Private Life on Human Rights Grounds including a judicial review application
Case facts
The Appellant arrived in the UK on the 12th of July 2004, holding a visit visa and extended her leave to remain under the immigration policy framework. Towards May 2011, she moved to the EEA residency criteria, and following the successful grant, enjoyed her residency in the UK. At the end of the 5 years term, she did not qualify for permanent residency as this was refused. Following the refusal, she decided to take legal advice and turned to ICS Legal.
Outcome of the matter
We advised that there was no merits on the permanent residency card, the Appellant did not live with her Sponsor, nor was she financially dependent, as a requirement for those who are classed as "extended family members". We assessed her personal circumstances and found that her application could be considered under the private life route. We explained our reasons and we agreed on withdrawing from the permanent residency application and proceeded on the private life application, which is contained on Part 7 of the Immigration Rules.
As part of the application, both the representation and evidences were important, as we needed to demonstrate that she has spent most of her time in Europe as well as the UK and could not return home. The application was turned down following a thorough, detailed application lodged by us to the Home Office. On top of that, the human rights claim was certified and we were not given a right to appeal from the UK.
The decision was wrong, and it did not consider material evidences including the vast amount of translated documents. We proceeded on quashing the certification claim, first giving the Home Office an opportunity to withdraw the certification claim and grant the Appellant a right to appeal. We also asked if the decision could be reviewed. They did not do both.
It meant that the Appellant had to either depart from the UK or proceed on a judicial review application. The grounds of the application was strong, so we filed a judicial review application with ample of evidences and lodged the trial bundle. Once the trial bundle was lodged to the Upper Tribunal, the Home Office and all interesting parties were served the bundle, the Home Office Litigation Team requested that the matter to be withdrawn and agreed on paying costs to the Appellant. We also agreed for the decision to be reviewed.
The Home Office reviewed the decision and refused the application once more under the private life route but granted a right to appeal from the UK. The appeal was lodged with detailed grounds and evidences. Once the appeal was lodged, the Tribunal asked the Home Office to review the decision but they did not.
Appeal directions were served to all parties by the First Tier Tribunal. We advised Appellant and her family members in the UK with a list of specified evidences to support the appeal bundle and drafted a number of statements including skeleton argument, which was submitted to the First Tier Tribunal. Once the extensive appeal bundle was prepared by ICS Legal, this was served to all interesting parties prior to the scheduled appeal hearing.
We relied on expert reports including but not limited to her private life and demonstrating her strong family ties. Whilst the Immigration Rules does not support family life with siblings, we presented that matter further on Article 8 ECHR grounds.
The appeal was then listed on the 5th of August 2019 at Taylor House. The matter went before the First Tier Tribunal Judge Beg, and the Home Office instructed Counsel for the appeal. Most immigration appeals were presented by their Officers however they had decided to appoint outside Counsel for this appeal hearing, as this was a case that could turn into a "starred matter" in light of human rights claims.
A number of witnesses including the Appellant was cross examined, and with all appeal hearings, some of the information did come across not complete, however the Appellant was found credible and that she spent majority of her life in European society.
The Judge agreed that the Appellant could not return home, she has not been there since she was young and although relocation was open for her, it would not be fair, as she has never lived in that society. The case law of Razgar was one of the few cases we felt, deserved to be mentioned at the hearing, given that the impact of removal will have on to the Appellant as well as the extended family members.
The First Tier Tribunal Judge agreed that the Appellant had met the threshold of allowing the appeal under human rights grounds and that the decision to remove the Appellant would be unlawful. The decision was not challenged by the Home Office and the Appellant was granted leave to remain under human rights grounds. The appeal was allowed on 20th August 2019.
End.
