How to avoid paying Home Office application fees

 

 

It goes without saying that from the minute an applicant is granted limited leave to remain in the UK, they are from that moment onwards, in practical effect already in debt to the Home Office.

This is because on next seeking to extend their leave, the Home Office will ordinarily require provision of substantial application fees so as to accept an application as validly submitted and deserving of consideration.

For applicants without savings and in considerable financial straits, the way forward is usually:

  • a delay in submission of the extension leave application, thereby remaining in the UK without leave, ie becoming an overstayer, until such time as the required funds are raised
  • non – submission of the application, resulting in the individual likely eventually coming to the attention of immigration enforcement
  • submission of an application by the applicant and their spouse but leaving one or two child family members out of the equation
  • borrowing of funds from friends or family
  • falling into debt by providing the application fees but unable to fund other necessary financial obligations relevant to the effective running of the household

There are however several ways that applicants may utilise, as provided for in Home office Guidance or Rules, to completely side- step the charging provisions and obtain a consideration of their applications by the Home Office.

The following free of charge procedures are available to eligible applicants:

  • Fee Waiver application process
  • Further Submissions procedure
  • Representations from an applicant detained under immigration powers
  • Red.0002 (enforcement non-charged) Section 120 Notice procedure(where the Notice is served by the Home Office)

FEES REQUIRED BY THE HOME OFFICE

Application fees and forms are set out here – https://www.gov.uk/topic/immigration-operational-guidance/fees-forms

Currently, the Home Office require £1033.00 application fees per applicant or dependant for leave to remain applications, such as FLR(FP) applications.

A biometrics enrolment fee of £19. 20 per person will be collected online at the same time as payment of the application fee is made.

For an FLR(FP) application for example, the Immigration Health Surcharge payable per person is £1560.00.

Taking the above figures into account, a family unit consisting of parents and two children will be required by the Home Office to provide a total of £10,448.80 in relation to an FLR(FP) initial or extension application.

FEE WAIVER APPLICATION PROCEDURE

Applying for a fee waiver is one of the main procedures relied upon by applicants to obtain exemption from paying Home Office applications fees and the health surcharge.

Guidance Fee waiver: Human Rights-based and other specified applications  instructs Home office decision makers how to consider applications for a fee waiver from applicants making a specified human rights application and where to require payment of the fee before deciding the application would be incompatible with a person’s rights under the European Convention on Human Rights (ECHR). The fee waiver policy also applies to applications from victims of trafficking who seek to extend their leave to remain in certain circumstances.

Types of applications covered by the Guidance

The guidance applies to the following types of application:

  • applications for leave to remain under the 5-year partner route from applicants who are not required to meet the minimum income threshold because their sponsor is in receipt of one or more specified benefits and who instead must demonstrate that their sponsor can provide adequate maintenance
  • applications for leave to remain under the 5-year parent route
  • applications for leave to remain under the 10-year partner, parent or private life route, where the applicant claims that refusal of that application for leave to remain would breach their rights (or the rights of other specified persons) under ECHR Article 8 (the right to respect for private and family life)
  • applications for leave to remain on the basis of other ECHR rights
  • applications for further leave to remain from applicants granted discretionary leave (DL) following refusal of asylum or humanitarian protection, where the applicant claims that refusal to grant further leave to remain would breach their ECHR rights
  • applications for further DL from victims of trafficking or slavery who have had a positive conclusive grounds decision from a competent authority of the national referral mechanism (NRM), have already accrued

There is no fee waiver available for applicants for leave to remain under the 5-year partner route whose sponsor is not in receipt of one or more of the benefits specified at paragraph E-LTRP.3.3. of Appendix FM to the Immigration Rules. Such an applicant must meet the minimum income threshold and so they are not eligible for a fee waiver.

Applications for Indefinite Leave to Remain(ILR) are not covered by the fee waiver policy. ILR applications need to be accompanied by the correct fee in order to be considered.

Basis of grant of a fee waiver application

A fee waiver may be granted if the applicant is assessed and it is found that any of the following apply:

  • they are not able to pay the fee
  • they are destitute
  • they are at risk of imminent destitution
  • their income is not sufficient to meet a child’s particular and additional needs
  • they are faced with exceptional financial circumstances

Documentary Evidence

The assessment of whether the applicant qualifies for a fee waiver will be made on the basis of their own individual circumstances and those of any dependent family members. The onus is on the applicant to demonstrate that they qualify for a fee waiver. The applicant must provide relevant documentation to evidence their fee waiver application, including detailed evidence as to their financial circumstances.

For example,  Home Office caseworkers will normally expect to see information and evidence relating to the applicant’s income, their accommodation, the type and adequacy of this, and the amount of their rent/ mortgage or of their contribution towards this, and their outgoings in terms of spending on things like food, utility bills. This information should be supported by independent evidence, such as their pay slips, bank statements, tenancy agreement, utility bills. The nature of the evidence provided will vary depending on the individual circumstances of the applicant, but the Home Office will expect to see evidence appropriate to the circumstances that are being claimed.

Evidential flexibility and fee waiver applications

Whilst the onus is on the applicant to provide sufficient evidence for the fee waiver to be granted, the Home Office appreciate that there will be some cases where providing evidence is more difficult than in others.

Among the cases will be some where it is foreseeable that repeated requests to the applicant to provide evidence may not result in further relevant information being produced because the initial statement of circumstances indicates that further documentary evidence does not exist or cannot reasonably be provided by the applicant because it is not available to them.

Evidential flexibility means that the decision maker can grant the fee waiver without seeking further additional evidence or documentation if they are satisfied that reasonable evidence has been provided in the round as to the applicant’s circumstances and that, without a fee waiver, the applicant will not be able to apply for leave to remain.

Situations in which the decision maker may be flexible in requiring further additional evidence are as follows:

  • the applicant is a single parent and restricted in seeking and taking employment due to the need to look after children (this includes both pre-school children and children who can no longer attend a school due to COVID-19 restrictions)
  • cases where eviction notices have been issued, or eviction has actually taken place
  • cases where family, friends, or an identifiable organisation is providing essential living needs, e.g. a charity or food bank, and the applicant has no other means of being provided with essential living needs
  • the applicant is the parent or main guardian of a child who is not attending school because of COVID-19 concerns
  • there is evidence of vulnerability related to pregnancy, a long-term health condition, disability, or mental illness – this includes dependants as well as the applicant.

There is no automatic presumption that an application will be successful, but if the case meets any of the conditions set out above, the effect of that will be to require the decision maker to consider if further information and evidence is necessary.

Although the above list is not exhaustive, the Home Office state that it is not expected that there will be many other types of cases where evidential flexibility will be appropriate. Each case will still be considered on its own individual merits.

Whether to apply evidential flexibility can still be outweighed by other relevant matters, including the intentional disposal of funds and other countervailing evidence.

Grant of Fee Waiver

An applicant will be required to submit an online fee waiver form in advance of the substantive leave to remain application.

When applying for a fee waiver the applicant will be asked to provide details of their financial circumstances. This will mainly be in the form of statements covering the 6 months period prior to the date of application for all bank or building society accounts they hold, and a full breakdown of their monthly income and expenditure at the time of application

If an applicant is granted a fee waiver they will be issued with a Unique Reference Number(URN) to be used when applying for  leave to  remain online. This electronic pass  allows applicants  to complete and submit the substantive application form for leave to remain and proceed without paying Home office application fees.

The substantive application must be submitted within 10 working days of the date of the decision to grant the waiver.

The applicant must then make a Service and Support Centre appointment within 17 working days. Failure to do this could result in the URN no longer being valid and a new fee waiver application may be required.

Date of substantive application if fee waiver is granted

If an applicant makes a fee waiver request before their current leave expires, and then they make an application for leave to remain, the date of that application will be the date the applicant submitted the fee waiver request.

If an applicant makes a fee waiver request and they have no leave or their current leave has expired and then submit an application for leave to remain, the date of application will be the date they submit that application for leave to remain, not the date they submitted the fee waiver request.

Refusal of fee waiver application

A fee waiver decision is not subject to a reconsideration request as it is not an immigration decision. A decision will be made on the basis of the information set out in the application and any supplementary information about the applicant’s circumstances which they provide in support of their application.

Online applicants without a fee waiver or refused a fee waive will have to submit the relevant fee in order to proceed with submission of their leave application.

It is also open for an applicant to make a further request for a fee waiver.

Fee Waiver applications submitted by applicants holding valid leave to remain

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 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.

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 days period allowed above.

Travel Assistance

Applicants who have been granted a fee waiver and who fit any of the following criteria may be eligible to apply for travel assistance to attend their closest Service and Support Centre:

  • in receipt of asylum support or Local Authority support
  • Domestic Violence customers
  • a responsible adult attending an appointment with a child in social care
  • anyone where paying for travel would render them destitute
  • where travel is over 3 miles

FAILED ASYLUM SEEKERS AND FURTHER SUBMISSIONS PROCEDURE

There is no apparent reason why failed asylum seekers should not take advantage of the further submissions procedure and submit fresh claims based on human rights, ie Article 3( medical conditions) and Article 8 of the ECHR(right to private and family life).

The further submissions procedure does not require payment of application fees. Further representations and supportive evidence can be submitted and considered by the Home Office free of charge.

Guidance Asylum policy instruction: further submissions explains the policy, process and procedure which must be followed when considering further submissions following the refusal of an asylum or human rights claim, or where an asylum claim has been withdrawn or treated as withdrawn under paragraph 333C of the Immigration Rules. It applies to asylum or human rights based further submissions and covers:

  • the process for making asylum and human rights based further submissions
  • circumstances in which those lodging further submissions may be detained under immigration detention powers
  • considering evidence provided as further submissions
  • how to apply paragraph 353 of the Immigration Rules

What is a fresh claim?

Home Office Caseworkers only need to decide if further submissions amount to a fresh claim on asylum or human rights grounds when they have already considered the additional evidence provided, and decided not to grant any leave. In such cases,  the caseworker will be required to then consider whether the further submissions amount to a fresh claim. The claimant will only be entitled to an in-country right of appeal if it is accepted that there is a fresh claim.

Paragraph 353 states that submissions will amount to a fresh claim if they are significantly different from material that has already been considered. Submissions will only be significantly different if the content:

  • has not already been considered; and
  • taken together with previously considered material, creates a realistic prospect of success before the Tribunal on protection or human rights grounds, including claims under Article 8 ECHR (which will be considered under the Family or Private Life Rules, where appropriate)

Covid-19 Pandemic: submission by email or post

Prior to the first lockdown on 23rd March 2020, there  was a requirement in the majority of cases for persons wishing to provide further submissions to the Home Office, to book an advance appointment and attend at Liverpool Home Office to present representations and supportive evidence.

Because of coronavirus (COVID-19), applicants cannot currently submit their evidence in person.

The applicable procedure is presentation of further submissions in one of two ways:

Email to:

Refused Case Management Further Submissions Unit

CSUEC@homeoffice.gov.uk

By Post to:

Refused Case Management Further Submissions Unit
Level 7
The Capital Building
Old Hall Street
Liverpool
L3 9PP

Applicants are required to Download and fill in the further submissions form and email or post it to the Refused Case Management team.

Together with the further submissions, applicants are advised to include copies or photos of the following documents (if they have them) to prove their identity:

  • valid passport
  • IS96/Bail Form 201 with photograph
  • previous immigration status document
  • driving licence (if the applicant has already submitted a photo of themselves)

Pre Covid 19: suspended further submissions appointment procedure at Liverpool Home office

Prior to March 2020, all further submissions following the refusal of asylum or humanitarian protection had to be made in person at the Further Submissions Unit (FSU) in Liverpool. Claimants were required make an appointment to attend the FSU unless they fell into one of the exceptional categories.

The Liverpool appointments procedure may still continue to apply after lockdown.

The FSU operates an appointment only system. To make an appointment, individuals were required to contact the FSU (the telephone number is 0151 213 2411). The FSU would then send written confirmation of the appointment (by letter or e-mail) to the individual, including the address of the FSU and a link to the form on the Gov.UK website.

Claimants were required complete the form and bring it to their appointment in Liverpool, along with supportive documentation and representations including:

  • a completed Further Submissions form detailing the additional information the claimant would like the Home Office to consider
  • supporting documents, including, where available, any Reasons For Refusal Letters (RFRLs) or appeal determinations
  • application Registration Card (ARC) if still in possession of this
  • passport (of the claimant and all dependants in the UK, if not with the Home Office)
  • Evidence of family life in the UK (for family or private life based submissions)
  • Police Registration Certificates (if held)
  • any other Identity documents (if held)
  • 4 un-separated passport-sized photographs (of the claimant and any dependants)
  • evidence of accommodation (if not provided by the Home Office)
  • any other documents relevant to the claim

SUBMMISSION OF REPRESENTATIONS BY DETAINED APPLICANTS

The circumstances in which the requirement to submit a valid application will not be applied are set out in paragraph 276A0 of the Immigration Rules and in paragraph GEN 1.9 of Appendix FM of those Rules.

Submission of a valid application necessarily requires submission of a specified application form and fees, however as will be evident below, where Paragraph 276A0 and GEN 1.9 apply, no such application form or fees need be provided by an applicant.

Paragraph GEN 1.9 of Appendix FM

Paragraph GEN 1.9 of Appendix FM states:

GEN.1.9. In this Appendix:

(a) the requirement to make a valid application will not apply when the Article 8 claim is raised:

(i) as part of an asylum claim, or as part of a further submission in person after an asylum claim has been refused;

(ii) where a migrant is in immigration detention. A migrant in immigration detention or their representative must submit any application or claim raising Article 8 to a prison officer, a prisoner custody officer, a detainee custody officer or a member of Home Office staff at the migrant’s place of detention; or

(iii) in an appeal (subject to the consent of the Secretary of State where applicable); and

(b) where an application or claim raising Article 8 is made in any of the circumstances specified in paragraph GEN.1.9.(a), or is considered by the Secretary of State under paragraph A277C of these rules, the requirements of paragraphs R-LTRP.1.1.(c) and R-LTRPT.1.1.(c) are not met”.

Paragraph 276A0 of the Immigration Rules

Paragraph 276A0 of the Immigration Rules provides:

276A0. For the purposes of paragraph 276ADE(1) the requirement to make a valid application will not apply when the Article 8 claim is raised:

(i) as part of an asylum claim, or as part of a further submission in person after an asylum claim has been refused;

(ii) where a migrant is in immigration detention. A migrant in immigration detention or their representative must submit any application or claim raising Article 8 to a prison officer, a prisoner custody officer, a detainee custody officer or a member of Home Office staff at the migrant’s place of detention; or

(iii) in an appeal (subject to the consent of the Secretary of State where applicable)”.

Paragraphs 276ADE enables applicants to place reliance on their private life in the UK having regard to the 20year Rule, 7year Rule including young adults who have resided in the UK half of their lives:

Paragraph 276ADE provides:

“276ADE (1). The requirements to be met by an applicant for leave to remain on the grounds of private life in the UK are that at the date of application, the applicant:

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

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

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

(iv) is under the age of 18 years and has lived continuously in the UK for at least 7 years (discounting any period of imprisonment) and it would not be reasonable to expect the applicant to leave the UK; or

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

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

In essence, where an Article 8 private and family life claim is raised( whether to be considered within the Immigration Rules or outside on Article 8 exceptional grounds) there is no requirement to make provision for Home office application fees where the Article 8 claim is relied upon:

  • as part of an asylum claim
  • where a migrant is in immigration detention.
  • in an appeal, subject to consent of the Secretary of State being applicable

RED.0002 (ENFORCMENT NON- CHARGED) SECTION 120 NOTICE PROCEDURE

A person can take advantage of RED.0002 (enforcement non-charged) Section 120 Notice, if served by the Home Office. In providing a response to the Notice, no application form need be completed nor application fees be provided by the claimant.

It is important to be aware of the single power of removal provided for in legislation so as to appreciate the significance of RED Notices.

The single power of removal is set out in section 10 of the Immigration and Asylum Act 1999 as amended by the  Immigration Act 2014. It outlines the different circumstances in which notice of liability to removal can be served and guidance on serving RED (Removal, Enforcement and Detention) notices.

Under section 10 of the Immigration and Asylum Act 1999 a person who requires, but does not have, leave to enter or remain in the UK is liable to removal. No removal decision is required but the person must still be notified of their liability to removal.

Significance of Red Notices

RED notices are used to tell an individual:

  • they are liable to removal
  • the country to which they will be removed

The notices also include:

  • information on the consequences of being in the UK illegally
  • information about any help that might be available to return home
  • a section 120 notice which requires the migrant to raise with the Home Office, as soon as reasonably practicable, any grounds not previously raised as to why they should be allowed to remain in or not be removed from the UK

The migrant has an ongoing duty to raise new grounds under section 120 of the Nationality, Immigration and Asylum Act 2002 while in the UK without leave.

RED.0002 forms- (enforcement non-charged)

RED.0002 forms are section 120 notices and a reminder notice of the section 120 duty. There are 3 RED.0002 notices, the first 2 forms are section 120 notices, and the third is a reminder notice of the section 120 duty:

1) RED.0002 (charged): used where a person is directed towards making a charged application if they wish to make an article 8 claim (for example they are not detained and there is no operational reason to waive the requirement).

2) RED.0002 (enforcement non-charged): used where a person is not directed towards making a charged application (for example where removals casework are preparing a case for tasking to enforcement, or where a person is detained). If necessary the Home office Caseworker can fill in a time limit for response (for example if while not detained, the person was given 14 days to respond to an earlier section 120, but they are now detained and this period needs to be shortened).

3) RED.0002 (reminder): reminds a person both of their liability to removal and their section 120 duty and may be adapted to refer to either charged or noncharged applications, this may be served at reporting events.

A charged application requires the individual to complete and submit an application form and make provision of the Home office fees before their representations can be considered by the Home Office.

A RED.0002 (enforcement non-charged) Section 120 Notice, once served means that the person to whom it is directed, does not need to make a valid charged application when providing reasons as to why they should be allowed to remain in the UK.  The person may, without more, simply provide documentation relevant to their claim and provide all reasons as to why they should be permitted to remain in the UK and then wait for a decision from the Home Office.

 

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In-time extension leave applications: Problem of online applications and the continuing effect of Section 3C leave

Following the abandonment of the postal application system from November 2018, with a move to the on-line immigration application process, it is all too often common for applicants to:

  • make on-line payment of the required fees
  • submit an on-line application form
  • upload the required documentation
  • attend a biometrics enrolment appointment
  • receive a decision

and never receive an individualised acknowledgement letter or correspondence from the Home Office properly confirming or clarifying the effect of their pending application on their immigration status.

THE PROBLEM

For whatever reasons, some Employers are either reluctant or too slow to utilise the Employer Checking Service. Some are still unaware that Home Office postal applications have become redundant.

Whilst an in-time application is pending to be decided, applicants are on occasion bombarded by Employers with requests such as these:

“Please be advised that our records show your visa is due to expire on 01/012/2020. Please present a member of the HR team with the documents detailed below to ensure you remain eligible to work in the UK, before your current visa expiry date

1.Your original passport and renewed visa;

2.Or, if you have yet to receive your renewed visa please provide the original letter from the UK Border Agency confirming receipt of your application, and when your submitted your application;

3.Or, if you have applied for your visa and are awaiting confirmation of this application, please provide a full copy of your application and proof of postage of this document. In addition you must provide the confirmation of receipt letter detailed above once received as this does allow you to continue to work in the UK until a decision on your application has been made”.

A situation where a leave extension application is pending for up to 4 to 6months, combined with unveiled threats of cessation of employment from an employer, can result in considerable unnecessary difficulty and anxiety for affected applicants.

WHAT IS SECTION 3C LEAVE? 

3C and 3D leave Guidance states:

“Purpose of leave extended by section 3C Immigration Act 1971

The purpose of section 3C leave is to prevent a person who makes an in-time application to extend their leave from becoming an overstayer while they are awaiting a decision on that application and while any appeal or administrative review they are entitled to is pending.

When section 3C applies

This section explains when a person’s leave is extended by section 3C of the Immigration Act 1971.

Pending decision on application

A person will have section 3C leave if:

  • they have limited leave to enter or remain in the UK
  • they apply to the Secretary of State for variation of that leave
  • the application for variation is made before the leave expires
  • the leave expires without the application for variation having been decided
  • the application for variation is neither decided nor withdrawn

Pending appeal Section

3C leave continues during any period when:

  • an in-country appeal could be brought (ignoring any possibility of appeal out of time with permission)
  • the appeal is pending (within the meaning of section 104 of the Nationality, Asylum and Immigration Act 2002), meaning it has been lodged and has not been finally determined

Pending Administrative Review Section 3C leave continues during any period when:

  • an administrative review could be sought
  • the administrative review is pending, in that it has not be determined
  • no new application for leave to remain has been made

Section 3C leave will end if the person leaves the UK.

Section 3C leave extended when an in-time application is made

An in-time application is an application made by a person in the UK who at the time of application has leave to enter or remain.

Where an in time application to extend or vary leave is made and the application is not decided before the person’s existing leave expires, section 3C extends the person’s existing leave until the application is decided (or withdrawn).

Section 3C does not extend leave where the application is made after the applicant’s current leave has expired”.

ABLITY TO WORK WHILST SECTION 3C LEAVE APPLIES

Guidance 3C and 3D leave, further provides:

“Conditions of immigration leave where 3C applies

This section tells you about the conditions that apply to section 3C leave.

A person who has section 3C leave remains subject to the conditions attached to their extant leave unless the conditions of their leave are varied by the Secretary of State. For example, a person subject to a condition allowing employment may continue to work as before. Any restrictions on the type of employment allowed or the number of hours they can work will still apply.

The conditions attached to a person’s leave can be varied while they are on section 3C leave, in the same way that someone who has been granted leave can have their conditions varied. So for example the conditions of a person’s leave may be varied to impose a residence requirement or to put them on to reporting conditions”.

The benefit of having Section 3C leave is to enable, amongst other things, an applicant who has timely submitted their application to continue in employment whilst awaiting a decision from the Home Office, where the conditions of their leave permit this.

It is important however to note that an invalid application does not extend leave under section 3C.

What is an invalid application? Guidance : Applications for leave to remain: validation, variation and withdrawal

An application for leave to remain in the UK is valid when the requirements of paragraph 34 of the Immigration Rules are met, or where one of the exceptions set out in paragraph 34 apply. The requirements must be met by each applicant.

For an application to be valid for example, the application must be made on a specified application form. There is a specified form for all types of application for leave to remain. Each applicant must pay any relevant fee for their application in full and according to the process set out on the form – some applicants however can apply for a fee waiver or qualify for a fee exemption. Applicants are required to provide proof of identity,  such as a current passport unless they meet the exceptions to the requirement to provide proof of identity.

Fees regulations provide for the Home Office to retain an administration fee when rejecting an application as invalid. It applies to all charged in -country applications for leave to remain. Where the fee has been paid but the application is invalid because of other reasons, the Home Office will reject the application and process a refund for the application minus £25 per person included in the application form.

Section 3C leave does not apply where the application to extend or vary leave is rejected as invalid. It is important therefore, where an application is submitted that regard be had to the automatically generated Document Checklist in conjunction with the requirements of Paragraph 34 of the Rules. This is to ensure all mandatory documentation is uploaded/submitted to avoid invalidation and rejection of an application as unconsidered later on during the application process.

A person who timely submits an extension application is therefore likely upon invalidation and rejection of that application to become an overstayer. They can of course re-submit the application with the required documentation and applicable fees however will not enjoy the benefits of Section 3C leave, such as being able to work whilst their re-submitted application is pending to be decided.

VALIDATION EMAILS FROM THE HOME OFFICE?

Whilst not going as far as specifically confirming a continuing right to work in relation to pending individual extension applications, the Home Office have been sending out random emails in relation to confirmation of Section 3C leave for timely submitted applications, be it FLR(FP) or  FLR(M) applications:

“Dear Sirs

PLEASE QUOTE REF: 1212-0001-0000-000/00 IN ANY CORRESPONDENCE. 

This is a notification email.  We cannot reply to queries from this mailbox.  For any further information please access our website through https://www.gov.uk/guidance/coronavirus-covid-19-advice-for-uk-visa-applicants-and-temporary-uk-residents

Due to the volume of correspondence we may be unable to locate your application without this reference and your correspondence may be returned to you.

Thank you for your application for permission to stay in the UK.

We apologise for the inconvenience, but, due to the worldwide response to COVID-19, UKVI services are limited and we are not able to meet our usual service standards.

Although we would normally decide your application within eight weeks from the date it was submitted, unfortunately this may not be possible in your case.

In line with Government advice on essential travel, social distancing and other restrictions related to COVID-19, for the safety of our customers and our staff, the UK Visa and Citizenship Application Service (UKVCAS) locations where you would ordinarily submit your biometric details and provide any documents for scanning that you have not already uploaded yourself have been closed.

Some centres are now opening with limited capacity so you may now be able to get an appointment it is important you attend if an appointment is offered.

Alternatively, you may have already attended an appointment and submitted your biometric details. If this is the case, no further action is required.

If your application was submitted prior to your current grant of leave expiring, your current status within the United Kingdom has been extended by section 3C of the Immigration Act 1971. You do not need to do anything else at this stage and do not need to be concerned about your immigration status.

If you have applied to switch your status in respect of your employment or studies then please refer to the guidance on Gov.UK as you should be permitted to commence work/study prior to your application being decided, should you meet the conditions set out in the guidance.

We apologise for the delay in dealing with your application and for the inconvenience this is causing. Please be assured we will do all we can to make a decision on your case as quickly as possible once your biometric details have been submitted.

We appreciate your patience at this time.

Yours faithfully

FLRM VALIDATION

HOME OFFICE”

TOP TIP

As well as writing to UKVI Sheffield by post, an applicant seeking to elicit confirmation of continuing Section 3C leave whilst their application is pending may email the Home Office on FLRMvalidate@homeoffice.gov.uk and consider copying ssc-fhru@homeoffice.gov.uk  and FHR14@homeoffice.gov.uk, also requesting a Case ID for the current pending application, especially where an applicant has not yet been allocated a Home Office reference number.

 

 

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 INITIAL FREE IMMIGRATION CONSULTATIONS!

AurexLegal Solicitors provide consultations at differing levels to meet your immigration needs.

**Free Consultation **

  • Free and friendly initial Immigration Consultation of up to 30minutes.
  • Initial preliminary assessment of your case.
  • Pointers given to resolve your matter.
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Foreign national criminals with British children: Latest of a series of positive Court of Appeal decisions on the “unduly harsh” test

 

KB (Jamaica) v Secretary of State for the Home Department [2020] EWCA Civ 1385 (28 October 2020)  is just one of a recent series of positive Court of Appeal decisions published between 4 September 2020 and 28 October 2020, relevant to the application  of the “ unduly harsh test” applicable to the family life exception to deportation.

KB(Jamaica) follows on closely hot on the heels of HA (Iraq) v Secretary of State for the Home Department (Rev 1) [2020] EWCA Civ 1176  and AA (Nigeria) v Secretary of State [2020] EWCA Civ 1296 , which were both considered in the blog posts below:

The Court of Appeal has therefore in several key judgements in the last few weeks either:

  • allowed appeals outright or
  • allowed appeals to the extent of remittal to the Upper Tribunal for re-determination

on the basis that the Upper Tribunal was wrong to set aside a First Tier Tribunal Judge’s finding that deportation of a foreign national criminal with British children is unduly harsh.

 

Allowed appeals and remittal to the Upper Tribunal for re-determination – two Appellants in HA(Iraq)

  • The appeal in HA(Iraq) concerned an Iraqi national, HA, who became subject to deportation proceeding however lived together with his British Partner and three British children. HA ‘s appeal before the First Tir Tribunal was allowed by FTTJ Gurung-Thapa( she also allowed KB’s appeal in KB(Jamaica) referred to below). Upon the Secretary of State’s appeal, the Upper Tribunal set aside FTTJ Gurung-Thapa’s decision for error of law,remade the decision and dismissed HA’s appeal. The Court of Appeal, for the reasons provided, found unsustainable the Upper Tribunal’s exposition of the factors that it took into account in reaching its conclusion that the effect on HA’s children of his deportation would not be unduly harsh. The Court of Appeal allowed HA’s appeal and remitted his case to the Upper Tribunal for a reconsideration of whether, applying the statutory test, the effect of his deportation on his partner and children would be unduly harsh.
  • The other Appellant in HA(Iraq), RA, also an Iraqi potential deportee was married to a British citizen and had a daughter who was British. RA’s appeal was allowed by a First Tier Tribunal Judge. The Secretary of State appealed the decision. The Upper Tribunal set aside the First Tier Tribunal Judge’s decision, remade the decision and dismissed RA’s appeal.The Court of Appeal concluded that the Upper Tribunal’s conclusion was not sufficiently reasoned. Noted was the Upper Tribunal’s conclusion  that it would not be unduly harsh for a child of five to be removed to the IKR in circumstances where she would lose for the rest of her childhood at least the benefits of being a British citizen and where there were, on the evidence, real questions about RA’s ability to find decent accommodation and a job. Such a conclusion required, in the Court’s view, a full explanation which demonstrated that all the material considerations had indeed been fully taken into account. The Upper Tribunal’s conclusion on the “stay scenario” of the unduly harsh test was insufficiently reasoned. RA ‘s appeal was allowed by the Court of Appeal and the case remitted to the Upper Tribunal for reconsideration.

Allowed appeal and restoration of positive First Tier Tribunal Judge ‘s decision – AA(Nigeria)

Allowed appeal and restoration of positive First Tier Tribunal Judge ‘s decision – KB(Jamaica)

KB, a Jamaican national, had four British children with whom he had a genuine and subsisting relationship and played a significant role in their day-to-day life.  He had however separated from the mother of his children.

Upon the Secretary of State seeking to deport KB, he appealed the decision to the Tribunal.  First-tier Tribunal Judge Gurung-Thapa reached a decision that the effect of KB’s deportation on four of his children would be unduly harsh and allowed his decision. The Secretary of State appealed the decision. The Upper Tribunal held that the First Tier Tribunal Judge had made an error of law and overturned her decision. In a remade decision, an Upper Tribunal Judge reached a contrary conclusion to that of the First Tier Judge and dismissed  KB’s appeal. The Upper Tribunal Judge determined that the effect of KB’s deportation on his children would not be unduly harsh, and that there were no very compelling circumstances that outweighed the public interest in his deportation.

Relevant principles on the unduly harsh test reiterated:

The Court of Appeal in KB(Jamaica) reiterated the following as regards the relevant principles in relation to the unduly harsh test:

“15.The meaning of “unduly harsh” in the test provided for by s.117C(5) has been authoritatively established by two recent decisions: that of the Supreme Court in KO (Nigeria) v Secretary of State for the Home Department [2018] 1 WLR 5273; and the decision of this court in HA (Iraq) v Secretary of State for the Home Department [2020] EWCA Civ 117. It is sufficient to note the following without the need to quote the relevant passages:

(1) The unduly harsh test is to be determined without reference to the criminality of the parent or the severity of the relevant offences: KO (Nigeria) para 23, reversing in this respect the Court of Appeal’s decision in that case, reported under the name MM (Uganda) v Secretary of State for the Home Department [2016] EWCA Civ 617, in which at paragraph 26 Laws LJ expressed this court’s conclusion that the unduly harsh test required regard to be had to all the circumstances including the criminal’s immigration and criminal history.

(2) “Unduly” harsh requires a degree of harshness which goes beyond what would necessarily be involved for any child faced with deportation of a parent: KO (Nigeria) para 23.

(3) That is an elevated test, which carries a much stronger emphasis that mere undesirability or what is merely uncomfortable, inconvenient, or difficult; but the threshold is not as high as the very compelling circumstances test in s. 117C(6): KO (Nigeria) para 27; HA (Iraq) paras 51-52.

(4) The formulation in para 23 of KO (Nigeria) does not posit some objectively measurable standard of harshness which is acceptable, and it is potentially misleading and dangerous to seek to identify some “ordinary” level of harshness as an acceptable level by reference to what may be commonly encountered circumstances: there is no reason in principle why cases of undue hardship may not occur quite commonly; and how a child will be affected by a parent’s deportation will depend upon an almost infinitely variable range of circumstances; it is not possible to identify a base level of “ordinariness”: HA (Iraq) paras 44, 50-53, 56 and 157, AA (Nigeria) v Secretary of State for the Home Department [2020] EWCA Civ 1296 at para 12.

(5) Beyond this guidance, further exposition of the phrase will rarely be helpful; and tribunals will not err in law if they carefully evaluate the effect of the parent’s deportation on the particular child and then decide whether the effect is not merely harsh but unduly harsh applying the above guidance: HA (Iraq) at paras 53 and 57. There is no substitute for the statutory wording (ibid at para 157)”.

The Secretary of State’s concessions:

The Court of Appeal’s conclusions:

Conclusion

A blog post of 4years ago enquired: Why is the home office increasingly and routinely appealing allowed FTT decisions and getting away with it? https://ukimmigrationjusticewatch.com/2016/06/26/why-is-the-home-office-increasingly-and-routinely-appealing-allowed-ftt-decisions-and-getting-away-with-it/

In other words, in particular in relation to deportation cases where an appeal is allowed by a First Tier Tribunal Judge, rather, the question should have been, why has the Upper Tribunal been entertaining  these routine challenges by the Secretary of State?  Not only that, why has the Upper Tribunal been interfering with First Tier Tribunal Judge’s decisions arising out of a mere disagreement on whether the appeal of a foreign national criminal national should have been allowed?

Court of Appeal says guidance on the “unduly harsh” test in deportation cases now confined to KO (Nigeria) and HA (Iraq)

AA (Nigeria) v Secretary of State [2020] EWCA Civ 1296 (09 October 2020)  builds up on HA (Iraq) v Secretary of State for the Home Department (Rev 1) [2020] EWCA Civ 1176, which was only last month notified in the Court of Appeal.

The judgment in HA(Iraq) touches upon several caselaw relating to the deportation of foreign national criminals, drawing the various threads together on the arising principles, with a particular focus on the  meaning of “unduly harsh”  contained in Paragraph 399 of the Immigration Rules and Section 117C(5) of the  Nationality, Immigration and Asylum Act 2002.  A foreign national criminal subject to deportation  is able to successfully resist deportation where  he or she can show that they  have a genuine and subsisting parental relationship with a child under the age of 18 years who is in the UK; the child is a British Citizen or the child has lived in the UK continuously for at least the 7 years immediately preceding the date of the immigration decision; and in either case it would be unduly harsh for the child to live in the country to which the person is to be deported and it would be unduly harsh for the child to remain in the UK without the person who is to be deported.

HA(Iraq), which sought to provide additional guidance on the application of the unduly harsh test following  the Supreme Court  judgement in KO (Nigeria) & Ors v Secretary of State for the Home Department (Respondent) [2018] UKSC 53, is considered in detail in a previous recent blog post: https://ukimmigrationjusticewatch.com/2020/09/08/court-of-appeal-on-foreign-criminals-with-british-children-threshold-of-unduly-harsh-test-not-as-high-as-very-compelling-circumstances-test/

 

SUMMARY BACKGROUND

AA(Nigeria) concerned the appeal of a Nigerian national, who had on 29 November 2013 been convicted of supplying Class A drugs and sentenced to 4 ½ years imprisonment.

A First Tier Tribunal(FTT) Judge  allowed his appeal on the grounds that his deportation would disproportionately interfere with the rights of his British  partner and British two children under article 8 of the European Convention on Human Rights (“ECHR”). The Judge’s conclusion was that the unduly harsh consequences of deportation for the appellant’s partner and family and other additional factors provided very compelling reasons why the significant public interest in his deportation was outweighed. On the Secretary of State’s appeal, the Upper Tribunal determined that the FTT decision involved an error of law. Following a further hearing, the Upper Tribunal dismissed the appellant’s appeal against his deportation order. The appellant appealed to the Court of Appeal against the Upper Tribunal decisions in finding an error of law in the FTT Judge’s decision and the remaking of the decision.

 

KEY ISSUES ARISING OUT OF AA(NIGERIA)

Not necessary to extensively cite authorities in deportation appeals outside four identified authorities

In relation to the meaning or application of the two statutory tests, ie the “unduly harsh” test in section 117C(5) of the 2002 Act, and the “very compelling circumstances” test in section 117C(6), the Court stated as follows:

  • There is no need to refer extensively to authority for the meaning or application of the two statutory tests.
  • It should usually be unnecessary to refer to anything outside the four authorities identified, namely KO (Nigeria) v Secretary of State for the Home Department [2018] 1 WLR 5273R (on the application of Byndloss) v Secretary of State for the Home Department [2017] 1 WLR 2380NA (Pakistan) v Secretary of State for the Home Department [2017] 1WLR 207HA (Iraq) v Secretary of State for the Home Department [2020] EWCA Civ 117. 
  • It will usually be unhelpful to refer first instance judges to other examples of their application to the particular facts of other cases and seek to draw factual comparisons by way of similarities or differences. Decisions in this area will involve an examination of the many circumstances making up private or family life, which are infinitely variable, and will require a close focus on the particular individual private and family lives in question, judged cumulatively on their own terms.
  • Nor will it be necessary for first instance judges to cite extensively from these or other authorities, provided that they identify that they are seeking to apply the relevant principles.
  •  It is an impediment to the efficient working of the tribunal system in this area for judges to have numerous cases cited to them or to feel the need to set out extensive quotation from them, rather than focussing primarily on their application to the factual circumstances of the particular case before them.
  • Judges who are experienced in these specialised courts should be assumed by any appellate court or tribunal to be well familiar with the principles, and to be applying them, without the need for extensive citation, unless it is clear from what they say that they have not done so.
  • Experienced judges in this specialised tribunal are to be taken to be aware of the relevant authorities and to be seeking to apply them without needing to refer to them specifically, unless it is clear from their language that they have failed to do so.

KO (Nigeria) and HA (Iraq) provide authoritative guidance as to the meaning of “unduly harsh”

In relation to what is meant by “unduly harsh” in section 117C(5), the authoritative guidance is now that given by Lord Carnwath JSC in KO (Nigeria) and by the Court of Appeal in HA (Iraq):

  • The Court in AA(Nigeria) made reference to paragraphs 23 and 27 of KO(Nigeria)  as per Lord Carnwath’s judgement, ie “…….One is looking for a degree of harshness going beyond what would necessarily be involved for any child faced with the deportation of a parent. What it does not require in my view (and subject to the discussion of the cases in the next section) is a balancing of relative levels of severity of the parent’s offence, other than is inherent in the distinction drawn by the section itself by reference to length of sentence. Nor (contrary to the view of the Court of Appeal in IT (Jamaica) v Secretary of State for the Home Department [2017] 1 WLR 240 , paras 55 and 64) can it be equated with a requirement to show “very compelling reasons”. That would be in effect to replicate the additional test applied by section 117C(6) with respect to sentences of four years or more.” And, “ Authoritative guidance as to the meaning of “unduly harsh” in this context was given by the Upper Tribunal (McCloskey J President and Upper Tribunal Judge Perkins) in MK (Sierra Leone) v Secretary of State for the Home Department [2015] INLR 563 , para 46, a decision given on 15 April 2015. They referred to the “evaluative assessment” required of the tribunal: “By way of self-direction, we are mindful that ‘unduly harsh’ does not equate with uncomfortable, inconvenient, undesirable or merely difficult. Rather, it poses a considerably more elevated threshold. ‘Harsh’ in this context, denotes something severe, or bleak. It is the antithesis of pleasant or comfortable. Furthermore, the addition of the adverb ‘unduly’ raises an already elevated standard still higher.”
  • The guidance on the unduly harsh test can now be confined to KO (Nigeria) and HA (Iraq). The latter is a necessary adjunct to the former both because it explains aspects of Lord Carnwath’s observations and because it provides additional guidance on the application of the unduly harsh test.

 

The meaning of “very compelling circumstances” as per Byndloss  and NA(Pakistan)

The Court in AA(Nigeria) went further and concluded:

  • In relation to what is meant by “very compelling circumstances”, reference was made to Byndloss as per Lord Wilson JSC paragraph at 33:
  • “33. The deportation of a foreign criminal is conducive to the public good. So said Parliament in enacting section 32(4) of the 2007 Act: see para 11 above. Parliament’s unusual statement of fact was expressed to be for the purpose of section 3(5)(a) of the 1971 Act so its consequence was that every foreign criminal became automatically liable to deportation. Parliament’s statement exemplifies the “strong public interest in the deportation of foreign nationals who have committed serious offences”: Ali v Secretary of State for the Home Department [2016] 1 WLR 4799, para 14, per Lord Reed JSC. In the Ali case the court was required to identify the criterion by reference to which the tribunal should determine an appeal of a foreign criminal on human rights grounds against a deportation order. The decision was that the public interest in his deportation was of such weight that only very compelling reasons would outweigh it: see paras 37 and 38, per Lord Reed JSC.………..
  • 55. The third [feature of the background] is that, particularly in the light of this court’s decision in the Ali case, every foreign criminal who appeals against a deportation order by reference to his human rights must negotiate a formidable hurdle before his appeal will succeed: see para 33 above. He needs to be in a position to assemble and present powerful evidence. I must not be taken to be prescriptive in suggesting that the very compelling reasons which the tribunal must find before it allows an appeal are likely to relate in particular to some or all of the following matters: (a) the depth of the claimant’s integration in United Kingdom society in terms of family, employment and otherwise; (b) the quality of his relationship with any child, partner or other family member in the United Kingdom; (c) the extent to which any relationship with family members might reasonably be sustained even after deportation, whether by their joining him abroad or otherwise; (d) the impact of his deportation on the need to safeguard and promote the welfare of any child in the United Kingdom; (e) the likely strength of the obstacles to his integration in the society of the country of his nationality; and, surely in every case; (f) any significant risk of his reoffending in the United Kingdom, judged, no doubt with difficulty, in the light of his criminal record set against the credibility of his probable assertions of remorse and reform.”
  • The interrelationship between these principles and the Exceptions in Section 117(C)3-( C) 5, both in relation to medium term offenders( with sentences of one to four years) and serious offenders( with sentences of 4years or more) was authoritatively set out by Jackson LJ in NA(Pakistan) at paragraphs 28 to 39.

 

Criticism of the Upper Tribunal’s approach

Upon re-making the decision in AA(Nigeria), the Upper Tribunal was noted to have concluded that: “Taking all of the above factors together, and taking into account my findings on what is in the best interests of the children, I am not satisfied that there is sufficient evidence that the effect of the Appellant’s deportation will be unduly harsh. The children will remain in the UK with their respective mothers. Their separation from the Appellant will undoubtedly be harsh. It may even be very harsh. However, the factors relied upon are no more than those which would be involved for any child faced with deportation of a parent. I do not accept that the evidence shows that the very high threshold which applies is met (see KO (Nigeria)).”

The question was whether the Upper Tribunal was right to conclude that the FTT Judge’s decision was perverse.

The Court of Appeal in AA(Nigeria) reached the following conclusions:

  • The Upper Tribunal’s conclusions were unsustainable. When purporting to summarise the FTT Judge’s factual findings which were relevant to her assessment of harshness, the Upper Tribunal Error of Law decision did not do so accurately or fairly. It did not include all of the FTT Judge’s factors, omitting, for example, any reference to the adverse impact of the appellant’s absence on the relationship between the two children, to which the FTT Judge attached significant weight. It mischaracterised others so as to diminish their significance, with the result that it was not a summary which took them at their highest, despite purporting to do so. The factors which the FTT Judge identified were capable of supporting the conclusion that the effect on the appellant’s partner and the children of remaining in the UK without the appellant met the elevated unduly harsh test. That was an evaluative judgement for the FTT Judge on the basis of the full evidence before her, including cross-examined oral evidence and the report from  the independent social worker. Her findings of fact were such that a conclusion of undue harshness was open to her.
  • Different tribunals might have reached a different conclusion, but it is inherent in the evaluative exercise involved in these fact sensitive decisions that there is a range of reasonable conclusions which a judge might reach, and the error of law under consideration was only made out if the FTT Judge’s conclusion was outside that range. In the Court of Appeal’s view it was within the range in this case.
  • It appeared be a case in which the Upper Tribunal interfered merely on the grounds that its members would themselves have reached a different conclusion. This was considered impermissible by the Court of Appeal.  
  • The Court in AA(Nigeria) indicated that it appreciated that under the tribunal system, established by the Tribunals Courts and Enforcement Act 2007 Act, the Upper Tribunal is itself a specialist tribunal, with the function of ensuring that First-tier Tribunals adopt a consistent approach to the determination of questions of principle which arise under the particular statutory scheme in question by giving guidance on those questions of principle.  However it is no part of such function to seek to restrict the range of reasonable views which may be reached by FTT Judges in the value judgments applied to the many different private and family life circumstances which make almost all cases in this area different from each other. It is emphatically not part of their function to seek conformity by substituting their own views as to what the outcome should be for those of first instance judges hearing the evidence.
  • The upper Tribunal’s reference to the fact that the consequences of deportation  “may be very harsh” was unhelpful. Tribunal judges should not seek to express their decisions by categorisations of degrees of harshness, which is to complicate what is a single and straightforward statutory test. They should identify the factors which are relied on as making the consequences of deportation unduly harsh and evaluate whether cumulatively they do so, bearing in mind that it is an elevated threshold, and that, as HA (Iraq) explains, it is undesirable to approach the issue by trying to identify what is “the norm” and what in the individual case goes beyond that: almost all cases are different, involving a multitude of individual factors, and it is impossible to measure objectively a norm or baseline as the comparator against which the individual case is to be judged.

 

Rehabilitation can carry some weight in the balance when considering “very compelling circumstances”

The matter of whether rehabilitation can be a factor of any significant weight in considering very compelling circumstances is an issue  that has now been fully addressed in HA (Iraq) at paragraphs 132 to 142 where the previous authorities were analysed. As the court in HA (Iraq) stated at paragraphs 140 and 141, tribunals will properly remain cautious about their ability to make findings on the risk of reoffending, but where a tribunal is able to make an assessment that the foreign criminal is unlikely to reoffend, that is a factor which can carry some weight in the balance when considering very compelling circumstances, although not one which will carry great weight on its own.

  • Rehabilitation is not limited to the mere fact that there has been no further offending. What is also relevant is the risk of further offending. The fact that the criminal has not reoffended may inform that assessment, but may not of itself provide much if any basis for concluding that the risk of reoffending is significantly reduced, especially if it is for a relatively short period. However rehabilitation, in the sense of a reduced risk of reoffending, is to be assessed by reference to a multitude of factors other than merely the absence of further offending. It is the common task of the probation service daily to make such an assessment in the preparation of pre-sentence reports for sentencing judges, and they perform that assessment by reference to factors some of which are offence specific, but many of which are specific to the offender. It is well recognised, for example, that a change of personal circumstances since the offending is capable of reducing the risk of further offending and may in some cases be of sufficient weight to render it unlikely. It does not need the specialist experience of probation officers to reach such a conclusion, which may be apparent to an immigration judge depending on the particular personal circumstances in which the offender came to offend, how influential they were on the offending and how the change of circumstances affects the risk of further offending.
  • The FTT Judge in this case performed that evaluative exercise in concluding that the appellant was most unlikely to reoffend given the vulnerable circumstances in which he offended, his positive steps to reduce his risk of reoffending and the more stable family circumstances of his years since the offending. Of course they could not be said to eliminate any risk of reoffending. But taken with the appellant’s own evidence as to his current attitude to his offending, they can properly support the Judge’s conclusion that the risk of reoffending was reduced to the level of most unlikely.

CONCLUSION

The Court of Appeal in AA(Nigeria) allowed the Appellant’s appeal and restored the decision of the FTT Judge.

The outright restoration of AA’s appeal without a remittal to the Upper Tribunal indicates  just how wrong the Upper Tribunal had it in finding an error of law in the FTT Judge’s decision and in remaking the decision and dismissing the Appellant’s appeal.

There was nothing wrong in the  FFT Judge’s decision allowing the appeal, yet the Upper Tribunal sought, contrary to what was actually required of it, simply to substitute their own decision merely because they did not like the FTT Judge’s decision.

The reasoning and considerations in AA(Nigeria) however have a double edged effect: they equally apply where an appeal is dismissed by an FTT Judge and an appellant seeks to apply for permission to appeal to the Upper Tribunal. An appellant may well ultimately be left with a negative FTT decision, unable to have it overturned on the basis that mere disagreement  with an FFT Judge’s decision is not sufficient to evidence an error of law.