Category: Successful Cases

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.

South Korean client’s appeal allowed on Human Rights grounds

Yet another successful appeal from our team. Now assisting a South Korean client whose appeal was allowed under the Human Rights grounds.

His immigration history does not have any remarks until 2010 when his further leave to remain application as a student was refused. After the successful appeal, he was granted only 3 months leave to allow him to extend the same in May 2012. Unfortunately, his family did not support his choice of education and profession. They disapproved of his choice of life as well. He was cut off from all financial and emotional support. Subsequently, he overstayed his leave in the UK.

After being encountered by the Immigration Officers, he makes a human rights and asylum claim. All submissions were made independently by our client at the initial stage of the proceedings.

The basis of the asylum claim rests on our client’s believes on and expectations from the compulsory military service in the Republic of South Korea. He claimed to be a conscientious objector and should be recognised as a refugee because his claim falls under the Geneva Convention on the Rights of Refugees 1951.

The Republic of Korea is well known for its compulsory military service and its open demonstration of imposing criminal charges on anyone who dodged the draft. It has recently been accepted that the Republic of Korea has the longest term for military service and no alternative service is available to the draftees. The only alternative to date is at least 18 months imprisonment.

Our client also claimed that even though the prison conditions in South Korea do not breach the international standards, his freedom of choice, family, social, professional and private life will be affected by the prison sentence. He claimed that he will not be able to travel, obtain a lucrative job nor financial support that would enable him to maintain himself post-conviction. This will also disrupt his relationship with his current partner whom he lived with for over 7 years in the UK.

Unfortunately, the Home Office failed to consider every aspect of our client’s case and certified the claim as clearly unfounded under s94 of the Nationality, Immigration and Asylum Act 2002. This is when he instructed us in his matter.

It took our team to fight long and hard to get the right to appeal the decision of the Home Office. Nozima relied on the following in the grounds for appeal:

1) Conscientious objection to service in the military is a Convention Reason to recognise someone as a refugee. It was argued that our client is a member of a particular social group whose rights are being violated. Accordingly, he should be recognised as a refugee.
2) Where our client is not recognised to be a refugee, his removal from the UK will violate his right to family and private life. It was argued that the cohabitation with the partner for over 7 years does amount to the relationship being akin to a marriage. The fact that our client would be imprisoned upon arrival to South Korea, spends at least 2 years in serving his sentence and be deprived of equal treatment was submitted to be an insurmountable obstacle.

The background information fully supports the submissions made on our client’s behalf. After imprisonment in South Korea, our client will face
significant obstacles to reintegration in South Korean society, such as job placement, opening and running a business, getting a bank loan or travelling abroad.

The Immigration Judge, considering all factors present and arguments raised during the appeal allowed it on Human Rights grounds. The Judge based her decision on disproportionality of removal of our client from the UK considering his integration in society by living in the UK for about 18 years, his 9 years relationship with the settled partner and harsh consequences of port-conviction in South Korea that would interfere with his Article 8 ECHR rights.

 

Book appointment with us here.

 

Or contact Nozima directly:

 

 Nozima Rakhimjonova

Associate

nozima@sterlinglawyers.co.uk

+44 (0) 7305 8484 77

 

You can read more about our successful cases and news here.

DISCRIMINATION IN EMPLOYMENT

A new case – 3 Jan 2020

On what kind of beliefs can an employee claim discrimination?

Most people are aware that it is unlawful to discriminate on grounds of gender, race or nationality, religion or belief, sexual orientation or disability.

An employment tribunal within the last week re-affirmed a fundamental principle of the Equality Act 2010, namely that the concept of ‘belief’ is not confined to just the Abrahamic religions, or any other religions, as some would have us believe!

‘Belief’ includes any philosophical belief, provided it is held genuinely and seriously, and includes, as in this case decided on 3rd January 2020, veganism. The claimant here was a vegan who believed that this was the reason that he had been victimised in the course of his employment. The employee had ethical objections to the way in which his employer behaved.

Of course, vegetarianism is included as well, as is, for instance, atheism and agnosticism and paganism. No belief has any privilege over any other – which I would say is exactly what you would expect in the law in a modern civilised secular society.

Kuldeep Clair

Senior Employment Solicitor

If you need expert advice on an employment issue, contact our consultant employment solicitor:

Kuldeep Clair – 07484 614090 or kuldeep@sterlinglawyers.co.uk

EQUAL PAY DISCRIMINATION IN EMPLOYMENT

Just on Friday, a prominent new case was reported in the news involving equal pay.

It is prominent because it involved a claim by a well-known BBC journalist, Samira Ahmed, against her employer, on the basis that she had been underpaid for several years, for presenting one programme, amongst others. Her equal pay ‘comparator’ or rival BBC male journalist, was Jeremy Vine. Salary figures at the BBC had been made public as a matter of policy, and these showed that Mr Vine had been paid at a rate considerably more per programme, even though they both have been similarly experienced in their fields – over 25 years or so.

Of course, the BBC attempted to offer an alternative explanation for this disparity to the employment tribunal, but it was not accepted by the tribunal on the facts before it. The programmes in question were very similar and required similar skills. If the opposite had been accepted, the case would not have succeeded. Samira Ahmed’s success means that she will receive back pay for perhaps six years amounting to a six-figure sum. Six years is the maximum period for which an employee can claim back pay in an equal pay claim.

Our senior specialist employment solicitor, Kuldeep Clair comments, “I have found that claims for equal pay commonly turn on the ability of an employer to provide an explanation for the difference in pay. This can be difficult, but sometimes an explanation may not even be necessary, because the work simply is not easily ‘comparable’ at all. So there can be potential problems in both bringing and defending claims, unless you have expert professional representation.

Kuldeep dealt with an equal pay claim last year for a claimant which was settled for a substantial five figure sum. He was opposed by a prominent City firm, defending a national hospitality company. “The defence initially put forward by the employer was essentially the same”, says Kuldeep, “namely,  that my client’s work was of a different nature and could not be compared to the dozen male managers who occupied comparable positions to her. But they had a change-of-mind two weeks before the tribunal hearing date, when they realised the strengths of my client’s claim.

Kuldeep goes on to note that this year it is exactly 50 years since the introduction of the Equal Pay Act 1970, which was a turning point in anti-discrimination legislation. “We have now moved forwards a long way since the days when women were expected to either stay at home and do the dishes, or at most possibly expect to take menial work at whatever pittance of a rate was offered to them without any argument.

For advice on any employment issue, Kuldeep Clair can be contacted on 07484 614090 or kuldeep@sterlinglawyers.co.uk

Spouse Visa – Unmarried partner refusal withdrawn by Home Office prior to appeal

Our client, a national of the United States of America, approached Oksana Demyanchuk and Michael Carter to apply for leave to enter the UK as the unmarried partner of a British citizen.

The couple had met many years back in the USA and started a romantic relationship. By the time the Applicant applied for leave to enter the UK, the relationship had been ongoing for well over 2 years, however, the couple had only lived together for a period short period less than that required by the Home Office.

The Immigration Rules currently state the following with regard to unmarried partners:

295A. The requirements to be met by a person seeking leave to enter the United Kingdom with a view to settlement as the unmarried or same-sex partner of a person present and settled in the United Kingdom or being admitted on the same occasion for settlement is that:

  • (a)(i) the applicant is the unmarried or same-sex partner of a person present and settled in the United Kingdom or who is on the same occasion being admitted for settlement and the parties have been living together in a relationship akin to marriage or civil partnership which has subsisted for two years or more,
  • […]

 

Furthermore, Home Office guidance on the topic of unmarried partners states the following:

‘Living together’, should be applied fairly tightly, with a couple providing evidence that they have been living together in a relationship akin to marriage or civil partnership which has subsisted for two years or more.

 

Despite this, Applicant and Sponsor, out of principle, did not want to marry for the sake of obtaining a visa and decided to make an application. It was submitted to the Home Office by Oksana Demyanchuk that their relationship was sufficiently serious as to be akin to marriage and that discretion should have been applied to waive the requirement of 2 years’ cohabitation prescribed for in the Immigration Rules.

The couple submitted evidence to the Home Office that their relationship was sufficiently serious so as to be equivalent as marriage in all but name. This evidence included evidence of the couple’s trips to share holidays with each other and references from family members and friends confirming the genuineness and seriousness of the relationship.

The initial application was refused on the basis that the couple did not satisfy the co-habitation requirement, although it was accepted that the relationship was genuine and subsisting and had been for many years.

The couple duly appealed the decision to the First-tier Tribunal (IAC), continuing to argue that the inflexible requirement of 2 years’ co-habitation is inconsistent with Article 8 European Convention on Human Rights.

The couple was able to provide an enormous volume of documentary evidence of their relationship and submitted a bundle consisting of sum 974 pages in support of their contention that the decision to refuse our client leave to remain was unlawful.

On the day of the hearing, the Home Office representative informed that, in light of the arguments advanced and supporting evidence provided by Oksana Demyanchuk, they accept the submission and are withdrawing the decision to refuse the application with a view to granting leave. The result is that our client will now be granted leave to remain to continue to enjoy her family life with her partner.

Sterling Law are please the justice prevailed in the end and that our clients can now continue their life together without compromising on their principles.

You can contact Oksana and Michael:

Oksana DemyanchukEmail: oksana@sterling-law.co.uk

Tel. 020 7822 8535

 

 

 

 

 

Michael Carter

Email: michael@sterling-law.co.uk

Tel. 020 7822 8535

 

Book a consultation here.

Read more about our successful cases here.

 

PK: Court of Appeal remits Ukrainian draft evader asylum claim back to the Upper Tribunal

Our client, PK is now raising funds for his application to the Upper-Tribunal. His initial application was refused by the Home Office. However, following a successful appeal, he now has another hearing at the end of March after the case was remitted to the Upper-Tribunal.

The client is launching this legal action to set a new precedent that would help other people in a similar situation.

The funds would be delegated to cover the legal expenses, including senior barrister QC (queen’s council), who is instructed in the matter to present the client in the Upper-Tribunal.

Ultimately, he needs to raise £30,000, which will cover the barrister fees of senior barrister QC and junior barrister, who are already instructed on the case and lead the previous successful appeal.

You can help PK by donating here.

You can read more about the case below:

Our client, PK, entered the UK unlawfully in 2013 and claimed asylum in 2014 upon facing deportation.

However, numerous asylum claims have been rejected, the call-up notices received were considered fraudulent documents, and PK faced removal.

PK appealed to the First-tier Tribunal which considered two main issues:

Could the military service in Ukraine involve acts contrary to the basic rules of human conduct defined by international law?

If the appellant was to receive a prison sentence, would the conditions there breach Article 3 of the European Convention of Human Rights?

The Tribunal considered such acts to be unlikely, but not impossible, and found that the most likely punishment for draft evasion in Ukraine would be fine. The appeal was therefore dismissed, as the harm feared would not be sufficiently serious to breach Article 3 of the ECHR.

The main question we raised in the Court of Appeal was whether punishment for draft evasion must reach minimum severity in order for a draft evader to be considered a refugee. We also argued there is an inconsistency between the Upper Tribunal and the Secretary of State definition of “minimum severity”.

The appeal was allowed and the case was remitted to the Upper Tribunal.

Sterling Law instructed Anthony Metzer QC and Julian Norman to represent the client.

You can read the full article here.

Ruslan Kosarenko
Senior Partner

 

 

 Nozima Rakhimjonova

Associate

nozima@sterlinglawyers.co.uk

 

 

Nadiya Pylypchuk

Trainee Solicitor

nadiya@sterlinglawyers.co.uk

Bringing a child to the UK under sole responsibility route

Our client is a child living in Uzbekistan. She wishes to come to the UK to live with her mother, who is already settled in the UK. However, our client’s father still lives in the country of her origin. Most of the time, cases where only one parent is settled in the UK, it is really challenging to prove that the parent in question has sole responsibility for their child’s upbringing, especially when the other parent is still alive. Such cases, therefore, are associated with high refusal rates and costly and time-consuming appeal processes.

The greatest challenge in such cases is providing sufficient evidence that a parent indeed has sole responsibility for the child.

Oksana Demyanchuk and Michael Carter have advised on the required evidence to our client, prepared and submitted the application on the applicant’s behalf following which Indefinite Leave to Enter was granted in the first instance, as the Entry Clearance Officer was satisfied that the mother has sole responsibility for her child’s upbringing in light of all the evidence provided.

Oksana and Michael provided evidence to show that the child is not leading an independent life, and they provided evidence that the mother has been continuously providing financial and emotional support to the child. Furthermore, they showed that the father has no bearing in regard to the child’s upbringing, and the child’s grandparents do not have control over the child’s daily decisions.

Since the Home Office did not refuse our client’s application, she has effectively saved her time and money by not appealing the Home Office’s decision in case they refused her application.

Our client can now happily join her mother and able to live in the UK.

If you have a sole responsibility case, do not hesitate to contact Sterling Law.

Sterling Law is recognised by the Legal 500, and The Times.

Oksana Demyanchuk

Email: oksana@sterling-law.co.uk

Tel. 020 7822 8535

 

Michael Carter

Email: michael@sterling-law.co.uk

Tel. 020 7822 8535

 

Book a consultation here.

Read more about our successful cases here.