Home Offices Decision To Refuse Entry Clearance Found To Be Unlawful
Mr B was an Indian national and married to Mrs X, a British citizen born in the UK.
Mr B initially arrived in the UK in 2009, having been granted a Tier 4 Student Visa, valid from 31 October 2009 to 28 January 2011, to study in the United Kingdom. After the expiry of his Student Visa in 2011, he became an overstayer.
In September 2017, Mr B was encountered by immigration officers who allege he had been working illegally in a fish and chip shop. After that, Mr B was detained and interviewed. In September 2017, Mr B submitted a human rights application based on Article 8 of the European Convention on Human Rights, which was refused by the Home Office.
Subsequently, in March 2018, Mr B applied for Leave to Remain under family and private life route being the spouse of a British citizen. However, his application was rejected because he didn’t pay the fee. Mr B then lodged Judicial Review proceedings, which were subsequently dismissed.
In June 2018, Mr B made an application under family and private life, which was rejected as again, he failed to pay the fee. Mr B then lodged further Judicial Review proceedings, which were dismissed. In October 2018, Mr B applied for Further Leave to Remain under the family and private life route, which was rejected because Mr B failed to pay the fee. Thereafter, Mr B sought legal advice from different representatives, who advised him to leave the UK and apply for entry-clearance.
Following the advice, Mr B voluntarily left the UK in April 2019. On 17 May 2019, he made an application for Entry-Clearance under Appendix FM based on his relationship with his wife, a British citizen living in the UK.
On 01 July 2019, his application for entry-clearance as a spouse was refused by the Home Office. The primary reason for refusal was that the Home Office concluded that Mr B did not meet the suitability requirements for entry clearance as a partner because his character and conduct made it undesirable to issue him entry clearance. The Home Office also refused to exercise discretion in Mr B’s favour.
The Home Office alleged that Mr B had previously used deception in an application for Leave to Remain in the UK and because he was working illegally during his period of overstaying and he allegedly admitted this to immigration officers. The Home Office also stated that he made frivolous applications to frustrate immigration rules. However, the Home Office did accept that Mr B met the eligibility requirements for entry clearance as a partner.
How A Y & J helped
We were approached by Mr B to prepare and submit an appeal against the refusal decision. The decision was not as per Mr B’s right to family and private life under Article 8 of the ECHR. Mr B informed us that he had never stated that he had been working illegally and there was no evidence to the contrary. Besides, he had not made frivolous applications; all of his visa applications and applications for Judicial Review were made upon his previous lawyer’s advice, and they submitted the applications on his behalf.
We drafted grounds of appeal, setting out why the Home Office decision was unlawful and not in accordance with the Immigration Rules and Mr B’s rights under Article 8. We also appealed within the deadline.
We advised Mr B and his wife of all the relevant documentary evidence required to support the appeal. We then prepared witness statements and three paginated appeal bundles, comprising of evidence of the relationship between Mr B and his wife and the family and private life he had established in the UK. We then submitted the bundles to the relevant departments.
We instructed an experienced barrister to attend the hearing on behalf of Mr B and represent him in the First-tier Tribunal.
A few weeks after the hearing at the First-tier Tribunal, we received determination confirming that the appeal had been allowed. We had successfully rebutted the Home Office’s grounds for refusal.