Our immigration team at Muldoon Britton were recently successful in two appeals at the First-tier Immigration Tribunal in relation to a leave to remain in the UK refusal, and an entry clearance refusal by an Entry Clearance Officer.

Both appellants instructed Muldoon Britton for their appeals.

Leave to remain in the UK appeal

Background of the appeal

Our client (‘the Appellant’) appealed against the Home Office’s decision to refuse her application for leave to remain in the UK with her British spouse

Although the Home Office accepted that the Appellant and her spouse were in a genuine and subsisting relationship, the Appellant’s Further Leave to Remain: Family and Private Life (‘FLR FP’) application was refused due to the Appellant’s adverse immigration history, i.e. being an overstayer in the UK since 2004, and for failing to meet the requirements of the Immigration Rules.

Our immigration lawyers mitigated at the appeal that both Appellant and her spouse are elderly, and suffer from numerous medical problems.

Legal arguments

Our immigration lawyers argued that due to the age of the Appellant and her spouse, the length of time the Appellant  has spent in the UK with her spouse, and in particular the British spouse’s physical and mental medical issues, it would not be practical for the Appellant to relocate to Namibia with the British spouse, or to return to Namibia alone simply to make an entry clearance application.

Our lawyers further argued that the separation, even if for a few months, would cause ‘very significant obstacles’ for not only for the Appellant, but also to her spouse due to the physical and emotional support he requires on a daily basis.

It was also explained to the Immigration Judge that due to the length of time that the Appellant  has been away from Namibia, not only would she not have a place to live in Namibia but her spouse would find it extremely difficult to adapt to a new life in Namibia, especially at his age, and with particular regard to his severe physical and mental problems.

Immigration Judge’s decision

The Immigration Judge accepted our legal arguments in accordance with both the Immigration Rules and Article 8 – Right to a Private and Family Life under the European Convention on Human Rights. The Immigration Judge concluded that the Appellant’s spouse would face ‘very significant difficulties if he was to relocate to Namibia’.

The Immigration Judge also determined that it would be very likely that the Appellant’s spouse would be housebound in Namibia, and at his age, he would also find it very difficult to learn a new language and adapt to life in a country he has never visited before.

In conclusion, the Immigration Judge stated that she, “found there is no public interest in the Appellant’s removal given the Rules are designed to meet the public interest, and I therefore consider that the Appellant meets EX.1.1 Article 8 – right to a private and family life”.

The Immigration Judge allowed the appeal, and the Home Office did apply for permission to appeal to the Upper Tribunal, thus accepting the decision and issuing the visa

Entry Clearance to the UK appeal

Background of the appeal

Our client (‘the Appellant’) appealed against the Entry Clearance Officer’s (‘ECO’) decision to refuse her entry clearance to enter and settle in the UK as a dependent child of her father (‘the Sponsor’) who has Indefinite Leave to Remain (’ILR’) in the UK.

The Appellant’s entry clearance application was refused on the basis that that the Sponsor did not have ‘sole responsibility’ for the Appellant and had only made the application to ‘facilitate’ the Appellant’s entry to the UK.

It was explained at the appeal that the Sponsor had maintained ‘sole responsibility’ of the Appellant since her biological mother decided to relinquish her rights and responsibility as a parent in January 2016. Subsequently, the Sponsor was also granted sole legal custody of the Appellant by a family court in 2017.

Legal arguments

Our immigration lawyers raised the following legal arguments:

• The Appellant satisfied all the requirements of the immigration rules for entry clearance as a child of a settled person in the UK;
• Refusing the Appellant’s appeal is a breach of Article 8 – right to family and private life;
• The issue of determining ‘Sole Responsibility’ in accordance with the case of TD (Paragraph 297(i)(e): “sole responsibility”) Yemen [2006] UKAIT 00049]; and
• The issue in relation to the child’s “best interest” in accordance with Section 55 of the Borders, Citizenship and Immigration Act 2009.

Immigration Judge’s decision

The Immigration Judge accepted our legal arguments within the Immigration Rules and also in accordance with the relevant case of TD Yemen [2006] when determining ‘sole responsibility’.

The Immigration Judge stated in his determination that the case of TD Yemen and sole responsibility is based on a ‘factual matter’.

Given that the Sponsor had obtained sole custody of the Appellant, made frequent trips to South America to visit the Appellant, and also provided substantial financial support to the Appellant, the Sponsor satisfied the criteria of ‘sole responsibility’ as stated in the case of TD.

This was also further established by documentary evidence which confirmed that not only did the Sponsor provide financial support, but he also made all the key decisions in relation to the Appellant’s schooling and medical treatment.

The Immigration Judge allowed the appeal.