Tag: ECHR

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

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, Mobile +44(0)74 6338 2838, 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.

Complex asylum appeal of Ukrainian national subject to conscription won

Sterling & Law Associates LLP continues to receive successful decisions from the Immigration Tribunal in the asylum cases.

Recently, we have successfully appealed a refusal of an asylum claim of an Ukrainian national who was subject to mobilisation in Ukraine and was summoned to join military service. The case was based on the applicant’s fear of returning to Ukraine because of the potential persecution by the Ukrainian authorities for his unwillingness to undertake military service and fight in the Russia-Ukraine war.

The asylum claim of the Appellant went through many difficulties due to his extradition to Hungary and return to Ukraine. This separated the appellant from his dependent wife and two children in the UK.

Upon his return to Ukraine, the Appellant was stopped by the border force and was detained for a short period of time. After release, he continued to receive summons. He had a strong reluctance to serve in the Ukrainian army and returned to the UK to be with his family. The second attempt to claim asylum ended with a refusal.

One of the reasons was the Home Offices`s disbelief that the applicant was still subject to undertake military service. Moreover, it was not accepted that his return to Ukraine would result in persecution or mistreatment. Another reason was the appellant’s failure to claim asylum as soon as he arrived to the UK.

Asylum Grounds

After the assessment of the Home Offices`s Country Guidance and Note dated April 2017 about Military Service in Ukraine, the Immigration Judge accepted that the Appellant fell within the criteria for those who are subject to military service in case of return to the country of origin.

The Judge found that the Appellant holds strong views against signing up for military service because “he is was not trained to fight at the front line and he is concerned what fill happen to his family if he is killed or injured“. Further, the real risk of arrest and persecution upon returning to Ukraine and the potential detention and imprisonment conditions according to VB Case led the Judge to a conclusion that would constitute a breach under the Article 3 ECHR.

On this basis, the appeal was allowed on human rights grounds. The decision was promulgated on 19 March 2018.

 

Asylum & 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: 074 6338 2838, by e-mail: contact@sterling-law.co.uk or via our online appointment booking form.