Successful Appeal: Overstayer father granted leave
By Eylem Kara
Our Immigration team was approached by the client, after his application for leave to remain as parent of a child in the UK had been refused.
The client had a convoluted immigration history and had relied on incorrect advice in the past leading to his relatively simple case becoming extremely complex.
Our client moved to the UK as a family member of an EEA national 14 years ago. Before the expiry of his EEA family permit, he applied for a residence permit and was granted with further 5 years leave to remain. This was the first failure of immigration advice he had received, as at that point he could have applied for permanent residence and settled in the UK permanently, thereby saving him considerable difficulties in the later days.
In the meantime, he fathered two children with his wife and the family settled into their lives in the UK fully. However, at certain point the relationship broke down and our client moved out from the matrimonial home. When his second residence card was due to expire, he sought immigration advise, but sadly was again advised incorrectly. As at that time he was already not living with his wife, he was advised that he couldn’t make an application under EEA Regulations and that he should make an application under the Immigration Rules – 10 years long residence.
This application was predictably refused as our client did not meet the requirements. At that time, our client had already started to live with his new partner, who was a British citizen. Despite the breakdown of his relationship with his wife, our client maintained a strong parental relationship with his two young children, but was struggling to get contact, as his wife was often obstructing the contact with children.
In an attempt to regularise his stay, our client submitted an application for leave to remain on the basis of his relationship with his two children who were born and raised in the UK, relying on private and family life in the UK. The application was refused, as he was unable to provide the relevant evidence due to the refusal of the mother of the children to support him with relevant evidence.
When the client contacted us, he had already faced several years of uphill battle to resolve his immigration situation, he was mentally exhausted and financially drained. He had been unable to work since the Home Office was refusing to acknowledge that he still continued to be an EEA family member, as the marriage with his EEA wife had not been officially terminated. He was also struggling to have meaningful contact with his children,a s the mother was making contact difficult at times. Our client then contacted us for advice and representation.
Due to the complexity of the matter, the case was handled by Dr Lusine Navasardyan, the head of our Immigration department and the team worked directly under her supervision.
During our initial consultation, we advised the client that the refusal should be by way of lodging an appeal and having his matter heard by an Immigration Judge. Considering our client’s Immigration history and circumstances, we believed that he had a possibility of succeeding, provided he was able to support the appeal with strong evidence. The client was also advised to attempt to make an EEA application as well, as this had been the right path to follow from the beginning. Therefore, the team was going to work on two paths simultaneously, to ensure the client had the best chance of success.
What is the process for Immigration Appeals?
Immigration Appeal allows you to challenge a visa or leave to remain refusal before an independent judge sitting at the First-Tier Tribunal (Immigration and Asylum Chamber). You can only appeal to the tribunal if you have the legal right to appeal, you’ll usually be told whether or not you have this right in your Home Office decision letter.
The appeal process before the First Tier Tribunal consists of two stages: Lodging the appeal and then defending the appeal at the hearing. For appeals within the UK, you will have to lodge the application by 14 calendar days from the date of refusal.
Due to time constraints, as our client had submitted his application from within the UK and had 14 calendar days from the date of the refusal to lodge in his appeal, we immediately took full instructions from our client and started working on the grounds of appeal.
Once the grounds of appeal were drafter, the appeal was filed with the Tribunal together with the fee. Once a hearing date was allocated to our client’s appeal, we started preparing the full bundle of papers and filed with the court on his behalf, as his representatives. Preparing for an Immigration appeal hearing requires extensive knowledge and experience. The best Immigration lawyers will always re-examine the matter from the prism of the circumstances nearer to the hearing. This is why we kept close contact with the client throughout the process.
Grounds we relied on
In the grounds of Appeal, we explained that our client was aware that he does not meet the requirements under the partner route and that in fact, his application was not based on the partner route at all. Therefore, it was unreasonable for this to be used as a reason for refusal. It is very important that you make clear within your application as to what immigration rules you are relying on. In our client’s case, he had provided evidence of his British citizen partner as proof of relationship and private life ties to the UK, however, the Home Office incorrectly assumed reliance on the partner route.
When considering the evidence relating to our client’s children and the refusal reasons, it came to our immediate attention that the Home Office had misapplied the Immigration Rules. The fact that our client did not provide evidence of his children’s Immigration status was used as a refusal reason. We argued against this by using the same Immigration Rules, evidencing that having British/settled children is not the only way to rely on the parent route. Furthermore, the evidence provided by our client proving his active role in the children’s upbringing were completely ignored, the Home Office claiming that as he did not have sole parental responsibility the application should be refused.
A major factor which was disregarded by the Home Office decision making, was the existence of exceptional circumstances and the best interest of the children.
The Home Office had failed to recognise that the separation of father and two children will harshly affect their health, social/mental growth and overall wellbeing. We successfully argued that the best interest of our client’s two children was paramount in this case. We successfully argued that the Home Office’s decision to refuse our client/s application had breached his right to family and private life under Article 8 of the ECHR.
It is to be noted that although our client met he parent route at the time of his application, this was refused due to the lack of strong evidence and clarity of circumstances. It is very important that when you submit an Immigration application under any category, the circumstances are clearly set out and evidence of the same is provided.
Therefore, as preparation for the hearing, we advised our client on steps to be taken to strengthen his appeal. By the date of the hearing, our client managed to obtain a Family Court Order granting extensive access to his children. Although our client was already in contact with his children, we had suggested that having a written child arrangement or court order will increase his chances as it would be a legal document as evidence. Moreover, as the mother was making the routine contact difficult, this would also help the client have the contact he craved. Our immigration lawyers worked closely with our Family department on the matter to assist the client.
We also advised our client that he tries and obtains the support of his ex-partner. Although she was reluctant in supporting our client’s applications, we worked with our client and convinced her to provide our client with support for the best interest of their children. Our client’s ex-partner agreed to provide the required evidence, including her witness statement, outlining their relationship and why our client should be allowed to remain in the UK. In fact, she had also included him as a dependant to her EEA permanent residence application.
We also advised our client to provide further evidence of his relationship with his British Citizen partner as by the date of the hearing, he would be able to rely on the partner route by having 2 years of joint residence.
During the hearing, our client was represented by a specialist Immigration barrister. The judge confirmed that at the date of the hearing, with the further evidence provided, our client met the partner and parent route. He had been living with his British Citizen partner for more than 2 years and had obtained a court order confirming his access to his children. The further evidence we lodged with the Tribunal strengthened our client’s case by highlighting the reasons why he should be granted with the leave.
The Judge also considered the best interest of the children as primary consideration and ruled that it would not be reasonable to expect the children to leave the UK. The children were both born in the UK, aged over 7, EU nationals. Their mother who is also an EEA national had applied for permanent residence. The Judge also considered the evidence provided in connection to the children’s attachments to the UK, from their school and extracurricular activities.
Although our client met the Immigration Rules at the time of the hearing, the judge went on to consider the Human Rights Article 8 provisions which were the basis of our appeal. Based on our client’s circumstances and the evidence we provided the judge was satisfied that family and private life existed, with his current partner and two children. And therefore, our Article 8 appeal was allowed.
Our Immigration team worked closely with our client and monitored each and every update in the process. By providing the best advice to our client and with the corporation by him, we managed to achieve a great result for our client which legalised his stay in the UK and allowed him to continue living with his partner and children.
For an initial assessment of your Leave to Remain application, refusal or appeal, get in touch with our immigration lawyers.