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Jo C.
Jo C., Barrister
Category: European Law
Satisfied Customers: 64655
Experience:  Over 5 years in practice.
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Please advise. I feel that my rights have been violated and

Customer Question

Attachment: 2013-09-06_104131_compensation_from_ukba.docx

Please advise. I feel that my rights have been violated and it has caused me plenty of stress and expenses. I would like to claim compensation for the damages caused. I am not sure however whether this is an immigration matter (I am not after any visa any more) or EU matter or whether there was a breach of Human Rights. I understand that this has to be done through the General Court (under the EU Court of Justice). In brief, I am a citizen of Israel/Russia; I was married to a Slovakian national for 4.5 years during which we both resided in the UK (2004-2010), both in continuous employment. After divorce I had to renew my residence permit and applied under retained rights. My application was held in Home Office for 13 months (!) during which I couldn’t leave the UK to visit family and missed a few job opportunities. Home Office requested a proof that my ex-husband was exercising his treaty rights at the time of divorce. I explained that I couldn’t provide it since the divorce was not amicable and my ex-husband was unwilling to co-operate. I enquired with HMRC and they replied that they couldn’t supply this information to individuals but would give it to Home Office. When I submitted a complaint to Home Office about them breaching EU regulations and keeping my application beyond any reasonable time frame, I received a refusal of my residence permit within 3 days with threats that I and my daughter (then 10) would be removed. My appeal to Lower tier Tribunal was refused in spite of the fact that I obtained my ex-husband’s employment letter providing the necessary missing proof. My case was then taken up by IAS solicitors and taken to the Upper Tribunal. My lawyer was confident about the case (they operate on no win no fee basis). However my appeal was refused again, but on the grounds that I even hadn’t apply under! (The judge didn’t read the case?) He ruled out that I didn’t qualify for indefinite leave to remain, but I only applied for a 5 year residence permit. My solicitor said to me that the judge made an erroneous decision and we could have argued it further but it was cheaper and quicker to submit a fresh application to Home Office. Again during all this time I was unable to get jobs in summer schools (I am a sessional lecturer and don’t have work in July and August, when the college is closed) or travel. At this point my new partner (Czech national) and I had lived together for 3 years and were expecting a baby. We really wanted to get married before the baby’s birth but couldn’t do it in the UK due to my immigration status. We had to undertake an expensive journey to the Czech Republic (take time off work, have all the documents translated and apostilled, pay for travelling, ceremony and accommodation, all of which could have been avoided had the correct decision regarding my residence been made and we could have got married in the UK). Once married (02/2011), we applied immediately for an EEA Family Permit for me so we could travel safely back home, in time for the baby’s birth. Obviously all my anti-natal care was taking place in the UK. We submitted our marriage certificate, proof of co-habitation for the past 3 years, my maternity notes stating that I was 35 weeks pregnant and my husband’s name as the father of the child. I was refused on the grounds that ‘they were not convinced that I was my husband’s family member’ (!) because we submitted the application 2 days after the marriage registration and I didn’t provide the decree absolute of my previous marriage (it was not in the guidelines, how should I have known?). Now I was in a foreign country, 35 weeks pregnant, without proper health care, without any more money to spend on accommodation, my husband having to return to work, daughter to school and me having been booked for a home birth in our home in the UK (I have a phobia of hospitals)! I cannot convey the incredible stress we were going through. We sent letters to the embassy for a revision, however they only advised that we should either appeal or re-apply – which we didn’t have time for as I wouldn’t have been allowed on a flight at a later stage! We found the point in the EU law about admission at the point of entry for EEA family members under a Code 1A. Although terrified of possible outcomes, we flew back without any visa in my passport, as we had all the evidence to prove that we were a family. At the border we explained what we wanted, got shouted at by an immigration officer who finished her shift and wanted to go home, but we stood our grounds because we knew it was our right. She then attempted to force my husband and daughter (over who my husband did not even parental responsibility) to cross the border while I would be detained for further investigation. He refused to leave me and requested to speak to a senior officer. The woman said she had no time for us, took my passport to the office and left. We had to wait in the hall on a hard bench for at least 3 hours and I was

Submitted: 1 year ago.
Category: European Law
Expert:  Senior Partner replied 1 year ago.

Thank you for your question. Obviously you have had a difficult and distressing time. However I do not think you have any legal recourse. You say you feel your rights have been violated but from a legal perspective it is difficult to see what rights. If you are unhappy about your treatment by the UKBA then you can most certainly complain see here:http://www.ukba.homeoffice.gov.uk/aboutus/contact/makingacomplaint/ You could of course also complain to your local MP who can raise it with the minister concerned. However looking at the position overall. You were refused retained rights and that refusal was upheld by two tribunals. so despite the advice you received , the UKBA decision was upheld by two judicial tribunals which you chose not to appeal for god and practical reason but for a legal perspective you are a foreign national who had not right to remain in the UK as determined by the by the appropriate judicial process. You then sought to come to the uk and decided to do so without the appropriate EEA family permit. You could have been refused at the border although the entry officer can issue a code 1A. This was your choice bear in mind despite the personal circumstances surrounding it - So far as the law is concerned you had chosen not to continue your appeals in the UK and leave the country and then seek to reenter without a permit. There is little doubt from your narrative that your treatment was not very nice and you may well be justified in complaining about it but there is no basis to claim that your rights were violated when the immigration authorities chose to apply the rules to a foreign national seeking to enter the uk . From a egal perspective i think you would be wasting your time and money trying to sue. At least they allowed you in - many passengers have simply been sent back to home to appeal from abroad.

Customer: replied 1 year ago.

You've ignored a couple of facts: a) I retained my rights after the divorce (as per EU CHAPTER 2 RIGHTS OF NON-EEA NATIONAL F


AMILY MEMBES OF EUROPEAN ECONOMIC AREA (EEA) NATIONALS 6.1) and had all the evidence to support this fact in court - the decision of the tribunal was based on the article I didn't apply under and in breach of EU law. I couldn't find any information on how to challenge the decision of higher tribunal. As per travelling to the UK without family permit - are you at all familiar with this:http://dl.dropboxusercontent.com/u/27885818/UK/BorderForceOperationsManual-EEANationalsAndDependents.pdf
Expert:  Senior Partner replied 1 year ago.
Thanks yes I am familiar with the UKBA operational guidance. The fact remains that you asked if you have a case against UKBA and whilst you might have good grounds to complain about the way you have been treated you have no basis to bring a claim for compensation and youI would be wasting your time and money
Customer: replied 1 year ago.

Actually, the question was how I approach European Court of Justice and the Court of Human rights since the UK government departments are ignoring and breaching the EU Law and the Human Rights. I wanted to know the pathway and whether my case would be classed as immigration or EU matter. The UK tribunal and the HO have failed to follow the course of justice so I wanted to know where to go next.


You have not answered my question. In fact, your answer is emotive and doesn't make any reference to any legeslation. Sorry to say but I think I've wasted my time. I've previously consulted immigration legal advisors and your answer simply doesn't look professional to me when I compare it with them.

Expert:  Jo C. replied 1 year ago.
I can confirm that the answer you have bad is correct.

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