April Case Updates

1. A Mauritius national had been applying for offshore visas for last many years. He didn’t know how to read and write and was helped by his girlfriend to fill the application since 2008. His girlfriend used FLR (O) form all the times in the past and ticked general visitor category and the applications were always allowed. However, this time it failed on the ground that he can’t switch on from an offshore visa to a visitor’s visa under the immigration rules. We were approached to file an appeal to the First-tier Tribunal.

We argued before the judge that the appellant would not have submitted his salary slips and employer’s letter if he was seeking a visitor’s visa. It was an innocent mistake on his part that he ticked the wrong box on the application form. We had requested to the First-tier Tribunal to issue directions to the Home Office under Rule 45 of The Asylum and Immigration of Tribunal (Procedure) 2005 to provide the copies of all the applications made by the appellant for offshore visas since 2009. Having regard to the circumstances of the case, the First-tier Tribunal allowed our appeal.

2. A Thai national was married to a British national and had a British child from their marriage. The British national left the UK and entered into another relationship. The Thai national approached us for advice as her visa couldn’t be extended on account of her husband not supporting her application for extension of her spouse visa or indefinite leave to remain. We made her an application for her under EU law relying on Zambrano’s case. The application was refused on the ground that she was married to a British national and therefore not a primary carer. We appealed to the First-tier Tribunal and our appeal was allowed as it did not matter even if she was married to a British national what mattered was she was the primary carer as father of the British child was not playing any role in her upbringing.

3. A Nigerian national was married to a British national. He was on a PSW visa at the time he made an application for a spouse visa. His application was refused on the basis that he and his wife did not satisfy the financial requirement of £18,600. He approached us to file an appeal. He and his wife had started to earn and would have satisfied the financial requirement by the time of appeal hearing date reached. The First-tier Tribunal agreed with our submission that the fresh evidence of earning could be considered by it under section 85(4) of the Nationality, Immigration and Asylum Act 2002 as it was an in-country appeal. We had relied on in LS (post-decision evidence; direction; appealability) Gambia [2005] UKAIT 00085 in support of our submission.

4. An American national made an application for a spouse visa on the basis of having been married to a British national for 14 years. He and his wife were planning to settle down in the UK as his wife’s parents were getting old and were suffering from various ailments and they wanted to be near them to be their support. The application was refused on the basis that the he was convicted in the America 20 years ago for a term of 8 years. On the appellant’s wife having approached us we decided to appeal on the grounds that the entry clearance officer before refusing the visa should have considered compassionate circumstances which he is required to under the Paragraph 320(18) of immigration rules and he should also have considered the article 8 rights of the appellant and his wife. The appeal was allowed by the First-tier immigration judge under article 8. The Home Office appealed the decision to the Upper Tribunal. The Upper Tribunal allowed the appeal under the immigration rules paving the way for the appellant and his wife to settle down in the UK.

The decision of the Upper Tribunal is reported and can be viewed at http://www.bailii.org/uk/cases/UKUT/IAC/2013/00309_ukut_iac_2013_f_usa.html

Our upcoming Appeals

1. A Vietnamese national married to a British national and having two British national children has been refused visa on the ground that her English certificate which she had used with her original spouse visa application is not valid anymore as the exam provider does not appeal on the list of the Home Office anymore. She was seeking extension of her spouse visa. The issues before the First-tier Tribunal were whether the Home Office can refuse to accept a certificate demonstrating knowledge of English at level A1 which was accepted by them previously and whether a parent of British children can be removed from the UK. The First-tier Tribunal dismissed our appeal against which we have filed an application for permission to appeal to the Upper Tribunal as the First-tier Tribunal erred in not appreciate principles established by the House of Lords’ Chikwamba judgment . The section 117B(6) of Nationality, Immigration and Asylum Act 2002 also clearly says a parent of British child can not be removed. We are awaiting the decision of the Upper Tribunal.

2. A Malaysian national arrived in the UK as a dependant of her father. Her whole family has been granted indefinite leave to remain but she has been refused even discretionary leave to remain as she is over 18 now. The First-tier Tribunal allowed our appeal but the Home Office has lodged an application for permission to appeal against the decision of the First-tier Tribunal’s decision. The decision of the Upper Tribunal is awaited.

3. Our client who is a national of Philippines is in a relationship with a British national. They have two British children together. He was on seaman visa but because of the change of the immigration rules couldn’t get it extended. His status has been illegal for almost two years now. The Home Office refused his application on the basis that he did not demonstrate that the relationship with his partner is genuine because he did not produced documents linking both to the same address. It was brought to the notice of the Home Office that as his status is illegal it was not possible to submit the documents linking him and his partner to the same address. The Home Office ignored statements of his partner’s relatives, birth certificates of his children and their photograph to come to conclusion that the relationship was genuine. The Home Office also did not pay heed to duty imposed on the Secretary of State by Section 55 Borders, Citizenship and Immigration Act to promote and safeguard the welfare of the children. The First-tier Tribunal was o decide whether our client should be granted leave on the basis of his family life with his partner and their children. However, the Home Office withdrew their refusal decision on the day of hearing and now our client has been granted leave to remain in the UK.

4. Our client is a Thai national who is married to a Hungarian national. She is entitled to a residence card on the basis of being a wife of an EU national exercising Treaty rights in the UK. Her husband is working as a chef in the UK. However, her application for a residence card was refused by the Home Office. We have been engaged to deal with her appeal in the First-tier Tribunal. We have submitted to the Tribunal the documents such as salary slip and employer’s letter demonstrating her husband’s status as worker in the UK as per regulation 6 of the Immigration (European Economic Area) Regulations 2006.

5. Our client is a Nepalese national married to a British national. His application for extension of a spouse visa has been refused on the ground that his English certificate is not valid as the name of the exam provider is not on the Home Office list of exam providers. He has been issued a section 120 notice entitling him to take additional grounds other than taken in his application. He has now passed Life in the UK Test and also attained an English qualification equivalent to level B1. Hence, we will try to get him Indefinite Leave to Remain on that basis. The case is to come up for a hearing before the First-tier Tribunal soon.

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