Human Rights Applications

Discretionary Leave To Remain Applications Outside the Immigration Rules and Under the Human Rights and Private Life.

Many immigrants are living in the UK without their immigration status, but is this really their fault when they entered legally and tried their best to regularise their status at their best?

Lets, look into the background of their immigration history and hardships they have bee going through before I can move onto the solution and process as to how to apply for their long residence application even if they have had the break into their immigration history.

It has been 10 years or more since you have entered into the UK as a student or in an other category of UK Immigration. You have been enrolled in  the colleges but your colleges revoked and so your CAS letters even if you have paid enough colleges fee to study and have better future. You have trying to get your status regularised but you had no luck.  In this struggle, your beloved family members may have died, your other family members may have moved out your life in your back home country and you may have gone through hell of physical and mental conditions due to financial stress, family stress and emotional stress.

Your Human rights may have been breached under Article 8, Article 3 and Article 14 -due to poor life style and discriminative treatment and you may have been deprived from the medical treatment, and suitable housing.

Sometime, even if you have submitted the application but it has been pending for years and years and you did not hear back from the Home Office. Sometimes, you may have appealed the decision and you did not get the right support and advice from your lawyer or it was too expensive to afford a lawyer and your case was deteriorated.

Some time, your circumstances changed and your granted leave was curtailed by the Home Office and you were left in nightmare immigration process where even if you paid to your colleges, you paid your lawyers and the court fee but you did not get justice. You may have been submitting from applications to applications within the time but your lawyer did not submit the right applications.

Now you are left in miserable crisis, serious hardships, irreparable suffering with the losses by not visiting your family for years and years, and by not having the right of work and accommodation to live at.  You are forced to do underpaid wages and have been living at inhabitable accommodation without dignity and respect.

But who cares, you do not have the option of legal aid like the other groups of community do, you do not have access to justice fairly, and you do not have any supportive or counselling platform where you can get support from. The question is where are the Human Rights of these immigrants who entered legally, who never intended to breach any immigration policy or law, who has ben paying off College’s fee, Home Office application fee and Court Fee but still did not get any immigration status?

Now if you want to submit your application upon the above basis, you will need to submit your application upon Human rights grounds as this is your time to regularised under the Human Rights if not under the immigration rules,

Here are the steps that you will need to take before you can give any further instructions for this type of application.

1. Prepare your chronology with all important and relevant events since you have entered into the UK,
2. Prepare your two pages short statement directly relevant to your previous immigration applications, appeals and their outcomes in separate paragraphs,
3. Get together your other compelling evidence such as your back home circumstances, your family circumstances if any of your parents passed away, their death certificates, the affidavits from your family members from your country who are not willing to support you, and your medical reports, prescriptions, and GP or Counselling letters, (Make sure all the letters are typed, translated and stamped, and are in PDF format).
4. Your 10 years living proof such as visa stamps, passport copies, refusals, and decisions, proof of work, proof of achievements any college letter, or other activities letter to prove your private life in the UK,
5. Your photographs of healthy activities, and other supportive evidence such college letters, or professional institutions letter where you have been learning even the short courses voluntarily.
6. Letter from your previous employers about your character, commitments, and hobbies.

Remember, when you apply under the Human Rights, this also means your private life under the Article 8 in the UK, therefore the burden of proof is upon you to prove your circumstances by being honest, focused to your case, and precise because no body wants to waste their time by unnecessary consideration of documents which are not directly relevant to your case outcome, which can help them to decide in your favour by using their discretionary powers.  Many people make a mistake by enclosing unnecessary documents which are not relevant to your case and this make the Home Office and other professional lawyers confused about your circumstances and you do not achieve your desired outcomes.

Here are some of the grounds scenario, however you should seek specific professional advice before submitting your application to the Home Office as this will be just general idea of legal grounds:

A) Legal Grounds under Private Life:

“The refusal of the visa has resulted in the Appellant’s private life prejudiced in a manner sufficiently serious as to amount to a breach of fundamental rights protected by Article 8. Under the European Convention on Human Rights, the Appellant has the right to private life; he cannot be denied this right as he has every right to enjoy his private life in the United Kingdom”.

Or

 “The Respondent is required to exercise its discretion under the principle of proportionality as Human Rights Act breaches are involved. In general terms, the concept of proportionality requires a balancing exercise between, on the one hand, the general interests of the community and the legitimate aims of the state and, on the other, the protection of the individual’s rights and interests. The relevant rights are the rights to a private and/or family life under Article 8 of the European Convention on Human Rights as enacted in English law under the Human Rights Act 1998 (“HRA”). There is interference in the Appellant’s private life. In the premises, the Respondent is acting unlawfully. Further or alternatively, the Respondent’s discretion should have been exercised differently. Further or alternatively, the Respondent has failed to make any or adequate enquiries which could lead it to conduct a test of proportionality in relation to the Appellant’s Article 8 rights.”

 B) Legal Grounds under Family Life:

Whether or not there are “insurmountable obstacles” to family life relocation is not determinative of the Article 8 ECHR proportionality assessment. The Respondent did not properly do that assessment because the Respondent had short-circuited the process by irrationally refusing to accept that there was family life in the first instance on the pretext that they are not living together. The Appellant was claiming to have a British fiancé, had been in the UK for 14 years and had provided a range of supporting written material relating to this private life.

C) Grounds of negligence from the Home Office

“The Appellant has submitted a Psychiatric report, but the Respondent has not bothered to look at it all and allege that it was mentioned by the representative, but it was not the case. In this regard it is submitted that the Appellant himself went to the biometric centre and the caseworker took the report from him and uploaded it in support of the Appellant’s application. It is very surprising the Respondent ignored such an important piece of evidence. Alternatively, if they could not see in the papers, they should have asked for it before refusing the application. In short, the Respondent has not properly considered all the materials submitted with the application”.

OR

“The decision is unlawful because it is incompatible with Appellant’s rights under the European Convention on Human Rights. The Appellant wants to stay in the UK, and it will be unjust to deprive him at this stage from his basic right of free movement. The refusal of the visa has resulted in the Appellant’s private life prejudiced in a manner sufficiently serious as to amount to a breach of fundamental rights protected by Article 8. Under the European Convention on Human Rights, the Appellant has the right to private life; he cannot be denied this right as he has every right to enjoy his private life in the United Kingdom”.

D) Outside the Immigration Rules Grounds

Under the case Law and Article 8 rights, as per Syed and Patel [2011] EWCA Civ. 1059 at [35]:

“In exercising her powers, whether within or outside the rules of practice, the Secretary of State must have regard and give effect to applicants’ convention rights ….The immigrant’s Article 8 rights will be (must be) protected by the Secretary of State and the court, whether or not that is done through the medium of the Immigration Rules”

E) Under the discretionary powers of the Home Office

That the Appellant has been fulfilling the immigration rules and Human Rights under Article 8. Therefore discretionary leave to remain in the United Kingdom should be considered appropriate and in this case any removal from the UK will amount the applicant to sheer breach of UK’s obligations under ECHR. Therefore, the applicant  relies on his application on the basis of Discretionary Powers of Secretary of the State outside the Immigration Rules under Article 3, 5, 8 & 14 of Human Rights Act 1998.

Further Reading relevant

Appendix FM under paragraph 276 ADE(1)(i) of the Immigration Rules.

 

If you want to get full list of documents that you will need to enclose with your private life application, you can go on www.shaziaanjum.com/humanrights

Any further help, send your short question on 00447870959175 (Whats App) and Barrister Shazia Anjum will reply to your question personally.

You can also become the part of our immigrant’s community to learn more and get support by joining us on www.facebook.com/familyvisauk