Home Office nightmare, can you help?

[leonado_da_vinci]

Hi,

I have a major Immigration Challenge and would really appreciate some advice. Thank you for taking the time to respond...

1) I am a South African Citizen.
2) I arrived in the UK on 11 January '96 as a visitor
3) In March '96 I travelled to Israel for a few months
4) I returned to the UK in July '96 as a working Holidaymaker
5) From July '98 to March '00 I had various extensions as a student
6) In March '00, as a result of some bad advice from Named OISC advisors, I applied for Indefinite leave to remain on the basis of my involvement with my Church (I was told that 4 yrs residence qualified for ILR)
7) In May '01 my application was refused and returned to an old address.
8) I had notified the HO of the change, but failed to record the letter.
9) In August '01 I was engaged to my British born girlfriend who I had known since '97 (proof submitted to HO)
10) In May '02 I received my passport from my old landlord and nearly had a heart-attack when I learned that I was now an overstayer!
11) In July '02 my fiancee' and I were married as planned while I sought legal advice
12) In December '02 our solicitors finally lodged an application for leave to remain as a spouse
13) In May '03 we received the refusal of the spouse application
14) We immediately lodged an appeal which is being heard on the 14th May '04 before an adjudicator
15) My wife and I own a property - our marriage is 100% genuine
16) We are expecting our first child on 13 August '04
17) My wife has very close family ties in the UK and knows no-one in SA
18) I have been in the UK for 8 years and have never been back to SA
19) Since May '02 when I learned of my immigration status, I have not taken up employment, but have been studying. We've gone from being a wealthy family, to a desperate family...

Questions:
a) Based on the above info, what do you think our chances are of winning the appeal on article 8 of Human Rights Act?
b) My wife's parents are Irish which means she can get an irish passport. I have heard of an EEC family permit. Can I apply for this? Apparently this has to be done at the Home Office. Can it be done with my present situation?
c) What else can you suggest to resolve this mess?
d) I have been told on more than one occasion that if I returned to SA, I would be refused re-entry to the UK. Is this true?

Thanks for taking the time to assist with this lengthy enquiry.

Sincerely

LDV

[tdabash]

Hello there

a) Based on the above info, what do you think our chances are of winning the appeal on article 8 of Human Rights Act?

Slim chance; if this is your basis of defence.

b) My wife's parents are Irish which means she can get an irish passport. I have heard of an EEC family permit. Can I apply for this? Apparently this has to be done at the Home Office. Can it be done with my present situation?

Waste of time. Your wife is already a British citizen.

c) What else can you suggest to resolve this mess?

You need to prove the compassionate circumstances, Your wife does not know any one in SA, you wife is expecting a baby,etc. The child is the most important factor. You may win your appeal outside the rules with comassionate circumstances.

If you lose, do not worry. Just start again with fresh application. Your child will support you. This time involve your MP from the start.

d) I have been told on more than one occasion that if I returned to SA, I would be refused re-entry to the UK. Is this true?

Absolutely true. Fight your battle in the UK. You will eventually win.

Good luck

[Chess]

I have a major Immigration Challenge and would really appreciate some advice. Thank you for taking the time to respond...

1) I am a South African Citizen.

Kayalami, Let us lay a strategy for this Brother.


There are 4 critical issues to remember:

(a) 2 previous applications refused by HO (premature ILR and 'out of time' spouse Visa).

(b) From VISA/Immigration history, it appears that Leonardo has tried to be legitimate as possible - by all sorts of legal means

(c) there is a Baby on the way

(d) the Clock for the 14 year legal/illegal stay was stopped by previous refusals - so this route is not feasible


Without going through the 'nittygritty' I suspect that the 'Adjudicator' is not gonna rule in favour of Leornado.



It seems that the wife has strong ties with the UK (coul already be a BC) and they own their property and there is a baby on the way which slightly improves their chances.


Leornado,

Have you got any family in the UK? (brothers, Sisters, Uncles - parents etc)? have you got any 'Ancenstry' connections with the UK?


Last but not least to echo tdabash - get your MP involved ASAP.


Kayalami - Over to you

[Kayalami]

LDV,

Its always challenging to give advise in appeal cases because I would require the relevant application and refusal notice to determine what really happened. However I will try give you some views.

1. Your application for further leave to remain as the spouse of a person present and settled in the UK appears to have been refused because you did not at the time the application was received have ‘leave to enter or remain in the UK’ – Para 284 (i) of the immigration rules (IR's)

2. My concern here is not so much the overstaying but that there may be a deportation order on file that we are not aware of. I suspect probably not because the Immigration Service would have removed you by now as they are aware of your whereabouts as well as the fact your ILR refusal was after 2 October 2000. Overstayers after this date are no longer deported (appealable) but are treated as illegal entrants and undergo ‘administrative removal’ (not appealable).

3. The Home Secretary is obliged to take into account the Human Rights Act in any immigration application but must balance this against the integrity of the immigration system. Some articles of the HRA e.g. Article 3 – ‘prohibition from torture’ cannot be derogated from i.e. the UK can not opt out so if if proven that someone will be subject to torture if removed from the UK then the HS cannot do so. Some such as Article 8 – ‘right to a family life’ are qualifying rights which the UK can balance against national interests thus giving the HS more room to wiggle.

4. I will echo the advice by Chess and tdabash that you have a chance of success but that this is based on the level and substance of representations made on your behalf. The adjudicator will not be ruling on a point of law i..e. the HS said you don’t meet the IR’s but you do. Consequently the burden of proof is all on you. You need to detail the adverse impacts your wife and child will experience if you have to leave the UK.

5. Expect the Home Office Presenting Officer at the appeal to argue that you can go back to South Africa and make an application to return to the UK as the spouse of a BC. This is an option you might wish to consider but only after the outcome of your appeal and subject to there being no deportation order on file. A deportation order would make re-entry into the UK problematic as you need to wait for three years from the date of UK departure to re-enter or apply for a revokation order before then. Except the HOPO to also state that your wife has family in the UK who would look after her pending your return.

6. Inolving your MP is useful but he/she may be limited at the moment by the fact that an appeal is pending (that's what the HO will write back to him/her). Involve the MP if there is a negative decision at appeal stage.

7. Your wife is an Irish citizen by birth to a parent/s born in Ireland. You can apply to remain in the UK as her spouse under EU treaty/community laws. However this requires her to be economically active which the Home Office may argue is not the case given her pregnancy. Case law shows that as long as she is not in receipt of state benefits your application would go through. She needs to obtain an Irish passport as proof of her Irish citizenship for the application. This is through the Irish Consulate in London (020-7225-7700) which requires the submission of her full birth certificate as well as her parents full birth certificates and marriage certificate. Expect the passport application process to take about 2 months as the application has to be sent to Dublin.

8. After obtaining the Irish passport your wife should apply for a resdience permit aka EEA Family permit and include you on it as her dependent. Given the timing issue this route is one for after the appeal but something you can start looking into as an option. Note that you will get a 5 year permit - after 4 yrs on the permit you can apply for ILR. Under the IR's you get ILR after 2 years marriage to a BC - basically the HO making it more difficult to get ILR under EU route to compensate for their lack of control here. I have heard of people applying under the EU scheme getting a 5 yr permit and trying for ILR after two years where the spouse is also a BC. Doesn't work as this brings you back to the IR's which you would fail to meet.

9. Advantages of applying under EU law - it is easier to get residence, applications are free, applications must be decided within 6 months, you are effectively not subject to immigration control (as long as you can prove relation to EU spouse which an EEA Family permit does). The EEA family permit will also facilitate your employment.

10. In summary wait for the appeal and let us know the outcome – we’ll take it from there.


Sterkte

[tdabash]

Hello there,

The exercising of treaty rights is defined as: Employment Self-employment Study Economic self-sufficiency Retirement - (i.e. people who have been economically active) Incapacity - (i.e. people who are incapacitated / permanently incapacitate and thus unable to pursue employment)

If Leonardo’s wife managed to get her Irish passport, she may need to abide to the treaty rights (as an Irish citizen who would like to reside in the UK) in order to enable her spouse to apply as resident in relation to her under EC Laws.

Can she apply for residency in the UK as an Irish while she is already a resident as a British citizen?

A European national would qualify for ILR if he/she has lived and worked in the United Kingdom for a period of 4 years OR has been economically self-sufficient in the United Kingdom for a period of 4 years OR has been supported by the income of his/her spouse whilst living in the United Kingdom for a period of 4 years.

A family member of a European national may apply as the dependant of a European national or independently. However, if they apply independently they will need to supply evidence that the European national has lived and worked in the United Kingdom for 4 years.

Does this lead her to ILR then British citizenship while she is already British?

I think Leonardo may need to concentrate at this stage on the compassionate circumstances in order to convince the adjudicator.

Leonardo and his pregnant wife must attend the hearing. Although hearings are supposed to be public, people are usually polite and leave the court.

If we are talking about a determination outside the rules then we may well consider the human factor and psychology. I advise Leonardo and his wife to sit with the lawyer prior to their hearing and practice, similar to a professional who is training himself on techniques prior to job interview.

During the hearing expect tough cross examination from HO presenting officer, if he/she attended. Please be prepared to every possible question.

Article 3 ECHR is not applicable. Leonardo stands a slim chance with Article 8 ECHR. The adjudicator will possibly be diverted from this route. It is a long way to follow. It may end up in Brussels.

I agree with kayalami; MP at this stage is not helpful as he/she has no right to question an adjudicator who is directly appointed by Lord Chancellor. The only one who can reverse a decision of an adjudicator is a Tribunal; if the case was allowed to tribunal.

On the other hand MP has the right to question the secretary of state, who has the power by law to make concession. In other wards the MP may ask the secretary of the state for a concession in the context of the law.

Deportation is very unlikely if there is a child. I came across an asylum seeker from Kosovo, who had a 9 years old brother. Both have entered the country illegally. Despite the deportations order to the man and police arrest, he was allowed to stay because his 9 years old brother was granted exceptional leave to remain.

I do not believe that the immigration authority would ever deport a father of a British child. This would be a crime in the child’s right.


I suggest the following plan

1- Concentrate on the compassionate circumstances during your appeal.
2- Wait for your baby to be born.
3-Involve your MP prior to another application; if your appeal is dismissed.
4- Fight your Battle here in the UK.
5-You may take the EC laws route if your wife moved to another European country; in case you lost your final battle. You will eventually win.

GOOD LUCK