence for both ongoing retained rights of residence applications and appeals, as well as applicants hoping to apply for retained rights of residence as former spouses of an EEA national exercising treaty rights in the UK.

This is a right that has subsisted since 2004 under the Directive of the European Parliament and of the Council of April 2004 (Directive 2004/38/EC) which ordains that it is a right of citizens of the Union and their family members to move and reside freely within the territory of the Member States. Article 13(2) of the Directive provides for third country family members of EU citizens to retain their right to reside in an EU Member State in the event of divorce and is supplemented by Regulation 10 of the EEA Regulations 2006 (and now 2016) which lays out the conditions under which a family member may retain a right of residence.

Accordingly, subsection (5) of Regulation 10 provides that a person satisfies the conditions in this paragraph if –

  • He ceased to be a family member of a qualified person on the termination of marriage or civil partnership of the qualified person;
  • he was residing the United Kingdom in accordance with these Regulations at the date of the termination;
  • he satisfies the condition in paragraph (6)
  • either –
  • prior to the initiation of the proceedings for the termination of the marriage or the civil partnership the marriage or civil partnership had lasted for at least three years and the parties to the marriage or civil partnership had resided in the United Kingdom for at least one year during its duration.

Until this decision was made an ambiguity persisted on the interpretation of the law under Regulation 10(5) in which it was unascertained whether a third country national ex-spouse is required to show that their former spouse was exercising Treaty rights in the host Member state at the time of their divorce (note that it is at the time of the divorce and not having acquired the divorce, the decree absolute) in order to retain a right of residence under Article 13(2) of Directive 2004/38/EC. This is despite the Court of Justice of the European Union (CJEU) giving an answer to that question in 2014 in the context of domestic abuse, which was that the EU spouse, as the qualified person, must reside in the host member state until the date of the commencement of the divorce proceedings.

Thereby, the general implication here was that it was not necessary for the EU spouse to reside in the host Member State until the divorce itself was granted. Though at the EU level, such a determination has not, until this Baigazieva [2018] decision, been made in the UK despite the Secretary of State admitting that the issue has arisen in several proceedings in recent years without definitively being resolved.

Success – SSHD Concedes Appeal

As such, the Secretary of State for the Home Office not only conceded the appeal in the public interest so that the court to give a substantive judgement on the issue of law which arises but the this appeal also prompted the SSHD to accept that a third country national, or order to retain a right to reside in the UK in reliance of Regulation 10(5), does not need to show that their former EEA spouse exercised treaty rights as a “qualified person” until the divorce, the decree absolute, itself. Rather, it is sufficient to show that the former EEA spouse exercised treaty rights until divorce proceedings were commenced.

Singh LJ, the presiding judge of this Upper Tribunal appeal delivered a substantive judgment and concluded that the Upper Tribunal Judge erred in the approach she took to Regulation 10(5) of the 2006 Regulations. Ultimately, this judgement which finds that a third country national has to show their former spouse was a qualified person at the point of the initiation of divorce proceedings rather than at the point of divorce, now sets precedent for succeeding cases on the same matter.

The legal representatives of this case were Counsel, Agatha Patyna, from Doughty Street Chambers acting for the Appellant upon the instructions of the Appellant’s legal representative, Nadia Pylypchuk (as supervised by Ruslan Kosarenko) from Sterling Law.

Immigration Assistance

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Successful Application for Administrative Review of Refusal in Tier 1 Investor Visa Extension

Our team is delighted to share the latest news that our client’s application for administrative review of the refusal of  leave to remain a s a Tier 1 Investor has been successful.

Administrative review is a procedure that allows your visa application to be reviewed if it has been refused.

The administrative review is carried out by a different department of the Home Office. It should be successful if any procedural errors made by an original decision maker will be identified. If that is the case, the original decision will be withdrawn and your visa application reconsidered.

Tier 1 Investor Visa Extension

The Applicant is a Kazakh national, who has been issued with entry clearance as a Tier 1 Investor, entered the UK with her dependants. On the expiration of her visa, she applied for further leave to remain as a Tier 1 Investor, with her dependants applying for an extension of their leave. This application was refused on several grounds.

  1. Firstly, the Respondent was not satisfied that the funds loaned to the Applicant were under her control in the UK, which was against the provisions of paragraphs 2, 6 and 11 of the loan agreement. This allegation was founded upon the basis that the requirement of the Applicant to invest the loan in an Authorised Investment Destination (AID) Company was not satisfied, thus resulting an agreement to ‘lose its force’. The Respondent assumed that the reference to an ‘AID Company’ must refer to a specific company. However, this was not specified in the loan agreement and the Respondent’s claim was argued to be unreasonable, whist lacking any objective evidence.
  2. Secondly, the Respondent was not convinced that the Applicant’s investment was This was argued to be outside of the Respondent’s concern with the regards to the merits of the investment. The investment of 1 million pounds in the company is one of the main requirements to obtain a Tier 1 Investor Visa, which was done in accordance with the rules and regulations according to the facts.
  3. Thirdly, the Respondent referred to the Articles of Association of the company, alleging that its provisions prevented the funds from being under the Applicant’s control and disposable in the UK. However, the Articles of Association guaranteed that the funds would be redeemed to the Applicant, making them consistent with the fact that the Applicant had a sufficient control over them.
  4. Finally, the Respondent alleged that the Applicant’s investment was not within the category of paragraph 65(b) of Appendix A, namely ‘open-ended investment companies, investment trust companies, investment syndicate companies, or pooled investment vehicles’. However, no clear evidence was provided regarding this matter. The Respondent was concerned about a disclosure of the company’s principle business by its Accountants. This evidence was argued to be insufficient to assert the company’s activities at the time of the investment. Additionally, the Respondent referred to the information given by the Applicant during her interview, particularly that the Applicant exercises powers to control the company’s future investments, which was again argued to be lacking any reasonable basis on which to determine the applicability of paragraph 65(b) of Appendix A.

Success of the Application

Sterling Law, defined against all odds, provided all the necessary arguments in favour of the Applicants. Accordingly, the Administrative Review was successful on the grounds of paragraph AR2.11(d) of the Immigration Rules, particularly that the ‘original decision maker failed to apply the Secretary of State’s relevant published policy and guidance in relation to the application’.

The arguments presented by the Home Office authorities were made on the basis of their subjective and unreasonable assumptions, rather than relying on the objective evidence.

This is but a mere example of how passionate and dedicated Sterling Law is to fight for a just and unbiased bureaucracy.

Immigration Assistance

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Home Office Unreasonable Conduct Incites Award of Costs Claims

The award of costs, though not a relatively new scheme is one that has recently had its scope expanded thanks to a court decision made at the end of last year. This time with an expert panel of senior judges stepping in to give their determination on whether Home Office officers can be held to account for unreasonable behaviour by way of an order of costs.

In the last few years, it has become unclear whether an order of costs can be made against Home Office officers who are not considered regulated legal representatives per se.

However, owing to Awuah (No2) an unpublished follow-up to its predecessor, Awuah and Ors [2017] UKFTT 555 (IAC), the Tribunal has positively determined that awards of costs can be made against the Home Office. Though, this power, granted by Rule 9 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 and Rule 10 of the Tribunal Procedure (Upper Tribunal Rules) Rules 2008, remains a power to be exercised with significant restraint. Perhaps a necessary constraint to prevent a colossal flood gate from being opened in claims against the Home Office. Nonetheless, it remains to be said, I am quite sure there are many.

Case Study

Sterling Law have recently acted as legal representatives to the Appellant – a Ghanaian citizen, refused a visa as a partner of a British citizen by the Home Office. The Home Office had claimed – as they too often do in assuming that in such cases sham marriages are predominantly made in order to obtain a British visa – that the appellant’s marriage was not a genuine and subsisting one. This, of course, turned out to be a false allegation and as the appellant’s legal representatives, we served several documentary evidences including DNA reports during the appeal in April which strongly contradicted such claims.

The Ghanaian appellant continues to be engaged in a genuine marriage and has borne a young child with his British wife, which overwhelmingly indicates an individual’s serious and sincere commitment to the development of his family life. A commitment that also entails the creation of the individual’s sustaining and long-lasting family-unit.  As such, all of this detail was assertively provided to the Home Office in evidence of the Appellant’s relationship with his wife and child. However, the Home Office not only and resoundingly failed to make a proper assessment of this case in our submission of the initial application, but there were also several incidents of negligence and unreasonable behaviour displayed throughout the duration of the appeal.

As the Tribunal judge noted in the Appellant’s decision, the Home Office officer neglected to file important documentation in compliance with the procedural rules of the Tribunal prior to the Appellant’s appeal hearing. Notably, incidents which do not fully comply with the rules that the Tribunal has in place for all parties to a legal proceeding, can often prove to be an obstacle to the progress of the case. As such, the nature of this documentation was Home Office interview records that the Home Office used almost exclusively as their evidence against the appellant to incriminate and delegitimise his credibility. Considering the weight of this evidence, which allegedly fortified the Home Office’s position against the appellant, they absurdly ‘forgot’ to submit these records on time for the appeal hearing and despite several letters sent by us prompting them to do so. These records were only properly acquiesced to both Sterling & Law and the Tribunal upon the Home Office representative being found to carry it on-file on the date of the hearing.

Unfortunately, this is not all of such irresponsible acts to have taken place during the appellant’s appeal.

On the day of the hearing, the Home Office had also foregone their obligation to cooperate with the Tribunal by failing to turn up without any explanation or prior notice for the absence. This is despite being appropriately notified of the hearing date well in advance by the Tribunal. Positively, the appeal continued to proceed despite this setback. Therefore, it proves how the Home Office continues to show much disregard and indifference for a large number of the immigration cases it oversees. Even more so in this case where the Home office has clearly shown irresponsibility, unreasonable and even unprofessional conduct that does nothing but further damage the image of the Home Office and its officers.

Appeal Success

Sterling Law proudly states that the Tribunal has granted this appeal on the proper consideration of all the evidence we have provided as the Ghanaian appellant’s legal representatives. The appeal has subsisted against the Home Office upon the grounds of Article 8 of the European Convention on Human Rights (ECHR), preventing the unnecessary interference to the extant family life and private life between the Ghanaian appellant, his British wife and their child. An interference which is only really justified and serves as the exception and not norm in the event it contravenes with the law, is for the legitimate public end necessary in a democratic society, or is an interference which is ardently necessary to protect the economic well-being of the country.

Finally, this case has shown clear faults in the way the Home Office operates. It is clearly unlawful for the Home Office not to have full regard for the appellant’s circumstances before deciding whether to exercise their discretion in favour or against granting the applicant’s entry into the country. It also exudes of unreasonable conduct when the Home Office either fail to consider all the documentary evidence submitted to them or fail to appropriately present evidence as per the rules and regulations of the Tribunal, or both. Such as in this case.

As such, to continue to demerit such acts of negligence by the Home Office, Sterling Law will be pursing more relentlessly, claims for the award of Costs where cases are, prima facie, handled with unreasonable conduct.

As a law firm specialising in immigration and human rights, we continuously strive to protect the best interests of our clients.

Spouse Visa Refusal Successfully Challenged

Oksana Demyanchuk, Immigration lawyer (OISC Level 3) successfully represented the client in a difficult case and helped to challenge the Home Office’s refusal of the UK entry clearance – spouse visa application.

The basis of the spouse visa refusal was that the appellant has previously entered the UK on false documents and that she had used deception in a previous application by failing to declare that she was previously refused entry clearance.Therefore, deception was alleged by the Home Office and her application refused under both Appendix FM and paragraph 320(11) of the Immigration Rules.

After hearing the evidence from the sponsor of the applicant and upon reviewing evidence put forward by Sterling & Law Associates LLP, the Judge allowed the appeal on the grounds of Article 8 of the European Convention on Human Rights.

Private & Family Life

Article 8 of the European Convention on Human Rights provides a right to respect to individual’s private and family life. It was held that if our client’s husband relocates to Ukraine he would potentially be subject to military service. Our client was subsequently granted an entry clearance visa, as it was held that her husband cannot be reasonably expected to relocate to Ukraine to live with his family.

The judge had also taken into account the fact that the appellant had previously voluntary returned to  Ukraine and her intention to set matters right by making the proper entry clearance application from abroad.

The appeal was allowed on Article 8 of the ECHR grounds.

Tier 2 Dependent Entry-Clearance Success for Unmarried Partner

Just this week, the Home Office gave the all-clear for an entry-clearance to our client as an unmarried partner from Ukraine. The casework in this representative matter was led by Jelena Ivanova, Immigration lawyer (OISC Level 3).

What makes this case more interesting is that it serves as a positive example for many young couples who wish to relocate to join their partners currently residing in the UK, without bearing all the restrictions of being married.

This is a hopeful success story. The client’s partner received a job offer in the UK and was granted a a Tier 2 (General) visa to come to the UK. Our client did not wish to separate from her partner for an uncertain period of time and thus, applied for a Tier 2 (General) dependent visa as an unmarried partner. Our client and her partner have been in a relationship for more than 2 years, with no immediate plans to get married as they are a young couple who wish to focus first on developing their relationship together by spending time with each other. A phenomenon which is becoming increasingly popular. There is now a significant increase in immigration applications being received that are for the Applicant to join or be sponsored by their unmarried partner currently residing or working in the UK.

For our client, an unexpected matter in this case is that whilst in the Ukraine, our client had lived together with her partner at his parents residence. The evidence of cohabitation for at least 2 years that was subsequently provided in support of this application was of a limited nature. It was simply a witness statement from the client’s partner’s mother attesting that they were living together, accompanied by a copy of the tenancy agreement of their Ukrainian residence.

Unmarried Partner Applications

Note that in such applications the general rule for unmarried partner applications is that evidence of cohabitation must be provided for at least 2 years. However, it is true that residency and accommodation arrangements between couples or partners may vary depending on the country the Applicant(s) have previously resided in.

Therefore, it need not necessarily be the same as in the UK. In these events, alternative and convincing evidence can and have been considered as proof of the relationship of unmarried partners by the Home Office.

This successful case of Sterling & Law Associates reasserts that entry-clearance to the UK for couples is not limited to Applicants being married partners. There are many successful cases such as this, where alternative routes and applications exist for unmarried couples to gain UK entry-clearance.

Immigration Assistance

For expert advice and assistance in relation to your particular immigration case, please contact our immigration lawyers on Tel. +44(0)20 7822 8535, Mobile / Viber: +447463382838, by e-mail: contact@sterling-law.co.uk or via our online appointment booking form.

Rights of Former Husband of an EEA National Restored after Refusal and Revocation of Residence Card

Our client, a citizen of Ukraine, applied for a retained right of residence on the basis that he is a former husband of an EEA National who was exercising treaty rights at the time of divorce and subsequent to divorce he has been residing in the United Kingdom as a qualified person.

The marriage lasted for three years and both the client and his ex-wife have been residing in the United Kingdom.

The reason for the refusal was based on insufficient evidence of retaining rights of residence following the divorce from the wife according to regulation 10(5) of the Immigration (EEA) Regulations 2006.

In particular, the Home Office was concerned as to whether the ex-wife’s business was genuine and economically active. Based on this reason the Home Office revoked the residence card of the client.

Following the decision of the Home Office, the client instructed Sterling and Law Associates LLP to lodge the appeal on his behalf based on the breach of the rights under the Community Treaties, s 84(1)(d) Nationality, Immigration & Asylum Act 2002. In addition, it was claimed that the decision of the Home Office was unlawful under section 6 and 8 of the Human Rights Act 1998.

During the appeal hearing, the Immigration Judge considered all the evidence and submissions made by Sterling & Law Associates LLP on behalf of the client and noted that the sole issue in the matter was whether the Appellant’s ex-wife was exercising her treaty rights at the date of divorce.

The Judge confirmed that concerns as to the discrepancies in the documents of the ex-wife’s company as a genuine trading business were not sufficient to justify the Home Office’s position.

The appeal was allowed under Article 8 of the ECHR on the human rights grounds.

The casework in this successful appeal case was managed by the Immigration lawyer, Oksana Demyanchuk, who ensured that our client can continue his stay in the United Kingdom in accordance with his retained rights.

Immigration Assistance

For expert advice and assistance in relation to your particular immigration case, please contact our immigration lawyers on Tel. +44(0)20 7822 8535, Mobile / Viber: +447463382838, by e-mail: contact@sterling-law.co.uk or via our online appointment booking form.

Insurmountable Obstacles Proved in a Delicate Human Rights Appeal Case

Oksana Demyanchuk acted successfully in a complex human rights case involving insurmountable obstacles to family life outside the United Kingdom.

The client is a Ukrainian national who initially applied for Leave to Remain in the UK on the basis of her partner and private life. The application was subsequently refused by the Home Office and appealed to the Immigration Tribunal.

During the appeal process, the client (Appellant) had to show that there were insurmountable obstacles if she and her partner had to continue their family life outside the UK as well as a breach of her and her partner’s human rights.

Insurmountable Obstacles

As the Appellant had a successful appeal and was consequently granted leave to remain in the UK, her circumstances help to define what insurmountable obstacles would amount to.

The immigration Judge explained that insurmountable obstacles mean that the Appellant and her partner would be faced with very significant difficulties if they had to continue their family life outside of the UK, which could not be overcome or would entail very serious hardship for either the Appellant or her partner.

Her partner entered the UK lawfully as a student, lived in the UK for a period of over 19 years and has indefinite leave to remain. He held consistent employment throughout this time and bought a property where he lives with the Appellant and their children. On top of this, her partner recently underwent serious heart surgery, and was still recovering. The Appellant’s main responsibility was caring for her partner. Additionally, the Appellant plays a strong role in the upbringing of her grandchildren. It is therefore accepted that the Appellant has a close family unit within the UK.

Moreover, it is noted that the Appellant does not hold any property in Ukraine, nor does she have any immediate family, friends or neighbours in Ukraine. It can be seen that the Appellant has taken on a strong role as a carer within the family. In the case of Beoku-Betts [2008] UKHL 39, it was stated that when deciding an appeal on human rights grounds, it is important to take into consideration the effect that the decision would have on other family members with respect to their family life. In regard to this, strong considerations were made on the best interests of the children involved, specifically the Appellant’s grandchildren.

Additionally, the Appellant proved that she is able to speak and communicate in English. The Appellant does not and has never claimed state benefits. Furthermore, by allowing her to stay in the UK to take care of her partner, her partner would not have to seek help from social and health services thus helping to reduce the strain on public services. It should be noted that she is the only member of her family with an illegal status in the UK, the remainder of her family unit holds the legal right to remain and reside in the UK.

For this reason, it was acknowledged that our client and the family members would face extremely serious hardships if she was forced to return to Ukraine. Our client would have no employment, home, friends and family and thus have significant obstacles in reintegration back in her country of origin. Moreover, our client’s partner and the entire family unit would suffer without the care of the Appellant.

The appeal was allowed by the First-tier Tribunal under the Immigration Rules and the European Convention on Human Rights (1950)

This successful appeal ensures that our client will not be torn away from her partner and will now be able to stay in the UK with her partner.

 

Refusals & Appeals: Immigration Assistance

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Spouse Visa

Spouse Visa Granted in 2 Months after 5 Years Illegally in the UK

One of our recent successful applications was an Entry Clearance Spouse Visa submitted by our client in Ukraine. Our client has been an illegal entrant for over five years and had previously been refused a visitor visa to the UK. Despite these breaches and significant defects of the client’s previous immigration record, his spouse visa application was successful.

Our client first met his spouse in 2015 and their relationship developed in the UK. The couple started living together in March last year and our company was instructed to assist the client with his voluntary departure from the UK so the couple could legally register their marriage in Ukraine.

His partner holds permanent resident’s status in the UK, which sufficient for the right to apply for the spouse visa from outside the UK.

According to the UK Immigration Rules, the partner does not need to be a British citizen to be eligible for sponsoring a spouse visa application. 

Following their marriage, spouse visa application appointment was booked at the Kyiv Visa Application Centre in February 2018. The application included details of all facts the client’s previous illegal stay in the UK and his voluntary departure. The Entry Clearance Officer requested several documents afterwards to confirm the Sponsor’s employment which were subsequently provided.

The application was decided in the middle of April, which is less than in two months after the appointment and submission of the spouse visa application.

Spouse Visa Application Process

Spouse Visa applications normally considered within 12 weeks. Having said that our client had paid for premium service, at a fee of approximately £573, where they have a 30-day timescale in which to make a decision on the application.

The procedure for the application is simple, application form needs to be filled out and appointment in the relevant country should be booked. Once you have attended the appointment, the relevant documents are sent to Sheffield processing centre or scanned at the Visa Centre. The decision will be made either within 12 weeks or 30 days depending on whether standard or premium service was paid.

Financial Requirement

If no children are involved, the threshold of the sponsor’s annual income of £18,600 must be met. In this particular case, our client’s spouse was working for the same employer for more than 6 months so we had submitted payslips, bank statements for the same period and letter from employer.

Alternative Options:

  • Alternatively, if a sponsor is able to show total amount of savings £62,500 that were held for the past 6 months confirmed by the bank statements or other evidence of source of funds, that would also be sufficient to satisfy the financial requirement.
  • If, however, your employment does not meet the £18,600 annual salary, it is possible to show a combination of savings and employment.
  • In case of self-employed, you would need to provide documents for the financial year as self-assessment tax returns, invoices, bank statements and so on as evidence of your self-employment activities.
  • Please note that other documents need to be provided, particularly evidence of your relationship and marriage with your spouse.

Spouse Visa Timing

This case demonstrates that it is possible to return to the UK as a spouse of a British citizen or a settled person even after having stayed in the UK illegally. In this particular case, it took only 2 months to secure our client’s right to enter the UK from outside. Therefore, it is always worth considering taking your application from outside the UK rather than fighting from within the UK where you may become liable to be detained.

The casework in this complex and sensitive spouse visa matter was successfully led by the immigration lawyer Aliya Rimshelis.

Immigration Assistance

For expert advice and assistance in relation to your particular immigration case, please contact our immigration lawyers on Tel. +44(0)20 7822 8535, Mobile / Viber: +447463382838, by e-mail: contact@sterling-law.co.uk or via our online appointment booking form.

Daiga Barzdina

Home Office reliance on testimony from hospitalised spouse deemed abuse of Human Rights

Successful immigration lawyer – Daiga Barzdina

Our client is a Ukrainian national who was granted a 5-year residence card on the basis of his Lithuanian spouse. When he applied for the Permanent Residence Card based on the same relationship, the Home Office refused his application on the sole ground that they deemed the marriage to be one of convenience.

In deciding this dispute, the Judge first had to determine whether an interview with the spouse should be excluded and then to consider the question of the marriage of convenience.

This is because the evidence used by the Home Office in coming to their conclusion relied mainly on their visit to the Appellant’s home and a telephone call to his wife on the same day.

Excluding Evidence

We argued that the telephone call made by the Home Office to the client’s spouse should be excluded from the evidence, relying on Elsakhawy (immigration officers: PACE) [2018] UKUT 86 (IAC). Judges can refuse to allow evidence that, if admitted, would have an adverse effect on the fairness of the proceedings.

In this case, the client’s spouse was in the hospital, having had suffered from strokes, heart attacks, and brain damage. The interview was conducted when the client’s spouse was being treated as an in-patient in the hospital. In the interview notes, it could be seen that the client’s spouse was disoriented as she could not spell her own name, her address, full name or even that she was married.

The judge held that this was a complete abuse of her rights and completely unnecessary because the investigation/inquiry could have been made when the client’s spouse had recovered from her condition. For this reason, the interview was excluded from the final consideration of the case.

Marriage of Convenience

A marriage of convenience is a marriage entered into for the predominant purpose of securing rights of residence in the UK. When the Home Office is considering whether a marriage is one of convenience, it is for them to prove that this is the case. The case of Papajorgii (EEA spouse – marriage of convenience) Greece [2012] UKUT 00038 (IAC) states that the important question is whether it is more likely than not that the marriage is one of convenience when it was entered into.

Without the interview of the client’s spouse, the main evidence that the Home Office was relying on was a home visit where they interviewed the client, saw that the Appellant might be living alone and that the house did not seem to be occupied by a female. They also saw a name on a mobile phone and documents relating to a divorce in Ukraine prior to his current marriage.

Following the home visit, no further enquiries were made, and the Home Office immediately decided that the Appellant’s marriage was one of convenience. This was not enough to show that the Home Office had a justified suspicion that the marriage was one of convenience when it was entered into, especially when our client was previously granted a Residence card on the basis of this relationship.

The appeal was allowed, and the determination of the First-tier Tribunal was promulgated on 27 April 2018. Following this appeal, our client has been issued with a Permanent Residence card and will continue to stay and reside in the UK.

The casework in this sensitive matter was handled by the Immigration lawyer, Daiga Barzdina.

Immigration Assistance

For expert advice and assistance in relation to your particular immigration case, please contact our immigration lawyers on Tel. +44(0)20 7822 8535, Mobile / Viber: +447463382838, by e-mail: contact@sterling-law.co.uk or via our online appointment booking form.

Entry Clearance Refusal of Six-Year-Old Child under Sole Responsibility Successfully Appealed

The Appellant, a six-year-old child, applied for entry clearance as a child whose mother has sole responsibility and stays in the UK as a partner of a British citizen under Section EC-C of the appendix FM of the Immigration Rules . The child was consequently refused by the Entry Clearance Immigration Officer. The refusal was successfully challenged by Sterling and Law Associates LLP at the First-tier Tribunal in April 2018.

The reason for the refusal was based on relationship requirement, in particular, due to lack of evidence of sole responsibility. Other requirements were uncontested by the Entry Clearance Officer.

Our client appealed on the grounds that the decision is not in accordance with the Immigration Rules and is unlawful under section 6 of the Human Rights Act 1998 as being incompatible with the Convention rights.

The mother of the appellant submitted that she has sole practical responsibility for the child from the age of two and that the appellant has no contact with the biological father for more than two years. In addition, the appellant`s mother took all decisions about the child as no one has had any significant input in child`s life since then.

Sole Responsibility

Following incorrect application of the test in the assessment of the sole responsibility by the Entry Clearance Officer in our client`s case the leading authority regarding the sole responsibility which has been applied in the court was TD (Paragraph 297(i)(e): “sole responsibility”) Yemen [2006] UKAIT 00049 which establishes that “sole responsibility” is a factual matter to be decided upon all the evidence. Last but not least, the Entry Clearance Officer failed to exercise the statutory duty under s55 of BCIA, which considers the welfare of the child.

Following the above, the Immigration Judge found that the Appellant`s mother has sole responsibility for the child. The Judge also confirmed that the decision interferes the family life of the mother and the child and that Article 8 of ECHR is engaged.

The appeal was allowed under Article 8 of the ECHR on human rights grounds, and the determination of the First-tier Tribunal was promulgated on 18 April 2018. This successful appeal ensures that the child can enter the United Kingdom to join mother and stepfather.

Refusals & Appeals: Immigration Assistance

The appeal was straightforward, with little opposition and clear facts, the family were granted their leave to remain in the UK. The Home Office may make mistakes in their decision-making, so it can be worth bringing your refusal to court to overturn any errors they may make.

Therefore, for expert advice and assistance in relation to your particular case, refusals and relevant immigration law requirements, please contact our immigration lawyers on Tel. +44(0)20 7822 8535 or by e-mail: contact@sterling-law.co.uk or via our online appointment booking form.