court of appeal (consent order)

[chelseale]

Hello everyone . is anyone out there going thought the same as me please help me, iam sorry that i cant said more because English not that good, sorry about long post. just want to know what is my chance is?


SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent


___CONSENT ORDER_______________



UPON the Court having regard to the requirements of paragraphs 6.4 and 6.5 of Practice Direction 52A;

AND UPON the parties hereto confirming that one of the Appellants in these proceedings is a child;

AND UPON the Court having considered the opinion dated 18 May 2016 from the advocate acting on behalf of the child;

AND UPON all the parties hereto requesting that the Court allow this appeal by consent and without determining the merits of the appeal for the reasons set out in the attached Statement of Reasons;
__________________

AND UPON the Court, having considered the Statement of Reasons, being satisfied that there are good and sufficient reasons to allow the appeal without determining the merits;

IT IS ORDERED BY CONSENT –

1. the appeal shall be allowed;

2. the decision of the Upper Tribunal (Immigration and Asylum Chamber) promulgated on 11 March 2015 is quashed;

3. the determination of the First-tier Tribunal (Immigration and Asylum Chamber) promulgated on 5 September 2014 is quashed;

4. the appeal shall be remitted to the First-tier Tribunal (Immigration and Asylum Chamber) for a fresh determination of the Appellants’ appeals against the Respondent’s decisions 2 May 2013 refusing their applications for entry clearance; and

5. the Respondent do pay the Appellants’ reasonable costs, to be assessed if not agreed.



Signed .................................................. Date .....................................
Solicitor for the Appellant

Signed ................................................. Date ....................................
Solicitor for the Respondent

STATEMENT OF REASONS

1. The Appellants are two Vietnamese nationals born in 1996 and 2000. On 8 November 2012, when both were still minors, they applied to the Entry Clearance Officer (“ECO”) in Vietnam for entry clearance under paragraph 301 of the Immigration Rules, to join their mother in the UK. Their mother had entered the UK illegally in 2005, and married a British citizen and gave birth to a daughter by her new husband in 2011. She subsequently took steps to regularise her immigration status, and in April 2013 she was granted limited leave to remain as a spouse until 2015.
2. Paragraph 301 of the Immigration Rules, as in force at the time of the ECO’s decisions in this case, stated as follows:
301. The requirements to be met by a person seeking limited leave to enter or remain in the United Kingdom with a view to settlement as the child of a parent or parents given limited leave to enter or remain in the United Kingdom with a view to settlement are that he:
(i) is seeking leave to enter to accompany or join or remain with a parent or parents in one of the following circumstances:
(a) one parent is present and settled in the United Kingdom or being admitted on the same occasion for settlement and the other parent is being or has been given limited leave to enter or remain in the United Kingdom with a view to settlement; or
(b) one parent is being or has been given limited leave to enter or remain in the United Kingdom with a view to settlement and has had sole responsibility for the child's upbringing; or
(c) one parent is being or has been given limited leave to enter or remain in the United Kingdom with a view to settlement and there are serious and compelling family or other considerations which make exclusion of the child undesirable and suitable arrangements have been made for the child's care; and
(ii) is under the age of 18; and
(iii) is not leading an independent life, is unmarried and is not a civil partner, and has not formed an independent family unit; and
(iv) can, and will, be accommodated adequately without recourse to public funds, in accommodation which the parent or parents own or occupy exclusively; and
(iva) can, and will, be maintained adequately by the parent or parents without recourse to public funds; and
(ivb) does not qualify for limited leave to enter as a child of a parent or parents given limited leave to enter or remain as a refugee or beneficiary of humanitarian protection under paragraph 319R; and
(v) (where an application is made for limited leave to remain with a view to settlement) has limited leave to enter or remain in the United Kingdom; and
(vi) if seeking leave to enter, holds a valid United Kingdom entry clearance for entry in this capacity or, if seeking leave to remain, was admitted with a valid United Kingdom entry clearance for entry in this capacity.

3. In decisions dated 2 May 2013, the ECO refused the Appellants’ applications for entry clearance, for three reasons.
i) The ECO found that the Appellants did not satisfy paragraph 301(i)(b) of the Immigration Rules, on the ground that their grandmother in Vietnam had shared responsibility for their upbringing.
ii) The ECO found that the Appellants did not satisfy the “serious and compelling considerations” requirement of paragraph 301(i)(c) of the Immigration Rules, on the ground that their mother could have been expected to have acted sooner to bring them to the UK if they were living in serious and compelling circumstances, and given that they were in Vietnam in full time education living in the home of close family members with access to all modern amenities.
iii) The ECO found that the Appellants did not satisfy paragraph 301(iv) of the Immigration Rules because their stepfather in the UK with whom they proposed to live had been convicted of 15 criminal offences, because their mother had agreed to house Vietnamese students in the UK, and because the ECO was not satisfied that that their mother had given a genuine account of her circumstances.
4. The Appellants appealed against the refusals of entry clearance to the First-tier Tribunal (Immigration and Asylum Chamber) (“FTT”). In a determination promulgated on 5 September 2014, the FTT refused their appeals, for the following reasons.
i) The FTT found that the Appellants did not satisfy paragraph 301(i)(b) of the Immigration Rules, on the ground that their grandmother in Vietnam had at least shared responsibility for their upbringing.
ii) The FTT found that the Appellants did not satisfy the “serious and compelling considerations” requirement of paragraph 301(i)(c) of the Immigration Rules, on the ground that there were stable arrangements for them in Vietnam (see especially at [18]).
iii) The FTT found that the Appellants did not satisfy the “suitable arrangements requirement” of paragraph 301(i)(c) and/or the “accommodated adequately” requirement of paragraph 301(iv) of the Immigration Rules, because the FTT did not believe that their stepfather in the UK with whom they proposed to live (who they did not know and had never seen) had ceased to take class A drugs, and there was no evidence that his convictions were spent (see especially at [18]).
iv) The FTT found that refusal of entry clearance would not be contrary to Article 8 ECHR.
5. The Appellants appealed to the UT against the decision of the FTT. In a decision dated 19 November 2014, the UT refused the appeals, for the following reasons.
i) The UT found that there was no error of law in the FTT’s finding referred to in paragraph 4(i) above.
ii) The UT found that there was no error of law in the FTT’s finding referred to in paragraph 4(ii) above.
iii) However, the UT did not address the issue of adequacy of accommodation in the UK (see at [8] and [10]).
6. The Appellants now appeal to the Court of Appeal against the decision of the UT. There are two ground of appeal, directed at the UT’s findings referred to at paragraph 5(i) and (ii) above respectively.
7. The Respondent accepts that the determination of the UT was inadequately reasoned in a number of respects, including the following:
i) The FTT mistakenly believed that the Appellants’ mother had delayed in making an entry clearance for the Appellants after she had obtained leave to remain in the UK. The UT found at [36]-[37] that this was not a material error in the FTT decision. The Respondent accepts that this was a material error in the determination of the FTT. The Respondent does not concede that the conclusion of the FTT would have been different but for this error, but accepts that the conclusion of the FTT might have been different but for this error.
ii) The UT at [34] said that the FTT had (in the FTT determination at [20]) impliedly decided that it was not in the Appellants’ best interests to be with their mother because she had abandoned them to go to the UK. The FTT determination at [20] in fact said that the Appellants’ mother did not consider that it would be in the Appellants’ best interests to be with her. The Respondent accepts that the mother’s view as to the children’s best interests is not determinative of the children’s best interests. Furthermore, the FTT’s conclusion in relation to the mother’s view may have been influenced by the error referred to at paragraph 7(i) above. Again, the Respondent accepts that the conclusion of the FTT might have been different but for this error.
8. The parties agree that in the circumstances, the appropriate course would be to quash both the determinations of the UT and the FTT, and to remit the case to the First-tier Tribunal (Immigration and Asylum Chamber) for a fresh determination of the Appellants’ appeals against the Respondent’s decisions refusing the Appellants’ applications for entry clearance.


Yes in the past Iam being little stupid , seen i meet my wife i has turn life around i have my own shop and i just bought my own home, I have 5 year old daughter she living with us, in the past iam not a angle at the last ten year i has change . all i want is a family, can you all please let me know what is my chance is, many thanks

Kind regard

[member]

Are you the children's mother or father?

[chelseale]

Yes Iam the children stepfather. Me and my wife try to bring the children to live with us here. What do you things of the case? anyone can help us please

[chelseale]

Is anyone there just need to know what the out come of this case is, and what is my chance is?

100 view no reply Thank you