Be careful with sending letters for legacy cases

[bahwe]

I have quoted the following from another forum:

MY SISTER WAS PICKED UP BY BIA/IMMIGRATION THIS MORNING AND IS IN DETENTION WAITING TO BE DEPORTED.MY ADVISE IS THAT YOU MUST TALK WITH YOUR LAWYER IF YOU WANT TO SEND FURTHER LETTERS ABOUT YOUR CASE.MY SISTER FOLLOWED ADVICE ON SOME IMMIGRATION FORUMS AND SENT LETTERS AND PHOTOS TO BIA ASKING FOR HER CASE TO BE LOOKED AT.SHE ALSO GAVE THEM HER NEW ADDRESS.AFTER SEVEN YEARS OF LIVING HERE,SHE WAS PICKED UP THIS MORNING.HER LAWYER DID NOT KNOW SHE HAD BEEN SENDING LETTERS AND PHOTOS TO BIA.SHE WILL BE ON THE FIRST FLIGHT TO NIGERIA.I CANNOT SLEEP WITH WORRY AND SADNESS.

Posted today by NaijaBoy.

[Jeff Albright]

I think there is not enough information to establish what exactly happened.

From my old experience with BA, I do not believe that if the person's case was classed as legacy, such an action would have been taken against her. Legacy cases are complex and there are always barriers to BA to carry out removals without proper assessment and consideration in accordance with the relevant laws. This is why those cases are allocated to a special team of trained caseworkers in BA.

The only way, as per my guess, this would have happened if the person was:

- an immigration absconder following the issue of removal directions and made no further legal representations
- failed to comply with reporting conditions

More information is needed before one can judge what actually happened and why.

Jeff

[bahwe]

Hi Jeff
I would REALLY appreciate your advise on the following matter:
Failed asylum single divorced mum (fresh claim made in summer 2006, still no response from H.O), with 2 kids born in the UK, recently has called the legacy inquiry team, they said her case is legacy and that she have to phone later to find out the team that would be dealing with her case.
The mother can't pass her nationality to her kids ( her country doesn't allow women to pas their nationality to their kids) so the kids have their father's nationality. If deported the kids needs to go to the country of their nationality not to their mother country. How can they proceed with the deportation?In 4 month her eldest will be 7.
The mum is wondering if she add the claims to the legacy case ( art8, right to family life) or she waits until her eldest is 7 and make a claim for the 7 years concessions and use the humanitarian reasons in it?

[Jeff Albright]

Well, this is outside the original topic in this thread...

This case is correctly viewed as a legacy one. There are human rights arguments.

When we were in the UK, me and my family had somewhat similar situation. I am from one of the non-EU European countries, my wife is African and our born in the UK daughter was stateless (also my wife's country laws do not allow her to pass the nationality to her children born to a foreign father).
Although my case was very complex, specifically in relation to the former IND losing my documents, passport and applications, the first point of the human rights arguments in my case was that I could not be realistically removed to my country, because neither my wife nor my daughter could follow me. Similarly, my daughter would not have been able to follow my wife into her country. As such, the judge found there were insurmountable obstacles for us departing from the UK. However, this was not the only argument. There were arguments on the IND's maladministration, and my ties with the UK.
My case was found to be truly exceptional so BA were forced to issue the status to me but not to my wife and my daughter. Thankfully, shortly after my status in the UK was resolved, I was able to depart from the UK, obtain a new passport, get my daughter nationality and then shortly we were granted visas to Australia and left the UK for good, which allowed us to put everything behind us.

Even if BA was to reject the case of that woman, she may succeed in the Tribunal similarly to my case.

Cheers

Jeff

[bahwe]

thank you very much Jeff
the problem is that this nationality issue has never been raised before, the lawyers, the H.O, the judge all considered that the kids had their mum's nationality, the judge said that they can go to their mum's country normally and that there was no interference with their family life, the thing is no one had a clue about the nationality issue not even the lady's lawyers.
if you are willing to help by charing your experience, more details can be given to you via private messages.
your help would be MUCH appreciated.

[tasha75]

My case was found to be truly exceptional so BA were forced to issue the status to me but not to my wife and my daughter.

Hi Jeff,
That's strange, I understand about the wife, but why they did not issue any status to your child? As you know I was in a similar situation to you, and my eldest child was granted the same status as me. The youngest kids will also be granted residence permits (still waiting ) but different to me (as the father is EU citizen).

[tasha75]

the thing is no one had a clue about the nationality issue not even the lady's lawyers.

Well, you can expect them to know nationality law of every country in the world. It would have probably helped if the lady could show some proofs that children do not have her nationality (e.g. letter from her embassy). Perhaps she could apply for her children passports through the embassy and then show the BIA the refusal letter stating the reasons.

[bahwe]

Thanks for your reply Tasha.

Now should the lady make the BA aware of these human rights arguments while her case is being looked at as legacy or should she wait until her eldest turn 7 in 4 month and make a claim under the child concession rule?

[Jeff Albright]

the problem is that this nationality issue has never been raised before, the lawyers, the H.O, the judge all considered that the kids had their mum's nationality

Well, I am sorry to hear about this but the case should have been correctly prepared and all the relevant information given to the parties. Naturally if you do not put forward your submissions, neither the BA nor the judges will know anything about it. It is for the applicant to prepare the case correctly and submit all the relevant information.
I prepared all my submissions myself, we did not instruct any lawyers. I had too many problems with them in the past because they were all useless and incompetent except those who were charging astronomical fees. It is always better to represent yourself, you tend to have more confidence in yourself rather than in the others.

[Jeff Albright]

That's strange, I understand about the wife, but why they did not issue any status to your child?

Yes, that is right and I do not know why. I contacted one of the Grade 7 caseworkers in a few sections in the Home Office, cannot even remember now where exactly. But I did speak on the phone with them and also wrote letters but to no avail. They just kept promising that they would look into that and get back to me but never did. Perhaps if I followed this up vigorously through the complaints, they would have had the status but there was no time and we already had had enough with the Home Office. Soon after my daughter was given my nationality and the passport, I was offered a job in Australia and visas so we left very soon thereafter. We had up to here with the UK system and we just did not want to be in that country any longer. But I still do not know why my family were not issued with the same status as me. My wife was still on a student visa then, perhaps this was the reason. I do not honestly know.

[bahwe]

Hi Jeff

Can you plz tell me how this nationality issue is linked to art8? can you plz tell me how did you elaborate your arguments? any specific law cases, any references? how did you introduce this point, did you have to write long passages and how much weight was given to it in your case?

[Jeff Albright]

I am sorry I cannot answer your questions here, as it will take me probably a week. I do not have time for this. All I can advise is to read the caselaw, specifically new, as it keeps changing every day. I am not even familiar with the recent cases myself, as I have not been following this since I left the UK last October. You need to take days to read through relevant cases on the AIT website and note all the references to the relevant and recent High Court and Court of Appeal judgements that apply to you and make sure you understand them because the legal jargon can become a bit too technical at times. When I was preparing my case, I was reading AIT website, Home Office casework guidance and policies and collecting information from the media, the Internet and press on the successful cases. This is not a one day job and like any other course you take, you need to give yourself time to learn.
You present your arguments in the way it is convenient to you. There are no templates, formats or certain procedures. You put together witness statements from yourself and each member of your family. Then you give the bundles to the AIT. All your submissions will be accepted and receive attention.

Good luck!

Jeff

[bahwe]

Thank you Jeff.

[bahwe]

Hi Jeff
You said that your daughter was considered stateless, but didn't she get your nationality by birth?
I know you are busy but can u read the following:
In a case law (Nationality-Statelessness-Eritrea-Ethiopia) Eritrea CG [2003] a judge considered “1. A person who was born in Eritrea with an Eritrean father WOULD BE ELIGIBLE for Eritrean nationality........We appreciate that she has been to the Eritrean Embassy,..........And the reason she was refused was stated as being that she could not provide evidence which can vouch for her Eritrean identity regardless of whether she can speak Tigrigna.....Not having identified 3 witnesses, her application had to fail. However it does not follow that it was not reasonable likely she could find three witnesses and then re-apply. Having to do so would not amount to any kind of “concrete obstacleâ€

[tasha75]

Well, you can expect them to know nationality law of every country in the world.

sorry, I meant cannot expect.

[tasha75]

My wife was still on a student visa then, perhaps this was the reason. I do not honestly know.

If your child had a dependent of a student status, then that I assume was the reason for not issuing her with the same status as you. I don;t think they can issue DL to someone who has a valid visa in another category. When I got refused, my children were also served with IS151, and as a a result were included in my appeal.

[tasha75]

Hi Jeff
You said that your daughter was considered stateless, but didn't she get your nationality by birth?

Some nationalities are not passed from a parent to a child automatically, you have to apply for it, and it may be difficult if not impossible if you don't have your own passport. And sometimes you even need your foreign spouse permission for that.

[tasha75]

bahwe, what country is the lady from, and what is the status of her children and ex-husband?

[bahwe]

Hi Tasha
There is a difference between transmitting citizenship primarily by "law of blood" (jus sanguinis) through patrilinial descent, and between administrative procedures, even if the child has his father's nationality by birth he still have to apply for an ID, passport, nationality certificate, if abroad go to the embassy.......
The mother is from Syria and her ex is north African, the mother applied for asylum with her kids as dependents, Her ex got married to an European lady and has 5 years residency. The kids by birth have their father's nationality but they don't have passports because they need their father signature, so if deported should they go to their father's country, how could they follow their mother ( they must have passports in order to get a Syrian residency stamped on it), is it possible to separate them from their mum and send them to a country they don't speak the language, or is it possible to deport them to Syria with no documents, as stateless with no rights?

[Thandia]

Hi Tasha
There is a difference between transmitting citizenship primarily by "law of blood" (jus sanguinis) through patrilinial descent, and between administrative procedures, even if the child has his father's nationality by birth he still have to apply for an ID, passport, nationality certificate, if abroad go to the embassy.......
The mother is from Syria and her ex is north African, the mother applied for asylum with her kids as dependents, Her ex got married to an European lady and has 5 years residency. The kids by birth have their father's nationality but they don't have passports because they need their father signature, so if deported should they go to their father's country, how could they follow their mother ( they must have passports in order to get a Syrian residency stamped on it), is it possible to separate them from their mum and send them to a country they don't speak the language, or is it possible to deport them to Syria with no documents, as stateless with no rights?

If the father cannot or will not sign for his children's passport applications, would that not be taken as a refusal of paternity? Does this woman have birth certificates for the children with the father named on them? If so, the court can be petitioned to force him to sign the documents required for their passports to be issued, especially where he is named on the birth certificates. I think the order costs £90. Is there a residency order in effect? Does he have PR? Does he take an active role in the kids upbringing? If he is denying paternity, then wouldn't this statement apply:

The acquisition of Syrian Arab citizenship by matrilinial descent is allowed to persons born to a Syrian Arab mother whose father cannot be legally determined (Article 3.2).

In a ntshell, what I think is, if father is named on birth certificates & mother has residency orders for kids, court can be petitioned for father to sign passport application forms for his children resulting in issuance of passports.

Secondly, if he is not named on birth certificates or if he is denying paternity, then acquisition of matrilinial syrian arab citizenship would not be difficult.

I may be wrong tho, I'm not an immigration specialist but I do know the ins & outs of stuff related to children.

[tasha75]

In a ntshell, what I think is, if father is named on birth certificates & mother has residency orders for kids, court can be petitioned for father to sign passport application forms for his children resulting in issuance of passports.

Thandia, I don't think having north african passports for children will make a big difference in lady's case. Even if they have passports, how can North African citizen be removed to Syria?

bahwe, does the father take any role in upbringing the children? Is he willing to help his ex (the lady in question)?

[Thandia]

In a ntshell, what I think is, if father is named on birth certificates & mother has residency orders for kids, court can be petitioned for father to sign passport application forms for his children resulting in issuance of passports.

Thandia, I don't think having north african passports for children will make a big difference in lady's case. Even if they have passports, how can North African citizen be removed to Syria?

bahwe, does the father take any role in upbringing the children? Is he willing to help his ex (the lady in question)?

I was responding to the part where bahwe said mother was unable to get passports for the kids as a reason for non deportation so my point was the non-issuance of passports would not be a problem at all as passports could still be issued. OP is the one who said saudi residence stamps could be put onto passports.

[bahwe]

In a ntshell, what I think is, if father is named on birth certificates & mother has residency orders for kids, court can be petitioned for father to sign passport application forms for his children resulting in issuance of passports.

Thandia, I don't think having north african passports for children will make a big difference in lady's case. Even if they have passports, how can North African citizen be removed to Syria?

bahwe, does the father take any role in upbringing the children? Is he willing to help his ex (the lady in question)?

I think that is the main issue in this case, deporting north African kids to Syria, also if Thandia point of view is right this still lead to the same thing.
The father want what is best for his kids, but I don't know if he can do much for his kids because his 5 years residency nearly finished and him getting a permanent residency isn't guaranteed according to his lawyer.
Do you think that even if his application fails he still can claim his right for being with his kids which would go against their deportation to their mum's country? can they deport the kids with their father to north Africa and the mum to Syria? is it better for the father to get involved or to stay away?

[Jeff Albright]

Did any concrete obstacle prevent you from passing your nationality to your daughter?

yes I did. The IND lost my passport and I could not prove my nationality to my embassy due to a long time passed since my passport was misplaced. The embassy could only issue me with a one-way travel document to my original country (the embassy rules and the law), where I could apply for a new passport at the local passport office. Since I did not have the status in the UK, my return would not be guaranteed. My daughter would not have been admitted into my original country without a passport. Therefore she could not travel with me and my return to the UK to her could not be guaranteed by the Immigration Rules. This constituted an insurmountable obstable for me departing from the UK and was sufficiently valid and accetable within the interpretation of the Human Rights claim. It was accepted by the Judge.

[bahwe]

Did any concrete obstacle prevent you from passing your nationality to your daughter?

yes I did. The IND lost my passport and I could not prove my nationality to my embassy due to a long time passed since my passport was misplaced. The embassy could only issue me with a one-way travel document to my original country (the embassy rules and the law), where I could apply for a new passport at the local passport office. Since I did not have the status in the UK, my return would not be guaranteed. My daughter would not have been admitted into my original country without a passport. Therefore she could not travel with me and my return to the UK to her could not be guaranteed by the Immigration Rules. This constituted an insurmountable obstable for me departing from the UK and was sufficiently valid and accetable within the interpretation of the Human Rights claim. It was accepted by the Judge.

Hi Jeff
how did you manage to prove that <The embassy could only issue me with a one-way travel document to my original country (the embassy rules and the law), where I could apply for a new passport at the local passport office> and that <My daughter would not have been admitted into my original country without a passport>
Did you contact the embassy or did you only mention the conditions of getting a passport from your embassy which could found on their official site?
Couldn't the H.O ask your embassy to issue some kind of emergency family entry document for you and your daughter?