Tag: Immigration

WHEN THE HOME OFFICE SHOULD EXERCISE DISCRETION

Applicants under the Points-based system

  • Tier 4 students,
  • Tier 2 and Tier 5 workers,
  • Tier 1 visa holders,

must strictly comply with all visa requirements and supply certain specified documents in support of their applications. It is clear in “stark terms” under paragraph 39B of the Immigration Rules that ‘if the necessary documents are not provided, an applicant will not meet the requirement for which those documents are required as evidence.’ As a result, an application will not be successful.

 

However, in case of exceptional circumstances the Home Office should exercise discretion. Moreover, since R (Behary & Ullah) v SSHD [2016] EWCA Civ 702, it has been good law that the Home Office is obliged to consider discretional grant [outside of the Rules] ‘when expressly asked to do so’. The categories of exceptional circumstances are not closed. In the guidance, examples are given of what could constitute such circumstances, but each case depends on its facts.

 

For example, discretional leave can be granted if educational provider has its licence withdrawn or revoked during the period between an application for extension of leave as a Tier 4 (General) Student and the Secretary of State’s decision on the application (see Patel (revocation of sponsor licence – fairness) India [2011] UKUT 00211 (IAC)).

 

However, the Home Office is quite strict in exercising discretion, especially, in case of Tier 1 (Entrepreneur) extensions. Recent cases of:

  • R (Prathipati) v SSHD (Discretion – Exceptional Circumstances) [2018] UKUT 427 (IAC);
  • R (Sajjad) v Secretary of State for the Home Department [2019] EWCA Civ 720;
  • Khajuria, R (on the application of) v The Secretary of State for the Home Department [2019] EWHC 1226 (Admin)
  • Asiweh v The Secretary of State for the Home Department [2019] EWCA Civ 13

are good examples.

 

Thus, it is crucial to seek an immigration advice if not before submitting an application straight after receiving refusal. Our experienced Lawyers can assess the merits of bringing a judicial review claim and provide the best Immigration solution in case a judicial review would be waste of your time and financial resources.

 

I cannot provide all the documents to support my visa application, what do I do?

 

Are you currently on student, work, entrepreneur or any other point-based system visa and looking to extend it?

Or are you looking to apply for the first time?

You must strictly comply with the document list to support your application. Usually, the Home Office is very strict on this while they are evaluating your case, and if you do not provide a required document, your application may be refused.

However, sometimes, in case of exceptional circumstances, the Home Office may exercise discretion, and consider a grant.

There are several categories described in the guidance of such exceptional circumstances. However, each case should be evaluated on an individual basis.

Moreover, the Home Office is quite strict in exercising discretion, especially in case of Tier 1 (Entrepreneur) extensions.

We strongly suggest to seek legal advice before submitting such an application.

We can assess your case and evaluate your chances of getting visa.

However, if you already received a refusal, we still can help. Our lawyers will assess the merits of taking your case to the judicial review claim stage. If we think judicial review will not be successful, we’ll provide you other immigration solution.

The case was successful due to efforts of our Immigration Lawyer Oksana Demyanchuk and her team.

oksana@sterling-law.co.uk

+44 020 7822 8535

+44 7 305 966 531

 

 

ARTICLE 8 APPEAL OUTSIDE THE IMMIGRATION RULES ALLOWED ON THE SPOT!

Our client, a citizen of the Russian Federation, came to the UK at the age of 12 to study. After graduating with a bachelor’s degree from a UK university, our client applied for Indefinite Leave to Remain in the UK under the ten-year continuous long Residency Rules.

The Home Office refused the application with no right of in-country appeal. The client’s previous legal representatives did not challenge this decision, at which point our client became an over-stayer as his continuous leave was broken. Instead, our client then applied for leave to remain based upon his private life. This application was refused on the grounds that our client did not satisfy requirements 276ADE of the Immigration Rules.

Immigration Rules 276ADE (1)

The requirements to be met by an applicant for leave to remain on the grounds of private life in the UK are that at the date of application, the applicant:

(i) does not fall for refusal under any of the grounds in Section S-LTR 1.1 to S-LTR 2.2. and S-LTR.3.1. to S-LTR.4.5. in Appendix FM; and

(ii) has made a valid application for leave to remain on the grounds of private life in the UK; and

(iii) has lived continuously in the UK for at least 20 years (discounting any period of imprisonment); or

(v) is aged 18 years or above and under 25 years and has spent at least half of his life living continuously in the UK (discounting any period of imprisonment); or

(vi) subject to sub-paragraph (2), is aged 18 years or above, has lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but there would be very significant obstacles to the applicant’s integration into the country to which he would have to go if required to leave the UK.

 

After approaching numerous other lawyers, the client approached Sterling Law. Our lawyer, Oksana Demyanchuk and her team lodged an appeal with the First-tier Tribunal on the grounds that the decision was a breach of our client’s Article 8 ECHR human rights. In particular, the emphasis was placed on the fact that our client had established an extensive private life in the UK since his entry. After considering the grounds put forward and the bundle of documents provided in support of the appeal, the Judge allowed the appeal on a spot despite our client not meeting any of the Immigration Rules! In doing so, the Judge found that

the Home Office timing resulted in unfairness because it effectively prevented the appellant from benefiting from paragraph 276 ADE of the Immigration Rules when he had qualified for indefinite leave to remain.

 

Moreover, the Judge found that our client

  • has built up a significant private life in the United Kingdom;
  • has the English language skills of a native speaker;
  • is financially independent; and
  • It would be in public interest to retain him in the country.

Bearing the above in mind, it was held that any interference in the Appellant’s private life will result in unjustifiably harsh consequences.

 

Thanks to Oksana Demyanchuk and her team, our client can remain in the UK which already become a home for him.

 

Contact us should you have any immigration-related question:

oksana@sterling-law.co.uk and michael@sterling-law.co.uk

+44 (0) 207 822 8535

You can also text us via facebook.

DOMESTIC WORKER GRANTED SUBSEQUENT LEAVE TO REMAIN OUTSIDE OF THE IMMIGRATION RULES

Can a domestic worker in a private household establish a family life with the family they work with?
If Oksana Demyanchuk is dealing with your case, then yes!

 

Our client, a Russian national, has been working as a nanny for a family, since the birth of their first child five years ago. When the family moved to the UK, our client obtained a six-month domestic worker in a private household visa to accompany them to the UK and continue her employment as the family’s nanny.

As a nanny to the children, our client spent a significant amount of time with them since their birth and has become incredibly close to the children. One of the children who has several health issues has built a particularly trusting relationship with our client.

Due to the particular circumstances of the family, our client’s support of the family is vital. By the time our client’s leave to remain was due to expire our client’s support to the family was irreplaceable.

However, from April 2012 the Immigration Rules does not allow domestic worker visa holders to extend their stay in the UK beyond a total six-month limit.

 

Therefore, our client applied for leave to remain on the basis of her human rights, in particular, her right to private and family life in the UK.

 

The Home Office refused to accept that family life between our client and her employers and their children existed for the purposed of Article 8 ECHR. Accordingly, an appeal was lodged with the First-tier Tribunal.

At the appeal, on the grounds and documents advanced by Oksana Demyanchuk, the Judge found that

There are no hard and fast rules as to what constitutes family life within the compass of Article 8. And thus, given the nature of the dependency, family life exists in this case for the purpose of Article 8.

 

Moreover, the Judge accepted that more than normal emotional ties exist between the Appellant and the family and the refusal to grant our client leave to remain is disproportionate and constitutes a breach of her Article 8 ECHR rights. Thus, the appeal was allowed.

 

Contact us should you have any immigration-related question:

oksana@sterling-law.co.uk and michael@sterling-law.co.uk

+44 (0) 207 822 8535

You can also text us via facebook.

RETAINED RIGHT OF RESIDENCE

UNABLE TO OBTAIN ID FROM YOUR EX-SPOUSE? ALTERNATIVE EVIDENCE CAN BE ACCEPTED

Our client, a national of Turkmenistan, applied for a residence card as someone who had retained the right to reside in the UK. She was married to an EEA national but their marriage has now ended. Her ex-husband set up his own business when they married and was doing that when they divorced. Thus, our client satisfied one of the main requirements of Regulation 10 of The Immigration (European Economic Area) Regulations 2016. Necessary documents proving ex-husband’s employment (e.g. tax returns) were submitted with the application.

However, the Home Office refused our client’s application noting that “she had not provided evidence that her ex-husband had been working at the date of divorce”. In addition, our client was unable to provide a copy of an identity document for her ex-husband since he has been completely uncontactable. She has tried to call and speak with her ex-husband on a number of occasions, contacted him via emails and whatsapp. However, he either did not respond or clearly showed an unwillingness to assist her. Thus, it was beyond our client’s control to produce the required identity document.

In accordance with the Reg. 42 of The Immigration (European Economic Area) Regulations 2016:

Alternative evidence of identity and nationality

where a provision of these Regulations requires a person to hold or produce a valid national identity card issued by an EEA State or a valid passport, the Secretary of State may accept alternative evidence of identity and nationality where the person is unable to obtain or produce the required document due to circumstances beyond the person’s control.

 

Sterling Law successfully appealed the initial refusal. The Judge was satisfied that sufficient evidence regarding the ex-husband employment was provided. Moreover, following the provisions of Reg. 42 the Judge accepted the expired EEA document of her ex-husband (provided with the previous successful application for a residence card) as the evidence of nationality and identity of her ex-husband.

 

Contact us should you have any immigration related question:

Jekaterina Trubina

Email: Jekaterina@sterling-law.co.uk

Tel. 020 7822 8535

 

Shakir Hussain

Email: Shakir@sterling-law.co.uk

Tel. 020 7822 8535

“The law extends but does not limit freedom.” Sterling Law wins the lawsuit against the UK Home Office

Prior to being disappointed because of having lost the case, we would advise to attentively check the grounds which the Home Office based its decision on.

The situation that will be presented below shows that even the Home Office can show low consideration of the specific case. An individual has referred to Sterling Law to provide legal representation in the case due to the refusal of her application for an EEA Residence Card as confirmation of her right to reside in the UK with her husband of British citizenship.

Our Client is a woman (further Appellant) who got married to a British citizen in 2013 in Afghanistan. By the date of the hearing, they were expecting the birth of their first child. In 2016 her husband was offered a good job in the Netherlands, so the family decided to relocate there permanently. He was the first who moved to start his new job and a few months later, the Appellant joined him. She applied for EEA Residence Card in the Netherlands as a confirmation of her right to stay with her husband as a family member. She has issued a Residence Card in the Netherlands. Everything seemed to be in order: well-paid job, new rental apartment, studying a new language, life was filled with new colors. The family could see a lot of bright prospects for their future in the new country. They did not have intentions to leave the  Netherlands. However, life often has its own plans. Sometime later, they got news that the Applicant’s husband’s mother has seriously got sick in the UK. Taking into account the cultural specifics of the Appellant’s husband’s nationality (he was Afghan), the son was obligated to take care of his senior parents, especially if they were unwell. The family had no other choice but to go back to the UK to take care of the husband’s mother. She had limited capability of moving around the house and was suffering from instant pain in her joints. The Appellant provided significant help to her husband’s mother, such as feeding, cooking, helping to go to bed, etc. Upon arrival to the UK, the Applicant applied for a UK Residence Card as a confirmation of a right to reside in the UK with her British husband. However, the Home Office refused in issuing the Residence Card based on her situation assessment, saying that the Appellant could not meet the requirements of British immigration law.

We would like to provide the grounds of the Home Office refusal:

The Home Office concluded that the Applicant’s relocation to the Netherlands was not genuine, and was done in order to “circumvent domestic immigration laws”. In other words, the Home Office claimed that the Appellant decision to move to the Netherlands was something like a staging show with the only aim – to circumvent British law and to eventually receive UK Residence card. Secondly, the Home Office claimed that it was solely the Applicant’s initiative to come back to the UK, not her husband’s intention.

Moreover, it was concluded that the Applicant did not show that the center of her and her husband’s life was transferred to the Netherlands, practically no integration into new society has been conducted. And the accommodation they rented was just on a temporary base.

Sterling Law was appointed to represent the Appellant in this case, where we initially pointed out on the Home Office low consideration of the case and the numerous obvious evidence provided by the Applicant.

The first and furthermost fact is that throughout the entire Decision Letter the Home Office repeatedly referred to the Applicant has lived in “Ireland” instead of the Netherlands. This could not be considered just a minor error, but an example of how poorly the application was considered by the Home Office.

Based on the provided tenancy agreement, it was clearly seen that the Appellant’s family were planning to stay in the Netherlands not temporarily, but for a long period of time, if not permanently.

Numerous medical check-ups of the Appellant’s mother-in-law showed that she was indeed unwell and needed constant everyday care. Thus, the initiative of their relocation back to the UK was fully belonged to the Appellant’s husband, as it was his mother who needed help and physical support.

Later, the court concluded that relocation to another country could not be just a staging show, as it has been done so much by the family to move the center of their life to the Netherlands: find a new job, rent an apartment, study a new language, integrate into society. No doubts, the appeal was allowed by the Court. The Applicant was granted the UK Residence card.

Sterling Law was more than satisfied that the justice was served. We highly recommend to read through the Home Office decisions attentively, there can be some minor errors which do not influence the actual decision, but at the same there can be mistakes that completely change the outcome of the case, and even worse if this outcome is refusal or rejection of your application, like in the case described above.

This case reaffirms the statement of the prominent English philosopher John Locke, who said that “the end of law is not to abolish or restrain, but to preserve and enlarge freedom.”

 

Appeal allowed for a further leave to remain based on private life in the UK and financially dependent child

Nollienne Alparaque and the team were recently successful in an appeal case in the First-tier Tribunal.

In this case, the client has appealed against the refusal for a further leave to remain in the UK, in which they heavily relied on their private life in the UK and their financially dependent child of 20 years of age. The applicant is financially self-sufficient and has owned her business for over ten years. The client’s son is a University student, who failed to obtain a student loan to pay his university fees, as he did not have a three year visa. Due to not being able to finance his own education, as he has no savings and assets, the client’s son seeks full financial support from his mother during his university years.

The judge has considered the fact that the applicant’s son has been living with his mother before going to university, and continues to do so throughout his university years, as he is wholly reliant on his mother and does not lead an independent life. Furthermore, it was found that there is a clear financial and emotional dependency enabling the applicant’s son to complete his education without the applicant’s support. The judge noted that if the client had to leave the UK, she would not be able to run her business, which would make it no longer possible to generate the income required to support and pay for her son’s university education.

The outcome of this appeal was successful, as the judge ruled that under those circumstances it would be a breach of the right to a family life and the client’s son would be deprived in the event of his mother’s removal from the UK to pursue his education and career.

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.

EU National’s Children and British Passports

Since the June 2016 referendum, when most British voted for Brexit, EU nationals became concerned about protecting the interests of their children and started to look for options of securing a UK passport. Let’s get into more details.

According to the general rule, children born in the UK automatically acquire a British passport. However, depending on the date the child was born different rules might apply.

For instance, those children who were born in the UK from October 2000 to April 2006 must prove that one of their parents held permanent residence or indefinite leave to remain/enter at the moment they were born. Only, in that case, they will be able to get a British passport. Permanent residence card or a letter from the UK Visas and Immigration are enough evidence to be provided to the British immigration authorities. However, most parts of EU nationals did not apply for such documentation, mostly because of the lack of immigration law knowledge, so their children losses the right to obtain a British passport automatically. Such a pity, but due to non-acquaintance the parents will have to apply on behalf of their children and register them as British citizens.

 

Those, who were born after April 2006 can obtain British passport if they can prove that their parents were exercising Treaty Rights by residing in the UK for at least of 5 years before the child was born. EU parents who have not completed 5 years residence in the UK prior to giving birth will withdraw their children’s right to become British at birth. Nevertheless, this category of children will have a right to register as British citizens following the terms and conditions of the British Nationality Act 1981. It should be noted, that such application is rather high-priced and would cost nearly GBP 1000.

We often get lots of questions from the clients in the cases, where one child (usually the eldest one) was born outside the UK and the youngest – in the UK. In that case, the younger child will have two options: either to be British at birth or to register through automatic entitlement, which was described in the previous paragraph.

Holding British citizenship, you can always come back to the UK to live, study or work. As parents are highly concerned about their children education, you can get a British education, which is undoubtedly one of the most efficient in the world. Sure enough, British passport is one of the most beneficial nowadays and can be counted as a great investment into your child’s life providing lots of advantages and opportunities for a better future.

BASIC GUIDANCE ON CHALLENGING HOME OFFICE CIVIL PENALTY NOTICE

Penalty Notice, two words but so much damage. Businesses suffer from lower reputation, fines are expensive, and the competitors are thriving. Failure to conduct the lawful immigration checks leads to the issue of the penalty notice. There are many real-life examples regarding this matter and even more regarding other cases.

So, What is a Civil Penalty Notice?

It is a Document issued by  the Home Office, informing the organisation that they employed a person who has no legal right to work in the UK. The Civil Penalty regime was created to ensure employers comply with the UK’s immigration laws and regulations. It is set to punish both, the illegal employees and the organisation that hired them. Many employers received civil penalty notices by unknowingly hiring illegal immigrants, meaning that they have failed to complete the correct Right To Work checks. If that occurs, fines can go up to 20,000£ per worker. This is a big fine that can even end some organisations. Employers who in fact knew that they were hiring an illegal immigrant face up to 5 yeas of imprisonment and an unlimited fine.

Grounds for challenging a Civil Penalty Notice

Each organisation has 28 days to respond to the penalty. It starts with an employer making a formal objection to the Home Office. If an employer has grounds for a challenge and evidence to support their case , the fine may be reduced or withdrawn at this stage. If this fails, an appeal can be made to the court.

The ‘Statutory Excuse’

An employer who can prove they carried out correct Right To Work checks on an employee named in the Civil Penalty Notice has a ‘Statutory Excuse’ and does not have to pay the fine.

That is why it is so important to complete the Right To Work checks and have a robust compliance system in place. If the employer has completed the checks and has evidence proving so , they may not be required to pay the penalty. Even further, the Immigration Enforcement will not publish businesses name, reducing the reputation damage.

Employers have to understand that Immigration Law is what everyone has to follow. Employers must ensure that Right To Work checks are complied with and the evidence is retained. Objecting to the notice and processes following that are worse then just simply following the Home Office requirements.

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.