Refusal of FLR(m) Application

10th November 2010

We contacted Tyndallwoods Solicitors. Located in the McLaren Building in Birmingham.  (In hindsight I believe that this firm was useless).  We could of taken the refusal to Judicial Review, but they refused to do so.

Anyway, we (on the advice of Tyndallwoods) submitted a Human Rights application for an unmarried partner using form FLR(m).  On research the application should of infact been an FLR(o) on the basis of our child.
Below I quote the response from UKBA:
Your application has been refused for the reasons set out in the enclosed notices. Please ensure that these are passed to your client immediately.
Your application has been considered under the provisions of article 8 of the European Convention of Human Rights (ECHR). Although Article 8 of the ECHR provides the right to respect for private and family life, you should be aware that this does not constitute an absolute right. Article 8(2) permits the contracting state to interfere with the enjoyment of rights under this article provided that certain conditions are satisfied. Not every removal will amount to an “interference” with the right to respect for private and family life and the ECHR does not provide foreign nationals with the right to enter or remain in a particular country.
The operation of Article 8 in this case must be viewed in light of the United Kingdoms right to control the entry of foreign nationals into its territory and the necessity of fair and consistent immigration control as a legitimate public policy aim.
The House of Lords decision in Huang |20()7§ UKHL 11 has been considered.
In the case of Huang at paragraph 20, the House of Lords held that the ultimate question for the immigration appellate authority (and therefore the Secretary of State), when considering the judgment on proportionality in a decision involving a Convention question is: “whether the refusal of leave to enter or remain, in circumstances where the life of the family cannot reasonably be expected to be enjoyed elsewhere, taking full account of all considerations weighing in favour of the refusal, prejudices the family life of the applicant in a manner sufficiently serious to amount to a breach of the fundamental right protected by Article 8”.
The House of Lords decision in R v SSHD, Razgar KZGMJUKHL 27 has been considered.
In the case of Razgar it was not purporting to lay down a legal test but was expressing an expectation that the number of claiinants not covered by the Rules but entitled to succeed under Article 8 Would be a very small minority.

The issue of proportionality is to be assessed on the basis of all the relevant factors, balancing the rights of the individual on the one hand, and the rights of the wider community and the state on the other. However, the case law shows that the threshold for finding that a decision to remove is disproportionate is very high

In Razgar the House of Lords considered the circumstances in which removal in accordance with UK law could be rendered unlawful by reference to Article 8 ECHR.

At paragraph 20, Lord Bingham referred to the Immigration Appeal Tribunal determination in the case of Kacaj at paragraph 25: “although the [Convention] rights may be engaged, legitimate immigration control will almost certainly mean that derogation from the rights will be proper and will not be disproportionate”.

Lord Bingham further observed: “In the present case, the Court of Appeal had no doubt (paragraph 26 of its judgement) that this overstated the position. I respectfully consider the element of overstatements to be small. Decisions taken pursuant to the lawful operation of immigration control will be proportionate in all save a small minority of exceptional cases, identifiable only on a case by case basis”.

The case of Razgar makes it clear, therefore that it is only in an exceptional case that the decision to remove an applicant in the course of the lawful operation of immigration control would be disproportionate.

You have put forward no credible documentary evidence to suggest that your situation is exceptional, most compelling or compassionate. In assessing your case consideration has also been given to the 5 factors below: Do you have a family life in the United Kingdom? It is accepted that you may have established your private and family life in the United Kingdom. You entered the United Kingdom as a visitor on 04 May 2008 with visas valid for 6 months until O4 November 2008. You failed to regularise your stay until now. You established a relationship in full knowledge that you did not have valid leave to so and that the fact that you would have to return to Indonesia at some point. Any relationships developed can still be maintained through modern means of communication.

There are no compelling reasons as to why your unmarried partner and your daughter cannot return with you to Indonesia. It is also noted however, that you continued to established your private and family life while you illegally overstayed, making no effort to regularise your immigration status in the United Kingdom until 20th May 2010.

Given the existence of a family life will removal interfere with that family life? It is asserted that there will be limited interference with your private and family life as you will be returning to Indonesia. It is further affirmed that you are aged 29 and able to

relocate in Indonesia. Any skills you have obtained in the United Kingdom can be used to support yourself in Indonesia.

Is any interference with the family life in accordance with the law? It is considered that any interference to your family life will be limited, proportionate and in accordance with the law.

Is the interference in pursuit of one of the permissible aims set out under Article 8(2)? A person’s rights under Article 8 are quali?ed by the provisions of paragraph 8(2). ‘There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others’.

Is the interference proportionate to the permissible aim? Taking into account the factors addressed above, it is considered that any interference is proportionate because you will be reunited back to Indonesia, your place of birth and any interference is liinited as your relocation to Indonesia will be temporary.

Your case has also been considered in the light of the House of Lords decisions in the cases of Chikwamba [2008] UKHL 40, which addressed the issue of the lawfulness of the Secretary of State’s policy that people relying on Article 8 ECHR should leave the United Kingdom in order to make an entry clearance application, and Beoku-Betts [2008] UKHL 39, which dealt with the issue of whether and to what extent the human rights of third party family members should he considered by the Asylum and Imniigration Tribunal.

It is not considered that you benefit from the cited House of Lords’ judgments. In the case of Chikwamba, the appellant’s husband was a national of Zimbabwe and had been granted refugee status in the United Kingdom. He was therefore unable to accompany his wife back to Zimbabwe.

However, in your case, no evidence has been provided to show that by returning to Indonesia you could not maintain ties with members of your family who continue to reside in the United Kingdom through modern channels of communication. This consideration also takes into account the decision in Beoko-Betts.

In Beoku-Betts the appellant was appealing against removal to a country where there was political civil unrest at the tiine he ?ed, this was accepted. He entered the UK legally and was granted 12 months leave to enter as a student. His older sister was a British Citizen who has been living here since 1993. His father registered as a British Citizen in May 1998. His mother and younger sister were granted indefinite leave to remain in the United Kingdom in 1998. Members of the family were either in lawful employment or education.  It was accepted by the adjudicator that the appellant resided with his mother and younger sister, therefore accepting a family life. In addition it was accepted that his family could not reasonably be expected to travel with him.

However, in your case, you have remained in the United Kingdom without basis of stay following the expiration of your leave in which you continued to establish your private and family life, while you unlawfully overstayed.

We therefore, conclude that there are significant differences between the speci?cs of the above case and the circumstances of your case. Under section 82 of the Nationality, Immigration and Asylum Act 2002, there is no right of appeal against a refusal to grant leave to a person who had no leave at the time of their application. In view of the fact you have failed to show that you had valid leave to enter or remain in the United Kingdom when you made your application, you are not entitled to appeal against this decision. If you have evidence that you had valid leave to enter or remain in the United Kingdom at the time of your application you should submit that evidence immediately.

Your application for leave to remain in the United Kingdom has been refused and you no longer have any known basis of stay here. There is no right of appeal against this refusal.  You must now make arrangements to leave the country. You can contact the UKBA office at Midlands Enforcement Unit, Sandford House, 41 Homer Road, Solihull, B91 3QJ on 0121 713 3229 who can help you with these arrangements. Yours sincerely,

Suma Arnin ICC2