Tag: Appeal

Domestic violence – Indefinite Leave to Remain

A VICTORY FOR OUR CLIENT IN THE FIRST-TIER TRIBUNAL

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

Domestic Violence Retained Rights Appeal Allowed!

Another fantastic result from Oksana Demyanchuk and her client after another successful appeal to the First-tier Tribunal.

The client, in this case, came to Sterling & Law Associates LLP after her marriage to an EEA national had broken down on grounds of domestic violence. Accordingly, an application for a residence card on the basis of the retained right of residence was made to the Home Office.

However, this application was refused as the marriage between our client and her EEA national Sponsor has not lasted for at least 3 years and the Home Office was not satisfied that our client had been a victim of domestic violence as there was little documentary or no independent evidence to corroborate our client’s claim to have been the victim of domestic violence.

Accordingly, Oksana lodged an appeal to the First-tier Tribunal against the decision of the Home Office, asserting that the client’s claim to be the victim of domestic violence was credible and therefore the Home Office decision was unlawful.

As is often the case in matters involving domestic violence, our client had little tangible evidence to demonstrate that they were a victim of such violence. Therefore, Oksana has placed particular attention and emphasis on the witness statements in the appeal.

The Judge, accepting that evidence in cases of domestic violence is not always available, found that the evidence of our client and witnesses was credible and gave a detailed picture that our client was, in fact, a victim of domestic violence. In doing so the Judge noted the following:

“I am not confined or restricted to independent documentary evidence such as that which the respondent may usually seek in cases involving or alleging domestic violence. The absence of police and medical reports are not necessarily indicators that the appellant did not suffer or was not the victim of domestic violence.

There are a whole host of reasons why those who suffer domestic violence, and especially women victims of male perpetrators, are reluctant to report to the police and the authorities that they are such victims. The reasons can be multifarious and complex and this is well documented in much research and studies in the area of domestic violence.

Appeal allowed for refusal of permanent residence as derived from being an EEA national exercising treaty rights in the UK for a continuous period of 5 years

Under Regulation 15 of the Immigration (European Economic Area) Regulations 2016, EEA nationals and family members of EEA nationals acquire the right of permanent residence after residing in the UK and exercising treaty rights for a period of at least 5 continuous years. Sterling law represented clients who were refused the right of permanent residence in the UK on this basis. The first appellant was an EEA national who was denied these rights along with their third-party national spouse who was refused the right of permanent residence as the spouse of an EEA national.

It was said that the reason for refusal was that the main appellant had not satisfied that they were exercising treaty rights for a continuous period of 5 years.

The bundle prepared by Sterling Law on behalf of the appellants showed that the reasons for refusal were unfounded. It was proved that the main appellant satisfies and had established treaty rights as an EEA worker in the UK. Evidence was provided by way of bank statements and pay slips for a period of just over 5 years. It was also found that the appellant was a job seeker as established by Hoekstra (nee Unger) case 76/63 (1964) ECR 177 which held that the EU law protected the ‘present worker’ but also ‘one who has left his job, and is capable of taking another’, as the main appellant was unemployed for two months within the 5 year period. It was also found that the second appellant (as the spouse of the main appellant) also exercised their treaty rights in the UK by proof of residence and employment for a period of 5 years and therefore is also entitled to permanent residence.

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

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

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

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

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

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

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

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

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

 

Kuldeep S. Clair

Consultant Solicitor

Employment, Dispute Resolution, and Litigation

Sterling Lawyers Limited

(usual contact details inc mobile no.)

One year without a parent. How immigration policy destroys a child’s childhood

A controversial and interesting case has been recently represented by Sterling Law.
Apparently, according to the Home Office, the evidence of having a child is not strong enough to recognize marriage as genuine and issue a Residence Card for the applicant.

Sterling Law presented the rights of the Appellant, who is a Ukrainian citizen. The Appellant applied for a Residence Card the grounds of being a spouse of EEA national, exercising treaty rights. However, the application was refused based on the results of the marriage interview. The Appellant and her spouse of Lithuanian nationality were interviewed separately. After the interview, a few discrepancies were detected, namely:

1) The Appellant stated that her future husband proposed to her in summer 2014, when her husband mentioned the date of September 2015.
(How is it possible not to remember when you were proposed?)
2) Also, discrepancies were found in Appellant’s sister’s name.
(Is it possible to forget your wife’s sister’s name because you are nervous at the interview?)
3) The appellant was not able to name the amount of mortgage, that her husband took. (Seems like there is not much trust in this couple, right?)
4) And finally, the couple did not purchase the engagement ring and did not celebrate the wedding.
(Obviously, they did not need it as it looks like a marriage of convenience, doesn’t it?)

Having such discrepancies at the marriage interview, made the HO assume this couple is not in a genuine relationship.

The couple, however, has a common child, as well as numerous photographs, where all the family members (including relatives) were together. Both parents can be seen on the photos of different baby’s age and have undoubted evidence of cohabitation.

Is the fact of having a common child not strong enough to consider that the marriage is genuine? – this is the main issue that was raised in this case.

The fact, that the appellant and her EEA national husband have a child did not influence the Home Office decision. Based on the above-mentioned discrepancies, the Appellant of Ukrainian citizenship was refused in issuing a Residence Card. The marriage was deemed as the one for obtaining citizenship rights. Moreover, the burden of proof was put on the Appellant, which contradicted the case law.

The Appellant had to wait over a year for another hearing to present more evidence and proof of cohabitation.

Justice prevailed! How the Immigration Officer nearly ruined the Albanian family?

Attention! Obviously, genuine marriage may be still questioned by the Home Office and result in refusal of a residence card issuing – this is where you will need Sterling Law to protect your rights.

Sterling Law has received a request for legal assistance from a person of Albanian nationality. He entered the United Kingdom illegally back in 2011. Later, in 2017 he started to cohabit with his future wife – a woman of Romanian nationality, as a result, they got married in 2018. Our client applied for a residence card, based on the fact, that the Sponsor (his future wife) was an EEA national exercising treaty right in the UK. However, not only his application was refused, but he was also detained after the marriage interview. The main reason for refusal was the fact that there were a number of inconsistencies in their answers at the interview, such as:

– the date on which the Appellant proposed;

– who lived with them in their flat;

– what they did in spare time etc.

The Home Office misinterpreted the facts and claimed that body language of the parties at the interview “didn’t feel they were too invested in the relationship”. Also, the Home Office claimed that the couple was prepared for the interview by a solicitor.

Here is the question appears: is the Home Office qualified to assess whether a foreign national is genuinely in a relationship by assessing their body language?

In any event, it was concluded that there were reasonable grounds to suspect that the marriage was of convenience, even though the marriage right was granted.

Sterling Law put much effort into this case and the Appellant was released on bail and got married to his Sponsor. Seeking justice, the Appellant appealed on the grounds that the refusal breached his rights under EU Treaties. He managed to provide additional evidence, such as witness statements, bank statements, social network posts and common photographs. The Appellant endeavoured to prove that his genuine marriage was genuine. He also provided all the details as to how his wedding was planned, where the rings and wedding clothes were bought. One of the strongest evidence was that the Appellant’s spouse had recently visited Albania, where she stayed with her husband’s parents.

At the final hearing, the Judge was rather straightforward in his statements and expressed “serious concerns about the conclusion drawn by the Immigration Officer who conducted the marriage interview due to a lack of objectivity”. The Judge also admitted, “just how many men would be able to remember the precise date on which they proposed?”. As for the fact that the Appellant was prepared for the marriage interview by the solicitor, the Judge pointed out: “what does he expect a solicitor to say to people on this position and how was the interview allegedly planned?”. And finally, it was reasonably noted that “if this is a marriage of convenience the parties have gone too extraordinary lengths to cover their tracks in sending the Sponsor to Albania and bringing back photographic and documentary evidence of meeting Appellant’s family.” Taking into account that the burden of proof was on Respondent (according to case law Papajorgji Greece (2012) UKUT 38 (IAC)), the Respondent failed to satisfy the burden and establish reasonable grounds to suspect this marriage is one of convenience.

The Judge confirmed that the marriage was genuine and the appeal was allowed.

Sterling Law was glad to successfully assist its client of Albanian nationality to win all the stages of the process: firstly, to get the Appellant released on bail, secondly, to prove his marriage was genuine and finally to obtain a residence card.

Right of residence granted to an Extended Family Member of EEA National after refusal based on insufficient evidence

Turkmenistan National has appealed against the decision made to refuse his application for a residence card as an Extended Family Member of European National who is exercising treaty rights in the UK. The client was in unmarried partnership when they applied for a residence card, which was refused on the basis that the client has not provided enough evidence to prove a durable relationship with their partner. Their relationship began and progressed as a long distance relationship due to the clients return to Turkmenistan. The client has kept in contact on regular basis and continued the long-distance relationship with their partner. Three years later, the client has returned to the UK and started living together with their partner.

The Home Office had refused the initial application. This was done on the basis that the Applicant has failed to evidence that their relationship with the sponsor was durable, as they failed to submit sufficient evidence to prove they stayed in contact while being in a long distance relationship. Furthermore, the Home Office argued that the evidence the client provided to prove that they started living together was insufficient, as they only provided one gas bill.

Our lawyer Nollienne appealed against this decision, arguing that the client has submitted a significant body of documents which included different identity documents, payslips of their partner showing that they are exercising their treaty rights in the UK, variety of letters proving cohabitation with the sponsor, such as bank statements, utility bills, phone bills. Also, messages and conversations between the applicant and their partner were submitted together with photographs, proving their relationship.

The Judge was satisfied with the evidence submitted, as it was heard that the client and their partner have started introductions between their family members, showing clear intent to marry. With the consideration of all of the documents submitted and the oral evidence given in court, confirmed the durable nature of their relationship. Consequently, the Judge allowed the appeal, stating that the Appellant is entitled to be issued with a Residence Card.

Nollienne Alparaque 

Email: nollienne@sterling-law.co.uk

Tel. +44 (0) 20 7822 8535
Mob. +44 (0) 0781276 9389     

Long Residence Appeal successful in the Upper Tribunal

Oksana Demyanchuk and the team were recently successful in a long residence appeal case in the Upper Tribunal.

The client had applied for Indefinite Leave to Remain on the basis of Long Residence. The application was subsequently refused by the Home Office due to excessive absences. An appeal was lodged against the decision by Sterling Law.

The Judge of the First-tier Tribunal noted that an abundance of evidence had been provided by the Appellant in support of his appeal.

Long Residence & Absences

Based on the evidence submitted in support of the appeal, it was accepted by the Judge that, while the Appellant had in fact exceeded the permissible number of days absent, there was a reasonable explanation for many of the absences and, as such, the Home Office was wrong not to exercise discretion in favour of the Appellant. The Judge found that

the Respondent’s decision fails to provide any insight whatsoever as to what factors, if any, the Respondent took into account in concluding that there were no “compelling or compassionate circumstance” arising in this case to warrant the exercise of her discretion in relation to the assessment under para 276B or 276 (1) ADE

The Judge then went on to assess Article 8 ECHR and allowed the appeal, being satisfied by the evidence provided, that the Appellant had built an extensive family and private life in his time in the UK and that it would be disproportionate to remove the Appellant from the UK. Accordingly, the Judge of the First-tier Tribunal allowed the appeal on human rights grounds.

The Home Office then sought permission to appeal to the Upper Tribunal against the decision of the First-tier Tribunal and was granted permission on the basis that it was arguable that the Judge’s assessment proportionality in respect of Article 8 was flawed.

The Upper Tribunal went on find that the First-tier Judge has directed herself appropriately and made appropriate findings. The Tribunal found that there had been no material error of law made by the First-tier Judge and that, therefore, the decision allowing the Appellant’s appeal based on Article 8 should stand.

Should you have any further questions, or think any of the above may apply to your matter, please do not hesitate to contact us directly:

Oksana Demyanchuk

Email: oksana@sterling-law.co.uk

Tel. 020 7822 8535

 

Michael Carter

Email: michael@sterling-law.co.uk

Tel. 020 7822 8535

 

 

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, or via our online appointment booking form.

Appeal allowed after a lengthy long-distance relationship reunited

Sterling Law have successfully represented a client in a complex appeal case, and helped to challenge the Home Office’s refusal of our client’s EEA Family Permit application.

In the present case, the Home Office sought to argue that the marriage between the appellant and her EEA national spouse was “a marriage of convenience”, contracted for the sole and predominant purpose of gaining an immigration advantage. The Home Office was not satisfied with the applicant’s evidence submitted, such as their marriage certificate.

Moreover, the fact that there is a substantial age gap between the couple, the Home Office further suspected the scum marriage.The application to join as a family member of the EEA was then refused by the Home Office, subsequently an appeal was prepared by Sterling Law based on the  evidence, which shows the frequency of travelling of the sponsor to the home country of the appellant, photographs, supporting letters from close friends and family.

The Appeal was allowed, and the Immigration Judge noted that the sponsor had given credible evidence, supported by the documents prepared.

Should you have any further questions, or think any of the above may apply to your matter, please do not hesitate to contact us directly:

 

Nollienne Alparaque 

Email: nollienne@sterling-law.co.uk

Tel. +44 (0) 20 7822 8535

Mob. +44 (0) 0781276 9389

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, or via our online appointment booking form.

Appeal allowed after Home Office refuses EEA Residence Card for Brazilian National

A new successful case came out recently after the decision by the First-tier Tribunal.

The case concerned a family couple, where a Brazilian national married an EEA national. The appellant entered the UK, with the EEA national, on the basis of her Brazilian marriage certificate. Subsequently, the wife applied for a residence card as a family member of the EEA national and were refused by the Home Office.

Sterling Law appealed the decision of the Home Office, who considered their marriage to be one of convenience and, therefore, refused the residence card and ordered the appellant’s removal from the UK.

The refusal was based on the fact that the marriage certificate was not sufficient proof of the existence of a genuine marriage, or relationship.

The couple were expected to provide evidence of financial ties and cohabitation throughout their relationship. Further issues arose on the day when the Home Office team visited the couple’s property, which the appellant shared with her husband and parents-in-law.

Immigration lawyer, Nollienne Alparaque acted on behalf of the client and clarified that when the Home Office team visited the appellant’s property, there was miscommunication between the officers and the appellant’s friend, who spoke very little English, and could not properly confirm the name of the appellant’s spouse. Moreover, there was no any evidence reporting the visit by the Home Office team.

As to the alleged lack of financial ties, it has been argued that the appellant could not open a bank account, because the Home Office had her passport.  The couple had demonstrated active communication through Facebook, phone calls and messages before they got married in Brazil.

To conclude, the decision of the Home Office to refuse the residence card was found not to be in accordance with the EEA Regulations 2016, and the appellant was entitled to the residence card as an EEA family member.

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.