Upper tribunal granted a permission, Advice needed

[neverlookback]

Dear all members, i am a new member and i need advices from anyone of you all, please bear with me because it's a bit long.

I dated two guys at the same time betwen 2006 and 2007, one of them was my old boyfriend but he never take the relatioship serious as i want and it was always off and on, then i meet a new boyfriend who i later marry to, please read below for full understanding and share ur advice.

I Married to my husband who was an Eea national in december 2007 then i gave birth to our daughter in july 2008. i make an application as a family member of Eea national in september 2008, 5years RC was granted for me in august 2009 to 2014. then me and my husband separated in january 2010 after i find out another woman were pregnant for him and couldn't take it.

Then after some months i went back to my Ex boyfriend who i had a relatioship before i married my husband. so few months later I got pregnant, and i gave birth to new baby for my boyfriend in december 2011. then after 3yers me and my husband divorce were finalised in august 2014. after that i were not able to renew my RC because i could not provide the required documents for a retain right and my ex husband move to ireland with his girlfriend since 2011 so he was not working in uk since then.

Then in August 2015 I make an application on the basis of my child has live in uk for 7years and she is an Eea national with the advice of my solicitor, after waiting for so many months I received a letter from home office asking me for a DNA test to prove that my ex husband is the father of my daughter or if i could not find my husband as I stated on my application that i should ask my boyfriend who is the father of my second child to do the test to prove his not the father of my daughter, the reason was to establish whether my daughter is an Eea national, but i couldn't afford the the fee for the DNA test then my solicitor write a letter to home office asking them to pay for it that we are ready to do it but they didn't reply us.

then in two months later in september 2016 my application was refused on the basis that i was here ilegaly after my RC expired in 2014 and that it is reasonable for my daughter and the other of my child to live with me in Ghana as i do not have a right to live in uk, but i was giving right of appeal.

Then i put in for an appeal, and the appeal was heard in October 2017, my appeal grounds were on HUMAN rights and EEA grounds. during the court hearing on the hearing day the home office presenting officer were asking me alot of questions regarding my previous marriage with my ex husband, the reason is that our marriage only last for shot period after my RC were granted and that they did not believe that my daughter is an EEA national because they did not believe that my ex husband is the father of daughter. i was so embarrassed at that moment but i try to explain what happen but they didn't listen.

So after one month of the hearing in november 2017 the Judge dismissed my appeal on the ground that i were not able to prove that i have a retail right or derivative right, and that there was some questions the home office presenting ask me that were left unanswered, the Judge went on and dismissed the appeal on EEA ground and on human right ground.

Then we apply for a permission to appeal to upper tribunal this were also dismissed by the lower tribunal in December2017. then we apply for a permission to appeal to upper tribunal direct, while i was waiting for their reply i quickly went to another solicitor for an advice to compare it with my solicitor, the new solicitor advice me to ask my boyfriend to do a DNA TEST with my daughter incase if the tribunal grant me a permission so i can use it to prove to the tribunal and the home office that his not the father of my daughter, and I was 100% sure that my ex husband is the father of my daughter.

Then after we went for the DNA test, it was a bad news for me because the result surprisingly prove that my boyfriend is the biological father of my daughter i never really believe it, it was a big shock to me but i can remeber that before i get married to my ex husband i was dating both of them.

so yesterday i recive a letter from the upper tribunal that my permission to appeal is granted in all ground that they agreed that the first judge make error and that my daughter was born and brought in uk and she has never live in any other country, and that the first judge should have focuse on the best instrest of my daughter not me the mother, and that the judge should have accepted that my ex husband were working before i was granted a 5years RC before. because of this the judge grant me permission in all ground.

My solicitor have ask me to pay another 800 pounds because he said because the dna test has proved that my ex husband is not the father of my daughter, we have to withdrew the eaa ground from the appeal and go on with the human rights ground only. But the main problem is that I could not afford to pay the money he asking for, and my daughter will be entitled to register as British in July and I will also need money for that.

I need an advice from you all what is the best direction to take, looking at my case do have a chance to win in upper tribunal or should I withdrew the appeal because of the DNA test. Ur advice will be fully welcome

[neverlookback]

Can someone advice me please

[Alam-]

Your solicitor is right, since the DNA text you don't have grounds on eea basis and it might affect your case. Your daughter is over 7 years and on human rights ground she shouldn't be forced to go out and live in another country. I am not sure if you can win this appeal but I am sure that you have solid grounds to stay in UK. You gotta spend a lot of money when you go into appeals. I think you should consider spending 800 on your appeal as it's equally important.

[neverlookback]

Your solicitor is right, since the DNA text you don't have grounds on eea basis and it might affect your case. Your daughter is over 7 years and on human rights ground she shouldn't be forced to go out and live in another country. I am not sure if you can win this appeal but I am sure that you have solid grounds to stay in UK. You gotta spend a lot of money when you go into appeals. I think you should consider spending 800 on your appeal as it's equally important.

Thanks very much for ur reply

[neverlookback]

Good morning to u all.

Update on my case,

My case was heard in upper tribunal last month, I just receive the desicion now. sadly The Judge dismissed my appeal on the ground that he couldn't find any error in law from the previous Judge desicion.

My Daughter has completed 10years last week,
What next for me now. I'm really worried that the Home office will start sending me and my daughter a removal letter.

Please I need help and advice from all the experience members as I do not have money to pay solicitor. Please read and share ur advice

[neverlookback]

Good morning to u all.

Update on my case,

My case was heard in upper tribunal last month, I just receive the desicion now. sadly The Judge dismissed my appeal on the ground that he couldn't find any error in law from the previous Judge desicion.

My Daughter has completed 10years last week,
What next for me now. I'm really worried that the Home office will start sending me and my daughter a removal letter.

Please I need help and advice from all the experience members as I do not have money to pay solicitor. Please read and share ur advice

Can someone share opinion on case please as I'm really worried now

[Obie]

Well i really do not understand why you have to go through the steps you have taken. You have essentially made your case even more complicated.

What is the nationality of the EEA child.

If you have an EEA child an the your ex was at some time a migrant worker in the UK, then there is no need for you to rely on Article 8, you can rely on regulation 16 and claim a derivative right on the basis that the child is in school, and was the child of a former migrant worker.

In any event, i fail to see why Home Office need to see the DNA, in law, and nationality act, the father of the child is describe as the man a woman was married to at the time of the child's birth. So even if the DNA test proves that your current boyfriend is the father, not sure it will change much.

Any way i wish you the best, what is the nationality of the EEA child?

As a matter of law a person is not required to prove the negative they only need to prove a positive. So to ask you to prove the other guy is not the father is absurd. Why was the other guy brought into the picture in the first place.

[neverlookback]

@Obie thanks for ur reply,

I think my solicitor made a mistake because he advice me to make this application because we couldn't get any work information from my husband.

My child nationality is Spanish, the reason my ex boy friend was brought into the picture is because his my first child father before I marry my ex husband, so his information were added into my application form as the father of my other child, as per question and answer.


Please advice me what to do next, ur opinion can be vert important to me at the moment.

[Obie]

I believe there is no point in making an application to adduce new evidence, which you will have to do under section 15(2A) of the Upper Tribunal procedure rules to adduce new evidence. It will make no sense as adducing such evidence will be contrary to your interest.

The best way is to pursue the Upper Tribunal appeal without the DNA. I also believe the child of a married woman is the child of the man to whom she is married, even if the father is not the biological.

You have a right under Regulation 16, as your former husband was a migrant worker and your child is in school. I am really puzzled what had happened with you case. I wish you the best for the future.

[neverlookback]

Thanks @Obie for advice


The problem is that my solicitor demanded for more money before he can lodge an appeal and, i don't have a enough found to cover the solicitor fees to lodge an appeal again, and he say the chance are 50&50. Any other ideas from you please

[Obie]

I thought appeal was lodged and permission has been granted, what appeal does he need to lodge again?

[neverlookback]

Yes the appeal has already been heard last month, please read my last update below

Good morning to u all.

Update on my case,

My case was heard in upper tribunal last month, I just receive the desicion now. sadly The Judge dismissed my appeal on the ground that he couldn't find any error in law from the previous Judge desicion.

My Daughter has completed 10years last week,
What next for me now. I'm really worried that the Home office will start sending me and my daughter a removal letter.

Please I need help and advice from all the experience members as I do not have money to pay solicitor. Please read and share ur advice

[Obie]

I see. There are many complexities in this matter. It is hard to give a straight answer. All i know is, there is a right under EU law, if you are the primary carer of an EU child, whose father was a former Migrant worker.

[neverlookback]

I see. There are many complexities in this matter. It is hard to give a straight answer. All i know is, there is a right under EU law, if you are the primary carer of an EU child, whose father was a former Migrant worker.

Am confused at the moment I don't know what to do.

thanks for ur response, whatever happens I will updated u in due course