246a and spouses under 21

Some time ago, kate4885 posted her experiences in trying to get her Australian partner to the UK on the basis of Paragraph 246 of the Rules (right of access to a child resident in the UK).

http://www.immigrationboards.com/viewto ... highlight=

The advice she was given by the Home Office at the time was that Paragraph 246 does not only cover parents who are separated (I think kate4885 and her partner were not married and were unable to satisfy the 2-year rule).

Has anyone tried to use paragraph 246 to work around the marriage visa age restrictions (e.g. overseas parent of British child, where either or both parents are under 21)? I can't see anything that would prevent it, if the advice is that the parents do not have to be separated.

Any thoughts?[/b]

Kitty wrote:Some time ago, kate4885 posted her experiences in trying to get her Australian partner to the UK on the basis of Paragraph 246 of the Rules (right of access to a child resident in the UK).

http://www.immigrationboards.com/viewto ... highlight=

The advice she was given by the Home Office at the time was that Paragraph 246 does not only cover parents who are separated (I think kate4885 and her partner were not married and were unable to satisfy the 2-year rule).

Has anyone tried to use paragraph 246 to work around the marriage visa age restrictions (e.g. overseas parent of British child, where either or both parents are under 21)? I can't see anything that would prevent it, if the advice is that the parents do not have to be separated.

Any thoughts?[/b]

My friend has recently successfully applied in this visa category.

But I have no time for details here.

Kitty wrote:Some time ago, kate4885 posted her experiences in trying to get her Australian partner to the UK on the basis of Paragraph 246 of the Rules (right of access to a child resident in the UK).

http://www.immigrationboards.com/viewto ... highlight=

The advice she was given by the Home Office at the time was that Paragraph 246 does not only cover parents who are separated (I think kate4885 and her partner were not married and were unable to satisfy the 2-year rule).

Has anyone tried to use paragraph 246 to work around the marriage visa age restrictions (e.g. overseas parent of British child, where either or both parents are under 21)? I can't see anything that would prevent it, if the advice is that the parents do not have to be separated.

Any thoughts?[/b]

Hi,

I have just applied using the same paragraph 246 to the HO this week (in-country). I haven't got any leave to remain anyway but my solicitor advised that we should apply depending on the Chikwamba judgement (article 8 ) when I decided not to return home for an entry clearance.

I couldn't apply as an unmarried partner because I am over 21 but my gf is not and we've been living together for 1 year and half (not up to 2 years for co-habitation)

There is a part of the Chikwamba judgement that support not to go back home for entry clearance when a child is involved or when it's likely that and entry clearance would be issued.

I 'll update the forum as it goes, hope I 'll be lucky. Give it a try and pray, para 246 covers all parents (separated or not)

Good luck.

HRY

HRY2005 wrote:

Kitty wrote:Some time ago, kate4885 posted her experiences in trying to get her Australian partner to the UK on the basis of Paragraph 246 of the Rules (right of access to a child resident in the UK).

http://www.immigrationboards.com/viewto ... highlight=

The advice she was given by the Home Office at the time was that Paragraph 246 does not only cover parents who are separated (I think kate4885 and her partner were not married and were unable to satisfy the 2-year rule).

Has anyone tried to use paragraph 246 to work around the marriage visa age restrictions (e.g. overseas parent of British child, where either or both parents are under 21)? I can't see anything that would prevent it, if the advice is that the parents do not have to be separated.

Any thoughts?[/b]

Hi,

I have just applied using the same paragraph 246 to the HO this week (in-country). I haven't got any leave to remain anyway but my solicitor advised that we should apply depending on the Chikwamba judgement (article 8 ) when I decided not to return home for an entry clearance.

I couldn't apply as an unmarried partner because I am over 21 but my gf is not and we've been living together for 1 year and half (not up to 2 years for co-habitation)

There is a part of the Chikwamba judgement that support not to go back home for entry clearance when a child is involved or when it's likely that and entry clearance would be issued.

I 'll update the forum as it goes, hope I 'll be lucky. Give it a try and pray, para 246 covers all parents (separated or not)

Good luck.

HRY

@HRY

But question I have why you have not applied for spouse visa on Chikwamba or why you have not applied for DL based on human rights.

Why on earth your solicitor advised you for access to child visa.

And one correction inside uk access to child visa rule is 248A not 246.




B

Spouse application? Presumably because they're not married and don't qualify for a UPV either.

Casa wrote:Spouse application? Presumably because they're not married and don't qualify for a UPV either.

Technically they dont qualify for access to child visa as well.
One more thing according to immigration rule entry clearance is mandatory for this visa category as

248(vii) the applicant has limited leave to remain in the United Kingdom as the spouse, civil partner, unmarried partner or same-sex partner of a person present and settled in the United Kingdom who is the other parent of the child; and even he won on artcile8 then he would get DL for 3 years(most likely).

Lynnuk wrote:

HRY2005 wrote:

Kitty wrote:Some time ago, kate4885 posted her experiences in trying to get her Australian partner to the UK on the basis of Paragraph 246 of the Rules (right of access to a child resident in the UK).

http://www.immigrationboards.com/viewto ... highlight=

The advice she was given by the Home Office at the time was that Paragraph 246 does not only cover parents who are separated (I think kate4885 and her partner were not married and were unable to satisfy the 2-year rule).

Has anyone tried to use paragraph 246 to work around the marriage visa age restrictions (e.g. overseas parent of British child, where either or both parents are under 21)? I can't see anything that would prevent it, if the advice is that the parents do not have to be separated.

Any thoughts?[/b]

Hi,

I have just applied using the same paragraph 246 to the HO this week (in-country). I haven't got any leave to remain anyway but my solicitor advised that we should apply depending on the Chikwamba judgement (article 8 ) when I decided not to return home for an entry clearance.

I couldn't apply as an unmarried partner because I am over 21 but my gf is not and we've been living together for 1 year and half (not up to 2 years for co-habitation)

There is a part of the Chikwamba judgement that support not to go back home for entry clearance when a child is involved or when it's likely that and entry clearance would be issued.

I 'll update the forum as it goes, hope I 'll be lucky. Give it a try and pray, para 246 covers all parents (separated or not)

Good luck.

HRY

@HRY

But question I have why you have not applied for spouse visa on Chikwamba or why you have not applied for DL based on human rights.

Why on earth your solicitor advised you for access to child visa.

And one correction inside uk access to child visa rule is 248A not 246.




B

Hi,
I stated why I couldn't apply for a spouse visa in my previous post. I am over over 21 but my partner is not and we have not been living together for up to 2 years ( though we've been together for 2 years ).

On advise, access right seems to be a quicker option to a DL, as I am applying in country. Apologise for my typo on para 246, the entire ACCESS RIGHT TO A CHILD RULE starts from para 246 to 248F of HC395.

Cheers.

HRY2005

Lynnuk wrote:

Casa wrote:Spouse application? Presumably because they're not married and don't qualify for a UPV either.

Technically they dont qualify for access to child visa as well. ??????? ( wrong, should've read "they dont qualify for in-country application" ) One more thing according to immigration rule entry clearance is mandatory for this visa category as

248(vii) the applicant has limited leave to remain in the United Kingdom as the spouse, civil partner, unmarried partner or same-gender partner of a person present and settled in the United Kingdom who is the other parent of the child; and even he won on artcile8 then he would get DL for 3 years(most likely).

Lynnuk,

Take your time to read my first post. I mentioned that I decided not to return home for entry clearance. That explained that we realised what the requirements are. Application was made outside the rule.

I also mentioned the Chikwamba case earlier and the judgement on people returning to their home country for entry clearance when a child is involved. Can I quickly say its not automatic though but we are relying on those arguments and praying.

Thanks

HRY2005 wrote:

Lynnuk wrote:

Casa wrote:Spouse application? Presumably because they're not married and don't qualify for a UPV either.

Technically they dont qualify for access to child visa as well. ??????? ( wrong, should've read "they dont qualify for in-country application" ) One more thing according to immigration rule entry clearance is mandatory for this visa category as

248(vii) the applicant has limited leave to remain in the United Kingdom as the spouse, civil partner, unmarried partner or same-gender partner of a person present and settled in the United Kingdom who is the other parent of the child; and even he won on artcile8 then he would get DL for 3 years(most likely).

Lynnuk,

Take your time to read my first post. I mentioned that I decided not to return home for entry clearance. That explained that we realized what the requirements are. Application was made outside the rule.

I also mentioned the Chikwamba case earlier and the judgment on people returning to their home country for entry clearance when a child is involved. Can I quickly say its not automatic though but we are relying on those arguments and praying.

Thanks

I have read your posts thats way I am showing my input.
When you refer Chikwamba you dont to include its details as I read this case law many times.

My question is when you rely on artcile8 then age factor would go in your favour as unable to apply for spouse visa so in my view your solicitor should has apply for spouse visa mentioning these case laws like Chikwanba and Baku.

Problem is you can be refused saying you can relocate to your country with your family.

If you have case like you are separated and have a child then you have a good chance on access to child visa on articel8.

Lynnuk wrote:

HRY2005 wrote:

Lynnuk wrote:

Casa wrote:Spouse application? Presumably because they're not married and don't qualify for a UPV either.

Technically they dont qualify for access to child visa as well. ??????? ( wrong, should've read "they dont qualify for in-country application" ) One more thing according to immigration rule entry clearance is mandatory for this visa category as

248(vii) the applicant has limited leave to remain in the United Kingdom as the spouse, civil partner, unmarried partner or same-gender partner of a person present and settled in the United Kingdom who is the other parent of the child; and even he won on artcile8 then he would get DL for 3 years(most likely).

Lynnuk,

Take your time to read my first post. I mentioned that I decided not to return home for entry clearance. That explained that we realized what the requirements are. Application was made outside the rule.

I also mentioned the Chikwamba case earlier and the judgment on people returning to their home country for entry clearance when a child is involved. Can I quickly say its not automatic though but we are relying on those arguments and praying.

Thanks

I have read your posts thats way I am showing my input.
When you refer Chikwamba you dont to include its details as I read this case law many times.

My question is when you rely on artcile8 then age factor would go in your favour as unable to apply for spouse visa so in my view your solicitor should has apply for spouse visa mentioning these case laws like Chikwanba and Baku.

Problem is you can be refused saying you can relocate to your country with your family.

If you have case like you are separated and have a child then you have a good chance on access to child visa on articel8.

Perhaps in your opinion, an ECO could ask me to ask my family to relocate to my home country if I am making an ACCESS RIGHT TO A CHILD application abroad ???

I have repeatedly mentioned why the choice of access right route was followed over a spouse visa or UPV and CASA also highlighted the same point.

The rule require that I have an existing leave to remain to qualify for an in-country application which in my case is not available. (explains why application was made OUTSIDE THE RULES) and the article 8 elements was added to support it, the same way it was treated in the CHIKWAMBA OR BEOKU-BETTS

Whether separated or not, the rule246 and 248A gives right of access to all parents (as mentioned earlier in this thread)

I will also point out that I have a very good solicitor with a proven track records, to know if we have a chance or not.

It would help if you go back to Chikwamba which "you have read many times" and carefully study para 6, 8 and 20, then pay attention to para 27 ( that was part of the respondent arguments in CHIKWAMBA about relocation with family)

http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary
this will help you to understand the proportionality and the reasonableness test in article 8, which asked the questions of nationality of applicant and their family members and talk about insurmontable obstacles to relocation. ( in this case family members are both BC )

This is a direct quote from the API. "If the family has no permanent right to reside in the UK there may be no obstacle to relocation"


For the benefit of this forum and those seeking genuine and informed advise. It would be good not to present a personal opinion or view as authoritative, then discourage people who would have followed the path to bring themselves out of trouble. I have received so many help in terms of good and helpful advise and information on this forum and I give credit to those members ( especially the moderators, member of standings and others) and every other members who give informed and genuine advise.

On this note Lynnuk, I rest my case.

Thanks

HRY2005, well put. It's dangerous for someone who is unqualified to advise against a solicitor's advise. I'm pleased you've found a good legal advisor who you have faith in and really hope it goes well for you.

Casa wrote:HRY2005, well put. It's dangerous for someone who is unqualified to advise against a solicitor's advise. I'm pleased you've found a good legal advisor who you have faith in and really hope it goes well for you.

Thanks a lot CASA, I appreciate all supports or suggestions. This forum is the best place to get advise from in my opinion. I have received spot on advise from members but oftentimes I read other peoples post, people who posted their problems for honest and genuine advise, and some other people will turn it to a personal issue, verbal attacks and discourage them. It takes a lot to post your personal problems online for others to discuss and advise.

Like I said earlier, credit to members who posts genuine and informed advise to others who needs them and when they criticise, they do constructively.

Thanks

Hi

Read this case nearly(not all parts) similar to your case and was refused on both artcile8 and human rights.

[quote]ASYLUM AND IMMIGRATION TRIBUNAL

Appeal number: IA/20436/2007
THE IMMIGRATION ACTS

Heard at: Field House Date of Hearing: 14 May 2008
Date of Promulgation: 26 June 2008.
Before:

Mr Justice Hodge, President
Senior Immigration Judge Nichols
Immigration Judge Bird

Between

[ ]
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation
For the Appellant: Mr R Scannell, Counsel, instructed by Islington Law Centre
For the Respondent: Ms S Leatherland, Senior Home Office Presenting Officer


DETERMINATION AND REASONS


1. The appellant is a citizen of Chile, born on 18 June 1977. He is the father of a child [ ] who was born on 29 November 2006 and is therefore now 18 months old.
2. The child’s mother is Ms [ ] a German national born on 17 October 1964. Ms [ ] has lived in the UK since 1989 first as a student and thereafter working in the UK as an artist. She has been both employed and self-employed and is in the UK exercising her right to reside here under UK and European law (Treaty rights).

3. The appellant came to the UK on a student visa arriving on 29 December 2003. That visa was extended until 30 November 2007. Prior to the expiry of his visa he applied for further leave to remain on the basis of his relationship with Ms [ ]and his contact with his child [ ].
4. On 26 November 2007 the appellant’s application was refused under paragraph 248C with reference to paragraph 248A(vii) of the Immigration Rules (HC395 as amended). The refusal was on the basis that the appellant, as a person exercising rights of access to a child resident in the United Kingdom, did not have limited leave to remain in the UK as the unmarried partner of a person present and settled in the United Kingdom who is the other parent of the child (paragraph 248A)(vii).

5. The appellant appealed against this decision alleging it was a breach of his Article 8 rights to refuse his application for leave to remain. He has subsequently alleged that the decision is incompatible with his rights as a family member of a person exercising freedom of movement within the European Union and so is in breach of Directive 2004/38/EEC of the European Parliament and of the Council dated 29 April 2004 (the Directive). He also claims that such discretion as the Secretary of State has ought to have been exercised differently.

Panel Hearing

6. The matter came on for hearing before immigration judge Bird on 19 February 2008. The appellant with some support from the respondent asserted that the case raised a difficult point of European law and the matter should be referred to the European Court of Justice (ECJ) under Article 234 of the Treaty establishing the European Community.

7. The AIT Practice Directions by paragraph 2.2(12) limit the right to make a reference to the ECJ to a panel of the AIT including the President or a Deputy President. The immigration judge accordingly further adjourned the matter for a full hearing before such a panel.

Factual Findings

8. We make the following findings of fact. We base these on the evidence we heard both from the appellant and Ms [ ], on their statements as filed and noting there is broad agreement between the parties on these matters.

9. The appellant has studied to be and has become a mime artist. He is currently employed in that capacity working as a mime artist, a Salvador Dali impersonator, for the Greater London Authority. He works six hours a day, five days a week performing between 9am and 3pm.

10. The appellant began a relationship with Ms [ ] in September 2005. She became pregnant and [ ] was born on 30 November 2006. The appellant and Ms [ ]both lived in separate accommodation during this time. After the child was born it is his evidence that he spent most of his time at Ms [ ]’s accommodation. In or about July 2007 their relationship changed to “more of a friendship and as such the romance fizzled outâ€

Thanks for the case posting Lynnuk, but is it not superseded by Chikwamba in respect of the Article 8 grounds? I think that the "insurmountable obstacles" test no longer applies.

[quote="Lynnuk"]Hi

Read this case nearly(not all parts) similar to your case and was refused on both artcile8 and human rights.

[quote]ASYLUM AND IMMIGRATION TRIBUNAL

Appeal number: IA/20436/2007
THE IMMIGRATION ACTS

Heard at: Field House Date of Hearing: 14 May 2008
Date of Promulgation: 26 June 2008.
Before:

Mr Justice Hodge, President
Senior Immigration Judge Nichols
Immigration Judge Bird

Between

[ ]
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation
For the Appellant: Mr R Scannell, Counsel, instructed by Islington Law Centre
For the Respondent: Ms S Leatherland, Senior Home Office Presenting Officer


DETERMINATION AND REASONS


1. The appellant is a citizen of Chile, born on 18 June 1977. He is the father of a child [ ] who was born on 29 November 2006 and is therefore now 18 months old.
2. The child’s mother is Ms [ ] a German national born on 17 October 1964. Ms [ ] has lived in the UK since 1989 first as a student and thereafter working in the UK as an artist. She has been both employed and self-employed and is in the UK exercising her right to reside here under UK and European law (Treaty rights).

3. The appellant came to the UK on a student visa arriving on 29 December 2003. That visa was extended until 30 November 2007. Prior to the expiry of his visa he applied for further leave to remain on the basis of his relationship with Ms [ ]and his contact with his child [ ].
4. On 26 November 2007 the appellant’s application was refused under paragraph 248C with reference to paragraph 248A(vii) of the Immigration Rules (HC395 as amended). The refusal was on the basis that the appellant, as a person exercising rights of access to a child resident in the United Kingdom, did not have limited leave to remain in the UK as the unmarried partner of a person present and settled in the United Kingdom who is the other parent of the child (paragraph 248A)(vii).

5. The appellant appealed against this decision alleging it was a breach of his Article 8 rights to refuse his application for leave to remain. He has subsequently alleged that the decision is incompatible with his rights as a family member of a person exercising freedom of movement within the European Union and so is in breach of Directive 2004/38/EEC of the European Parliament and of the Council dated 29 April 2004 (the Directive). He also claims that such discretion as the Secretary of State has ought to have been exercised differently.

Panel Hearing

6. The matter came on for hearing before immigration judge Bird on 19 February 2008. CHIKWAMBA WAS HEARD ON 14 & 15 APRIL 2008. The appellant with some support from the respondent asserted that the case raised a difficult point of European law and the matter should be referred to the European Court of Justice (ECJ) under Article 234 of the Treaty establishing the European Community.

7. The AIT Practice Directions by paragraph 2.2(12) limit the right to make a reference to the ECJ to a panel of the AIT including the President or a Deputy President. The immigration judge accordingly further adjourned the matter for a full hearing before such a panel.

Factual Findings

8. We make the following findings of fact. We base these on the evidence we heard both from the appellant and Ms [ ], on their statements as filed and noting there is broad agreement between the parties on these matters.

9. The appellant has studied to be and has become a mime artist. He is currently employed in that capacity working as a mime artist, a Salvador Dali impersonator, for the Greater London Authority. He works six hours a day, five days a week performing between 9am and 3pm.

10. The appellant began a relationship with Ms [ ] in September 2005. She became pregnant and [ ] was born on 30 November 2006. The appellant and Ms [ ]both lived in separate accommodation WE LIVE TOGETHER during this time. After the child was born it is his evidence that he spent most of his time at Ms [ ]’s accommodation. In or about July 2007 their relationship changed to “more of a friendship and as such the romance fizzled outâ€

Kitty wrote:Thanks for the case posting Lynnuk, but is it not superseded by Chikwamba in respect of the Article 8 grounds? I think that the "insurmountable obstacles" test no longer applies.

Hi Kitty,

Dont let pessimists discourage you if you have a serious case. Go back to the same case law and note all the highlighted parts and ask QUESTIONS on why that particular case was not granted. ( please note if there is any relevance to a case like mine)

Look at your own case and research on the rules and past case laws that are applicable to your own case. Note that Lynnuk's case law was heard and published before the chikwamba's.

Go through the article 8 API link in my earlier post (updated as at NOVEMBER 2009) by the UKBA. (caseworkers were instructed to consider the effect of the Chikwamba on article 8 cases, especially when a child is involved)

Get yourself a very good Immigration solicitor and discuss your case and try to verify the informations received from your solicitor.

Above all, believe and be positive.

Good luck.

HRY2005

HRY2005..many thanks for your valuable contribution. It's appreciated.

Hi

One more case..Not completely similar but has some good points

Asylum and Immigration Tribunal Appeal Number: IA/08945/2008


THE IMMIGRATION ACT


Heard at Field House Determination Promulgated
On 22 August 2008 On 2 September 2008
Prepared 22 August 2008


Before

SENIOR IMMIGRATION JUDGE LATTER



Between

[ ]

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent


Representation:

For the Appellant: Ms B Gill of Counsel
For the Respondent: Ms Z Kiss, Home Office Presenting Officer


DETERMINATION AND REASONS


1. This is the reconsideration of an appeal against the respondent’s decision made on 8 May 2008 refusing the appellant further leave to remain to exercise rights of access to children resident in this country. His appeal was dismissed on immigration and article 8 grounds by an immigration judge following a hearing on 13 June 2008. Reconsideration was ordered on 16 July 2008.

2. The appellant is a citizen of Uganda who has had leave to remain as a student for varying periods between May 2002 and February 2007. He entered into a relationship with his partner, a British citizen, and they have three children born on 29 March 2001, 3 April 2005 and 27 January 2007 respectively. The children are all British citizens who will remain living in this country. The appellant’s relationship with his partner has come to an end but the judge was satisfied that he has maintained regular contact with and takes an active role in the children's upbringing.

3. However, the appeal could not succeed under the provisions of paragraph 248C. The judge went on to consider the appeal under article 8 and found that removal would be proportionate, commenting that it might be the case that on his findings the appellant had good grounds for pursuing an out of country application to obtain leave to enter.

4. The appellant applied for a review, relying on the opinions of the House of Lords in Beoku-Betts [2008] UKHL 39 and Chikwamba [2008] UKHL 40, arguing that the judge had not fully taken into account the rights of the appellant’s children and his former partner and that this was a case where it would not be proportionate to require the appellant to make an application from abroad.

5. At the hearing before me, Ms Kiss conceded that the judge had materially erred in law and that, in the light of the appellant’s particular circumstances, the appeal should be allowed on article 8 grounds.

Decision

6. Accordingly, I find that the original Tribunal materially erred in law and I substitute a decision allowing the appeal on article 8 grounds.






Signed Date: 28 August 2008


Senior Immigration Judge Latter
© CROWN COPYRIGHT 2008

Casa wrote:HRY2005..many thanks for your valuable contribution. It's appreciated.

Thanks CASA,

I am just not happy when people are pessimistic on other peoples problem without relying on a good authority to back their case. It should be discouraged on this forum because someone life or future may depend on information received on this forum.

People in a situation like this are in it for one reason or the other. its not a very good situation to be in, I have experienced it and still in it, struggling to find a way out and live a normal life. So its sad when I read about other people being discouraged when they are making efforts or turn a serious issue to a personal and verbal attack.

I have a lot of respect for all of you moderators and other members who gives genuine, informed and honest advise.

Thanks a lot

[quote="HRY2005"][quote="Lynnuk"]Hi

Read this case nearly(not all parts) similar to your case and was refused on both artcile8 and human rights.

[quote]ASYLUM AND IMMIGRATION TRIBUNAL

Appeal number: IA/20436/2007
THE IMMIGRATION ACTS

Heard at: Field House Date of Hearing: 14 May 2008
Date of Promulgation: 26 June 2008.
Before:

Mr Justice Hodge, President
Senior Immigration Judge Nichols
Immigration Judge Bird

Between

[ ]
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation
For the Appellant: Mr R Scannell, Counsel, instructed by Islington Law Centre
For the Respondent: Ms S Leatherland, Senior Home Office Presenting Officer


DETERMINATION AND REASONS


1. The appellant is a citizen of Chile, born on 18 June 1977. He is the father of a child [ ] who was born on 29 November 2006 and is therefore now 18 months old.
2. The child’s mother is Ms [ ] a German national born on 17 October 1964. Ms [ ] has lived in the UK since 1989 first as a student and thereafter working in the UK as an artist. She has been both employed and self-employed and is in the UK exercising her right to reside here under UK and European law (Treaty rights).

3. The appellant came to the UK on a student visa arriving on 29 December 2003. That visa was extended until 30 November 2007. Prior to the expiry of his visa he applied for further leave to remain on the basis of his relationship with Ms [ ]and his contact with his child [ ].
4. On 26 November 2007 the appellant’s application was refused under paragraph 248C with reference to paragraph 248A(vii) of the Immigration Rules (HC395 as amended). The refusal was on the basis that the appellant, as a person exercising rights of access to a child resident in the United Kingdom, did not have limited leave to remain in the UK as the unmarried partner of a person present and settled in the United Kingdom who is the other parent of the child (paragraph 248A)(vii).

5. The appellant appealed against this decision alleging it was a breach of his Article 8 rights to refuse his application for leave to remain. He has subsequently alleged that the decision is incompatible with his rights as a family member of a person exercising freedom of movement within the European Union and so is in breach of Directive 2004/38/EEC of the European Parliament and of the Council dated 29 April 2004 (the Directive). He also claims that such discretion as the Secretary of State has ought to have been exercised differently.

Panel Hearing

6. The matter came on for hearing before immigration judge Bird on 19 February 2008. CHIKWAMBA WAS HEARD ON 14 & 15 APRIL 2008. The appellant with some support from the respondent asserted that the case raised a difficult point of European law and the matter should be referred to the European Court of Justice (ECJ) under Article 234 of the Treaty establishing the European Community.

7. The AIT Practice Directions by paragraph 2.2(12) limit the right to make a reference to the ECJ to a panel of the AIT including the President or a Deputy President. The immigration judge accordingly further adjourned the matter for a full hearing before such a panel.

Factual Findings

8. We make the following findings of fact. We base these on the evidence we heard both from the appellant and Ms [ ], on their statements as filed and noting there is broad agreement between the parties on these matters.

9. The appellant has studied to be and has become a mime artist. He is currently employed in that capacity working as a mime artist, a Salvador Dali impersonator, for the Greater London Authority. He works six hours a day, five days a week performing between 9am and 3pm.

10. The appellant began a relationship with Ms [ ] in September 2005. She became pregnant and [ ] was born on 30 November 2006. The appellant and Ms [ ]both lived in separate accommodation WE LIVE TOGETHER during this time. After the child was born it is his evidence that he spent most of his time at Ms [ ]’s accommodation. In or about July 2007 their relationship changed to “more of a friendship and as such the romance fizzled outâ€

Lynnuk wrote:Hi

Hi Lynnuk,

While I have nothing personal against you, I am only saying it is wrong to discourage or mislead others by giving personal opinion without proper consideration with any relevant authorities.

This forum as a community of interest, has done a lot for many people, a lot of people are smiling today, thanks to information received from this forum. I wouldn't have responded to this any more, remember I "rest my case" but for the benefit of this forum and other people, who need information like this to sort their problem. Remember this is my personal case and don't wanna sound cocky and my argument does not in anyway mean that my application would succeed but I believe.

Our point here is the chances of a successful applications, we should look from PRO, then ask in terms of WHAT ARE THE CONS. Not a 100% focus on the CONS. The refusal of Appellant X on case M, does not indicate that Appellant Y on case M would be refused, if their cases are different in content.

Anyway I have carefully studied your authority and realized that you need to do a lot more. Its been established that caseworkers and ECO's assessed and judge cases on individual merit. However, your claimed authority has got nothing to do with this case apart from the title (ACCESS RIGHT). you really need to study the content/details of a case law properly before using them as a basis to advise others.

I would appreciate it, if you go back to the case and study all the highlighted part.

Once again, I have nothing against you, we are all learning and improving or updating our knowledge.

I never claimed I am professional or I am perfect.These are my personal views(Not immigration advise).

You dont know my study level on this visa category.I have a lot of research and case law study on this matter.

You have a good solicitor and have already legal advice.But remember I am the only one who can give you a clear pic on this issue.You agree or not is your choice.I would only say my views with light of recent case in appeal court proving I am not saying just bull sits.

Remember I am not doing this for any financial incentives.

I also love to study more as learning never stops.

But please dont just take everything negative..

I can give lot of cases to prove what I said.

Thanks Lynnuk,

I will repeat what I said earlier, I have nothing against your person but the content of your posts. I appreciate the fact that you are not a professional, neither do I.

I try to read a lot of this cases as well but my point is we should all verify what we read from the right source and confirm the relevance to each case.

I gave you a clear example in your case law, as in the differences between that case and a case like mine, and remember my case would be different from other cases. So if my case is not granted for example does not mean Kitty's case would be refused, cos the elements of my case might be different from Kitty's

So if I keep telling Kitty that his or her case would not be successful based on my case experience, is misleading. Thats my point, and thats where I stand. Every case with its own merit.

Consider 2 student visa applicants at a BHC abroad, one was refused and the other was granted. Then the QUESTION is why? they are both students but one must have satisfied some conditions which the other didn't. Or are you saying every ACCESS RIGHT applications that got to the AIT on appeal were all refused?

I understand that you could have one authority or the other to back your argument but the QUESTION remains, is it relevant to the case in question??? Thats the point I am making, no offense.

Thanks for your understanding.

Lynnuk wrote:Hi

One more case..Not completely similar but has some good points

Asylum and Immigration Tribunal Appeal Number: IA/08945/2008


THE IMMIGRATION ACT


Heard at Field House Determination Promulgated
On 22 August 2008 On 2 September 2008
Prepared 22 August 2008


Before

SENIOR IMMIGRATION JUDGE LATTER



Between

[ ]

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent


Representation:

For the Appellant: Ms B Gill of Counsel
For the Respondent: Ms Z Kiss, Home Office Presenting Officer


DETERMINATION AND REASONS


1. This is the reconsideration of an appeal against the respondent’s decision made on 8 May 2008 refusing the appellant further leave to remain to exercise rights of access to children resident in this country. His appeal was dismissed on immigration and article 8 grounds by an immigration judge following a hearing on 13 June 2008. Reconsideration was ordered on 16 July 2008.

2. The appellant is a citizen of Uganda who has had leave to remain as a student for varying periods between May 2002 and February 2007. He entered into a relationship with his partner, a British citizen, and they have three children born on 29 March 2001, 3 April 2005 and 27 January 2007 respectively. The children are all British citizens who will remain living in this country. The appellant’s relationship with his partner has come to an end but the judge was satisfied that he has maintained regular contact with and takes an active role in the children's upbringing.

3. However, the appeal could not succeed under the provisions of paragraph 248C. The judge went on to consider the appeal under article 8 and found that removal would be proportionate, commenting that it might be the case that on his findings the appellant had good grounds for pursuing an out of country application to obtain leave to enter.

4. The appellant applied for a review, relying on the opinions of the House of Lords in Beoku-Betts [2008] UKHL 39 and Chikwamba [2008] UKHL 40, arguing that the judge had not fully taken into account the rights of the appellant’s children and his former partner and that this was a case where it would not be proportionate to require the appellant to make an application from abroad.

5. At the hearing before me, Ms Kiss conceded that the judge had materially erred in law and that, in the light of the appellant’s particular circumstances, the appeal should be allowed on article 8 grounds.

Decision

6. Accordingly, I find that the original Tribunal materially erred in law and I substitute a decision allowing the appeal on article 8 grounds.






Signed Date: 28 August 2008


Senior Immigration Judge Latter
© CROWN COPYRIGHT 2008

Thanks for this Lynnuk, did you noticed the influence of the CHIKWAMBA and BEOKU-BETTS on that case??? I am happy that proved my point. The appeal was allowed.

Also notice tha first judgement which disallowed the appeal was in mid 2008 before the Chikwamba became a precedence.

Thanks.

HRY2005

Hi

Thanks CASA,

I am just not happy when people are pessimistic on other peoples problem without relying on a good authority to back their case. It should be discouraged on this forum because someone life or future may depend on information received on this forum.

People in a situation like this are in it for one reason or the other. its not a very good situation to be in, I have experienced it and still in it, struggling to find a way out and live a normal life. So its sad when I read about other people being discouraged when they are making efforts or turn a serious issue to a personal and verbal attack.

I have a lot of respect for all of you moderators and other members who gives genuine, informed and honest advise.

Thanks a lot

I like criticism if I know this is said in positive mode.

With due respect I never said I am perfect or this is my immigration advice as said these are my personal views and to prove these I give you some cases heard in appeal court and what points these were refused or granted.

I have a good study on artcile8(Never claimed I am perfect).

If you agree with me fine if no then great.

We are in a live forum and different people have different views.

Thats the beauty of this forum.

Hi

HRY2005 wrote:

Lynnuk wrote:Hi

One more case..Not completely similar but has some good points

Asylum and Immigration Tribunal Appeal Number: IA/08945/2008


THE IMMIGRATION ACT


Heard at Field House Determination Promulgated
On 22 August 2008 On 2 September 2008
Prepared 22 August 2008


Before

SENIOR IMMIGRATION JUDGE LATTER



Between

[ ]

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent


Representation:

For the Appellant: Ms B Gill of Counsel
For the Respondent: Ms Z Kiss, Home Office Presenting Officer


DETERMINATION AND REASONS


1. This is the reconsideration of an appeal against the respondent’s decision made on 8 May 2008 refusing the appellant further leave to remain to exercise rights of access to children resident in this country. His appeal was dismissed on immigration and article 8 grounds by an immigration judge following a hearing on 13 June 2008. Reconsideration was ordered on 16 July 2008.

2. The appellant is a citizen of Uganda who has had leave to remain as a student for varying periods between May 2002 and February 2007. He entered into a relationship with his partner, a British citizen, and they have three children born on 29 March 2001, 3 April 2005 and 27 January 2007 respectively. The children are all British citizens who will remain living in this country. The appellant’s relationship with his partner has come to an end but the judge was satisfied that he has maintained regular contact with and takes an active role in the children's upbringing.

3. However, the appeal could not succeed under the provisions of paragraph 248C. The judge went on to consider the appeal under article 8 and found that removal would be proportionate, commenting that it might be the case that on his findings the appellant had good grounds for pursuing an out of country application to obtain leave to enter.

4. The appellant applied for a review, relying on the opinions of the House of Lords in Beoku-Betts [2008] UKHL 39 and Chikwamba [2008] UKHL 40, arguing that the judge had not fully taken into account the rights of the appellant’s children and his former partner and that this was a case where it would not be proportionate to require the appellant to make an application from abroad.

5. At the hearing before me, Ms Kiss conceded that the judge had materially erred in law and that, in the light of the appellant’s particular circumstances, the appeal should be allowed on article 8 grounds.

Decision

6. Accordingly, I find that the original Tribunal materially erred in law and I substitute a decision allowing the appeal on article 8 grounds.






Signed Date: 28 August 2008


Senior Immigration Judge Latter
© CROWN COPYRIGHT 2008

Thanks for this Lynnuk, did you noticed the influence of the CHIKWAMBA and BEOKU-BETTS on that case??? I am happy that proved my point. The appeal was allowed.

Also notice tha first judgement which disallowed the appeal was in mid 2008 before the Chikwamba became a precedence.

Thanks.

HRY2005

You are welcome.

I would try to search more cases for you.

Lynnuk wrote:Hi

Thanks CASA,

I am just not happy when people are pessimistic on other peoples problem without relying on a good authority to back their case. It should be discouraged on this forum because someone life or future may depend on information received on this forum.

People in a situation like this are in it for one reason or the other. its not a very good situation to be in, I have experienced it and still in it, struggling to find a way out and live a normal life. So its sad when I read about other people being discouraged when they are making efforts or turn a serious issue to a personal and verbal attack.

I have a lot of respect for all of you moderators and other members who gives genuine, informed and honest advise.

Thanks a lot

I like criticism if I know this is said in positive mode.

With due respect I never said I am perfect or this is my immigration advice as said these are my personal views and to prove these I give you some cases heard in appeal court and what points these were refused or granted.

I have a good study on artcile8(Never claimed I am perfect).

If you agree with me fine if no then great.

We are in a live forum and different people have different views.

Thats the beauty of this forum.

Thanks for your understanding Lynnuk. Its not about you or me, its about other people. If we dont get the facts straight, someone like Kitty might be discouraged and think theres no way out.

All this cases depend on time and whats working at the moments. The rules and laws are being reviewed on daily basis and if one does not take a step quickly and get caught by those guys in BLUE, it might be too late.

My reaction is not to you but to all those negative and destructive comments that I come across all the time.

Thanks for understanding my point and those case laws really help us to clarify many points, its still our views and interpretations anyway but they can encourage and help in the long run.

Cheers

HRY2005