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UK_Lawyer
UK_Lawyer, Solicitor
Category: UK Immigration Law
Satisfied Customers: 2151
Experience:  I am a qualified solicitor and an expert in UK law.
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I Mrs Najat XXX(NajatXXXXX) of XX XXXXXXX, XXXX

Resolved Question:

I Mrs Najat XXXX (Najat XXXX) of XXX XXX XXXX, XXX Way XXXXLondon. Dob XXX XXXX 1XXXX. I am 47 years old woman.. I give this statement to the best of my knowledge believe it to be true. I met Mr Unal XXXXXon the internet around June 2011. We have become friends and chatted regularly. As the time passed we got to know each other better. When he learned that I was teaching English he suggested that I visit London. I accepted his invitation because I wanted to learn more about the English culture at the source. I applied for a visa in July 2011 and I came to UK in August 2011 with a six month visa with the intention of staying for around six weeks. During this time we got quite close and his carer has left him during this period. I rather enjoyed his company and I cared for him. Apparently I have come after he had a major surgery when he was vulnerable and in need of care which I gave it freely. After a while we have realised that we have grown more than friends and complete each other. In XXXX XXXX 2011 Unal’s father passed away in Turkey and I gave the support he needed and during this time My father passed away at a traffic accident on XXXXXXof XXXXXXX 2011 and this time I depended on him. With so many things we shared we have decided to take the next step and become a couple. Unal has proposed to me after talking to his children and getting their blessing. Whole family have come to realise that we needed each other. Since I have already started to realise that I have feelings for him and be part of his life I have accepted to be his wife and have a future together. We have married XXXXXXXXX 2011 at Hackney town Hall. After I have married I have contacted my School in Algeria and asked them to start processing my retirement as I would not be returning to teaching there again. I have contacted my Landlord and transferred my tenancy to someone else in need. For all intends and purposes I have changed my old life to the new one as best as I know. We have applied to Home Office for settlement visa to remain in the UK in January 2011. During this time The unexpected happened. At the age of 47 almost a miracle! I got pregnant and When the refusal came in I was shocked. I was about to have my child and had a feeling that everybody knew about it. I felt Home office would have given more compassionate and different decision about my application.

Submitted: 1 year ago.
Category: UK Immigration Law
Expert:  UK_Lawyer replied 1 year ago.
Hi thank you for your question. Please remember to RATE my answer OK SERVICE, GOOD SERVICE OR EXCELLENT SERVICE so I can get credited for my time.

When are you due to give birth?
What connections do you have in your home country?
What reasons were given for refusal?

Kind regards
Customer: replied 1 year ago.

bABY WAS BORN ON 12TH OF DECEMBER 2012, I wAS TEACHER AND RESIGNED AND ASKED FOR MY PENSION GAVE MY ACCOMODATION BACK AND i AM LEFT WITH NO TIES EXCEPT MOTHER IN ANOTHER PLACE. mY PLACE IS WITH MY FAMILY HUSBAND AND CHILD.


AND Refusal reason is


You applied for leave to remain in the United Kingdom on the basis of your marriage to Unal Orhan Klakan. However the Immigration Rules direct that a person seeking such leave is to be refused if they do not meet the requirements set out in paragraph 286 -with reference to 284 HC395. Paragraph 284(i) states the applicant has limited leave to enter or remain in the United Kingdom which was given in accordance with any of the provisions of these rules, other than


where as a result of that leave he would not have been in the United Kingdom beyond 6 months


from the date on which he was admitted to the United Kingdom On this occasion in accordance


-with these rules.


 


You entered the United Kingdom on a visitor visa from 4rh August 2011 until 4th February2012 . In view of the above the Secretary of State is not satisfied that you are able to meet the requirements of paragraph 284(i).


 


In refusing your application consideration has been given to your family life which from 9th July 2012 falls under Appendix FM of the rules.


 


Eligibility


 


E-LTRP.2.1. states that the applicant must not be in the UK E-LTRP.2.1. The applicant mu.Stri t be i.riity{ ;U:K


(a) as a visitor;


(b) -with valid leave granted for a period of 6 months or less, unless that leave is as a fiance(e) or proposed civil partner; or


(c) on temporary admission


You entered the United Kingdom as a visitor on the 20th August 2011. In view of the above the Secretary of State is not satisfied that you are able to meet the requirements of E-LTRP.2.1. of Appendix FM as state above. ,;,·. , · ·


You therefore fail to meet the requirements of the immigration rules for this category and it has been decided to refuse your application for leave to remain as a spouse under the published immigration rules D-LTRP1.3 with reference to R-LTRP1.1 (c) and (d).


 


Consideration of exceptions under EX1


 


Consideration has been given to your claim hat your removal from the United Kingdom would breach your right to respect for family and private life under Article 8 of the European convention on Human Rights.


 


You have not demonstrated any reason why your relationship cannot continue in your country of origin. You therefore fail to fulfil EX.(b) of Appendix FM of the Immigration Rules.


 


You have failed to fulfil the requirements of the Immigration Rules under Section D-LTRP1.2 of Appendix FM of the immigration Rules for leave to remain on the basis of your family life and not demonstrated any reason why there would be insurmountable obstacles to your relationship continuing in your country of origin. You therefore fail to fulfil EX1 (b) of Appendix FM of the Immigration Rules.


 


Therefore your claim is refused under Section D-L1RP1.3 of Appendix FM of the Immigration rules and it is considered that your removal is proportionate. in the pursUit of a legitimate aim under Article8(2) of the European Convention of Human Rights.


 


Private life


 


Consideration ha.s been given to you claim that your removal would breach your right to respect for private and family life under Article 8 of the European convention on Human Rights in that you enjoy Private Life in the United Kingdom.


 


Your application to remain in the United Kingdom has been determined under Rule 276ADE of the immigration rules by virtue of rules 326B. -


 


Article 8(2) provi&s that it can be lawful to interfere with the exercise of the right to respect for family and/ or private life where it is in accordance with the law and is necessary in a democratic


society in the interest of national security, public safety, or the economic well-being of the ..------._


country for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.


 


You entered the UK on 20th August 2011 aged 46


 


You have failed to demonstrate that you have had 20 years residence in the United Kingdom as required by Rule 276ADE(iii).


 


Therefore your claim is refused under paragraph 276CE with reference to 276ADE of HC395(as amended). -


 


HELP AND ADVICE ON RETURNING HOME

Customer: replied 1 year ago.


On Wednesday I need to appear at the appeals court and I need to prepare a bundle and send it on mondey. I need a statement of appeal with a caselaw to appeal. Maybe disable husband needs me, my daughter needs my milk I cant leave my husband or baby, I cant take my baby and go , no place and job there away from husband , I am 47, not young to fight with life. Dont know what to do.

Expert:  UK_Lawyer replied 1 year ago.
Thank you for your reply.

In the newly reported Upper Tribunal case of Hayat (nature of Chikwamba principle) Pakistan [2011] UKUT 00444 (IAC), a panel comprising Lord Menzies and Upper Tribunal Judge PR Lane has addressed the situation where in an Article 8 private and family life case, the only reason given by the Secretary of State for refusing the claim is that the applicant should return to the country of their nationality in order to make an application from overseas. This issue was famously tackled by the House of Lords in Chikwamba.

The appellant in Chikwamba was a female Zimbabwean, who had unsuccessfully sought asylum in the United Kingdom and, whilst here, had married a Zimbabwean national, who had been granted refugee status. The couple had a daughter, aged 4 at the date of the House of Lords hearings. Their lordships held unanimously that it would be a violation of the appellant's Article 8 rights to require her to leave the United Kingdom, with Lord Brown holding that:

44...only comparatively rarely, certainly in family cases involving children, should an article 8 appeal be dismissed on the basis that it would be proportionate and more appropriate for the appellant to apply for leave from abroad..

The facts of the Hayat case were very different. An Article 8 claim was made by the husband of a Pakistani national who had originally entered as a student and had then extended her Leave under Tier 4 until 2014. The couple intended to leave the UK when that Leave expired but, in the meantime: "We have become heavily dependent on each other, and find it unthinkable to live apart"( Hayat, 5)
The Article 8 appeal was dismissed but the Upper Tribunal found that:

21... the determination in the present appeal is legally flawed. In particular, the Immigration Judge was wrong to conclude that the Chikwamba principle could be rendered inapplicable to the facts of the case before her, on the basis that the appellant "is not seeking leave to settle in the United Kingdom as a spouse".

The Tribunal sets out the relevant case law which has followed Chikwamba and, in accordance with those authorities, finds that the principle in Chikwamba does not 'operate with unwavering force, regardless of the circumstances of the particular case' (18). Findings of fact must be made.

Nonetheless:

The significance of Chikwamba, however, is to make plain that, where the only matter weighing on the respondent's side of the balance is the public policy of requiring a person to apply under the rules from abroad, that legitimate objective will usually be outweighed by factors resting on the appellant's side of the balance.

Viewed correctly, the Chikwamba principle does not, accordingly, automatically trump anything on the State's side, such as a poor immigration history. Conversely, the principle cannot be simply "switched off" on mechanistic grounds, such as because children are not involved, or that (as here) the appellant is not seeking to remain with a spouse who is settled in the United Kingdom.

Like the absence of children, that last factor may be one which diminishes the force of the principle; but whether it will do so depends upon an assessment of the facts. For example, if the position disclosed by the evidence had been that the appellant's wife was due to finish her studies only a few weeks after the date of the hearing, and was intending to return to her country of origin, and the evidence was such that she did not need the appellant to be present with her while she finished her studies and prepared to leave, then the Chikwamba principle would have had nothing to add to the appellant's case. The actual facts of the present case, however, were very different.

As we have already seen, the appellant's wife had the best part of a year to go before the end of her first tranche of the ACCA course. She has now been given leave to remain until 2014 in order to complete that course. There is no suggestion that her practical and emotional need for her husband to be with her has diminished in any respect.

The guidance given by the Tribunal in Hayat about the application of the Chikwamba principle makes clear that it applies whether or not there are children and whether or not there is an ultimate intention to settle. Of course, where there is a poor immigration history that can be relied on by the Secretary of State and would have to be addressed by the Appellant. But reminding decision-makers that an Article 8 claim cannot be defeated solely by reference to a policy of making applicants apply from overseas, should focus everyone's attention on the actual circumstances of an individual's family and private life and the quality of the evidence relied on by the parties. It also suggests the utility, in appropriate cases, of providing evidence to show that all the requirements of a given Immigration Rule are met (except the possession of entry clearance.

The above stated cases would be most helpful in respect of granting you leave to remain even though you do not strictly meet the criteria. The fact is that the ukba should have used the law in place prior to 9th July 2012 and not after when the rules become increasingly difficult to satisfy.

I'm addition the fact that you now have a British child whom you are unable to leave in the uk while you return home to submit a spouse visa application without the knowledge of whether it will be accepted or not makes it very difficult to leave both your husband and child in the uk.

I believe that you should use above cases and ground you give your case the best chance of success. You should obtain statements or letters from family and friends in the uk regarding the effect on your family if you were to return home also affidavit from your husband in respect of the same. Evidence of your husband's disability should also be mentioned.

I hope this answers your question if so kindly rate my answer positively so I can get credited for my time.

Kind regards
UK_Lawyer, Solicitor
Satisfied Customers: 2151
Experience: I am a qualified solicitor and an expert in UK law.
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