donwilliams wrote:@ kamsi, do you suggest i apply as a parent or a partner. secondly what are the required documents and other supporting documents needed for my application.
thanks.
7th November 2016
Home Office
FLR(FP)
Leave to Remain
PO Box 646
Durham
DH1 9LL
Dear Sir/Madam,
Kenneth xxx, Nigerian national, DoB 1 November 1976, application for further leave to remain as parent of a British citizen child and partner of a British citizen national who are present and settled in the United Kingdom
I am applying for further leave to remain under Appendix FM of the immigration rule as a parent of a British citizen child and to continue my role as caregiver and parent to our daughter, Miss xxxx as well as the partner of Miss xxx who is also a British citizen. I would want to remind the Secretary of State to first consider this application within the Immigration Rules, and then consider Article 8 outside the Rules.
1) My immigration history
I came to the UK in November 2004 and has remained here since that time. I was granted 2½ years leave to remain within the Immigration Rules under D-LTRP.1.1 of Appendix FM as the partner of Ms. xxx. During the period of our marriage, Ms. xxx and I were going through fertility treatments as we were trying to have children together, these treatments were unsuccessful and it put a strain on our relationship and eventually led to the breakdown of the marriage. The relationship with Ms. xxx is no longer subsisting and we are in the process of getting divorced. Please note that the Biometric Resident Permit which was issued on the basis of that relationship has been returned to the Home Office as requested. As I explained in my statement, I am now in a relationship with Miss xxx with whom I have a child.
2) History of my and Miss xxx's family life in the UK
I met Miss xxx through a mutual friend at our church in August 2015 and started dating. As explained in the statements, we wanted to be together and start family of our own. Our daughter was born on 10 June 2016. We are living together with Grace as a family unit. My ex-wife and I are currently going through a divorce, once that is finalized I and Miss xxx will be entering into a civil marriage. My role as a partner to Miss xxx and father to Miss xxx is extremely important for the continued stability and success of this family unit.
3) British citizenship of my partner and daughter
As evidence of British citizenship of my partner and daughter, I enclose certified copies of my partner’s British passport and birth certificate and British passport of my daughter Miss xxx.
4) Evidence of paternity
I anticipate that the Secretary of State is likely to ask that I submit a paternity test report proving that I am the biological father of Miss xxx as claimed. The enclosed paternity test report from a Home Office approved DNA test provider is therefore submitted in anticipation of that request and in support of this application.
5) My and my partner’s right to family and private life under Article 8 ECHR
My partner and I have clearly developed a family and private life together in the UK as I am an important figure in the life of my partner and daughter. There are several reasons why I cannot return to Nigeria to apply for entry clearance from abroad, leaving behind my partner and child. First, I provide an important care giving role in the family, assisting my partner with taking care of our child. Without my assistance, my partner would be left effectively as a single parent.
Secondly, Miss xxx and our daughter cannot return to Nigeria with me to continue our family life there. As indicated by the letter from her doctor, she has remained in good health due to the medication that is available to her in the UK. Miss xxx attends clinic for Diabetes checkup every four months, any interruption of her current treatment could jeopardise her current health. As she has a young child to raise, obviously, relocating to Nigeria where she will not receive the same standard of care and where her current treatment regime would not be likely to continue is not an option for Miss xxx. As Dr Thomas has written in the enclosed letter, Diabetes is incurable and Miss xxx will continue to take medications for life. Such treatment may not be available in Nigeria in which case I would predict Miss xxx's health to deteriorate putting her at risk of premature death. We are very concerned about her health if her treatment were to be interrupted upon return to Nigeria. As demonstrated in the letter from her doctor, she is currently in good health, and responding well to treatment. With the right medication, my partner has been able to live very full live and doing well under treatment. Under these circumstances we cannot return to Nigeria, however limited a period of time, and not being able to access the necessary medication to continue maintaining her health.
As I have already explained, I have a British citizen child, Miss xxx who is 3½ months’ old and who is dependent on me. As you are aware, paragraph EX.1 should be applied to my case. The EX.1 paragraph applies in two situations, either where the applicant has a genuine and subsisting parental relationship with a child in the United Kingdom who is under the age of 18 and is either a British citizen or had lived in the United Kingdom continuously for at least seven years and it would not be reasonable to expect the child to leave the United Kingdom or where the applicant has a genuine and subsisting relationship with the partner who is in the United Kingdom and is a British citizen and there are insurmountable obstacles to family life with that partner continuing outside the United Kingdom.
I refer you to the Immigration Directorates’ Instructions guidance on application of EX.1 – consideration of child’s best interests and the family rules and Article 8 claims where the criminality threshold in paragraph 399 of the rules do not apply.
According to this guidance, it would be unreasonable to expect the child to leave the United Kingdom in the following circumstance: save in cases involving criminality, the decision maker must not take a decision in relation to the parent or primary carer of a British citizen child where the effect of that decision would be to force that British child to leave the EU, regardless of the age of that child. This reflects the European Court of Justice judgment in Zambrano.
It is clear therefore that I meet the first exception contained in paragraph EX.1. In this regard, the Secretary of State is reminded of her duty under Section 55(1) of the Borders, Citizenship and Immigration Act 2009 to take account of the welfare and best interests of any child who will be affected by a decision to refuse an immigration application. I would like to draw the attention of the Secretary of State to the decision of the Upper Tribunal in Jo and others (section 55 duty) Nigeria [2014] UKUT 00517 (IAC) and MK (section 55 – Tribunal options) Sierra Leone [2015] UKUT 00223 (IAC). In these cases the President of the Tribunal, Mr Justice McCloskey restated the importance of the Secretary of State finding out about children whose lives will be profoundly affected by her decisions. There can be no doubt in this case that it is in Miss xxx interest for her father to remain in the United Kingdom with her and her mother.
It is submitted that we as a family meet the test of insurmountable obstacle as it would not be possible for us to relocate to Nigeria. Our circumstances are particularly compassionate and compelling as my partner depends on the treatment she is currently receiving in the UK to remain in good health. The United Kingdom has accepted a duty of care towards Miss xxx who has been diabetic for 11 years and it will not be possible for her to continue to get the care and treatment she needs outside of the United Kingdom. It is submitted therefore it would be a breach of Miss xxx's rights under Article 3 and 8 ECHR should her partner and father of her child be removed from the United Kingdom and she be forced to go with him. It is also submitted that the effect on my partner’s health of a relocation outside of the United Kingdom is an insurmountable obstacle to our relationship continuing and to our ability as parents to continue to support our daughter, both financially and emotionally.
a) Case law on Article 8 of the ECHR
The House of Lords found in Chikwamba (2008) UKHL 40, that only comparatively rarely, should a claimant be forced to seek entry clearance from abroad where their Article 8 right to pursue a family life is clearly established, and where removal would cause significant disruption to family life. This ruling refers particularly to families with children. As myself and partner are a couple and parents to a young child, my removal from the UK would cause a significant disruption to our family as it would leave Miss xxx effectively as a single parent.
This principle of considering the human rights of the family members in the United Kingdom who would be most impacted by the removal of the claimant, was also upheld in Beoku-Betts (2008) UKHL 39. There, the House of Lords stated that for Article 8 purposes, the family must be thought of as a single unit: Once it is recognized that …..’there is only one family life,’ and that, assuming the applicant’s proposed removal would be disproportionate looking at the family unit as a whole, then each affected family member is to be regarded as a victim…. It is clear from the above cases that consideration of the impact of refusal on the human rights of my family members in the United Kingdom is imperative for a full consideration of claims made under Article 8. Therefore, Miss xxx and our daughter’s rights under Article 8 must also be considered.
Also in AB (Jamaica) (2007) EWCA Civ 1302, the Court of Appeal decision found that the Article 8 rights of the person who is present and settled in the United Kingdom, in this case, Miss xxx and our daughter are engaged and must be considered as carefully as those of myself.
I also wish to draw your attention to the decision of the Supreme Court in ZH(Tanzania) (FC) (Appellant) v Secretary of State for the Home Deparment (2011) UKSC 4.
As Lady Hale held, giving the leading judgment, the best interests of the child must be considered first in decision affecting the child. The best interests of the child are the starting point before turning to countervailing considerations. Lady Hale’s judgment indicates, moreover, that where a decision directly affects a child’s upbringing the best interests of the child carry greater weight. Those best interests can only be displaced by countervailing reasons of considerable force.
In ZH(Tanzania), the Supreme Court considered the situation where the Secretary of State proposes to remove the parent of a British citizen child, I refer you in particular to the comments of Lady Hale in paragraphs 26 and 30 – 33 of the judgment, Lady Hale makes very clear that the welfare of the children is a primary consideration and states Nor should the intrinsic importance of citizenship be played down.
Lady Hale further states: As citizens, these children have rights which they will not be able to exercise if they move to another country. They will lose the advantage of growing up and being educated in their own country, their own culture and their own language. They will have lost all this when they come back as adults.
It is clear from this that the effect of my removal on my partner and particularly on our child, a British citizen, carries great weight. If I am required to return to Nigeria, then Grace (and her mother) would be forced to travel with me to maintain our family unit. This action could not be justified and therefore, to require me to leave the United Kingdom would be in breach of my partner’s and daughter’s Article 8 rights. To interfere with those rights simply on the basis of maintaining immigration control would be unlawful. I submit that this decision on its own is sufficient to show that I must be granted leave to remain in the United Kingdom.
Finally, I wish to refer you to the decision of the European Court of Justice in Zambrano (C-34/0 Ruiz Zambrano v Office national de l’emplol (ONEm)). This case recognizes that the third country parents of British citizen children who are dependent minors have a right in European law to residence in the United Kingdom. The family do not need to have lived in any other member States. It is unreasonable and disproportionate for Miss xxx and our daughter to be expected to relocate to Nigeria in the event of my removal. As a British citizen, she should not be put in a position of choosing between her health and her life in the United Kingdom, or keeping her relationship and family intact if I was removed.
Conclusion
It is clear that we have built a family life in the UK together with Grace and that we have established a stable and loving home. My partner has managed her diabetes very well currently in good health. My partner cannot continue her family life with me in Nigeria as she relies upon the health care she receives in the UK, and maintaining her health is extremely important as our daughter is only 3½ months old.
In support of my application, I enclose the following documentation:
(1) Completed Form FLR(FP) with fee and photographs attached
(2) My current and expired passport numbers xxxxxx / xxxxxxx.
(3) Certified copy of Miss xxx's British passport (partner)
(4) Birth certificate for Miss xxx (daughter)
(5) British passport for Miss Xxx (daughter)
(6) Paternity test report
(7) Statement from the applicant
(8) Statement of Miss xxx
(9) NHS letter:
a. Letter from Dr. Thomas
(10) Evidence of cohabitation in the form of correspondence
(11) Pictures of our family together
(12) Cards the family gave to one another
(13) Pay slips
(14) P60
(15) English Language Test certificate
(16) Tenancy agreement
I hope that you are now in a position to grant me further leave to remain in the United Kingdom. Please contact me if you require any further information.
Yours sincerely,
