Failed Appeals/ what next?

[uchida]

Hi Guys,
I do apologise if this thread should've attached somewhere else.

The full gist of my enquiry is: My best friend has lived in the UK illegally for a number of years, he is an illegal entrant, and has stayed underground since he's been here since 1998. He has been known by the authorities all the while, because he hasn't committed any crime since he's been here or registered as an asylum seeker.
He is gay and unwilling to return to his country of origin because of his fear of persecution. He has been in a relationship with a British national since 2010, and they moved in together in July 2012.

He met a solicitor who advised that he applied for ILR(M). The solicitor didn't mention the fact that the applicant is an illegal migrant, but claimed that he entered legally in 1998, but has since lost his passport. The application was rejected mainly on the basis of the fact that HO believes he's an illegal migrant hence issued a removal order, and he wasn't qualified at all for ILR because he hasn't cohabited with his partner for at least 2 years. He was given right to appeal.

The appeal at the first tier was unsuccessful, but the judge believes the relationship is genuine, and the applicant should return to his country of origin and reapply through his partner. My friends' representative argued that he cannot return to his country of origin because his life will be in danger as his country of origin is a well known for being extremely homophobic.

He then made two appeal, again to the first tier and upper tier, which again was unsuccessful, because the judges believe the decision made wasn't unlawful. The upper tier believes if the applicant kept a low profile whilst he made his application from his country, he will be fine.

My mate has been victim of horrid legal advice, because the initial application was doomed for failure anyways.

My questions are: Is it a good idea to seek asylum bearing in mind he has already failed in trying to secure a leave to remain?
The judges and the home office believes he should go back and reapply to enter, but i'm concerned about the 5 year exclusion rule which the home office might enforce one he leaves this shores.
His partner earns over £35,000 a year and should meet all the criteria required to invite his partner here. The processing period will take about 9 months, is it a good idea for him to go back?

Please guys, I would appreciate any advice. He's been fleeced so far by solicitors and barristers. The last barrister who made the requests for appeal to the first and upper tiers charged about £750 for them and was actually asking for an additional £100 just to speak with him on the phone for less than 30 minutes.

Please guy!!! i need your opinions and advice. Thanks

[Amber]

Options could include:

Applying for leave to remain under LOTR/family life due to the time spent in the UK

Applying for leave to remain due to the persecution faced in his native Country (especially if the death penalty is imposed for homosexual activity). Rather than saying he is unwilling to go back you should be saying cannot go back to the serious risk of death. This is perhaps an advisable route.

Applying for leave to enter from native Country based of FM rules, perhaps strengthened if they are in a civil partnership

Once the person in question has attained 20 years stay they should be able to apply to settle, they could (should) have applied to settle (SET(O)) under the 14 year rule before that finished earlier this year. Therefore, you should consider seeking compensation from the solicitor in question, the solicitor appears to have been incompetent, negligent and also dishonest. Make a complaint in writing then based on the response consider the Legal Ombudsman (click).

[uchida]

Options could include:

Applying for leave to remain under LOTR/family life due to the time spent in the UK

Applying for leave to remain due to the persecution faced in his native Country (especially if the death penalty is imposed for homosexual activity). Rather than saying he is unwilling to go back you should be saying cannot go back to the serious risk of death. This is perhaps an advisable route.

Applying for leave to enter from native Country based of FM rules, perhaps strengthened if they are in a civil partnership

Once the person in question has attained 20 years stay they should be able to apply to settle, they could (should) have applied to settle (SET(O)) under the 14 year rule before that finished earlier this year. Therefore, you should consider seeking compensation from the solicitor in question, the solicitor appears to have been incompetent, negligent and also dishonest. Make a complaint in writing then based on the response consider the Legal Ombudsman (click).

Thanks a lot for coming back to me. His home country is Nigeria, and he said the danger he faces were highlighted in the tribunal, but the judge said if he stays discrete and does not anyone about his sexuality, then he will be safe. The homophobic stance of his home country is also reiterated by HO in a section of its website.
He was living with his cousin when he moved to the UK, and doesn't have any "paper" evidence of the length of his stay here. He moved to a flat in 2007, and was paying council tax there. That seems to be the only paper evidence on the length of his residence here.
I helped him draft a complaint to the legal ombudsman, but after their investigation, they believe the lawyer has no case to answer. They were utterly useless.
Does his circumstance qualify him for LOTR? I believe his argument is that "he cannot go back"....Thanks again...

[Amber]

Sometimes the Ombudsman appear useless because their powers are so constrained and bizarrely, their caseworkers are not legally trained.

He still should have applied for SET(O) as he stood no chance on SET(M). Evidence only needs to be on the balance of probabilities, so a witness statement by people who knew him many years ago etc could suffice.

He should find a competent adviser - Any good law firm recommendation? (click)

The fact is, if he has a same sex relationship in Nigeria he will face punishment, there are high levels of discrimination.

[uchida]

Sometimes the Ombudsman appear useless because their powers are so constrained and bizarrely, their caseworkers are not legally trained.

He still should have applied for SET(O) as he stood no chance on SET(M). Evidence only needs to be on the balance of probabilities, so a witness statement by people who knew him many years ago etc could suffice.

He should find a competent adviser - Any good law firm recommendation? (click)

The fact is, if he has a same gender relationship in Nigeria he will face punishment, there are high levels of discrimination.

Thanks again for this. It did come to light that SET O would've been better. But can he make a fresh application using LEAVE OUTSIDE THE RULES, without evoking prejudice by HO because his previous application on SET M failed? I've just looked up the HO document on LOTR, but cannot find a form required to make the application, or how to make the application.
His cousin is willing to write a statement, and I believe was willing to go to the tribunal as a witness, but she developed cold feet, because she was scared she might get charged or fined for habouring an illegal migrant (I for one didn't believe she would've been in any danger, because it's not a criminal proceeding, am i right?)...anyways, thats in the past now.

Is asylum a good option?

Thanks.

[Amber]

She may not have known is was illegal. You don't need to ask family and friends their immigration status only employers need to do that.

See 1.1. Humanitarian Protection and Discretionary Leave (click)

You should contact Refugee Action (click) who may be able to offer further advice tel: 0800 917 2719.

The UKBA may expect an application for asylum then if unsuccessful consider Human Rights and Humanitarian Protection leave. You should seek to a professional adviser.

[uchida]

She may not have known is was illegal. You don't need to ask family and friends their immigration status only employers need to do that.

See 1.1. Humanitarian Protection and Discretionary Leave (click)

You should contact Refugee Action (click) who may be able to offer further advice tel: 0800 917 2719.

The UKBA may expect an application for asylum then if unsuccessful consider Human Rights and Humanitarian Protection leave. You should seek to a professional adviser.

Thanks a lot. The barrister that was going to represent him at the tribunal, if the request was granted, has advised that he either return to home and reapply as a partner, or make a fresh application which will definitely be turned down, and there will be no appeal allowed in that rejection. For some reason the barrister believes that my mate will not be subject to the 5 year exclusion...but I have read the rules in the HO website, and it says overstayers, illegal entrants etc are subject to the exclusion...am i wrong?

cheers again.

[Amber]

Paragraphs 320 (except subparagraph (3), (10) and (11)) and 322 do not apply to an application for entry clearance, leave to enter or leave to remain as a Family Member under Appendix FM (click)

[uchida]

Paragraphs 320 (except subparagraph (3), (10) and (11)) and 322 do not apply to an application for entry clearance, leave to enter or leave to remain as a Family Member under Appendix FM (click)

jeez thanks...that means i'm wrong. His partner earns in excess of £30,00 PA. He is divorced and has a school aged child dependent on his income, has a stable job, in great health, and i believe in his early 50's, and very able to financially support my mate (which he is doing at the moment, cos he doesn't work)...in your opinion, what are his chances of him being successful if he chose the option to go back and apply voluntarily?...

thanks again....You're the best!!!!

[Amber]

Are the couple in a civil partnership? As it would be perhaps beneficial to show a subsisting relationship.

[uchida]

Are the couple in a civil partnership? As it would be perhaps beneficial to show a subsisting relationship.

no they haven't entered a civil partnership yet. They are concerned that they might get arrested if they attempted to register a civil partnership. I think they'll definitely enter one i think if allowed to. Can they enter one without the HO being notified?

[Amber]

They should go and speak to the superintendent registrar at their local register office, taking evidence they have to show that they've been living together for as long as possible.

[uchida]

They should go and speak to the superintendent registrar at their local register office, taking evidence they have to show that they've been living together for as long as possible.

Ok, thanks for that, but won't the superintendent registrar notify the HO if they attempt to go into a CP, or isn't the fact that they have been living together for so long qualify as a form common law partnership in itself? My mate doesn't have a passport, valid or invalid (because he lost it awhile ago) and i think they will require identification documents to carry out the CP. He does have an sworn affidavit which I believe can act as his Birth Certificate, do you think it will be sufficient?.
I have been reading up on the Leave Outside The Rules, and it seems one can only apply for it, if they have failed to claim asylum. Am I right to assume this? It also says, Article 8 rights are not accepted in the application, but Article 3 qualifies for it. My concern is; is the threat faced by homosexuals in Nigeria seen to fall within Article 3 by the HO and its case workers?

[Amber]

Yes I think so hence why I suggested contacting the Refugee service.

There is no such thing as common law partnership, they need to have a discussion with the registrar and take evidence to show the duration of the relationship.

[uchida]

Yes I think so hence why I suggested contacting the Refugee service.

There is no such thing as common law partnership, they need to have a discussion with the registrar and take evidence to show the duration of the relationship.

hi Amber, thanks again. My concerns about seeking asylum as refugee is that he wasn't attacked or threatened as a homosexual whilst he was in his homeland. He left the country years ago, but there are genuine fears that he could be targeted now. I wonder if the HO might dismiss his application because hes not a direct victim, and he can get detained. I personally feel he's more qualified for humanitarian protection...do you agree? If so, is there allowance to apply for it directly rather than seeking the usual asylum? I hope this makes some sense. Thanks again.

[Amber]

You should contact the refugee service on the freephone number above to enquire about the steps for HP. I think it's difficult to show the issues the person is facing especially when the judges are showing complete disregard to a person freedom and human rights, this is in relation to the comment that the person should just keep their sexuality a secret. That would more than likely mean having to marry someone to show they're not gay. It's ridiculous really but some people do not understand the level of persecution in such countries where having a same sex relationship is seen as an abomination.

[uchida]

You should contact the refugee service on the freephone number above to enquire about the steps for HP. I think it's difficult to show the issues the person is facing especially when the judges are showing complete disregard to a person freedom and human rights, this is in relation to the comment that the person should just keep their sexuality a secret. That would more than likely mean having to marry someone to show they're not gay. It's ridiculous really but some people do not understand the level of persecution in such countries where having a same gender relationship is seen as an abomination.

thanks again amber, but the free phone number is missing from your message. Is it a good idea to pursue the application without a solicitor? My mate contacted a superintendent registrar and she said a passport will be required to register a CP.

[Amber]

She may not have known is was illegal. You don't need to ask family and friends their immigration status only employers need to do that.

See 1.1. Humanitarian Protection and Discretionary Leave (click)

You should contact Refugee Action (click) who may be able to offer further advice tel: 0800 917 2719.

The UKBA may expect an application for asylum then if unsuccessful consider Human Rights and Humanitarian Protection leave. You should seek to a professional adviser.

For a marriage or civil partnership there is no legal requirement to show a passport before getting married/registering a civil partnership and instead, they can produce a birth certificate (accompanied by a certified translation if necessary), an affidavit or other personal identity document. Hence why they need to go in and talk to the superintendent registrar (SR) to explain the situation, I doubt the SR would be on the phone.

[uchida]

She may not have known is was illegal. You don't need to ask family and friends their immigration status only employers need to do that.

See 1.1. Humanitarian Protection and Discretionary Leave (click)

You should contact Refugee Action (click) who may be able to offer further advice tel: 0800 917 2719.

The UKBA may expect an application for asylum then if unsuccessful consider Human Rights and Humanitarian Protection leave. You should seek to a professional adviser.

For a marriage or civil partnership there is no legal requirement to show a passport before getting married/registering a civil partnership and instead, they can produce a birth certificate (accompanied by a certified translation if necessary), an affidavit or other personal identity document. Hence why they need to go in and talk to the superintendent registrar (SR) to explain the situation, I doubt the SR would be on the phone.

hi amber, my mate is seriously considering going back to his country and reapplying for an entry visa as a spouse to his UK partner. His partner earns way above the 18000 threshold, but he is concerned that he might nit be denied a visa and be prejudiced because he was an immigration offender when he was in the UK...his partner earns about £35000 pa, and can provide all necessary documentary evidence. On paper it looks good, but he and his partner are scared that he will be denied and get stuck in his home country. In your opinion, are his fears grounded? Will the HO have valid reasons to deny him reentry?

[Amber]

What about providing a subsisting relationship? He would be better registering a civil partnership first, he's got no chance doing that in Nigeria.

[uchida]

What about providing a subsisting relationship? He would be better registering a civil partnership first, he's got no chance doing that in Nigeria.

He hopes to do that, but he claims to have been told by someone on the phone at the registrar's office that he needs to produce his Nigerian passport (he lost his passport years ago, but has secured an affidavit of birth, which was done for him by his sister in Nigeria through the legal channels) He will book an appointment to see the superintendent registrar with his partner as you advised.
His partner told me he is advising against him going back because he believes he might not be allowed back in regardless of how much evidence they provide or if they meet all the requirements genuinely, and that he also fears for his safety.
Do you think the HO can deny him entry even if he meets all the requirements?

[Amber]

That is why I suggested get registered in a civil partnership.

[uchida]

That is why I suggested get registered in a civil partnership.

Hi Amber, He told me has been advised to do the same by a solicitor and is willing to pursue that. Im wondering if he can still be refused entry even if he established a CP, they meet earning threshold and his partner provides all the documents required for the application?

[Amber]

If they have a civil partnership and have lived together for numerous years I would not expect a refusal.

[uchida]

If they have a civil partnership and have lived together for numerous years I would not expect a refusal.

they've been in a relationship since 2010 and lived together for over a year. I think they started living together in June or july last year. Would that be long enough? His partner feels they would've been treated differently if they were a heterosexual couple. Im thinking that might nit be true.