Kandamaya11 wrote: ↑Sun Feb 18, 2018 5:21 am
@minhas23. We received final decision in post 7 days after hearing.
In court, home office presenting officer conceded to our approach as stated in our bundle that child was qualifying child 276ADE (iv), that we are not liable to deportation and as such public interest does not require our removal because we have a genuine and subsisting parental relationship with a qualifying child, and it would not be reasonable to expect the child to leave the United Kingdom. Section 117 (6) B.
Meaning the only exercise the judge needed to conduct is the REASONABLE TEST.
@Nikki06
In addition to the experience I have shared here, the question the judge will ask himself or herself is the "Reasonable Test": Narrow approach: This approach has been rejected in court( Here Focus is only on child). NOT TO BE USED.
Wider Approach: ( This is what the Judge will use). The wider construction approach of the Secretary of State meant that the stronger the public interest in removing the parents, the more reasonable it will be to expect the child to leave. ( Here focus is on both parent,their immigration history, criminal record and child). This is where Section 117 (6) B favours appellant as long as you have no criminal record.
The Court of Appeal applied the wider approach to the reasonable test, however it is surprising that they did so by reliance upon the case of MM (Uganda) v Secretary of State for the Home Department [2016] EWCA Civ 450, having acknowledged as they did at paragraph 32 of their judgement that at the time of the hearing in MA (Pakistan) there was no report of the case in MM, merely a brief summary. However, regardless of the reliance upon MM, there was in any case the pre-existing principles set out in the cases of EV (Philippines) v Secretary of State for the Home Department [2014] EWCA Civ 874 and Zoumbas v Secretary of State for the Home Department [2013] 1 WLR 3690 to pick up from.
The Court of Appeal seemed somewhat reluctant to reject the narrow approach without giving it some due balanced considerations. The Court opined at paragraph 36 of their judgement that looking at section 117B(6) free from authority, they would favour the argument of the appellants. It was noted that the focus on paragraph (b) of section 117B(6) is solely on the child and the Court could see no justification for reading the concept of reasonableness so as to include a consideration of the conduct and immigration history of the parents as part of an overall analysis of the public interest. It was put forward by the Court of Appeal that in an appropriate case the Secretary of State could render someone liable to deportation, and thereby render him ineligible to rely on this provision, by certifying that his or her presence would not be conducive to the public good
"Razgar Test":
would someone's removal from the UK be an interference with their private or family life;
would this interference engage the operation of Article 8;
would the interference (removing the person from the UK) be in accordance with the law;
would the interference comply with the legitimate aim of a democratic society;
and would such an interference be proportionate to the legitimate public end sought to be achieved by the public authority (the Home Office)?
Generally,Home office has the right to interfere with your private life and the interference is in accordance with the law (unless the Home Office hasn't followed its own policies, and is attempting an unlawful removal etc). The interference does comply with a legitimate aim – it has been accepted in law that maintaining effective immigration control is a legitimate aim. The Home Office may concede that they are breaching your Article 8 rights, but say that it is a proportionate breach when considering the other factors, and that your grounds to stay don't outweigh the government's need to pursue its legitimate aim.
"Proportionality Test": Here your grounds of stay must outweigh the need for home office to remove you.
Factors that count against you in these arguments are things like poor immigration history and criminal convictions. Most times, based on successful appeal records poor immigration history don't tip the balance in favour of home office as long as you have no criminal records. This is where Zoumbas case law comes into play. ( Not punishing the child for the sins of the parents - as regards poor immigration history)
Factors that could be in your favour are, ability to speak English, family in the UK (particularly British children), lack of connection to your country of origin, length of time in the UK and community connections, and some medical and mental health needs.
N.B:
Address the factors that could be in your favour as mentioned above, good to provide evidence.
Most importantly, go to tribunals decision website THOSE MARKED WITH HU/XXXX/YEAR read decisions on appeals to the upper tribunal--SUCCESSFUL Human right cases relating to 7 year rule appeals. Here you will learn how Judges arrive at their decisions. It will help you prepare and present your case properly, avoiding errors.
Good Luck.
I'm not a lawyer and have no legal background or education.
Only sharing my experience.
This is not a professional guide .
