This appeal relates to an application lodged by ICS Legal on behalf of the 2 appellant's under the Article 8 ECHR claim, outside of the immigration rules and right to family/private life, which was then wrongly refused by the Home Office and the First Tier Tribunal agreed with ICS Legal in allowing the immigration appeal.
Full facts of the case and what we did is enclosed. Please note due to data protection, the appellant's name or any relevant details are not enclosed.
Summary case facts
There was 2 appellant's in this matter and the sponsor was the appellant's father, who is a British citizen. In the original application which ICS Legal had filed, we put together their matter including evidences related to their home & reasons they could not return home.
Both appellants were adults and the Home Office did not accept that there was insurmountable obstacles preventing their return to Dominica Republic. We did not accept that the Home Office considered the applications, and failed to give due regards to evidences & statements.
The application was refused and we advised the appellant's to appeal the decision. The matter then proceeded to the First Tier Tribunal on the 6th May 2022.
The appeal hearing at the Manchester Tribunal
The matter went before the Judge of the First Tier Tribunal C R Cole, and at the opening submission, the Judge made the following:
"In respect of Article 8 it is for the Appellants to satisfy me that they have a family or private life in the UK of such quality as to engage the article and that the decision taken sufficiently seriously interferes with that family or private life. Thereafter the decision has got to be in accordance with the law and for a purpose set out within the article itself, namely economic well-being of the country in the guise of immigration control. Thereafter it is for the Respondent to prove that the decision is proportionately justified. In considering the issues raised I have followed the approach of the cases of Razgar [2004] UKHL 27, Huang [2007] UKHL 11 and Agyarko [2017] UKSC 11."
The Judge heard evidences from the 2 appellant's, and also their sponsor. He made the following statement: "In general, I found the evidence of the Appellants and their father credible, and I am willing to accept their evidence as more than likely to be accurate regarding the family history and matters which led to the Appellants being in the UK."
In considering the matter, the Judge made the following observation and statement:
"However, the Court of Appeal in TZ (Pakistan) and PG (India) v The Secretary of State for the Home Department [2018] EWCA Civ 1109 stated that where an appellant satisfies the Immigration Rules “then this will be positively determinative of that person's article 8 appeal, provided their case engages article 8(1)”. Therefore, if there is a protected family or private life, then whether the Appellants satisfy the Immigration Rules will be a determinative matter."
In our legal submission, we made the Honourable Judge and the Home Office aware of the respondent's policy:
"However, the Respondent’s guidance Family life (as a partner or parent), private life and exceptional circumstances, Version 16.0, 7 December 2021 in relation to Appendix FM of the Immigration Rules is relevant as a similar provision exists under Appendix FM.
This states as follows: This applies where both parents (one of whom is a British citizen or settled person) are no longer in a subsisting relationship, but have retained shared parental rights and responsibilities, and the child’s primary custodial residence preceding the date of application, as demonstrated by a court order or consensual agreement, is with one of them. …
The primary residence of the child is the residence where the child spends most of their time. For example, parents may have joint custody of the child but the child may spend the majority of the time with only one of their parents, thereby having their primary residence with that parent. In legal terms, a child can only have one primary residence.
However, where a child spends equal time with either parent, for example 7 days out of 14 with both throughout the year, for the purposes of this route, the child will be considered to ‘normally live with’ the applicant. A child will not ‘normally live with’ a parent whom the child occasionally lives with: for example, only at weekends, during holidays or by an overnight stay once a week.
There is no specified evidence that the applicant has to provide in order to demonstrate whom a child normally lives with, but the onus is on the applicant to show that a child normally lives with them or with the British citizen or settled parent."
As the Judge accepted our legal defence on the second appellant, who was a minor at the date of application, the first appellant who was an adult at the date of application, was seen as a supportive parent to the second appellant. This is because the sponsor was a HGV driver and has to spend time away from home and the first appellant would assume the parental responsibility.
The Judge agreed and made the following statement in agreement: "As stated previously the First Appellant has an extremely close relationship with the Second Appellant and I find that, due to their particular circumstances, they have a protected family life. It is clear to me that the Appellants have more than the normal emotional ties."
In concluding on the appeal, the Honourable Judge allowed the appeal and made the closing argument as follows:
"On the basis of the evidence and on the conclusions reached I find that the Appellants have a family life with each other, and their father and that the decision significantly interferes with that family life. I find that the decision is in accordance with the law and is for the purposes of maintaining immigration control as an aspect of the economic well-being of the country. For the reasons set out above, I find that the Respondent is not able to justify that interference as being proportionate and necessary in a democratic society."
Home Office have not appealed against the decision and granted ILR for the second appellant and the first appellant being granted LTR.
