Post
by nilemarques » Mon Sep 09, 2013 1:59 pm
[quote="hatchsead"]I hope the template below will help some people compose letters to send along with their application for FLR(O)
[b]Re: child’s name (a minor), D.O.B: 00/00/0000 – (Country of origin) national[/b]
By way of a background to this case, both the Applicant and her/ his parent(s) are overstayers in the UK.
Miss/ Master ………… is minor and was born and raised in the UK and is currently aged …. He/ She seeks to make an application in her own right and obtain a decision to remain in the UK based on his/ her private life under Article 8 ECHR 1998. The Applicant and his/ her family are all resident in the UK and live as a close family unit. As such the applicant is submitting a FLR(O) application form together with the appropriate fee for leave to remain in the UK.
Please find enclosed the following supporting documents (all original documents unless otherwise specified): -
1. Duly signed letter of authority
2. Duly completed FLR(O) application
3. Two passport photographs of the Applicant
4. ****
Immigration History:
Miss/ Master ……………….. was born in the UK on 00/00/0000. His/ Her father, namely Mr ………….. is a ……… national and he first entered the UK in (mention date and state what type of visa).
Since this time the Applicant’s parents have remained in the UK and have been in a stable relationship/ marriage and the Applicant and his/her siblings have lived with their parents from birth. The Applicant’s parents have continued to provide for themselves and their children. The Applicant has always been maintained privately by her parents without any recourse to public funds. The Applicant is in full-time education and is making good progress with his/her education where he/she is currently attends “name of school”.
Immigration Rules:
It is submitted that the Secretary of State for the Home Office Department (SSHD) should consider the Applicant’s case in accordance with the relevant factors known to the SSHD including:
1 age;
2 length of residence in the United Kingdom;
3 strength of connections with the United Kingdom;
4 personal history, including character, conduct and employment record;
5 domestic circumstances;
6 previous criminal record and the nature of any offence of which the person has been convicted;
7 compassionate circumstances;
8 any representations received on the person's behalf.
(i) age;
The Applicant was born in the UK and has resided continuously within the UK from his/ her birth in (mention month and year of birth). He/ She is …. years old and has never lived in any other country throughout his/ her entire life time. It is submitted that uprooting the Applicant to his/ her parent’s native country of origin would be extremely harsh and unfair as the Applicant has only ever known life in the UK. It is in the UK where the Applicant has established a private and family life, with his/ her friends at school and his/ her parents and extended family members
(ii) length of residence in the United Kingdom;
The applicant has been living in the United Kingdom since birth for a significant period of …. years which is of course all his/ her life. His/Her ties in the UK are very strong, he/she has established a life in the UK being born and raised and this being the only country he/she knows and can identify himself/ herself with culturally and by identity.
(iii) strength of connections with the United Kingdom;
The applicant’s family has established highly valuable and mutually beneficial relationships with friends, neighbours and colleagues at work and school. The applicant is well settled and residing in the UK with his/her parents, friends and neighbours.
(iv) Personal history, including character, conduct and employment record;
The Applicant is a good mannered child who is progressing well at school. There are no issues with regards to his/ her character and conduct and it is hoped, that when he/ she matures into an adult he/she will pursue higher education obtain a good job and be a helpful member to society.
(v) domestic circumstances;
The applicant and his/ her parents are staying in privately rented property at (mention address where you reside). The family have lived together in this property since (mention date since living at that address).
(vi) previous criminal record and the nature of any offence of which the person has been convicted;
The applicant nor the parents has never been convicted of any criminal offence. He/ She comes from a law abiding family who are generally upstanding members of society and their local community.
(vii) compassionate circumstances;
The applicant and the family have established a private life in the UK, having integrated well into UK society. The applicant and family have remained in the UK since His/ her birth and has been gaining he/ her education here. He/She is well settled and his family has clearly established a private life within the UK.
(viii) any representations received on the person’s behalf;
The SSHD is reminded that consideration of the welfare and best interest of the applicant, as he/she is a child and as such his life and liberty will be at risk should he be forced to return to home country with His/her parents. The SSHD should take into account her obligation to consider the mandatory requirements of section 55 of Borders Citizenship and Immigration Act 2009 Act. Wyn Williams J in the case of R on the application of TS v SSHD [2010] EWHC 2614 (Admin) said at paragraph 25 (emphasis added),
“In the instant case there was a duty upon the decision maker to have regard to the need to safeguard and promote the welfare of the Claimant when discharging a function which was both immigration and an asylum function. I consider that the duty arose not just in relation to the process of removal but also in relation to whether or not removal should be directed. The decision maker was also under a duty to have regard to any guidance issued by the Secretary of State “for the purpose of subsection (1) of section 55 of the 2009 Act”.
The SSHD has to take into account her obligation to prudently deliberate the welfare of a child as a primary consideration. This notion includes a child’s education and social well being. In the Tribunal’s decision in LD [2010] UKUT 278 (Blake J presiding) it was said at paragraphs 28 and 30 that,
“28. Although questions exist about the status of the UN Convention on the Rights of the Child in domestic law, we take the view that there can be little reason to doubt that the interests of the child should be a primary consideration in immigration cases. A failure to treat them as such will violate Article 8(2) as incorporated directly into domestic law. 30. (vi) The interests of the minor children and their welfare are a primary consideration in the balance of competing considerations in this case and their educational welfare as part of the UK education system point strongly to their continued residence here as necessary to promote those interests “
It is submitted that the principle laid out above, applies in this case and any failure of the SSHD to diligently consider this matter without full consideration would undoubtedly led to an unjustified refusal of this application. A refusal of this application would result in detriment being caused to the Applicant’s welfare and best interests. It is submitted that the SSHD ought to consider all matters arising in this application and make one final determination of the case. (Please see the case of TE (Eritrea) v SSHD [2009] EWCA Civ 174)
Further, it is submitted that the policy (IDI Chapter 1 Section 14 April 2006) on granting leave to remain outside the immigration rules states that:
1.2. Leave Outside the Immigration Rules:
It has always been possible to grant someone limited or indefinite leave to enter/remain outside the Immigration Rules. Where it is not possible to grant leave under the Immigration Rules, or to grant asylum or Humanitarian Protection or Discretionary Leave, any other leave to enter or remain outside the Immigration Rules must be granted under a further category ‘Leave Outside the Rules’ (LOTR).
The only two circumstances where it will be necessary to consider granting LOTR will be in mainly non-asylum and non-protection cases:
• where someone qualifies under one of the immigration policy concessions; or
• for reasons that are particularly compelling in circumstance.
The reasons for proposing to either grant or refuse LOTR should always be clearly minuted on the file. All proposed grants of LOTR should be referred to and agreed by a Senior Case Worker/Inspector.
2.2. Particular compelling circumstances:
There may be particular compelling circumstances where someone may request either limited or indefinite LOTR. Any such case should be considered on its individual merits and in line with any relevant policy at the time. Caseworkers/immigration officers should always first give full consideration to whether someone first qualifies under the provisions of the Immigration Rules, or the Humanitarian Protection and Discretionary Leave criteria or any relevant policy
It is not possible to give instances or examples of case-types that might be defined as ‘particular compelling circumstances’. However, grants of such LOTR should be rare, and only for genuinely compassionate and circumstantial reasons, or where it is deemed absolutely necessary to allow someone to enter/remain in the UK, when there is no other available option. Some specific policy instructions indicate that in certain circumstances leave should not be granted. In such cases, in order to ensure consistency, specific advice should be sought from the relevant policy unit before any LOTR is granted.’
It is submitted that the Applicant’s case merits the grant of leave outside the rules as set out in the IDI above. The applicany ask that this application is considered with reference to the relevant policies mentioned as well as the law under Article 8 of the European Convention of Human Rights (ECHR). The applicant and family also ask you to take account relevant case law which established the precedent tests on how to consider human rights applications and the welfare and best interests of a child. In our submission, where all other requirements of the immigration rules are met in general, a minor’s application should be considered sympathetically without any prejudice to their application being caused by the wrongdoing of the parent(s). It is submitted that Article 8(1) is clearly engaged on the facts of the client’s case. It is submitted that the Secretary of State is required, pursuant to Article 8(2) to justify interference with the Applicant’s article 8 rights and fundamental freedom.
It is submitted that as part of your duty you are compelled to consider the circumstances of our applicant. The Secretary of State is referred particularly to the case of LD Zimbabwe [2010] UKUT 278 (IAC) which states that:-
“The interests of minor children and their welfare are a primary consideration. A failure to treat them as such will violate Article 8(2)”
As such we wish to lay emphasis on the fact that the Secretary of State (and/or persons exercising any of her functions on her behalf) must adhere to the statutory obligation under s.55 Borders Citizenship and Immigration Act 2009 (BCIA 2009). Section 55(3) of BCIA 2009 imposes a statutory duty on the Secretary of State to have regard to the need to safeguard and promote the welfare of children who are in the UK with reference to the Statutory Code of Practice “Every Child Matters”. The Every Child Matters Code of Practice states at paragraph 1.7 that the UK Border Agency ‘must act in accordance with:
‘In the UN convention on the Rights of Child the best interests of the child will be a primary consideration (although not necessarily the only consideration) when making decisions affecting children’
As the decision of this application will undoubtedly affect a child in the UK you are compelled to adhere to the statutory requirement to consider what is in the best interests of a child. In the case of ZH (Tanzania) [2011] UKSC 4 it was held in Lady Hale’s leading judgment at paragraphs 26 and 33 that the best interests of a child is the starting point and therefore primary consideration to have regard to before turning to the countervailing considerations of a case especially where a decision will directly affect the child’s upbringing. This case also states at paragraph 33 and 44 that the best interests of the child should not be devalued by reference to a parent’s wrongdoing;
‘it would be wrong in principle to devalue what was in their best interests by something for which they could in no way be held to be responsible for’
Generally where a parent faces expulsion the best interest of a child in a broad sense is the well being of that child. Lady Hale has further stated in her judgment that this consideration includes the question of whether it would be reasonable to expect the child to live in another country having regard to;
‘the level of the child’s integration in the UK and the length of his or her absence from the other country where and with whom the child is to live and the arrangements for looking after the child in the other country; and the strength of the child’s relationships with parents or other family members which will be severed if the child has moved away’
The duty to safeguard and promote the welfare of a child also encompasses the duty to promote optimum life chances of the child as per TS v SSHD and Northamptonshire County Council [2010] EWHC 2614 (Admin) paragraph 29. This case also exemplifies statutory obligation on the Secretary of State and UKBA to have regard to the UN Convention on the Rights of a child as stipulated by the Every Child Matters Code of Practice. Further as per paragraph 148 in the case of R (Suppiah) v SSHD [2011] EWHC2 (Admin) it is submitted in order achieve proper application of s.55 BCIA 2009, compliance with the convention on rights of a child is required.
Article 24 of The Charter of Fundamental Rights of the European Union provides the rights of the child. These include;
1) Children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity’.
Is it submitted that the Applicant aged (mention age of child) has lived his/ her entire life within the UK. The Applicant is settled and well integrated within British society and culturally lives a very British lifestyle. It is submitted that making him/her leave the UK to return to home country would cause him/ her immense hardship and difficulty as he/ she cannot speak their country’s native language nor does he/ she have any proper understanding or ability to interact within the culture and way of life.
The Applicant’s has started attending mainstream school within the UK has settled in well, making new friends and participating in numerous extra-curricular activities. As you can appreciate it takes time for young children to make the transition from home to school. It would be very harsh on the Applicant to return to country of origin and undergo this process again after just starting school and making that transition. He/ She have integrated well into British society and is taking huge strides, at such a young age, being raised in British culture and society. The Applicant can expect a very high standard of education and support through the most crucial time periods of his life in the UK something that maybe jeopardized if he/she is forced to leave his/ her home life in the UK to go to his/ her parent’s country of origin. Depriving a young child of her right to education and the expectance of her future prospects is something which would be unjustifiable in most cases. Furthermore, if the Applicant has to return to country of origin, this can have a huge emotional and mental impact upon him/ her as he/ her will have to start his/ her entire life afresh and grasp a different culture and way of life that he currently has no proper knowledge of.
Article 24 of The Charter of Fundamental Rights of the European Union provides the rights of the child, further states:
‘ 2) In all actions relating to children, whether taken by public authorities or private institutions, the child best interests must be a primary consideration’.
It is clear without doubt that it is in the Applicant’s best interest to continue to reside in the United Kingdom. Having spent all his/her life in the UK he can identify himself as British whether technically true or not as he/she has been raised in this country like any other British citizen. Primary consideration should be given to the fact that he/she has only ever known life in UK and its culture as well as starting his education with prospective future aspirations in this country. Every child has dreams and aspirations of making something of their life. As stated above, a very compelling and exceptional counter-argument would be required to justify the return of the Applicant to home country. It is the Applicants firm belief that there is no such argument and a deprivation of her right to family life in the UK is not in his/her best interests.
In respect of Article 8 ECHR it is submitted that the SSHD has to act in a way which is compatible with a Convention rights, namely Article 8 ECHR in this case. The SSHD also has to act and consider matters from a balanced view point. There has to be a reasonable relationship between the objective which is sought to be achieved and the means used to that end.
This same issue was dealt with by the House of Lords. The starting point is the decision of the House of Lords in Razgar [2004] 2 AC 368 and the 5 stage test. In AG (Eritrea) v SSHD [2007] EWCA Civ 801 the Court of Appeal made it clear that the threshold for engagement of Article 8 is not an especially high one. The test of “insurmountable obstacles” from the case of Amjad Mahmood [2001] 1 WLR 840 is the wrong test. This was made clear in the House of Lords decisions in mid-2008, but also reiterated in paragraph 24 of the judgment of the Court of Appeal in VW(Uganda) & AB (Somalia) [2009] EWCA Civ 5. It was said by the Court of Appeal that it was hoped that the reliance on what was a misreading of Amjad Mahmood will stop. The SSHD’s argument appears to be that an in country Article 8 claim is not the proper way to litigate that person’s rights. The SSHD’s approach is wrong in law. Please see paragraph 44 of the judgment of House of Lords in Chikwamba [2008] UKHL 40 which said that it will only be comparatively rare, certainly in family cases involving children that an Article 8 should be dismissed on the basis that it would be proportionate and more appropriate to the appellant to apply for leave from abroad.
The right of a child must be taken into account. That is also clear from House of Lords authority. In Beoku-Betts v SSHD [2008] UKHL 39 (See in particular paragraphs 40 and 41), it is clear that any affected family member is to be regarded as a victim. EM (Lebanon) [2008] UKHL 64 reinforced the clear views of the House of Lords that the rights of the child should be considered separately from those of the mother. It is submitted that the errors of the parents should not fall on the shoulders of the children. The ills of the parents ought not to be visited upon the children. As such it is submitted that our client should not be disadvantage of denied leave due to her parent’s ill choices.
With respect to family life under Article 8 in Singh v ECO New Delhi (2004) at paragraph 63 of his judgment, Mr. Justice Mumby said:
“ Indeed, in contemporary Britain the family takes an almost infinite variety of forms. Many marry according to the rites of non-Christian faiths. There may be one, two, three or even more generations living together under thd same roof. Some people choose to live on their own. People live together as couples, married or not, and with partners who may not always be of the opposite gender. Children live in households where their parents may be married or unmarried. They may be children of polygamous marriages. They may be brought up by a single parent. Their parents may or may not be their natural parents. They siblings may be only half-siblings or step-siblings. Some children are brought up by two parents of the same gender. Some children are conceived by artificial donor insemination. Some are the result of surrogacy arrangements. The fact is that many adults and children, whether through choice or circumstances, live in families more or less removed from what until comparatively recently would have been recognised as the typical nuclear family.”
Of all these relationships he stated (paragraph 66)
“In principle I can see no reason why any of the various relationships I have just been describing- why any of the various forms of the family I have just been considering- should be disentitled to the protection of Article 8. On the face of it, in my judgment, all are examples or manifestations of ‘family life’ within the meaning of Article 8”
The Applicant relies upon the judgment of the House of Lords in Secretary of State v Huang & Kashmiri v Secretary of State [2007] UKHL 11 (21/03/2007) in which the House has noted that
“..the main importance of the case law (the Strasbourg jurisprudence) is in illuminating the core value which article 8 exists to protect. This is not, perhaps, hard to recognise. Human beings are social animals. They depend on others. Their family, or extended family, is the group on which many people most heavily depend, socially, emotionally and often financially. There comes a point at which, for some, prolonged and unavoidable separation from this group seriously inhibits their ability to live full and fulfilling lives. Matters such as the age, health and vulnerability of the applicant, the closeness and previous history of the family, the applicant's dependence on the financial and emotional support of the family, the prevailing cultural tradition and conditions in the country of origin and many other factors may all be relevant.”
It is submitted that the proportionality of the lack of respect / interference with the Applicant’s rights under Article 8 (1) must be considered, inter alia, by reference to the provisions of the immigration rule (although as the judgment in Huang makes clear it is incorrect to regard the rules as demonstrative of the extent of an individual’s private right). The point is (now) simply that the rules demonstrate what the Respondent himself regards the appropriate methodology of immigration control.
It is submitted that this extract from the Huang judgment (and the judgment in its entirety) demonstrates a substantial change of emphasis from that which had been required by the Court of Appeal’s judgment in the same case (Huang v Secretary of State for the Home Department [2005] EWCA Civ 105 (1-3-2005)). It is highly unlikely that in the light of the House of Lords’ judgment there is no lack of respect for family life consequent to a decision which has the effect of separating a family and of maintaining that separation.
In Samaroo (2001) EWCA Civ 1139 Dyson L.J. formulated that what is required is that the Secretary of State justify a derogation from a Convention right, and that the justification be "convincingly established": Barthold v Germany (1985) 7 EHRR 383, 403. In asking whether the justification has been convincingly established, the domestic court (as indeed the court in Strasbourg) should consider the matter in a realistic manner, and always keep in mind that the decision-maker is entitled to a significant margin of discretion. The Secretary of State must show that he has struck a fair balance between the individual's right to respect for family life and the prevention of crime and disorder. How much weight he gives to each factor will be the subject of careful scrutiny by the court. The court will interfere with the weight accorded by the decision-maker if, despite an allowance for the appropriate margin of discretion, it concludes that the weight accorded was unfair and unreasonable. In this respect, the level of scrutiny is undoubtedly more intense than it is when a decision is subject to review on traditional Wednesbury grounds, where the court usually refuses to examine the weight accorded by the decision-maker to the various relevant factors.
In the recent House of Lords judgment in the case of Beoku-Betts (FC) v Secretary of State for the Home Department (2008) UKHL 39 made on 25th June 2008, ‘the appellant submitted that the legislation allows, indeed requires, the appellate authorities, in determining whether the appellant's article 8 rights have been breached, to take into account the effect of his proposed removal upon all the members of his family unit. Together these members enjoy a single family life and whether or not the removal would interfere disproportionately with it has to be looked at by reference to the family unit as a whole and the impact of removal upon each member. If overall the removal would be disproportionate, all affected family members are to be regarded as victims. The Secretary of State on the other hand submitted that the wording of the legislation is clear and restrictive. Both section 65 of the 1999 Act and section 84 of the 2002 Act refer repeatedly to the appellant's human rights and to no one else's. The appellate authorities must decide whether his human rights would be breached, whether removal would be compatible with his Convention rights. The House of Lord unanimously held that there is only one family life, and that, assuming the appellant'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, section 65 seems comfortably to accommodate the wider construction.’
The law in relation to Article 8 is summarised by Sedley LJ in VW (Uganda) & AB (Somalia) (2009) EWCA Civ 5 Sedley LJ said that in EB (Kosovo) v Secretary of State for the Home Department [2008] 3 WLR 178 Lord Bingham of Cornhill had said, with regard to a claim that deportation would violate art 8, that it would rarely be proportionate to uphold an order for removal of a spouse if there were a close and genuine bond with the other spouse and that spouse could not reasonably be expected to follow the removed spouse to the country of removal, or if the effect of the order were to sever a genuine and subsisting relationship between parent and child. As the tribunal had held in the first appeal, if removal were to be held disproportionate it was necessary to show more than mere hardship, mere difficulty or mere obstacle. There was a seriousness test which required obstacles or difficulties to go beyond matters of choice or inconvenience.
The question in any one case would be whether the hardship consequent on removal would go far enough beyond that baseline to make removal a disproportionate use of lawful immigration controls, which in turn would depend, inter alia, on the severity of the interference with private and family life. The immigration judge’s decision in the first appeal had been profoundly flawed and had contained no adequate reasoning to support a finding that it was reasonable to expect the whole family to go with the applicant to Uganda. It was incontestably unreasonable to expect the child’s father, who had no connection with Uganda, to go and live there as the price of keeping his family intact. The predictable reality was that if the applicant were deported he would stay. There was no reason to reject the social worker’s view that if that happened the child would be separated from her mother in her own interests, but with possibly damaging consequences for her development, and grief for her mother.
Whatever resolutions were arrived at it would not be in the child’s best interests. The enforced break-up was not justified by the legitimate demands of immigration control. The applicant was a failed asylum-seeker but no more; her partner was her child’s father and joint carer and this country was his home. Above all consideration was owed to the child who was a British citizen and would be the principal sufferer if her mother were removed. There was only one right answer. In the second appeal the immigration judge had not been persuaded by the evidence that there were insurmountable obstacles or serious difficulties to the applicant, sponsor, and their family establishing a family life in Ethiopia or Somalia, or that the applicant had shown that there would be anything more than a degree of hardship in establishing family life in either country. That finding did not depend or turn on an insurmountable obstacle test. If there had been an insurmountable obstacle to the sponsor’s rejoining the applicant and their children in Ethiopia the appeal under article 8 would presumably have been allowed. If there had been serious difficulties there would have been a difficult balance to be struck. But since, as the immigration judge had affirmatively found, there would be no more than “a degree of hardship” in establishing family life in either Ethiopia or Somalia that would necessarily have been a humanitarian claim which did not outweigh the requirements of lawful immigration control.
The Applicant qualifies for leave to remain for the reasons set out above. Clearly, the applicant’s removal from the UK would engage the UK’s obligations under Article 8 of the ECHR. It is submitted that a refusal to grant our client leave to remain cannot be justified by claiming that it would be necessary in order to maintain an effective immigration control. State interference impacting on our client’s right to enjoyment of private and family life within the UK, would not be proportionate to his rights arising from the ECHR.
In conclusion it is clear that the Applicant’s private and family life will be severally disrupted to her detriment. We invite the Secretary of State to consider this application sympathetically and grant the Applicant and his family, leave to remain in the UK.
In the event that the SSHD does not grant our client leave to remain, we would request that he be served with a “Notice of Immigration Decision” pursuant to section 82(1) of the Nationality, Immigration and Asylum Act 2002 which would afford him and his dependent’s an right of appeal and it would be the most logical and sensible approach to have this case decided before an Immigration Judge as opposed to refusing the case and again referring it to the LEO who appear both complacent and are delaying serving a removal, which is causing further extreme inconvenience and stress for the Applicant and his family member’s.
Should you require any further information or assistance on this matter please do not hesitate to contact us.
Yours faithfully,
[u][/u][/quote]
@ Hatchsead. Thank you very much for that very informative piece. I will almost certainly nick some caseloads from there!
totally wrong and out of character for me..... Mmmm but they are now my new favourites Jacobs coffee snaps!!!!
