Post
by shareen24h » Thu Sep 12, 2013 12:13 pm
[quote="nilemarques"][quote="Shondra Sharma"]If it sounds too good to be true, it probably is.” I was optimistic last year at the apparent reintroduction of the 7-year rule. This followed the caselaw which in turn had followed the old policy of DP/5/96, which said that where a child had lived in the UK for seven years, it would not usually be reasonable to expect them to leave.
However, the reality of the situation has turned out to be less than ideal. The EX.1 part of Appendix FM is only applicable to those who also meet certain specified parts of the Immigration Rules – so, for example, UKBA are currently refusing applications where the applicant does not have ‘sole responsibility’ for the child and therefore cannot meet E-LTRPT.2.3 of Appendix FM which states that:
E-LTRPT.2.3. Either-
(a) the applicant must have sole parental responsibility for the child or the child normally lives with the applicant and not their other parent (who is a British Citizen or settled in the UK); or
(b) the parent or carer with whom the child normally lives must be-
(i) a British Citizen in the UK or settled in the UK;
(ii) not the partner of the applicant (which here includes a person who has been in a relationship with the applicant for less than two years prior to the date of application); and
(iii) the applicant must not be eligible to apply for leave to remain as a partner under this Appendix.
Essentially, the interpretation of EX.1 being applied by UKBA excludes married or partnered parents from the policy. This seems like insanity: given that the rule is, according to UKBA’s own guidance, in existence in order to ensure that the rights of the child are respected, what does the marital status of their parents have to do with it? Are UKBA seriously suggesting that parents who apply jointly are excluded, thus encouraging them to divorce in order to ensure their child gets to continue in education?
The application of the rule seems to fly in the face of the purpose of it and also the guidance. Such decisions may also contravene Article 8 ECHR as applied outside Appendix FM. The only way to challenge is usually via judicial review. Needless to say, I’ve spent much of the last fortnight writing judicial reviews on this point.
Because of that our 7 year child application refused. Could you elaborate please?[/quote]
@ Shondra. What the HO are are doing is unlawful. They are only considering the parents application under 276ADE but are not even considering the children under 276ADE (iv) as far as I can understand from my refusal. They didn't even attempt to consider. I have written a reconsideration letter stating the obvious and hope to have them refuse my children under that context. In the meantime I am pushing for a removal decision.[/quote]
Hi Nile
As you are pushing a removal decision. If they issue removal decision what should be outcome or next step. if you don`t mind Please explain.