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Judicial Review

General UK immigration & work permits; don't post job search or family related topics!

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Oluwaseun123
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Judicial Review

Post by Oluwaseun123 » Thu Jul 31, 2014 8:04 pm

Hi. I apply for extension of my discretionary leave May this year but it was refused because they say my children's dad is no longer in their life. I have 3 children one is 10 ,5 and 3 yrs disabled all of them born in this country. The children dad has been violent to me to and I have evidences from police and social services and injunction from the court. Instead they gave me 30 month leave on 10 yrs parents route. And say I cannot appeal the decision. But am considering judicial review. Pls can someone advise me accordingly

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Re: Judicial Review

Post by Obie » Thu Jul 31, 2014 9:20 pm

Why do you want to apply for JR?

You applied for extension, and you were given an extension. You were granted 30 months leave.

How long have you been on DLR for?
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Re: Judicial Review

Post by Amber » Thu Jul 31, 2014 9:48 pm

Were you here as a spouse on a spouse route to settlement and had you applied under the Domestic Violence provisions?

Obie, it would appear that the OP was on the old DLR, 6 year route to settlement with access to public funds, this has now changed to the provisions under Appendix FM, which may now not allow access to public funds. The HO may have acted unreasonably, however, you can raise a dispute and ask for a reconsideration, particularly as you had children when you previously applied. I would raise an argument in the best interest of the children also.
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Obie
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Re: Judicial Review

Post by Obie » Thu Jul 31, 2014 10:16 pm

Well if they refuse to allow her to access public fund, she can write to them again.
Once she has acquired the required 6/7 years under the old DLR rule apply for ILR. If they refuse then she can complain.
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Re: Judicial Review

Post by Amber » Thu Jul 31, 2014 10:29 pm

Changing your BRP to access public funds under Appendix FM is not easy, you'd have to show destitution or some other compelling reason.

I would not wait to ask for a reconsideration, I'd do it now. Especially if one wishes to consider JR as there is a strict time limit.
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Oluwaseun123
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Re: Judicial Review

Post by Oluwaseun123 » Sat Aug 02, 2014 5:35 am

Hi. I was not on a spouse visa. When I first apply in 2009 the ho refuse the application for iLR on domestic violence and compassionate ground outside the rules saying I did not meet the grounds for it but decides to give me discretionary leave in May 2011. But when I apply for the extension in May they refuse to me on that route but instead gave me leave on the 10 years parent route.because they said that the childrens dad is no longer in their life claiming that my circumstances has changed. This means that I have to start all over and apply for settlement after I complete the 10 yrs route. Am not happy at all cos my children are 10,5and a 3 yrs disable child. Pls advise on what to do cos I want to apply for judicial review. If I apply for jr will I lose or win.pls advise. Thanks

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Re: Judicial Review

Post by Amber » Sat Aug 02, 2014 6:57 am

Ask for a reconsideration. Seek legal advice.
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Oluwaseun123
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Re: Judicial Review

Post by Oluwaseun123 » Sat Aug 02, 2014 9:04 am

Thanks amber. Do you think I have better chances and secondly why did they grant me discretionary leave initially and now refusing to extend it saying that because the children's dad is no longer in the children's life. What is discretionary leave and on what basis do they normally give it. Because my application was initially refused for iLR because it does not meet immigration rules but I was given discretionary leave instead. And now they are saying the circumstances for my discretionary leave has changed bcos the children's dad is no longer in their life.

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Re: Judicial Review

Post by Amber » Sat Aug 02, 2014 11:34 am

Are the children British? What is the status of the Father?
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Re: Judicial Review

Post by Oluwaseun123 » Sat Aug 02, 2014 12:01 pm

Amber wrote:Are the children British? What is the status of the Father?
He is British but the problem is that he is no longer in our life due to domestic violence.

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Re: Judicial Review

Post by Amber » Sat Aug 02, 2014 12:05 pm

I will assume the children are British. I suggest you send the following by 1st class recorded delivery to the address of the top of the decision letter. Amended to reflect the exact circumstances. In addition send 3 further letters, 1. A GP letter confirming the child's disability and his/her absolute reliance on you, 2. a copy of the court injunction and 3. a letter from a social worker explaining that the Father was abusive and for the children's mental stability and best interest your settlement in the UK is paramount.

Dear Sir or Madam,

RE: your details – Reconsideration of decision

I have recently been granted limited leave to remain for 2.5 years under Appendix FM: Family Life Provision on a 10 year route to settlement. However, I do not believe this decision is correct, reasonable or fair. Prior to my most recent application, I was granted Discretionary Leave to Remain (DLR) for 3 years under the rules in place before 9 July 2012, a 6 year route to settlement. I believe that I should have been granted an extension of the DLR for another 3 years, not 2.5 years leave to remain under Appendix FM.

As per the transitional arrangements, those who before 9 July 2012, have been granted leave under the DLR policy in force at the time will normally continue to be dealt with under that policy through to settlement if they. Decision makers must consider whether the circumstances prevailing at the time of the original grant of leave continue at the date of the decision.

At the time of the previous application I had two children who were aged 7 and 2 and another child which was born at around the time of the DLR being granted. All my children were born in the UK. The children are British. The youngest child, now aged 3 is disabled and I am his/her full time carer. We no longer have contact with the Father as he was abusive towards me and the courts granted an injunction to prevent contact. However, the primary reason for my previous leave was due to my children and the care and support I give my children. It would not be reasonable for my children to move to another Country nor would it be reasonable to allow my children’s violent Father to assume caring responsibilities. I believe your latest decision does not consider the best interest of the children. For my children, especially my disabled child, it is paramount that I am here to support them; therefore, my settlement is of upmost importance.

Following the Supreme Court case of ZH v (Tanzania) (FC) v Secretary of State for the Home Department [2011] UKSC 4, it was confirmed that the UN Convention on the Rights of the Child (UNCRC), in particular the requirement on State Parties to treat children's best interests as a primary consideration in their decision making, at the very heart of decisions that are taken in family immigration applications. As per Baroness Hale, "best interests of the child" broadly means the well-being of the child. Therefore, the well-being of my children relies heavily on my ability to care and support them. I only required 3 years further DLR in order to settle, allowing my children’s emotional state to become stabilised, ensuring I am here to offer care and support. However, now that you have put me on a new 10-year route to settlement, that stability has been shattered and my children are left in a situation where they don’t know what will happen in the future. This is clearly not in their best interest and only adds emotional trauma.

My children have an unqualified right of abode here; they have lived here all their lives; they are being educated here; they have other social links with the community here, they rely on me. I wish to also draw your attention to section 55 of the Borders, Citizenship and Immigration Act 2009 which places an obligation on you to ensure that immigration decisions are made having regard to the need to safeguard and promote the welfare of children who are in the UK.

With regards to Lord Kerr’s statement in HH, best interests “must always be at the forefront of any decision-maker’s mind. This calls for a sequencing of, first, consideration of the importance to be attached to the children’s rights (by obtaining a clear-sighted understanding of their nature), then an assessment of the degree of interference and finally addressing the question whether [the government’s action] justifies the interference. This is not merely a mechanistic or slavishly technical approach to the order in which the various considerations require to be evaluated. It accords proper prominence to the matter of the children’s interests.”

Given the fact that I have a strong relationship with my children, just I did previously, the fact that the reason for no contact with the children’s Father is because he is abusive, as confirmed by the courts, the fact that my children rely on me and that I am the primary carer for my disabled youngest child, are all supporting reasons why you should grant me the further 3 years DLR I require.

I have given strong reasons why I should be granted a further 3 years DLR and I ask you to reconsider your decision and grant me either Indefinite Leave to Remain (ILR) on an exceptional and discretionary basis (my circumstances are not going to change) if this is absolutely not possible then grant me the further 3 years DLR I originally requested.

The benefit of grating me ILR would add stability for my children, save money (as to avoid further destitution) and allow me to ensure that my disabled child has a future which can be as less stressful as possible. I believe my situation is clearly exceptional.

If this does not happen, I will have no option but to request a Judicial Review of your decision as I believe you have acted ultra vires, by not considering my children’s best interest and the fact that I have been the victim of domestic abuse. You quote that I have no contact with the Children’s Father, however, this is because of domestic abuse and the risk to my life and the life of my children, would you expect me to continue to allow such a person access to my children and me? If you do, this is surely in direct conflict with section 55 of the 2009 Act. Instead of assisting me in a most desperate position, you have added further restraint and trauma by setting me on an extended, more restrictive route to settlement.

I have enclosed supporting evidence from the courts and professionals who are involved in the care of my children.

I hope you can, this time, carefully consider my case and I look forward to a prompt reply.
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Oluwaseun123
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Re: Judicial Review

Post by Oluwaseun123 » Sat Aug 02, 2014 12:27 pm

God bless you abundantly. I cannot but pray for you. You are my God sent. I shall do exactly what you said. Should I type the letter or use pen?.

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Re: Judicial Review

Post by Amber » Sat Aug 02, 2014 1:23 pm

Typed, perhaps for clarity.
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Oluwaseun123
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Judicial review

Post by Oluwaseun123 » Wed Aug 27, 2014 9:00 am

Hi there can anyone give me more light. I sent a reconsideration letter to the ho after it refuse to extend my dlr for another 3 years instead it put me on a different long 10 year parent route before I can qualify for ilr. The reason for refusal they say is because my children's dad is no longer in their life. My children were born in this country, and they are 10,5, and a 3yr old disable. I took injunction against their dad because of domestic violence. The pre protocol letter I sent has been over 2 weeks now and I haven't heard a reply from the ho. what should I do. Good Advise is urgently needed. Tanx

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Re: Judicial review

Post by Obie » Wed Aug 27, 2014 9:59 am

Then it is time to file in a JR.
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Oluwaseun123
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Re: Judicial review

Post by Oluwaseun123 » Wed Aug 27, 2014 10:09 am

Thanks Obie, if I file judicial review what will happen.

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Re: Judicial review

Post by Obie » Wed Aug 27, 2014 10:18 am

Then the matter goes to the Tribunal, and this will wake them up.
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Oluwaseun123
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Re: Judicial review

Post by Oluwaseun123 » Wed Aug 27, 2014 11:30 am

Thanks Obie. Do you think that the home office decision not to extend my dlr but put me backward in a 10 years long wait parent route claiming that my circumstances has changed because the children's father is no longer in their life legally lawful.

Oluwaseun123
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Re: Judicial review

Post by Oluwaseun123 » Wed Aug 27, 2014 11:31 am

Do I have a chance in the review to get the oh to change their decision

Obie
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Re: Judicial review

Post by Obie » Wed Aug 27, 2014 12:34 pm

It is clearly unlawful for 3 reasons.

1. The leave was given to you because you have British Children and the father plays a role in their lives. The father sought to use domestic violence, and has as a result of that, forfeited any right, and been denied access to your child and you. It is disgraceful that UKBA is penalising you for that, by putting you on a ten year route and denying you benefit and other things you are entitled to.

2. British law protect women who were victims not punish them, therefore the failure to grant you DLR under the old rules in unlawful.

3. Decision fail to take the best interest of the children into account and the hardship it will cause to them, in restricting your right to benefit, because of the violent action of the former partner.

4. Under this new regime, you will have to wait longer and take life in the UK test and an English language test, which is unreasonable and unlawful.

The option they are giving you, is to continue to put up with the violence in order to continue to qualify under the old rules, and hence putting you life and that of the children into danger. Rather than protecting the interest of the children, it appear the decision maker is seeking to undermine it.


I am positive a JR will be successful, and any financial loss you incurred will be reimbursed.
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Re: Judicial Review

Post by Amber » Wed Aug 27, 2014 1:21 pm

What was the date of decision?
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Re: Judicial Review

Post by Oluwaseun123 » Wed Aug 27, 2014 7:24 pm

Thank you very much Obie for your positive response I shall do exactly that.

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Re: Judicial Review

Post by Oluwaseun123 » Wed Aug 27, 2014 7:27 pm

The date of decision was in june

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Re: Judicial Review

Post by Obie » Wed Aug 27, 2014 9:52 pm

Judicial review should be done ASAP, in any event, not more than 3 months after the decision was made.

Hopefully you did the Pre-Action Protocol, properly and informed them of the fact that you will be taking a legal action by means of Judicial review against their decision.
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Oluwaseun123
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Re: Judicial Review

Post by Oluwaseun123 » Wed Aug 27, 2014 11:05 pm

Yes I will be seeing a solicitor on Tuesday to go ahead with the jr since I did not hear from ho after I submitted the letter of reconsideration and it's been 2weeks now with no reply from them.

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