Category Archives: Immigration Rules

Overstaying visitor parents: Requirements of Adult Dependent Rules a powerful factor in Article 8 proportionality assessment

Posted on by Standard Reply

“When people from overseas choose to make a life in the UK they are not entitled to expect that they will later be able to bring their parents to join them. The Government has decided as a matter of considered policy that that right should generally be restricted to cases satisfying the strict criteria set out in the sections denoted EC-DR and ILR-DR under Appendix FM to the Immigration Rules; and in Britcits this Court has found that policy to be legitimate. The Appellant did not apply under those rules, no doubt because she could not on the evidence have satisfied their requirements. That is not in itself conclusive that the refusal of leave to remain would be proportionate; but, as Carr LJ explains, it is highly material, and like her I can see no error of law in the Judge’s evaluation.

I should say that the Appellant has not assisted her cause by overstaying for almost two years between the expiry of her visitor’s visa in July 2015 and her making of the present application….”,  as per Lord Justice Underhill Mobeen v Secretary of State for the Home Department [2021] EWCA Civ 886 (14 June 2021)

On the basis of Mobeen v Secretary of State for the Home Department [2021] EWCA Civ 886 (14 June 2021), parents  or other dependant adult relatives viewed as  having sought to circumvent the  demanding entry clearance Adult Dependent Relative route by coming as  visitors to the UK, overstaying and then applying for leave to remain outside the Immigration Rules, are unlikely to succeed in their Article 8 family life claims.

 

BACKGROUND

The appellant, a 66-year-old widow of Pakistan nationality, had been a frequent visitor to the UK from September 2007 and last entered the UK in June 2014 on a visitor’s visa.

She had a son and two daughters, in the UK all of whom are residents in the UK and are British citizen.  The appellant visited her children in the UK, spending only 12 months in Pakistan after 2011 and the rest of her time in the UK.

On 14 July 2017 the appellant made an application for leave to remain on the basis of her family and private life in the UK on the basis that it was unreasonable to expect her to leave the UK on account of her circumstances. She was living with her son and financially dependent on her children, in particular her son. The children were all financially independent and supported her with private healthcare insurance and accommodation in the UK. She would not be relying on public funds or NHS services. Her daughter, was also very dependent on the appellant for childcare for her young son, the appellant’s grandson. The appellant suffered from arthritis and high blood pressure. Her application was refused by decision dated 11 January 2018.

Both the First Tier Tribunal and Upper Tribunal dismissed her appeal against the refusal decision.

 

COURT OF APPEAL’S SUMMARY OF PRINCIPLES RELATING TO FAMILY LIFE IN THE CASE OF ADULTS

As regards the Court of Appeal’s summary of the relevant principles relating to family life in the case of adults, the following flows from their judgement:

“43.As set out above, the appellant’s application for leave so far as relevant to this appeal was not made under either of the above routes, but rather outside the Immigration Rules on the basis of Article 8 which provides:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

  1. There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

44.The relevant principles relating to family life in the case of adults have been explored in a line of well-known authorities including Kugathas; Singh v ECO New Delhi [2004] EWCA Civ 1075 (“Singh 1”); ZB (Pakistan) v SSHD [2009] EWCA Civ 834 (“ZB”); Singh v SSHD [2015] EWCA Civ 630 (“Singh 2”); Britcits; AU v SSHD [2020] EWCA Civ 338 (“AU”). The position can be summarised as follows.

45.Whether or not family life exists is a fact-sensitive enquiry which requires a careful assessment of all the relevant facts in the round. Thus it is important not to be overly prescriptive as to what is required and comparison with the outcomes on the facts in different cases is unlikely to be of any material assistance.

46.However, the case law establishes clearly that love and affection between family members are not of themselves sufficient. There has to be something more. Normal emotional ties will not usually be enough; further elements of emotional and/or financial dependency are necessary, albeit that there is no requirement to prove exceptional dependency. The formal relationship(s) between the relevant parties will be relevant, although ultimately it is the substance and not the form of the relationship(s) that matters. The existence of effective, real or committed support is an indicator of family life. Co-habitation is generally a strong pointer towards the existence of family life. The extent and nature of any support from other family members will be relevant, as will the existence of any relevant cultural or social traditions. Indeed, in a case where the focus is on the parent, the issue is the extent of the dependency of the older relative on the younger ones in the UK and whether or not that dependency creates something more than the normal emotional ties.

47.The ultimate question has been described as being whether or not this is a case of “effective, real or committed support” (see AU at [40]) or whether there is “the real existence in practice of close personal ties” (see Singh 1 at [20]).

48.Assuming that family life is established and Article 8 thus engaged, the relevant question (when dealing with the application of Article 8 to the removal of non-settled migrants who have developed a family life with someone while residing unlawfully in the host state) can be put in one of two ways, one positive and one negative:

  1. i) Whether or not the applicant’s right to respect for his/her family life under Article 8 imposes on the host country an obligation to permit him/her to continue to reside there (a positive obligation); or
  2. ii) Whether or not removal would be a disproportionate interference (a negative obligation).

As was remarked in Ali v Secretary of State for the Home Department [2016] UKSC 60; [2016] 1 WLR 4799 (by Lord Reed at [32]), however, the mode of analysis is unlikely in practice to make any difference to the outcome. One is essentially asking the same question and considerations of onus of proof are unlikely to be important where the relevant facts have been established. Ultimately, whether the case is considered to concern a positive or negative obligation, the question is whether a fair balance between the relevant competing interests has been struck.

49.A central consideration when assessing the proportionality of the removal of non-settled migrants from a contracting state in which they have family life is whether the family life was created at a time when the persons involved were aware that the immigration status of one of them was such that the persistence of that family life within the host state would from the outset be “precarious”. In such cases, it is likely only to be in exceptional circumstances the removal of the non-national family member will constitute a violation of Article 8 (see Agyarko at [49] approving Jeunesse (at [108]))

50.What was meant by “exceptional circumstances” was made clear at [54] to [60] in Agyarko, namely circumstances in which a refusal would result in unjustifiably harsh consequences for the individual such that the refusal of the application would not be proportionate. This is to be assessed in the context of a proportionality exercise which gives appropriate weight to the policy in the Immigration Rules, considers all factors relevant to the specific case in question, and ultimately assesses whether, giving due weight to the strength of the public interest in the removal of the person in the case before it, the Article 8 claim is sufficiently strong to outweigh it. In general, in cases concerned with precarious family life, a very strong or compelling claim is required to outweigh the public interest in immigration control.

………………..

52.Thus, in considering the question of proportionality, the courts must, albeit at a general level, take the SSHD’s policy (as reflected in the Immigration Rules) into account and give it considerable weight, alongside a consideration of the relevant facts of the case in question”.

 

Court of Appeal’s conclusion on whether a family life existed between the Appellant and her adult children

In finding that a family life existed between the Appellant and her adult children in the UK, the Court reasoned as follows:

  • The First Tier Tribunal Judge (FTT Judge)’s conclusion that family life did not exist was unsustainable as a matter of principle.
  • That family life existed was apparent on the basis of the FTT Judge’s own findings of fact, with which there was no need to interfere for this purpose.
  • In reaching his conclusion that the appellant had not established family life for the purpose of Article 8, the FTT Judge appeared to have been influenced by his view that, were the appellant to be in Pakistan, her children could still provide for her, house her, pay for carers, check that she had taken her medication and “in effect either directly or indirectly do all of the things they currently do”. The Court of Appeal however concluded that put the cart before the horse: the question of whether or not arrangements would be the same or similar in Pakistan, whilst potentially relevant to the question of proportionality, was immaterial to the question of whether or not family life in the UK existed in the first place.
  • Further, whilst the FTT Judge recognised the practical support provided by her children, he appeared to have failed to take proper account of additional key features, in particular: the fact that the appellant had co-habited with her son (and younger daughter) in the UK since 2014. This was not necessarily sufficient to establish family life of itself but it was certainly a very powerful factor; the fact that the appellant’s children provided not just practical and financial support but also emotional support in circumstances where the appellant, already widowed, had recently lost her family home in Pakistan to fire; the fact that the appellant provided support to her daughter and care for her grandson.
  • These were all matters which, at least cumulatively, went beyond the existence of normal emotional ties; they provided clear grounds for a finding that the appellant’s children provided their mother with real and effective support and that she in turn had a real dependency on them. Thus, the FTT Judge was wrong to hold that family life did not exist, and the Upper Tribunal Judge, who was clearly troubled by that finding, was wrong to uphold the FTT Judge’s decision to this effect.
  • The Court of Appeal indicated that to this extent, they would allow the appeal.

 

APPLICABLITY OF THE ADULT DEPENDANT RULES

The Court of Appeal set out the requirements of the Entry Clearance Adult Dependant Relative Rules (ADR ECR):

“37.The ADR ECR came into force on 9 July 2012 as part of changes to the Family Migration Rules. They provide for the granting of entry clearance as an ADR. To meet the eligibility requirements for entry clearance as an ADR all of the requirements in E-ECDR.2.1 to 3.2 must be met (see E-ECDR.1.1). Those requirements so far as material are as follows:

“Relationship requirements

2.1 The applicant must be the-

(a) parent aged 18 years or over;…

of a person (“the sponsor”) who is in the UK.

…

2.3 The sponsor must at the date of application be-

(a) aged 18 years or over; and

(b) (i) a British citizen in the UK; or

(ii) present and settled in the UK;…

2.4 The applicant…must as a result of age, illness or disability require long-term personal care to perform everyday tasks.

2.5 The applicant…must be unable, even with the practical and financial help of the sponsor, to obtain the required level of care in the country where they are living, because-

(a) it is not available and there is no person in that country who can reasonably provide it; or

(b) it is not affordable.

Financial requirements

3.1 The applicant must provide evidence that they can be adequately maintained, accommodated and cared for in the UK by the sponsor without recourse to public funds.

3.2 If the applicant’s sponsor is a British citizen or settled in the UK, the applicant must provide an undertaking signed by the sponsor confirming that the applicant will have no recourse to public funds, and that the sponsor will be responsible for their maintenance, accommodation and care, for a period of 5 years from the date the applicant enters the UK if they are granted indefinite leave to enter.”

38.If the applicant meets the requirements for entry clearance as an ADR of a British Citizen or person settled in the UK they will be granted indefinite leave to enter; if not, the application will be refused (see D-ECDR.1.1 and D-ECDR.1.3)”.

 

Following that the Court summarised relevant principles:

“39.These rules were considered in Britcits upon a judicial review challenge to their lawfulness. The claimant charity contended, amongst other things, that the rules were incompatible with Article 8. The claim failed. As for Article 8, it was held i) that family life engaging Article 8 did not exist in every case where a UK sponsor wanted to bring an elderly parent to the UK in order to look after him/her; ii) that the new rules would not result in a disproportionate outcome in virtually all cases where Article 8 was engaged; and iii) that significant weight was to be given to the prior consultation, parliamentary debate and approval of the policy and objectives of the new rules (see [72] to [80], [82], [83], [86] to [88] and [90])

40.At [58] Sir Terence Etherton MR identified the policy behind the ADR ECR as follows:

“…It is twofold: firstly, to reduce the burden on the taxpayer for the provision of health and social care services to those ADRs whose needs can reasonably and adequately be met in their own country; and, secondly, to ensure that those ADRs whose needs can only reasonably and adequately met in the UK are granted fully settled status and full access to the NHS and social care provided by local authorities. The latter is intended to avoid disparity between ADRs depending on their wealth and to avoid precariousness of status occasioned by changes in the financial circumstances once settled here.”

41.The test now imposed for entry as an ADR has rightly been described as “rigorous and demanding” (see Ribeli (at [43]).

42.The Immigration Rules also provide a route by which an ADR may apply for indefinite leave to remain as an ADR (see Section E-ILRDR of Appendix FM) under which an applicant must, amongst other things, meet all of the requirements of Section E-ILRDR (see E-ILRDR.1.1). Those requirements include that the applicant must be in the UK with valid leave to remain as an ADR and provide evidence of non-recourse to public funds (see E-ILRDR.1.2 and 1.4)”.

 

Court of Appeal’s approach to Article 8 proportionality considerations on the Appellant’s claim:

The Court considered as follows:

  • The flaw in the appellant’s approach was to ignore the fact that the FTT Judge’s consideration of proportionality proceeded (necessarily) on the express premise that he was wrong in his conclusion on family life and that, contrary to his earlier finding, family life existed.
  • His approach or conclusion on proportionality was not flawed.
  • The FTT Judge considered and identified the law accurately-he stated correctly that the issue was ultimately one of proportionality in all the circumstances.
  • The FTT Judge had read the evidence founding the existence of family life and relating to the appellant’s circumstances in the UK, including as to her health, dependence on her children, relationship with her grandson and pastimes. He also heard and saw the appellant and two of her children give evidence; he set out and assessed the reliability of that evidence carefully. He was also aware of the death of the appellant’s husband, the loss of the family home in a fire, and the appellant’s broader family circumstances in Pakistan. There was no reason to think that these were not all matters that he properly weighed in the balance when considering proportionality.
  • At the same time, he was aware that the appellant was an educated person who could even now live independently in Pakistan where she had grown up, married, had children and spent all of her married life (and beyond). She would be financially supported and provided with accommodation by her children were she to return; she could also receive practical and emotional support from them (even if only from a distance). She had no significant health issues.
  • Further, as the authorities referred to make clear, the FTT Judge was entitled to place considerable weight on the fact that the appellant’s relevant family life (that is to say, her family life in the UK) was established at a time when her status here was precarious. She never had indefinite leave to remain in the UK (see Rhuppiah v Secretary of State for the Home Department [2018] UKSC 58; [2018] 1 WLR 5536at [44]), and from 23 July 2015 onwards had no right whatsoever to remain. The FTT Judge was entitled to conclude that a refusal to allow the appellant to remain would not result in unjustifiably harsh consequences for her and that, accordingly, exceptional circumstances had not been established.
  • Whilst the grandson’s interests fell to be considered, it is clear that they were not seen by the parties as being of material significance in the context of the proportionality exercise overall. Without underplaying the potential importance of a grandparental relationship, the facts here were far removed from those in Jeunessefor example, where the three children involved were the children of the applicant who was their “primary and constant carer”. The FTT Judge’s approach reflected the appellant’s apparent position before him as to the weight to be attached to the grandson’s interests in the balancing exercise to be carried out.

 

Relevance of the Adult Dependent Relatives Rules to the Article 8 proportionality assessment in the Appellant’s claim:

The Court of Appeal concluded that:

  • The FTT Judge was self-evidently aware of the relevant context, namely that the appellant had not pursued an application under the ADR ECR and was applying outside the Immigration Rules under Article 8.
  • It was common ground that whether or not the appellant would have qualified for entry under the ADR ECR was not determinative of the question of whether or not the refusal decision was compatible with Article 8. However, the fact that the Secretary of State, in the discharge of her statutory duty to regulate immigration, has set out a clear policy, reflected in the ADR ECR, as to the requirements to be met by ADRs seeking to settle in the UK will be a powerful factor in any Article 8 assessment of proportionality. This proposition is clearly established on the authorities (for example in Agyarko (at [47])
  • Whilst those representing the appellant were not in a position formally to concede the position, it could not realistically be suggested that the appellant would have met the requirements in 2.4 and 2.5 of the ADR ECR. Her physical condition came nowhere near the threshold (of requiring long-term personal care to perform everyday tasks) and she could obtain the required level of care in Pakistan. The fact that the appellant may not burden the UK taxpayer’s purse because she could access private healthcare in the UK was no answer to the Secretary of State’s position, in the sense that she would still not meet the relationship requirements of the ADR ECR. In any event, the appellant’s reliance on the fact that her children were wealthy was at odds with the second limb of the Secretary of State’s policy as identified in Britcitsat [58], which is to avoid disparity between ADRs depending on their wealth.
  • The ADR ECR, reflecting the Secretary of State’s policy as approved by Parliament and upheld as lawful in Britcits, provide the conventional pathway for entry to the UK as an ADR. Whether deliberately or otherwise, the appellant circumvented that route by coming as a visitor to the UK, overstaying and then applying for leave to remain outside the Immigration Rules. She presented the Secretary of State with the sort of “fait accompli” referred to by Lord Reed in Agyarko at [54]: “…. the Convention is not intended to undermine [a state’s right to control the entry of non-nationals into its territory and their residence there] by enabling non-nationals to evade immigration control by establishing a family life while present in the host state unlawfully or temporarily, and then presenting it with a fait accompli. On the contrary, “where confronted with a fait accompli the removal of the non-nationals family member by the authorities would be incompatible with article 8 only in exceptional circumstances”: Jeunesse, para. 114.”
  • In these circumstances, the FTT Judge’s finding on proportionality was fully justified. Indeed, taking the strength of the family life at its highest on the facts, there was really only ever one realistic answer on the question of proportionality, namely that the refusal decision was not incompatible with the appellant’s right to respect for her family life under Article 8.
  • This was a case where the appellant will be cared for in Pakistan by one or more of her children (who will move to live with her), were she to have to return to Pakistan. The appellant acknowledged that one or more of them would return to live with her and each child stated that he/she would do so (albeit reluctantly). Ribeliconfirms that the willingness of a child to return abroad with the parent can be an important factor in favour of refusal of leave to remain. However, unlike the position in Ribeli, there has been no finding here that it would be reasonable for one or more of the appellant’s children to return to join her in Pakistan (even if, as a matter of fact, they would be prepared to do so). In these circumstances, the Court did not lay any material weight on what would in any event be only an additional factor in favour of an already justified refusal.

The Court of Appeal therefore rejected the challenge to the FTT Judge’s conclusion on proportionality and upheld the Upper Tribunal Judge’s dismissal of the appeal against it.

 

Is it possible to rely on evidence of illegal working using someone else’s identity as proof of 20years continuous residence in the UK?

Posted on by Standard Reply

An applicant may have accrued periods of a combination of both lawful and unlawful residence  in the UK for the requisite 20years yet face a dilemma in seeking to evidence continuity of residence in circumstances where during the relevant period, he has documentation from the HMRC or employer that shows he has  worked in the UK illegally using someone else’s  identity.

How has the Tribunal approached such circumstances in which an applicant has on application and appeal relied upon such evidence of working illegally in the UK over a prolonged period of time?

In Mahmood (paras. S-LTR.1.6. & S-LTR.4.2.; Scope) Bangladesh [2020] UKUT 376 (IAC) the Upper Tribunal considered such an appeal.

Summary background and use of false identity to work in the UK:

The appellant, a national of Bangladesh claimed that he arrived in the UK as a visitor in 1994.

Whilst in the UK, he applied for asylum in 1996: the claim did not succeed and the appellant exhausted his rights of appeal in 1997. He then applied for indefinite leave to remain in 2009 however the application was refused with no right of appeal. An application of 2014 for leave to remain was unsuccessful.

By further submissions dated 8 September 2016, the appellant sought leave to remain on human rights (article 8) grounds, relying upon his having been present in the UK for over 20 years.

The following had occurred as noted by the Home Office in applications the appellant had submitted:

  • He had been encountered by immigration officers at his place of work in 1996
  • He had worked in various restaurants having falsely adopted the identity of a British citizen, ‘Rezaul Karim’, who was born in 1976. In securing employment, he used Mr. Karim’s National Insurance number.
  • The Home Office observed that previously submitted tax documents were not in the appellant’s name and that the NI number relied upon belonged to another person.
  • In support of his further submissions submitted in 2016, by letter of 5 December 2017, the appellant confirmed that he had been residing with his uncle in Wales since 1995 and relied upon documentation in his false identity to establish that he had been employed since 1997 and thereafter secured access to the NHS.

Basis of Home Office refusal decision – 20years continuous residence not evidenced and suitability criteria not met:

The appellant’s application under the 20year long residence Rule was refused by the Secretary of State by decision dated 14 December 2017 on the following basis:

  • The Home Office accepted that the appellant entered the United Kingdom on 18 December 1994 and that he remained in the UK until 1997. It was however noted that no satisfactory evidence had been provided confirming that the appellant had resided in the UK after the conclusion of his appeal in 1997 and his application for settlement in 2009.
  • It was decided that the appellant was unable to provide evidence of continuous residence between those years and concluded that he failed to meet the requirements of paragraph 276ADE(1)(iii) of the Rules.
  • Further, it was observed as to suitability that when the appellant applied for indefinite leave to remain on 29 July 2009, he submitted documents which were verified as not being genuine, namely eleven P60 forms dated from 1998 to 2009. The HM Revenue & Customs confirmed that the documents submitted did not match their records and that the NI number used was not issued in the appellant’s name.
  • Consequently, the appellant was found to have failed to meet the suitability requirements for leave to remain under paragraphs S-LTR.1.6. and S-LTR.4.2. of Appendix FM.

Relevant Suitability Criteria under the Immigration Rules:

Section S-LTR of Appendix FM details the suitability requirements to be met in a leave to remain application made by those seeking to remain in the United Kingdom. An applicant can be refused limited leave to remain on grounds of suitability if relevant paragraphs  of  S-LTR apply.

Paragraph S-LTR.1.6. provides for a mandatory refusal stating that an applicant will be refused limited leave to remain on grounds of suitability where the following applies:

‘S-LTR.1.6.  The presence of the applicant in the UK is not conducive to the public good because their conduct (including convictions which do not fall within paragraphs S-LTR.1.3. to 1.5.), character, associations, or other reasons, make it undesirable to allow them to remain in the UK.’

Paragraph S-LTR.4.2. provides for a discretionary refusal and states an applicant may be refused on grounds of suitability if:

‘S-LTR.4.2. The applicant has made false representations or failed to disclose any material fact in a previous application for entry clearance, leave to enter, leave to remain or a variation of leave, or in a previous human rights claim; or did so in order to obtain from the Secretary of State or a third party a document required to support such an application or claim (whether or not the application or claim was successful)”.

Dismissal of the appeal by the First Tier Tribunal Judge:

The Judge concluded as follows:

  • The appellant had not simply used the alias of Rezaul Karim in order to obtain work but also to access NHS services, visiting his GP on a regular basis since 2001 and having been referred on several occasions for hospital investigations.
  • The appellant had engaged in sustained deceit over the course of more than a decade.
  • The Judge concluded that the documents relied upon arising from employment, such as the P60s, possessed an innate character as documents containing false representations.
  • It was determined that the appellant’s personal history including character, conduct and employment history made it undesirable to allow him to remain in the UK and so his application fell for refusal under both the mandatory suitability ground established paragraph S-LTR.1.6. and the discretionary ground of paragraph S-LTR.4.2.
  • Consequently, the Judge found that the appellant did not meet the suitability requirements of the Rules and so could not meet the requirements for leave to remain on the grounds of private life in the UK set out in paragraph 276ADE.

Upper Tribunal concludes paragraph S-LTR.1.6. inapplicable:

The Upper Tribunal noted that in respect of the appellant’s employment and tax documents the Secretary of State’s decision of 26 June 2014 stated:

‘14. … The earliest record of your client in the United Kingdom is when he was encountered working without authority and claimed asylum on 19 January 1996, however, satisfactory evidence has not yet been provided to show that he has lived continuously in the United Kingdom since that date. Tax documents have previously been provided, however, as stated in previous refusal letters, the P60s are not in your client’s name and HMRC confirmed that the National Insurance number is that of a British citizen born in 1976”.

The Home Office decision of 14 December 2017, in relation to considerations of suitability under Appendix FM and as to paragraph S-LTR.1.6. stated:

‘For the reasons given below, your application falls for refusal on the grounds of suitability in Section S-LTR under paragraphs 276ADE(1)(I) of the Immigration Rules because:

When you applied for indefinite leave to remain on 29 July 2009 you submitted a number of documents which were verified as not being genuine. HM Revenue & Customs confirmed that the eleven P60 forms dated 1998, 1999, 2000, 2001, 2002, 2003, 2004, 2005, 2006, 2008 and 2009 submitted with that application did not match their records and that the National Insurance number used was not issued to anyone by your name.

Given the above your presence in the UK is not conducive to the public good as your conduct and character make it undesirable to grant leave to remain. You therefore fail to meet the requirements for leave to remain because paragraph S-LTR.1.6. of Appendix FM of the Immigration Rules applies.’

The Upper Tribunal reasoned as follows in deciding that the Secretary of State was not entitled to refuse the appellant’s application on suitability grounds under paragraph S-LTR.1.6:

  • The Upper Tribunal was satisfied that the context of the introduction of paragraph S-LTR.4.2. was to give authority to the Secretary of State to refuse an application on grounds of suitability if false representations have been submitted, or there has been a failure to disclose materials facts, in a previous immigration application.
  • The insertion of paragraph S-LTR.4.2. was to address a failure of the suitability requirements previously established under Section S-LTR in not permitting the Secretary of State to adversely rely upon the previous use of false representations and related concerns.
  • In such circumstances, the Upper Tribunal was satisfied that the scope of paragraph S-LTR.1.6. was not sufficiently wide to capture the use of false representations in an application for leave to remain before the Secretary of State or in a previous application for leave to enter or remain.
  • The Upper Tribunal concluded paragraph S-LTR.1.6., a mandatory ground of refusal, does not cover the use of false representations or a failure to disclose material facts in an application for leave to remain or in a previous application for immigration status.
  • Consequently, it was decided that the First Tier Tribunal Judge materially erred in law in finding that the Secretary of State could refuse the appellant’s application on suitability grounds under paragraph S-LTR.1.6. of Appendix FM.

Upper Tribunal concludes first clause of paragraph S-LTR.4.2 inapplicable:

In relation to paragraph S-LTR.4.2, the Upper Tribunal stated that two separate basis upon which the Secretary of State may exercise discretion to refuse an application for leave to remain can be summarised as:

  • the use of false representations or a failure to disclose any material fact in a previous application and
  • the use of false representations in order to obtain a document required to support such an application.

Consequent to their independent nature, the Upper Tribunal was satisfied that reliance upon one or both of the elements must be specifically pleaded and reasoned by the Secretary of State in her decision letter, or if upon becoming aware of further information the Secretary of State seeks to exercise her discretion during the course of the subsequent appeal process it should be by means of an addendum decision providing reasons with an appellant being given sufficient time to counter the serious nature of the underlying allegation as to conduct.

It was noted that by her decision of 14 December 2017, the Secretary of State relied upon the first independent clause of paragraph S-LTR.4.2. concerned with the applicant having made false representations in a previous application for leave to remain or a variation of leave, or in a previous human rights claim

In reaching the conclusion that there were no false representations made on the appellant’s behalf in his application, the Upper Tribunal reasoned as follows:

“82. In this matter the appellant has consistently informed the respondent that whilst he dishonestly assumed an identity and a NI number to secure employment, and used the identity as a British citizen to secure access to the NHS, he was open and honest to the respondent as to the employment and tax documents accompanying the application having been secured through the use of the false identity. We consider it important that the P60 forms, genuinely issued but the product of dishonesty as to identity, were peripheral to the application for leave to remain on long residence grounds. Their purpose was to demonstrate long residence, but it was not a requirement of the relevant rule that the appellant provide P60s. They were relied upon by the appellant to establish his long residence, a task they were capable of satisfying, and not to establish that the appellant was the person named upon them. Nor did the documents establish that the appellant enjoyed a right to work lawfully in this country or to meet any financial requirement established by any relevant paragraph of the Rules. The false representation in this matter was in providing various employers with a dishonesty assumed identity and NI number to secure employment. The employment and tax documents were produced consequent to the appellant having secured employment in his false identity. Having openly informed the respondent from the outset as to his actions, there were no false representations made on the appellant’s behalf in his application that he was a British citizen called Rezaul Karim who was born in 1976, possessed a particular NI number, was lawfully entitled to work and through the course of lawful employment had earned the sums detailed by the eleven P60 forms.

83.Upon considering [17] of the decision we are satisfied that the Judge materially erred in adopting the broader interpretation of the first independent clause of paragraph S-LTR.4.2. Whilst observing that the appellant had openly declared that he assumed the identity of Mr. Karim to secure employment, the Judge considered the innate characteristic of the documents are containing ‘false representations’ through the deliberate dishonesty employed to secure them. Such an approach uncoupled the requirement that the false representation be made ‘in a previous application’ and instead broadened the use of a false representation to the securing of any document used in the previous application, even if there were clear and adequate admissions to the respondent from the outset as to the circumstances in which the documents were obtained.

84. We conclude that paragraph S-LTR.4.2. is disjunctive with two independent clauses. The respondent is consequently obliged to plead and reason her exercise of discretion to refuse an application for leave to remain based on one or both of those clauses. By her decision of 14 December 2017, the respondent only relied upon the first clause. The natural meaning of the first clause requires that the false representation or the failure to disclose any material fact must have been made in support of a previous application and not be peripheral to that application. The reliance upon employment and tax documents, openly confirmed to have been secured through the long-time use of a false identity, was peripheral to the previous application for leave to remain on private life grounds under paragraph 276ADE(1)(iii) and also peripheral to the earlier application for ILR on long residence grounds. The Judge therefore materially erred in finding that the suitability requirement established by the first clause of paragraph S-LTR.4.2. was applicable to the appellant”.

Upper Tribunal concludes second clause of paragraph S-LTR.4.2 also in applicable:

The Upper Tribunal also concluded that Secretary of State could not, on any view, meet the requirements of the second clause on the facts of the case.

The Upper Tribunal stated that the use of false representations is clearly linked to the obtaining ‘from the Secretary of State or a third party a document required to support such an application or claim’. In principle, the deception should relate to the act of obtaining the document for the purposes of supporting an application or claim to remain in the United Kingdom. This is consistent with the use of the words ‘required to support’ which confirms a compulsory element to the use of the document(s) within the application or claim process. It was noted that such compulsion is identified by the relevant Rules or guidance.

The Upper Tribunal concluded:

“88. We therefore conclude that the use of the words ‘required to support’ in the second clause of paragraph S-LTR.4.2. confirms a compulsory element to the use of document(s) within the application or claim process, and the obtaining of the document(s) must be for the purposes of the immigration application or claim.

89. We observe that the appellant has relied upon documents arising from his employment, such as the P60s, in long residence and article 8 (private life) applications alone and not, for example, in an application where he was required to establish his earnings. He always confirmed by means of his applications that the documents were secured with the adoption of another person’s identity. The false representation was to his employer(s), namely that he was a British citizen called Rezaul Karim who was born in 1976, possessed a certain NI number and was lawfully permitted to work. Such false representations were not made to obtain a document for the purpose of supporting an application for leave to remain in the United Kingdom. The documents were solely generated consequent to the appellant having secured employment. We are satisfied that upon a natural reading of the second clause the securing of the employment documents relied upon by the appellant in this matter were not secured through false representations to support an application for leave to remain. In any event we observe that such employment and tax documents are not required for an application for leave to remain under paragraph 276ADE(1)(iii). Consequently, even taking the respondent’s case at her highest under the second clause of paragraph S-LTR.4.2. she could not succeed”.

Conclusion

The Upper Tribunal found that the appellant did not fall to be refused under the suitability requirements detailed at paragraph 276ADE(1)(i). The Upper Tribunal was satisfied that the appellant had been continuously present in the UK for a period of over 20 years. The appellant met the requirements of paragraph 276ADE(1)(iii) and the Upper Tribunal allowed his appeal on Article 8 private life human rights grounds.

To an applicant, the ultimate question in practice is whether the Upper Tribunal’s conclusion in allowing the appeal in Mahmood means that any applicant who has been working in the UK for a prolonged period of time using someone else’s identity and national insurance can succeed in an application under the long residence rules by reliance on documentary evidence of illegal working as proof of residence?

Maybe. Maybe not. It all dependants on the facts of each case and also whether the Secretary of State after Mahmood has now developed a strategy intended to limit the effects of that judgement.

In any case,  several individual considerations will be in issue.

Home Office application forms require clarification whether an applicant is working.  Even where the applicant is working illegally at the date of application, the answer is Yes. If the applicant is no longer working at the date of the application, then the answer is No.

Faced with no other documentary evidence to show length of residence in the UK for the past 20years, an applicant may seriously need to consider that rather than continue to remain in the UK for an indeterminate period undocumented or liable to removal, they may have no other choice but  to submit evidence of prolonged illegal working in the UK in their long residence application.

 

 

 

 

 

 

Recent successful Adult Dependent Relative application: How to approach such cases

Posted on by Standard Reply

An adult dependent relative of:

  • a British citizen in the UK
  • a person settled in the UK
  • a person in the UK with refugee leave or humanitarian protection
  • a person in the UK with limited leave under Appendix EU, in accordance with paragraph GEN 1.3.(d)

can apply for entry clearance to settle in the UK, if they can demonstrate that, as a result of age, illness or disability, they require a level of long-term personal care that can only be provided in the UK by their relative and without recourse to public funds.

The problem:

Applications and appeals for adult dependent relatives are difficult to succeed – the threshold for success is simply too high.

The following must be evidenced so as to be considered by the entry clearance officer:

  • the applicant must, as a result of age, illness or disability, require long-term personal care: that is, help performing everyday tasks, for example washing, dressing and cooking
  • the applicant must be unable, even with the practical and financial help of the sponsor, to obtain the required level of care in the country where they are living because it is not available and there is no person in that country who can reasonably provide it or because it is not affordable
  • the Entry Clearance Officer must be satisfied that the applicant will be adequately maintained, accommodated and cared for in the UK by the sponsor without recourse to public funds – if the sponsor is a British citizen or settled in the UK, they must sign a 5-year undertaking to that effect, at the entry clearance stage

How an applicant might be affected on a day-to-day basis:

The Sponsor’s relative abroad might be affected in the following ways:

  • have a learning or physical disability such that he cannot feed, wash or dress himself
  • have been involved in a road accident and as a result has developed a long term condition which means that he can no longer care for himself.
  • a parent or grandparent might be aged 70 or over and has become increasingly frail and forgetful or has poor eyesight or has had a hip replacement affecting their ability to met everyday tasks for themselves

Recent successful adult dependant relative application:

It is possible for a dependant mother, father, grandparent, sister, brother or adult child of a British or other UK settled sponsor to obtain entry clearance to the UK so as to settle here.

An application I prepared has recently been granted by an Entry Clearance Officer.

The application enabled a British sponsor in his late thirties to support his disabled dependant brother of a few years younger to obtain a grant of indefinite leave to enter from Pakistan.

Following two questions from the entry clearance officer seeking further clarification of updated circumstances, information and relevant accompanying evidence was provided on behalf of the applicant. Indefinite leave to enter was thereafter granted by the entry clearance officer.

It is important to note that each case is decided based on individual circumstances however several issues can be addressed whilst preparing the application so as to assist in improving the chances of permission to enter being granted.

Issues to consider:

Advance preparation is key.

  • There must be rigorous efforts to obtain supportive medical evidence in relation to the applicant’s physical or mental condition. This evidence must be clear, detailed and address matters as required by the relevant Immigration Rule and accompanying Guidance. It is important, wherever possible, that the medical expert or GP be provided with a formal letter of instruction seeking clarification on issues the entry clearance officer might expect to see addressed in an effective medical report.
  • Where identified as relevant, research should be conducted so as to address the provision of evidence that the applicant is unable, even with the practical and financial help of the sponsor in the UK, to obtain the required level of care in the country where they are living.
  • Preparation of a full and effective statement for the Sponsor is a must.
  • Even where the Sponsor has been paying for a carer to visit each day to help their relative wash, dress and to cook meals, consideration should be given to providing detailed reasons why such an arrangement can no longer continue.
  • The Sponsor must provide reliable evidence to show how they are related to their relative.
  • The Sponsor must explain and provide evidence showing they can adequately maintain and accommodate their relative in the UK without recourse to public funds.
  • The Sponsor should explain how the applicant will be cared for in the UK without recourse to public funds.
  • Those abroad providing temporary care for the applicant should provide clarificatory statement/affidavits, explaining why the temporary arrangements can no longer continue.
  • Written Representations should pick up from the evidence provided including from the prepared statements/affidavits.
  • Representations must set out effectively and appropriately relevant matters, not shunning away from problematic areas but deal with them head-on.
  • Where possible and with the applicant’s informed consent, show appropriate photographs of the extent of the applicant’s physical problems.
  • Show photographs of where it is said the applicant lives, for example an applicant may have been temporarily left with a friend and their sleeping area/bed might be in the corner of the living room where others eat and spend the day before retiring for bed. Show the extent to which it is said the presence of the applicant is considered intrusive upon the family lives of those friends or others who have so far been willing to look after the applicant on a temporary basis.
  • Include within representations detailed arguments in relation to Article 8 family life exceptional circumstances in the alternative. The Sponsor’s statement will be a starting point in this regards clarifying the extent of the family life with the applicant. Evidence of the Sponsor’s travels to visit the applicant abroad, sending of money remittances, messages or video calls will also be relevant to family life considerations.
  • Leaving problematic matters aside so as to deal with them at a possible appeal should not be an option.

Home Office updates its Guidance to reflect application of an “Affordability Test” in assessment of Fee Waiver Requests

Posted on by Standard Reply

On 5 March 2021, the Home Office issued a significantly updated Fee Waiver Guidance to reflect a new Affordability Test in the assessment and consideration of fee waiver applications: www.gov.uk/government/publications/applications-for-a-fee-waiver-and-refunds

The Guidance has been updated to reflect that affordability as opposed to destitution is the relevant test, following  the successful challenge outcome in Dzineku-Liggison & Ors, R [2020] UKUT 222  where the Upper Tribunal held that the Secretary of State’s Fee Waiver Guidance, version 3, was unlawful because it failed properly to reflect the settled test, of whether an applicant is able to afford the fee.

The amended Guidance states at page 5:

“Consideration

The sole consideration on whether someone is eligible for a fee waiver is an affordability test to assess whether the individual has credibly demonstrated that they cannot afford the fee. This applies when the applicant does not have sufficient funds at their disposal, after meeting their essential living needs, to pay the fee.

Fee waivers should be granted if the applicant has credibly demonstrated that they meet the affordability test or are destitute or at imminent risk of destitution.

The need to safeguard and promote the welfare of a child in the UK should be a primary consideration in deciding any claim. This means careful consideration needs to be given as to whether the applicant is unable to meet the essential further needs of a child and whether being required to pay the fee would deprive the child of having these needs met.

Evidence

 Evidential flexibility should only be applied to an application for a fee waiver in exceptional circumstances, where the caseworker is satisfied that there is clear and compelling evidence that the individual will not be able to afford the fee or if there is a compelling reason why the evidence cannot be provided”.

The Guidance continues at page 10:

“Assessing a fee waiver

Applicants for a fee waiver must be seeking leave to remain in one of the specified human rights routes set out above and have a substantive basis for being considered for a grant of such leave.

A fee waiver must be granted if the applicant is assessed and found:

  • to credibly demonstrate they cannot afford the fee, or
  • to be destitute, or
  • at risk of imminent destitution, or
  • their income is not sufficient to meet their child’s particular and essential additional needs”.

Affordability Test:

The Guidance proceeds to clarify the application of the Affordability Test at page 11:

“The applicant cannot afford the fee

When assessing an application, consideration must be given to whether the applicant has credibly demonstrated that they cannot afford the fee.

An applicant is considered unable to pay the fee when they do not have sufficient funds at their disposal after meeting essential living needs such as housing and food. This applies independently of whether the applicant is destitute or at risk of destitution.

It is possible for an applicant to be provided with accommodation and essential living needs by others and be in a situation where they can credibly demonstrate they cannot afford the fee. This could include support from family and friends, a charity or NGO, or the local authority or through the Asylum Support Regulations.

You should carefully consider whether the individual has spent in excess of their essential living needs and whether they have any savings. This is to ensure that only those who genuinely cannot afford the fee or have not had the ability to save for the foreseeable fee qualify for a fee waiver.

Using the information provided, the application needs to be addressed in the following way:

  1. Are you satisfied that the applicant is either destitute nor at risk of imminent destitution?
  2. Does the applicant pay for their accommodation?
  3. How are they meeting their essential living needs? (I.e. do they pay for them/are they donated? If so, from whom?).
  4. What sources of income do they have?
  5. Have they provided evidence of sources of income, including details of all bank accounts that they and their partner hold (if not, these details must be requested)?
  6. Does the applicant have sufficient surplus income, excluding accommodation and essential living needs, to afford the fee?
  7. Has the applicant made any non-essential and excessive purchases, such as money spent on holidays, gambling or other non-essential purchases?
  8. Is the information provided, even if not complete, sufficient to indicate that evidential flexibility, as described above, should be applied?
  9. Do they have sufficient savings to pay the fee?

This affordability test seeks to assess the amount of income and savings available once accommodation and essential living needs for the applicant and any dependants have been met.

The total amount of resource available to the applicant must be considered, including any savings the individual may have. This should be applied to the total amount required by the applicant to pay for their application and the applications of any dependants”.

  • Tip: address the above questions in advance in detail as applicable within representations or a letter/statement of explanation, including relevant supportive evidence. It is better to prepare effectively in advance rather than seek to source other evidence only in response to Home office questions to be responded to within a tight deadline.
  • Tip: where “significant” sums of money appear as transaction in and out of a relevant bank account, clarify in relation to each such amount, where the funds came from, when and how the funds were used and why it was essential or relevant to incur that expense. If the sums of money do not emanate from employment or public funds, and are perhaps a loan, explain to that effect and provide evidence. If it is a private loan from a friend or relative, seek to obtain a letter from them clarifying how much was given to the applicant, why the funds were loaned, when and how the funds were given, whether the applicant has started paying back the loan or when it is expected they will start to do so.
  • Tip: provide all bank account details for all relevant persons residing at the accommodation. The Home Office will carry out a credit check etc. If a relative, such as an adult child, no longer resides at the residence but uses the family address to receive their correspondence such as bank statements for privacy issues etc, the relative should provide a letter explaining these circumstances, stating when and why they moved out of the residence and confirm they are no longer  part of the household and do not receive or provide financial support to any one at the accommodation.
  • Tip: in relation to having savings, a very recent blog post of 1st March 2021 indicates, depending on the circumstances this is no bar to submission of a fee waiver request and a successful outcome might be forthcoming: ukimmigrationjusticewatch.com/2021/03/01/it-is-possible-to-obtain-a-fee-waiver-with-income-of-3000-a-month-plus-substantial-savings-in-the-family-household/. As recently as 5 March 2021, the date of publication of the new Guidance, a single mother applicant in employment with a British child but with savings of £2500 was granted a fee waiver as credible clarifications were provided in advance in relation to the savings.

Assessing whether income is not sufficient to meet the Applicant’s child’s particular and essential additional needs:

In assessing whether an applicant’s income is not sufficient to meet their child’s particular and essential additional needs, the Guidance provides at pages 13 to 14  that consideration will be given to the following:

“Although the needs of children may implicitly have been considered in earlier stages of the request for a fee waiver, this part addresses them directly.

The duty in section 55 of the Borders, Citizenship and Immigration Act 2009 to have regard to the need to safeguard and promote the welfare of a child in the UK means that consideration of the child’s best interests, which can also be expressed as the child’s well-being, must be a primary consideration, but not the only consideration, in carrying out immigration functions that affect them.

The following questions, in addition to the earlier questions, are relevant to assessing if the request should be granted because the applicant is faced with:

  • meeting the further essential needs of a child or children, and is unable to do so on account of their low income, and/or
  • being required to find the amount necessary for the fee would deprive the child of having these further needs met.

It is also important to understand if the child is supported only by one parent or by both.

Questions to consider when assessing an application in relation to children:

  1. Does the applicant have children?
  2. Do the children live with both parents or with only one parent?
  3. Do both parents provide support or only one parent?
  4. Has the absent parent ever provided support?
  5. What impact will paying the fees have, given the parent’s low income, on the ability of the child to enjoy or maintain full participation in school activities?
  6. If it will have an impact, which are the activities in which the child cannot participate (private lessons and activities not provided by the school are not included unless part of a plan approved by the school)?
  7. Does the child have further needs based on a protected characteristic, such as extra travel costs through participating, additionally to the parent, in a faith or other centre providing for children and young people, or does the child have needs based on making adjustments for a disability?

The purpose of this consideration is to assess whether a fee waiver rejection would have a disproportionate impact on the child’s well-being or best interests.

The question is not whether a fee waiver would make more money available to a parent that may then be spent on a child. It is whether paying the fee would lead to the child experiencing a lower level of well-being than they currently enjoy, being deprived of something they currently enjoy, or not having access to a specific item or items of recognised benefit”.

  • Tip: the Home Office at times pose questions during the consideration of a fee waiver application. Where the other parent does not live with the applicant and does not make any financial provision for the child, a question might arise as to why  arrangements have not been made to claim child maintenance. A paragraph or two  within representations addressing this issue should be advanced to the Home Office instead of  waiting  to have an already stressed applicant being put on the defensive by a subsequent question in this regards from the Home Office.
  • Tip: where there is a child living with the applicant, representations and any supportive documentary evidence addressing the above questions, where applicable, should be the norm rather than dealing with a barrage of questions later on from the Home Office within a short given deadline.

If a fee waiver request is refused- Section 3c leave and applicants who had leave to remain at the time of making a fee waiver request:

Page 22 of the Guidance provides that 10working days is given to make a paid leave to remain application if a fee waiver application is refused:

“For in time applications

  • if the applicant made their request for a fee waiver in time (for example they had valid leave on the date their application was submitted), they should normally be told of a decision that they do not qualify for a fee waiver. If any additional evidence is requested they should be told to submit that in order to demonstrate they can qualify for a fee waiver. They must, within 10 working days of the decision being dispatched, submit this additional evidence that demonstrates they qualify for a fee waiver.
  • if additional evidence is provided within that period that demonstrates the applicant qualifies for a fee waiver, the applicant is issued with a fee waiver token that enables them to apply for a fee free immigration application. The applicant has 10 working days to make an LTR application and, where relevant, to benefit from 3C leave.
  • if the applicant provides further evidence within 10 working days but this does not demonstrate that they qualify for a fee waiver or if they do not provide any further evidence within 10 working days, the application should be rejected as invalid. In either of these scenarios the applicant has 10 working days to make a paid LTR application and to benefit, where relevant, from any 3C leave. If a paid application is not made within 10 working days, and the applicant’s leave has expired there can be no capacity to benefit from 3C leave”.

Date on which a leave application is made –  in time applicants, fee waiver grants and preserving Section 3C leave:

Paragraph 34G of the Immigration Rules states:

“34G. For the purposes of these rules, the date on which an application (or a variation of application in accordance with paragraph 34E is made is:

……………………

(3) where the application is made via the online application process, and there is no request for a fee waiver, the date on which the online application is submitted; or

(4) where the online application includes a request for a fee waiver, the date on which the online request for a fee waiver is submitted, as long as the completed application for leave to remain is submitted within 10 days of the receipt of the decision on the fee waiver application”.

Page 3 of the Guidance provides clarification in this regards:

“…………………….

Requests for a fee waiver made by those who have current Leave to Remain, and whose leave expires whilst their fee waiver request is being considered, will be allowed 10 working days from the actual date of their fee waiver decision to submit an application for Leave to Remain or Further Leave to Remain. After this, their leave will be treated as expired.

If an individual has legal leave or has submitted the fee waiver request before their leave has expired, they are not required to apply for Leave to Remain until after the outcome of their fee waiver application.

Requests for a fee waiver made by those without current Leave to Remain mean that the applicant will not be able to benefit from the 10 working days period allowed above.”

For in-time applicants, it is very important that a leave to remain application is made within the 10working days from the actual date of grant of the fee waiver in order to retain Section 3c leave. Lack of preservation of an applicant’s section 3C leave means entitlement to work or claim benefits whilst a leave application is pending to be decided, will cease.

Example: an applicant whose leave to remain expires on 10 March 2021 submits a fee waiver request on 5 March 2021, before their leave expires. The fee waiver request is granted on 19 March 2021. So long as the leave to remain application is validly completed and submitted online  by 1st April 2021, the applicant will retain Section 3c leave.

Since the contents of a completed online fee waiver application duplicate to a good extent what will be required for completion, say in a FLR(FP) Form, it is prudent, where an online application has not already been completed, to submit the leave to remain application within the same week of receipt of the fee waiver grant.

Further clarification on the relevant date of submission of the leave to remain application can be gleaned from:

“”Requesting a fee waiver

 ……………………………

 If you make a fee waiver request before your current leave expires, and then you make an application for leave to remain, the date of that application will be the date you submitted the fee waiver request. If you make a fee waiver request and you have no leave or your current leave has expired and then submit an application for leave to remain, the date of application will be the date you submit that application for leave to remain, not the date you submitted the fee waiver request”-www.visas-immigration.service.gov.uk/product/fee-waiver?_ga=2.202470678.647032866.1615054021-731661406.1585333230

Example: an applicant whose leave to remain expires on 10 March 2021 submits a fee waiver request on 5 March 2021, before their leave expires. The fee waiver request is granted on 19 March 2021. Such a person will be treated as having submitted their leave to remain application on 5 March 2021 so long as the completed application for leave to remain is submitted within 10working days of receipt of the decision on the fee waiver application, i.e so long as the leave application is completed and submitted online by 1st April 2021, the date of the leave to remain application will be 5 March 2021.

 

 

Currently on the 10year route to settlement but already with prior significant residence in the UK? You may be eligible now to apply for indefinite leave to remain

Posted on by Standard 3

Depending on your circumstances, you may be in a position to apply for indefinite leave to remain now or much sooner if the following, amongst other issues, apply:

  • you currently hold limited leave to remain in the UK (regardless of when it was granted)
  • as a result of that leave, you are currently on the 10year route to settlement
  • overall, you had already accrued significant periods of residence in the UK prior to the grant of leave to remain

It is the nature of that prior significant residence over the years that requires exploration.

For those eligible, there are several possible advantages:

  • Ability to apply for indefinite leave to remain much sooner than the end of the relevant 10years set out in the particular route which led to the current period of leave
  • Grant of indefinite leave to remain
  • Obviate the need to continue paying exorbitant Home Office application fees at repeated intervals
  • Possibility of obtaining a grant of British citizenship sooner

To find out more, please call Alice Muzira, AurexLegal Solicitors on 07940772506(dedicated number) or email her on alice.muzira@aurexlegal.co.uk

Court of Appeal rejects endeavour to extend categories of Applicants able to rely on the Destitution Domestic Violence Concession

Posted on by Standard Reply

The appeal in FA (Sudan), R (On the Application Of) v Secretary of State for the Home Department [2021] EWCA Civ 59 (22 January 2021) represents an ambitious endeavour to widen the categories of applicants able to rely upon the Destitution Domestic Violence Concession (“the DDVC Concession”).

The Appellant in FA(Sudan) challenged a decision by the Secretary of State to the effect that she did not qualify for leave to remain in the UK outside the Immigration Rules under the concessionary policy.

Before the Court of Appeal, the Appellant sought to challenge the lawfulness of the policy in the DDVC.

Brief background

The Appellant, FA, a Sudanese married a British Citizen on 28 October 2011 and gave birth to their first child in Sudan on 4 August 2012. The Appellant travelled to the Netherlands from Sudan on 12 December 2014.

FA’s husband visited from the UK for short periods monthly. During those visits he spent time with FA. FA’s husband was not working or studying in the Netherlands while FA lived there. FA was not working but was being paid around €100 to €250 per month by her husband and he paid her rent. She had no other means of funding.

FA later entered the UK with her husband, using a Dutch residence card, on 13 August 2015. FA  had obtained the Dutch residence card from a government building and  her husband assisted her in obtaining the residence card, attending interviews as her interpreter and attending to paperwork.

FA gave birth to their second child on 21 September 2015.

FA resided with her husband in Birmingham until January 2016, when she left the matrimonial home.

The nature of the DDVC Concession

The relevant provisions of the DDVC and Immigration Rules are set out in detail between paragraphs 16 and 18 of FA(Sudan).

In summary the following applies:

  • The DDV Concession is a policy operated by the Home Office outside of the Immigration Rules to allow eligible applicants, who intend to make an application for settlement under the domestic violence rules, to be granted leave outside the Rules and permitting them to access public funds and vital services.
  • This gives the applicant access to temporary accommodation such as a refuge in order to leave her or his abusive partner and to submit a settlement application under the domestic violence rules. A successful applicant for leave outside the Rules under the DDV Concession does not have to meet the habitual residence test she or he would otherwise have to meet with other types of leave under criteria set by the Department of Work and Pensions.
  • If a successful applicant for leave outside the Rules under the DDV Concession fails to submit her or his application for settlement under the domestic violence rules within three months of the grant of leave to remain outside the Rules under the DDV Concession, then the applicant becomes an overstayer and becomes subject to removal from the United Kingdom. The DDV Concession stipulates that within 28 days of an applicant’s leave outside the Rules lapsing the applicant’s case should be referred for enforcement action.

In order to be eligible for the DDV Concession, the applicant must satisfy all of the following conditions:

  1. the applicant must previously have been granted leave to enter or remain as the spouse, civil partner or unmarried or same-sex partner of a British citizen, a settled person or a member of HM Forces who has served for at least four years;
  2. the applicant’s relationship with her (or his) spouse, civil partner, unmarried or same-sex partner must have broken down as a result of domestic violence;
  3. the applicant must claim to be destitute and not to have access to funds; and
  4. the applicant must intend to apply for indefinite leave to remain as a victim of domestic violence under one of the following provisions of the Immigration Rules: paragraph 289A; paragraph 40 of Appendix Armed Forces; or section DVILR of Appendix FM (Family Members).

Moore-Bick LJ in R (T) v Secretary of State for the Home Department [2016] EWCA Civ 801, stated at paragraph 11: “In my view when considering an application under the DDV Concession for temporary relief the Secretary of State must ask herself whether, as things stand at the date of the application, the applicant would on the face of it be able to meet the requirements of section DVILR. If it is clear that she would not, the Secretary of State is entitled to refuse relief. That does not involve construing section E-DVILR by reference to the concession; it simply involves asking oneself whether, if the applicant were to make an application for indefinite leave to remain, she could satisfy the terms of the section. In the present case it was clear that she could not do so and for that reason alone she cannot succeed in this case.”

Why FA was ineligible for the DDV Concession on its terms

FA could not show the following as required by the DDV Concession:

  • that she had previously been granted leave to enter or remain as the spouse, civil partner or unmarried or same-sex partner of a British citizen, a settled person or a member of HM Forces who has served for at least four years.
  • that she intended to apply for indefinite leave to remain as a victim of domestic violence under one of the following provisions of the Immigration Rules: paragraph 289A; paragraph 40 of Appendix Armed Forces; or section DVILR of Appendix FM (Family Members).

She did not satisfy the pre-conditions to applying under any of the mentioned routes.

Refusal of application by the Secretary of State

On 4 August 2016, FA applied for leave outside the Immigration Rules under the DDVC.

On 9 August 2016, that application was refused on the grounds that FA was not eligible for leave to remain under the DDVC, as she did not meet the criteria set out in the DDVC as did not enter the United Kingdom or was not given leave to remain in the United Kingdom as a spouse, civil partner, unmarried or same sex partner of a British citizen or someone present and settled in the UK.

Judicial review proceedings

On 3 November 2016, FA applied for permission to bring a claim for judicial review of that decision.

The substantive claim for judicial review was heard by Murray J on 7 November 2018 and dismissed in the judgment given on 14 December 2018.

Murray J held as follows:

  • FA did not enter the UK as the spouse of a British citizen exercising EEA rights.
  • regulation 9 of the Immigration (European Economic Area) Regulations 2006 only applies if the returning British citizen was residing in the EEA state as a worker or self-employed person; FA’s husband was not.
  • the fact that FA entered the UK using a valid Dutch residence card which was checked by an immigration officer as she boarded a ferry was not sufficient for the purposes of regulation 9.
  • FA had not been unlawfully discriminated against in contravention of Article 14 of the European Convention on Human Rights (“ECHR”), read with Article 8. In that context, he said that FA’s case was distinguishable on its facts from the decision of the Inner House of the Court of Session in A v Secretary of State for the Home Department[2016] CSIH 38; [2016] SC 776.
  • there was no violation of Article 24 of the EU Charter of Fundamental Rights, whether read with Article 18 of Directive 2012/29/EU of the Parliament and Council establishing minimum standards on the rights, support and protection of victims of crime (“the Directive”) or alone.
  • section 55 of the Borders, Citizenship and Immigration Act 2009 (“the 2009 Act”) was not relevant to this case.

FA appealed to the Court of Appeal.

Considerations and conclusions by the Court of Appeal

The Court of Appeal took into account the grounds of appeal raised and decided as follows:

Whether there was a breach of Article 14 ECHR( unlawful discrimination) and Article 8 of the ECHR:

  • It was argued that the Judge erred in law by not holding that FA had been unlawfully discriminated against in contravention of Article 14 ECHR, read with Article 8.
  • The Judge failed to consider the discriminatory impact of the DDVC on three particular groups of victims of domestic violence, by reference to gender, motherhood and immigration status
  • Article 14 ECHR, the equality provision, provides: “The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
  • On behalf of the Appellant it was contended that the relevant comparison was between victims of domestic violence who have been granted a spousal visa under the Immigration Rules (and granted assistance under the DDVC) and those who have not. It was submitted that the distinction was one of form, not substance. The situations are comparable in that they are partners who have suffered domestic violence during their marriage and stay in the UK and require assistance from the state. It was argued that there was no objective and reasonable justification for the difference in treatment.
  • The Court accepted that the Concession does distinguish directly between those who have a visa as the spouse or partner of a person who is, for example, a British citizen and those who do not. The Court however stated that it did not however, differentiate between men and women, so there was no direct discrimination on grounds of sex. Nor was there direct discrimination on grounds of motherhood, since the Concession applies to fathers as well as mothers; and applies whether or not an applicant has children.
  • The onus to prove as a matter of fact that an apparently neutral policy has a disproportionate impact on a protected group, and therefore constitutes indirect discrimination, lies on a claimant. In the Court’s view, the evidence on this issue was unsatisfactory. What would be required in a case like the present was more specific evidence, to show that the distinction drawn on its face by the Concession has a disproportionate impact on a protected group.
  • It may well be that more women are likely to fail under the Concession than men because more women are the victims of domestic violence than men. But, it will probably be the case that the beneficiaries of the Concession are also predominantly women. Both consequences would seem to follow from the unfortunate reality that most victims of domestic violence are women. In principle, before a complaint of indirect discrimination could get off the ground, it would have to be established on evidence that the beneficiaries of a policy are more likely to be men, whereas those who are disadvantaged by it are more likely to be women.
  • The Court stated, without deciding the point, it was prepared to assume for the purposes of the argument that there was relevant indirect discrimination. The critical question, was whether any discrimination was objectively justified. In the Court’s view, it was.
  • The fundamental starting point was the rationale for the policy in the Concession. It was that a person whose application for settlement in the UK is dependent on her spouse or partner should not feel compelled to stay in an abusive relationship for that reason. Otherwise there is a danger that the immigration system itself will contribute to an injustice, because the victim of domestic violence may be exploited by her abuser precisely because her ability to apply for settlement will be jeopardised if she is no longer living with the abusive partner.
  • Once it is recognised that that is the underlying rationale of the Concession, there is an objective justification for the distinction drawn based on immigration status. If that distinction were not made, the rationale for the policy would simply not be achieved. For the same reason, any indirect discrimination on grounds of sex or motherhood is also objectively justified.
  • It is important to bear in mind that the Concession is limited in its scope. It is not a general policy dealing with all aspects of domestic violence in the UK or even all aspects of domestic violence against people who have no right to remain in the UK. It is a limited concession, for a period of three months, to enable a person to make an application for settlement in the UK, so that they can access public funds that would otherwise be unavailable to them.
  • There are many other ways in which a state protects the victims of domestic violence. An obvious way is through the criminal law. The enforcement of the criminal law will not depend on the immigration status of the victim. There may also in principle be access to publicly funded accommodation or other assistance. For example, in the present case, there was evidence from the Appellant herself that she and her two children have been accommodated at public expense since they left the matrimonial home, pursuant to section 17 of the Children Act 1989.

Whether Murray J erred in holding that FA’s case was distinguishable on the facts from A v Secretary of State for the Home Department:

In response the Court in FA(Sudan) noted and concluded:

  • The judgment of the Inner House in A v Secretary of State for the Home Department [2016] CSIH 38; [2016] SC 776  was given by Lady Dorrian and the version of the Concession which was in effect at the relevant time has subsequently been amended to take account of the judgment of the Inner House.
  • At the relevant time the policy did not apply to a sponsor who was a refugee in the UK: it only applied if the sponsor was a British citizen or was settled in the UK. On behalf of the Secretary of State it was submitted that this was not unlawful under Article 14 because a refugee sponsor could be regarded as being in an analogous position to a student or a visitor to the UK. The Inner House rejected that argument.
  • Lady Dorrian considered that the proper analogy was with a British citizen or a person who has settled in the UK. One reason for this was that there was evidence before the Court that a very high percentage (95%) of refugees go on to acquire settled status in the UK(para. 67). Another reason for this was that, unlike students or visitors who come to this country from choice, refugees are outside their own country out of necessity, because of a well-founded fear of persecution. Accordingly, the UK owes them international obligations of protection( para. 66).
  • On behalf of FA it was argued that the Judge was wrong to say that the decision of the Inner House in the case of A was distinguishable on its facts.
  • The Court of Appeal in FA(Sudan) concluded that the  critical point of distinction from the present case was that the appellant in A did have limited leave to be in the UK as the result of her relationship with her sponsor. FA did  not have such limited leave. The appellant in A therefore fell within the rationale of the policy in the DDVC, whereas the present Appellant did not.

Whether Murray J was wrong to hold that section 55 of the 2009 Act has no relevance

It was contended that  FA had two dependent children who are British citizens and the children were described as being “secondary victims” of the domestic abuse suffered by their mother.

It was argued that there was a breach of section 55 of the 2009 Act.

It was contended that the Secretary of Stated was required to extend the scope of the Concession to include applicants such as FA.

The Court concluded rejecting the argument:

  • Section 55 was undoubtedly important, as has been stressed by the Supreme Court, including in immigration cases such as R (MM (Lebanon)) v Secretary of State for the Home Department [2017] UKSC 10; [2017] 1 WLR 271. Nevertheless, it is a process duty and does not dictate any particular outcome in a case like the present.
  • The Court reiterated that the policy under challenge does not distinguish between those who have children and those who do not. Section 55 did not in the Court’s view require the Secretary of State to contradict the fundamental rationale for the Concession. If the policy were to be extended in the way which the Appellant sought to do, that is the effect of what would happen. Section 55 does not dictate that resu

The Court of Appeal dismissed FA’s appeal.