Residency in Indonesia for married couples..

Residency in Indonesia for married couples..

24-04-2013
Information regarding residency in Indonesia by way of a visa for mixed marriages…
http://www.indonesianembassy.org.uk/consular/consular_mixed_married.html
to quote: ———————RESIDENCY AFTER THE MARRIAGE

IF YOU WISH TO STAY AND LIVE IN INDONESIA WITH YOUR INDONESIAN HUSBAND/WIFE AFTER THE MARRIAGE

If you are married to an Indonesian national, and wish to stay in Indonesia together with your Indonesian husband/wife, you are allowed to live in Indonesia with the sponsorship of your Indonesian husband/wife on a Limited Stay Permit/Temporary Resident Visa approved by the Immigration Office in Indonesia. This temporary resident visa is valid for a period of 12 (twelve) months with the possibility of extension (subject to approval from the Immigration Office in Indonesia).

The length of stay in Indonesia on a Limited Stay Permit Temporary Resident Visa is decided by the Immigration Office in Indonesia based on the sponsor’s request.

In this regard, may we suggest that both you and your husband/wife contact the Immigration Office in Indonesia at the following address without delay since it can take a considerable length of time to process such a visa and there is a lot of documentation to provide and process:

Direktorat Lalu Lintas Keimigrasian Direktorat Jenderal Imigrasi Departemen Kehakiman Republik Indonesia Jalan H. R Rasuna Said Kav.8-9 Kuningan Jakarta 12940 Tel. (00-62-21)5225034, 5224658 Fax. (00-62-21)5225033 ———————
This information only goes to increase our Human rights claim to remain in the United Kingdom.  For British people to remain indefinately in Indonesia they require constantly renewed visas.  Indonesia does not provide any sort of “Indefinate Leave to Remain”
http://www.expat-blog.com/en/guide/asia/indonesia/6083-indonesia-visa-info.html
provides a little more information.
However, as you will see, the only way to remain in Indonesia without being Indonesian would be a very expensive process, which makes it near impossible for a foriegn, non-Indonesian person to remain for a lengthy period of time – Including non-Indonesian children of an Indonesian citizen.
To remain for a long period, a British citizen would have to renounce their British (and EU) citizenship and become Indonesian – Which itself would result in the deprevation of the rights of an EU citizen…
http://en.wikipedia.org/wiki/Indonesian_nationality_law ——————– Obtaining Indonesian citizenship A foreign citizen can apply to become an Indonesian citizen with the following requirements: = being the age of 18 years or older, or being married = when applying, having resided in Indonesian for a minimum of 5 consecutive years or 10 non consecutive years = physically and mentally healthy = can speak the Indonesian language and acknowledge Pancasila and Undang-Undang Dasar Negara Republik Indonesia Tahun 1945 = never convicted of a crime for which the punishment is imprisonment for one year or more = if having Indonesian citizenship will not give the person dual citizenship = employed or have fixed income = pay the citizenship fee Any application for citizenship is granted by the President of Indonesia ——————
Unfortunately, I myself would not meet the criteria for obvious reasons…
But in gaining Indonesian Citizenship, I would need to renounce my British and EU citizenship… This would clearly prevent me enjoying the benefits of being a citizen of the union.
Goes to increase our claim to remain in the UK…

Call with Eddy Montgomery…

Call with Eddy Montgomery…

22-04-2013
Couple of things from today… The call (which was absolutely pointless…) and Meliana’s passport has been returned!
Eddy Montgomery called me, his no for his sheffield office is 0114 207 1434 < took about six listenings of voice mail to get to it… his no is engaged constantly though…
Just actually got through to his office this time…
right, after a short 20 minute conversation… I realise that this man is pretty useless… – Not worth bothering with…
HOWEVER: I do know that Ollie chasing him up on Friday ensured that my wifes passport is now in the post (so thats sorted)…
hes not “sure of the process for finger printing”… (finger prints require IS81 to be issued first. (regardless of if the person is already in the country… failing to issue IS81 renders the action unlawful!) Suprisingly, the document I gained this information from has been removed from UKBA website, but i have a copy on my PC still (isnt it nice being able to save PDF files…)) it was on this page (cache’d by bing)http://cc.bingj.com/cache.aspx?q=form+is81+border+force+operations+manual&d=5021496346674790&mkt=en-GB&setlang=en-GB&w=9U17UIvidrbrgzVoIo9FS39LSPJwCAMM

Quote:
is initiated by issue of form IS 81. 3. What are the procedures when a passenger is informed by a Border Force Officer that they are required to submit to a further examination? A Border Force Officer should advise the passenger that he is required to submit to further examination by serving the passenger with form IS81. The form also states to a passenger with continuing leave that this leave has been suspended and the reasons for examination. Once the IS81 form has been served to the passenger the Border Force Officer may resume his examination at any time without further notice being issued. If the examination is not completed at a subsequent interview the Border Force Officer should advise the passenger verbally that the requirement still stands. A Border Force Officer should serve a passenger with form IS81 under the following circumstances: 1. When the initial examination is interrupted 2. When it is necessary to refer the passenger to the port medical inspector 3. When the examination is commenced during passage (on board a ship or on a channel tunnel train journey) and is to be resumed ashore/on arrival in the UK 4. when detention or temporary admission is necessary before a decision to admit or refuse is reached 5. when a passenger requires fingerprinting 6. when a passenger’s travel document requires examination by a Forgery Officer 7. when an IO needs to make a back office check. Failure to issue an IS81 renders the activities listed above unlawful. Every IS81 issued should be recorded by ports. This information must be captured in order to accurately reflect the level of work undertaken at ports.

(NOTE: UKBA staff who do house calls are “port staff” and their port is the centre they are from [in our case West Mids]).
I’ve told the guy in no uncertain terms I want to know the name of the “Arresting officer” as my wife was not informed that she was “detained” or that she was “under arrest” when they called. – and this goes to reitterate that my wife was unlawfully “examined”. I also reitterated that when the guy barged into my home, he broke the law as no warrant had been issued. – (at this point he said he needed to consult with Rob again … )
He is the head of enforcement for northern england and wales… yet it looks like he is useless in his job?
Whether this will yeild any results on further info for the IS81 document and its requirements ETC I don’t know.  I did post this request a while ago, once I realised the requirement of them completing the document (which they did not do). https://www.whatdotheyknow.com/request/form_is81#incoming-380304
——-
Come 21:00 (9PM) we receive a knock on the door.  It’s a guy from UKBA.  Turns out that they have driven my wife’s passport all the way down (in person) from the liverpool office!
They could of posted it using Royal Mail track and Trace.  But nope, a personal delivery.
We’re off to the Indonesian Embassy in the morning to sort out Meliana’s new passport.  We will then also apply for the Irish Visa – to take the Surinder Singh route back into the UK (unless we decide to remain in Ireland – In five years time If my wife becomes Irish, it could well give some benefits – IE: her parents can visit as a ‘dependant family member of an EEA national’ [myself to Ireland, or Meliana to the UK]).

Response to challenging the ISE 343

Response to challenging the ISE 343

19-04-2013
My wifes reporting restrictions were removed until July.  My wife’s application will be expediated and Eddy Montgomery to call me on Monday.

After my chat on the phone with Ollie, I did feel the need to highlight possible consequences of illegal detentions of family members of EU Citizens (regardless of whether my Directive 2004/38/EC claim is valid, my wife is still afforded the right to reside and work by having dependant British children.)  I therefore felt it wise to note the following Case law:

—————————

Subject: Re: FAO Rob Whiteman/Nadhim Zahawi – ISE 343 – Notice of Detaining my wife??? – REALLY?
From: Me @ Mine.com
To: [email protected]; [email protected]; Cc: [email protected]; [email protected]; [email protected];
Date: Friday, 19 April 2013, 15:32

——-

My Name My Address

Date: As Emailed

FAO: Rob Whiteman / Nadhim Zahawi (MP) CC: NWEuro9

* MP Ref: x * Home Office Ref: (Its a long reference) – x

Dear Mr Whiteman / Nadhim Zahawi,

After speaking with Ollie on Rob’s team today, (which I have to point out I have no faults with.  This gent was very polite, whilst on recollection I perhaps was a little rude, but with the obvious stress this whole case is putting us under…)

I do however, further to my previous email, feel the need to highlight the following relevant case law to UKBA / The Home Office: Raducan & Anor -v- MJELR & Ors [2011] IEHC 224 http://courts.ie/Judgments.nsf/09859e7a3f34669680256ef3004a27de/4f9d0fcb1a442217802578b8005ae84f

Whilst this directly relates to Directive 2004/38/EC I am aware that the whole case will also be reflected in any decision to detain my wife in our case.

I thank Ollie for taking the time for myself to go over my issues again, the half-hour telephone call was helpful to know that whilst Ollie isn’t dealing with the case himself he is aware of it, and therefore SOMETHING must be happening with it…

Once again, I await your responses…

Yours

Mr W B P
—————————

After this I prepared myself for a wait.  But I was later shocked to receive the following email to my inbox:

—————————

——-

From: Whiteman Rob (Submissions) <[email protected]> To: Me @ Mine .com; Whiteman Rob (Submissions) <[email protected]>; “[email protected]” <[email protected]> Cc: UKBA Customer Complaints <[email protected]>; EREC <[email protected]>; Liverpool Euro Passport Returns <[email protected]> Sent: Friday, 19 April 2013, 17:32 Subject: RE: FAO Rob Whiteman/Nadhim Zahawi – ISE 343 – Notice of Detaining my wife??? – REALLY? ——-

Dear Mr P. Thank you for your emails to Rob Whiteman and others. When we spoke earlier I said that I would try to respond to you today. I have obtained some information from the team in the West Midlands that issued the ISE343 document – I thought that this was likely to be the most pressing issue for you so wanted to get a response to you in writing before the weekend ahead of a more comprehensive reply on the other issues you’ve raised next week.   The ISE343 is an automatically generated document that is sent to individuals who do not report as required and have not alerted the Home Office in advance that they can’t attend. Your wife was clearly aware of the requirement to report as she had been doing so compliantly for many months and had called ahead of the previous reporting event (in March) to advise that she was too ill to attend. Your wife’s IS151a and IS96 forms make it clear that she is technically an overstayer and liable to arrest and detention at any time if she fails to comply with the terms of her temporary release – the ISE343 simply reminds her of that and the team was correct to issue it in the circumstances. As I’m sure you can imagine the vast majority of people who report don’t feel that they should have to, and without making any comment on the relative merits of your wife’s application or status (as I am not privy to the details or familiar with caselaw) it is important that she complies with her reporting restrictions while it is required of her. Whatever you think of how her applications have been handled being unco-operative with what is an established (and legal) process won’t improve the situation and I would advise your wife to recommence reporting.

I have only become familiar with this case this afternoon and we aren’t yet in a position to respond in detail to all the other points you have made in your communications on this – I hope that we will be able to do so next week. As I said on the phone sending us additional emails each day actually serves to slow our response down as we have to revisit our proposed response to make sure it covers all the new issues raised. Therefore I would politely ask you to give us the opportunity to consider the points you’ve raised and respond to you accordingly before sending us further complaints.

Finally I have arranged for three things to happen next week:

1.    Your wife’s outstanding application will be expedited and considered by a caseworker early next week. Depending on what information she has already provided and what is missing that caseworker may contact you to request some additional evidence. Please do what you can to co-operate with this process as I think that dealing with this application may be a positive step towards the resolving the situation. 2.    Eddy Montgomery, who is the senior civil servant with overall responsibility for the team that send you the ISE343 (and indeed for all enforcement operations in the North of England and the Midlands) will telephone you on Monday to discuss further. He is much more senior and much more knowledgeable than me and will be better placed to explain. If you let us know a good number to reach you on I’ll pass that on to Eddy. 3.    I advised the team in Solihull of your assertion that your wife would not be able to report on 24 April. We would not normally accept childcare arrangements as a reason not to report but in the circumstances we will suspend reporting until 11 July 2013. This is to allow the appropriate consideration of your wife’s outstanding application and to acknowledge her consistent and reliable reporting since 2010. We will shortly send you a new IS96 with the next reporting date as 11 July 2013.

I appreciate that this doesn’t touch on many of the issues you’ve raised but I wanted to at least respond and address the immediate issues and reassure you again that your wife’s case is being looked at quickly and by the relevant senior people.

Have a good weekend,

Ollie

Ollie Carlisle Private Secretary to the Director General of Operational Systems Management Home Office
————

 
So this is where it became a little… hmmm… I understand that Ollie was trying to give some “advice”, however his advice also highlighted key words…

————-

Subject: Re: FAO Rob Whiteman/Nadhim Zahawi – ISE 343 – Notice of Detaining my wife??? – REALLY? From: me @ mine.com To: [email protected]; [email protected]; Cc: [email protected]; [email protected]; [email protected]; Date: Friday, 19 April 2013, 23:00 Date: As Emailed

Name and Address

FAO: Rob Whiteman / Nadhim Zahawi (MP) CC: NWEuro8

 

MP Ref: x Home Office Ref: (Its a long reference) – x
Dear Mr Whiteman / Nadhim Zahawi,

 

Ollie,

 

In response to your email today, Thank you. Let me begin with: My telephone number is 07xxxx, I have an appointment with my Physiotherapist on Monday Morning until 2pm, so I wiill not be available during this.

 

You mention IS151a and the fact that my wife is “technically an overstayer”. Whilst I understand your statement that you are not aware of all case law, I am well aware of plenty of the case law. I am specifically aware of ECJ case C-459/99 MRAX v Etat Belge [2002] Particularly part 2 of the ruling:

  1. On a proper construction of Article 4 of Directive 68/360 and Article 6 of Directive 73/148, a Member State is not permitted to refuse issue of a residence permit and to issue an expulsion order against a third country national who is able to furnish proof of his identity and of his marriage to a national of a Member State on the sole ground that he has entered the territory of the Member State concerned unlawfully.

 

Whilst I understand my wifes Zambrano application is based upon a Derivative right obtained via TFEU 20, the fact remains, this case law will still have a significant bearing on my wifes leave to remain in the country. Specifically: My wifes immigration history cannot be taken into account for the process of her application for (and I reiterate) confirmation of her right to reside and work within the United Kingdom.

Since March 2011 my wife has attempted to discuss her case with the team in West Midlands. They have outright refused to do so.

Your wife’s IS151a and IS96 forms make it clear that she is technically an overstayer and liable to arrest and detention at any time if she fails to comply with the terms of her temporary release – the ISE343 simply reminds her of that and the team was correct to issue it in the circumstances.

As I said on the telephone to you today: I am aware that an IS96 reporting condition is an ALTERNATIVE to DETENTION. I am also aware that DETENTION is ONLY POSSIBLE when removal is pending. As far as I am aware, removal instruction have not been issued to my wife. If such removal instructions have indeed been issued, then we would like a copy of such instructions, and then we will file our judicial review claim on such. As I outlined on the telephone to yourself today. My wife, (as her right to reside falls from the EEA regulations para. 15(a)), is not a Person Subject to Immigration Control. – The same is also true as my wife is also the spouse of an EEA national.

As I’m sure you can imagine the vast majority of people who report don’t feel that they should have to, and without making any comment on the relative merits of your wife’s application or status (as I am not privy to the details or familiar with caselaw) it is important that she complies with her reporting restrictions while it is required of her. Whatever you think of how her applications have been handled being unco-operative with what is an established (and legal) process won’t improve the situation and I would advise your wife to recommence reporting.

Whilst I understand that you are trying to give some helpful advice I would like to reiterate once again:

1) It is not required of her for two reasons, firstly she is the spouse of an EEA National. I have worked in Finland. Regardless of the UK’s interpretation of case law, I remain fixed that my wifes protection under Directive 2004/38/EC still remains!

2) LEGAL: It isnt a legal process. Case C-34/09 does not allow a member-state to impose restrictions upon that persons right to reside. Such restrictions go onto remove the genuine enjoyment of the EU citizen’s rights. (I’ll touch on this more below).

I have only become familiar with this case this afternoon and we aren’t yet in a position to respond in detail to all the other points you have made in your communications on this – I hope that we will be able to do so next week. As I said on the phone sending us additional emails each day actually serves to slow our response down as we have to revisit our proposed response to make sure it covers all the new issues raised. Therefore I would politely ask you to give us the opportunity to consider the points you’ve raised and respond to you accordingly before sending us further complaints.

I understand that further emails may slow the whole process down. However, the fact remains that statements are made, and statements require further commenting on. I will, however, ATTEMPT to withhold further complaints. However, as the large amount of illegal actions by UKBA come to light (I am rather shocked that our solicitor did not highlight the relevant legal process for obtaining finger prints), Such things need bringing to light and querying.

Finally I have arranged for three things to happen next week:

1.Your wife’s outstanding application will be expedited and considered by a caseworker early next week. Depending on what information she has already provided and what is missing that caseworker may contact you to request some additional evidence. Please do what you can to co-operate with this process as I think that dealing with this application may be a positive step towards the resolving the situation.

As I have made clear, I am more than willing to supply whatever evidence is required. I am certain whatever evidence should be required to prove that my wife of a 9 month old baby and 3 year old British Children is the primary carer, for whom are dependant on her in many ways. (Note the ruling in C-34/09 upon whom he is dependant)

2.Eddy Montgomery, who is the senior civil servant with overall responsibility for the team that send you the ISE343 (and indeed for all enforcement operations in the North of England and the Midlands) will telephone you on Monday to discuss further. He is much more senior and much more knowledgeable than me and will be better placed to explain. If you let us know a good number to reach you on I’ll pass that on to Eddy.

I would like that. My mobile number (as mentioned above) is xxx. However, I will be unavailable until after 2pm.

 

3.I advised the team in Solihull of your assertion that your wife would not be able to report on 24 April. We would not normally accept childcare arrangements as a reason not to report but in the circumstances we will suspend reporting until 11 July 2013. This is to allow the appropriate consideration of your wife’s outstanding application and to acknowledge her consistent and reliable reporting since 2010. We will shortly send you a new IS96 with the next reporting date as 11 July 2013.

Once Again, As mentioned on the telephone: Section 55 of the Act, means that a childs care and welfare must be THE primary consideration in all matters which involve a child. Are you telling me that childcare arrangements do not fall within the UKBA obligations under Sec. 55?

As I explained previously. My wife is unable to report due to our daughter attending nursery. Infact when my wife called the centre in March she was told that she would need to attend the following month… She did infact inform them that she would be unable to attend as our daughter had an Easter Bonnet parade at nursery. In addition to this, on numerous emails, I have highlighted that my wife is the Primary Carer for our daughter. It is my wife who takes our daughter to school and collects her. It is impossible for my wife to get from Stratford, to Solihull and back to collect our daughter… This is true EVEN IF DRIVING.

Are you stating that a child’s education is not a primary consideration as to their welfare? If so, I also draw attention to UN Rights of the Child. Particularly Article’s 28 and 29.

http://crae.org.uk/rights/uncrc.html

Article 28
  • Every child has the right to free primary education.

  • Governments must encourage secondary education, making it available and accessible to every child and young person

  • Access to higher education must be based on the ability to benefit from it.

  • Governments must make sure children and young people get information about education.

  • Governments must encourage regular school attendance.

  • Governments must make sure that school discipline protects the dignity of children and young people, and is in line with their rights in this Convention – so no hitting or humiliation.

Article 29
  • Governments agree that the aim of education is to help the fullest possible growth of the child’s or young person’s personality, talents and mental and physical abilities.

  • Education must help children and young people:

    – respect human rights – respect their parents – respect their and others’ culture, language and values – have self-respect respect the environment.

Surely, UKBA / The Home Office must agree that this case is clear. A childs education should not suffer due to “reporting restrictions”. We even mentioned about my wife reporting to the local police station – This was discussed during the rather lengthy telephone call which took place with Richard. I am well aware that this is a possibility. We have no reason to be unco-operative. However, I am well aware of processes in place. I am also aware that my wife has rights within the UK. These rights include the right to WORK and RESIDE FREELY within the UK.

I appreciate that this doesn’t touch on many of the issues you’ve raised but I wanted to at least respond and address the immediate issues and reassure you again that your wife’s case is being looked at quickly and by the relevant senior people.

Whilst I understand that you have done your best here, for which I thank you. The fact remains, the law is the law. The restrictions imposed upon my wife are illegal (despite what you, or your colleagues within the UKBA state). The Immigration Act 1971 does not apply to my wife. My wifes right to reside within the UK comes from the EEA Regulations 2006. I attach a copy of said regulations in an “updated” form to this email for your reference… At no point in these regulations does it state that a reporting restriction can be imposed upon any person subject to these regulations. Obviously, if you know otherwise, then please: direct me to the relevant legislation that states so.

Your’s
Mr W B P

"Liable to Detention" / "Failure to Report" / "ISE343"

ISE 343“Liable to Detention” / “Failure to Report” / “ISE343”

19-04-2013
Got a nice letter in the post today…
Wife got a nice letter in the post today: ISE343 from Homer Road.
I called the Home Road number on 01217133229.  I spoke to a lady on the desk, in the Enforcement department.
Firstly I recorded the call (as I record ALL calls I make/receive to anybody)
The lady was pretty rude, and didn’t do any security checks…  Obviously the call recording wasn’t notified so I cannot share it with a third party… (because that would be a tort – and I am aware I could be taken to court for such – as I didn’t notify her of the call recording before doing so.  My MP is acting on my behalf, and is therefore not a third party.  The same is true for solicitors.  And here’s the thing: Call recordings [even if unnotified] CAN be used in a court of law as evidence!)
1) Basically, she said that my wife falls under Immigration Act 1971.
2) UKBA are withholding my wifes passport and WILL NOT be returning it.
3) She is going to end the call because I’m holding up other people.
I therefore first emailed Rob Whitemans office, and thought I would try calling (again).  The call this time actually got answered by a rather polite man Ollie.  I felt a little bad with the way I had spoken to him, but I was a little bit P’d off with the way I had been spoken to by the previous woman. (I did however appologies).
I outlined the facts, discussed my case – he assured me that he knew our case was being looked into – although he personally had not had involvement – he was well aware of myself and that I had emailed a few times a day for the past few weeks. He clearly outlined that it might speed things up for a response if I held off with the responses (although he understands I am within my rights to email as much as I wish).  Since my emails keep raising new concerns it means that a draft response has required numerous ammendments so this is slowing down a response.
He has said he hopes a response can come through today, but as a new email has just came through it might need looking into, so hopes a response can be sent by very early next week. (Which he again appologied for and said he understands that the weekend will be a long wait but unforetunately he cannot respond directly).
He noted that my wife is not attending on 24/4/13 for the reason that our daughter attends nursery the requirement to report affects my childs welfare (education is part of my childs welfare).  – He agrees that the circumstances mean my wife’s reporting is difficult ETC.
I then went onto say “I know that a reporting restriction is an alternative to detention.  I also know that detention is only possible when removal directions have been issued, which as far as I’m aware have not been done so…  If they have been issued can you ensure you send us written notice of this… Because if they have been issued, I will on that basis continue onto Judicial Review now…”

UKBA Do not decide who has recourse to public funds…

17-04-2013
Following a response to my SAR to the DWP in relation to my short Income Support claim in November 2012.
In November 2013 I made a claim for Income Support.  My health wasn’t good, and I was unable to work…
I claimed Income Support, where they refused to pay for my Wife on the basis of her Tourist Visa from May 2008 stating she has No Recourse to Public Funds.
Contrary to the fact that As I have worked in Finland, and my wife is a “Zambrano” Carer for two British Children.
Email From Home Office RE Public Funds

New INTERIM Director Generals…

New INTERIM Director Generals…

17-04-2013
So, as Rob Whiteman is no longer the Cheif Exec of UKBA, there have been two new appointments: Sarah Rapson and David Wood.
This information is outlined on the news reported on the Gov.UK website: https://www.gov.uk/government/news/new-interim-directors-general-appointed
I am interested what exactly these changes mean.  Obviously my belief is that nothing has REALLY changed…
Rob Whiteman ([email protected] ) still holds a great amount of authority.  He is in the position of: “Director General of Operational Systems Management, Home Office”.
So with the following Aims: 1) Find out their email addresses 2) Find out what has really changed 3) Find how how this benefits THESE people…
I have submitted the following two Freedom of Information Requests:
https://www.whatdotheyknow.com/request/ukba_internal_news_letter#incoming-380404 A request for the new UKBA internal news letters (perhaps some more useful information held in this?)
Details of Job Purpose and Email Addresses: https://www.whatdotheyknow.com/request/details_of_job_purpose_email_add#incoming-380370 A request asking for a great deal of information, but limited scope: Email addresses of these people… their job roles, current income grade, and previous grade…
The new Structural diagram, and… well read the requests…
Here’s hoping…  All three of these people are very important in relation to the UKBA complaints process.

Illegal holding of a passport by the UKBA / Home Office….

Illegal holding of a passport….

14-04-2013
Ahhh, right… so perhaps… just perhaps….
Subject: Re: FAO: Rob Whiteman – UKBA. – Various Complaints
From: Me @ Mine
To: [email protected]; [email protected]; [email protected]; [email protected];
Cc: [email protected]; [email protected];
Bcc:
Date: Sunday, 14 April 2013, 18:37
Mr WP Address
Date: As Emailed
FAO: Rob Whiteman / NWEURO8 Team CC: Nadhim Zahawi (MP) / Paula Scott (Senior Case Worker) / Finnish Solvit
* MP Ref: x * Home Office Ref: (Its a long reference)
Dear Sir(s)
Goodday, I hope that you have enjoyed a nice stressless weekend, at home with your families.
I am sure you were expected to be hearing from myself again without much delay. So I would therefore hate to disappoint yourselves.
Further to the numerous previous messages in which I have requested my wifes passport to be returned. I now provide the following to you.
The case of R (on the Application of Atapattu) v The Secretary of State for the Home Department [2011] EWHC 1388 (Admin) (27 May 2011) is an important case that must be taken into consideration at this poit. It concerns the unlawful retention of a passport by an Entry Clearance Officer and a claim for damages for conversion. Conversion is a tort under section1 of the Torts (Interference with Goods) Act 1977 and is basically akin to theft.
The facts were, in short, that the claimant was a Sri Lankan merchant seaman who had successfully applied to undertake a qualification in the UK that would lead to his becoming a ships master. He was twice refused entry clearance but an appeal against the second refusal was allowed. He submitted his passport for endorsement with entry clearance in January 2010 but, despite persistent chasing, the passport was not returned until late August 2010, after the commencement of legal proceedings.
In this case the claimant had written to the ECO demanding return of the passport, which belonged to him, the claimant. The ECO had simply ignored all such correspondence and only returned the passport after the commencement of legal proceedings. The claim for conversion was therefore made out.
Regardless of your “extensive enquiries” into our case, the fact remains that you are unlawfully withholding the passport of my wife.
I would expect that this illegal action is rectified ASAP. I have highlighted previously that the requirement for my passport was to pursue a career in Ireland. I myself had a job lined up ready to commence. My wife was able to work in the same company. However, the negligent and unlawful actions of UKBA prevented us from commencing employment.
From my understanding, the situation is rather simple. Given two reasons:
1) My wife has a legal right to remain in the country by virtue of Zambrano – Case C-34/09.
2) Applications on the basis of this ruling are ENTIRELY OPTIONAL. The right is automatic and UKBA only confirm this right – they do not GRANT the right.
Yours
Mr WP

============================
and then further on, I realised something else….
============================

Subject: Re: FAO: Rob Whiteman – Has UKBA lost another document?
From: Me @ Mine.com
To: [email protected]; [email protected]; [email protected]; [email protected];
Cc: [email protected]; [email protected];
Bcc:
Date: Sunday, 14 April 2013, 21:30
WP Address
Date: As Emailed
FAO: Rob Whiteman / NWEURO8 Team CC: Nadhim Zahawi (MP) / Paula Scott (Senior Case Worker) / Finnish Solvit
* MP Ref: x * Home Office Ref: (Its a long reference)
Dear Sir(s)
Failure on the side of UKBA to return my wifes passport does make one wonder: Has another very sensitive document got the need to be recorded as “lost”. After all, what does it matter – Its an “expired” document anyway isn’t it… (not like to loose such a sensitive piece of data is a clear violation of the Data Protection Act 1998.)
I query… In response to the loss of my wifes ‘expired’ passport in 2010 (which was infact still valid until 04/12/2012). Can you send me a copy of the report that was submitted to the Information Commissioner in relation to the very real security risk to the person involved from the loss of such a vital piece of confidential information.
From the case outlined in my previous email of this evening, I outline the following:
——
  • 61. Indeed, the case where the goods are lost or destroyed (rather than merely kept) is also identified by Clerk & Lindsell as a distinct category of conversion: see §17-20. At common law, where a defendant, following a demand, failed to return goods, because the goods had been lost or destroyed, the position was as follows. First, if the goods had been lost before demand (or before the lapse of a reasonable time after demand), then the defendant was only liable if the goods were lost as a result of the defendant’s own negligence. The claimant had a claim for breach of bailment and also for detinue. Secondly, if the goods had been lost after the lapse of a reasonable time following demand, then the defendant was strictly liable for their loss; here the claimant had, at least, a claim for detinue. This strict liability for loss after demand was commonly referred to “liability as an insurer”. Thirdly, in either event, there was no claim for conversion, because there was no voluntary act by the defendant. As a result of the abolition of detinue in the 1977 Act, s.2(2) was introduced to make the bailee liable in (statutory) conversion in this situation.
—–
Food for thought, eh?
Your’s
W P
UKBA Lost Passport
Note: This informaton was aquired here:

Time to speed things up? A reminder about my wife's case…

As we had been waiting, and had yet to receive a reply to the complaints, or the application, I decided to send off a little reminder about my wife’s case, and our complaint…
Subject: Re: Complaint as to UKBA Staff, EEA2 Application, COA, ETC.
From: My @ Email
To: [email protected]; [email protected]; [email protected]; [email protected];
Cc:
Bcc:
Date: Thursday, 14 February 2013, 16:52
My Name My Address
Dear Sirs,
I am writing to you in regards to the application of my wife: Mrs [Wife]
Royal Mail Package: x (Delivered on 15th Jan 2013) HO Ref: x and Case ID: x
Further to my previous emails and correspondence, I am also writing to confirm the current IS96 restrictions upon my wife.
As stated in previous communications, Case C34/09 clearly states that a parent of a EU Citizen cannot be removed from the member state. This includes the home country of the citizen. I see that the UK reads this ruling differently to the wau it was intended but, the ruling was VERY CLEAR and SPECIFIC:
Article 20 TFEU is to be interpreted as meaning that it precludes a Member State from refusing a third country national upon whom his minor children, who are European Union citizens, are dependent, a right of residence in the Member State of residence and nationality of those children, and from refusing to grant a work permit to that third country national, in so far as such decisions deprive those children of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen.
As an IS96 reporting document is actually an Administrative Removal document, and it means that my wife is under removal instructions, I would state that this document breaches the EU regilations… I also note that the Border Operations Manual provides advice as to the issuing of a Temporary Admission.
As such, I would also expect confirmation in writing removing all restrictions which have been placed upon my wife. This includes reporting restrictions, work, and the right of my wife to reside at any address she so chooses to. – As EU law does not permit you to remove my wife, the fact that an IS96 document has been issued, despite a clear Derivative right of residence, and a CLEAR EEA2 application being valid: As stated, I worked in the EEA (Finland), therefore – following directive 2004/38/EC my family members are entitled to JOIN me upon my return to the UK. This JOIN does not state that my family member must travel with me at the time I return to the EEA home state (Surinder Singh case).
You have proof of my employment at the Espoo Institute of Business (confirmation letter attached to my wifes EEA2 application).
Please come back to me ASAP with a response to this… Here is a list of some interesting cases for you to look over:
[case list]

In addition to this, please confirm that you have filed the complaint raised against Richard for his discrimination against my wife on her reporting event on 7-2-13. The fact that Richard stated my wife would be refused entry into Ireland was clearly discrimination. The fact that my wife is “encouraged” to “Go Home” (She is at home – with her family – two dependant children, and her husband) is clearly discrimination. The basis of this discrimination: Her lack of “official documentation to proove she has a right of residence”.

EU Law is her proof of residence: We attempted to regulise her stay within the UK and the process failed. with the response “There is no reason Mr P and Chloe P could not return to Indonesia with you” – thereby accepting that if my wife leaves the country so would her dependant. – and clearly this Immigration Decision (which gave no right of appeal?) was contrary to EU Law (as evidenced by case C-34/09.)
Yours,
Mr P

We receive passports… Hmmm, something is missing?

We receive passports… Hmmm, something is missing?

11-04-2013
No Marriage Certificate, and no Passport for Meliana…

The postman came, and delivered a nice little package this morning.  It was sent by recorded delivery.  However, not all of the documents requested were sent back to us.   This was kind of a p’ss take, considering the amount of reminders I had sent to them.
However, it is clearly the fact that the package was sent due to the emailing to Rob Whiteman.

The email I sent was this (filename: email of 11-4-13 to ukba.pdf)
——————————-
Name, AddressDate: As Emailed – 11-4-13

 

FAO: Rob Whiteman / NWEURO8 Team CC: Nadhim Zahawi (MP) / Paula Scott (Senior Case Worker)

* MP Ref: xx * Home Office Ref: (Its a long reference) –
Dear Sir(s)

I refer to the letter / package which was received by my wife this morning. The package reference number is [code].

The letter was dated 09/04/11. Therefore from initial request for documents to be returned, and the return it has already been over two months!

Today’s package included the following: 1) Passport of Chloe
2) Passport of Wayne 3) Birth Certificate of Chloe 4) Birth Certificate of Charlie

Missing documents: 1) Passport of Mrs MP (in the maiden name of Miss) 2) Marriage Certificate of Mrs MP and Mr WP 3) Letter from employer within the Espoo Institute of Business in regards to Mr W P 4) Various other documents.

I note that in my email dated the 8th February 2013 I specifically requested that my wife’s passport to be returned to allow for my Freedom of Movement under the Directive 2004/38/EC. National law cannot remove my rights, given from this directive, to move freely to another member state WITH MY FAMILY MEMBERS

When are these missing documents due to be returned?

I thought I would take this opportunity to explain the following too (just to clarify, although it is not necessary – I would like to clear up any misunderstandings that may arise: before the fact). I am sure you have seen the “Emergency Contact Details” page of my daughters passport (number xxxx). The name listed as an emergency contact detail is my own name (WP) for the following reason:
My daughter is only three years old. The passport will expire when she is five years old. Our daughter would not be travelling without my wife anywhere that this passport would be used. My wife, MP, is the Primary Carer of the child and will therefore always be present with our daughter. However, I may not be. Knowing that this will be the case, and knowing that my own passport (you have also seen this passport – number …. ) has many alterations to the “Emergency Contact Details” page, we have reserved the space for when the details are required. (you can clearly see that my own passport contact details page is already full – and it is not possible to add additional information). Due to numerous address changes by relatives ETC. In light of the above – It would have been pointless to state my wife’s name on our daughters passport. As in any emergency, my wife would already be with our daughter.

 

Accurate Information – Data Protection Act 1998…

I see that UKBA have still FAILED TO UPDATE INFORMATION about my wife as per the Data Protection Act 1998. All information held MUST BE ACCURATE. You hold inaccurate information in regards to my wife’s identity. As outlined hundreds of times previously to UKBA:

Miss x became MRS x on the 5th December 2011 when she became the lawful spouse of Mr W P at the marriage ceremony held at the [x]

Therefore, in reference to Principle 4 of the Data Protection Act 1998, we once again remind UKBA that information about my wife must be kept up to date and accurate!

Further information on this can be found on the Information Commissioners Website: http://ico.org.uk/for_organisations/data_protection/the_guide/information_standards/principle_4

Should you fail to update your records correctly within the next 14 days and provide a written statement to confirm that your records have been amended to show the correct information, my wife will file a complaint with The Information Commissioner in regards to this.

Hindrance of an EEA Nationals Free Movement under Directive 2004/38/EC.

UKBA are well aware that Mrs MP is the Primary carer for the following British (and therefore also EU) citizens: • WP (myself) • CP • CP
You have failed to return the documents requested. I note that I did not request the documents to be returned once – but I HAVE MADE REPEATED REQUESTS FOR MY WIFES PASSPORT – as you are aware.
There is no reason for UKBA to withhold her passport considering that she is the Third Country National PARENT of a British Child that is clearly dependant upon her by virtue of emotionally, physically and financially.
I know that the reason you intend to withhold her passport and conveniently our marriage certificate is to prevent me gaining employment within Ireland and securing her return to the UK by that means. However, by doing so you (UKBA) are breaching Directive 2004/38/EC in two manners. 1. Meliana is my Primary carer. I am unable to travel without her. Once again I attach my Blue Badge – which as outlined previously – is confirmation that I have severe mobility problems. Confirmation of which can be requested from my GP – in addition to the Local Authority which issued the blue badge. 2. Meliana is the family member of an EEA national. And under EU law, such a family member should not be prevented OR RECEIVE HINDERACE in travelling throughout the EEA with their EEA National family member.
Once again, if you are refusing to release my wife’s passport to her – Please submit this in writing to us, with a detailed reason as to why you are refusing to return her travel document to her. You are aware that she requires evidence of her identification to travel to another EEA member state.
I do not see what the issue is with UKBA in this respect. UKBA have told Meliana in their response to her application for a visa [FLR(M) in 2010] that she is expected to leave the UK. This is what we now intend to do. Clearly UKBA are showing yet further discrimination to my wife by their refusal to return her travel documents.
I once again outline that under United Nations Treaties UKBA (or the UK in any sense) MUST NOT prevent any person from leaving the country. 1. By hindering Meliana’s application for a replacement passport UKBA do this. 2. By hindering Meliana’s application for an entry clearance visa to Ireland UKBA do this.

I outline the attached emails between myself and the Indonesian Embassy in regards to getting a replacement passport for my wife. They outline that she would require her old passport to apply for a replacement. I later telephoned the embassy where the lady explained to my wife that she had two options: 1. Provide the old passport – 1. UKBA are holding old passport, so this is not possible. 2. Report the passport as Lost/Stolen. Provide a police reference number. -=1. This would be a crime – as it would be lying to the police (perverting the course of justice – a criminal offence punishable by a custodial sentence) -=2. Are UKBA encouraging honest citizens to break the law?


Therefore: Obviously both of these options are not currently available. As a result of UKBA failing to provide Meliana’s old passport they are hindering her ability to leave the UK.


2. You will see from the Irish Governmental website that Meliana is expected to hold a current national travel passport which is valid for longer than 12 months. http://www.embassyofireland.co.uk/home/index.aspx?id=33732

See D Class Visa. I also attach “Visa Join Spouse (EU National).pdf” which highlights the requirements to gain entry clearance to Ireland – and to which I now refer:

1. online sheet – easy. 2. Passport – Valid for 12 months unable to provide as UKBA will not release old passport = Hindering of Free Movement. 3. Passport photo – easy 4. Evidence of permission to remain in UK – easy: Ruling on case C-34/09. Although the Metock case also removes the requirement of previous legal residence within the member state that application is from. 5. Original marriage certificate: UKBA withheld this document, HOWEVER, EASY – Genuine Copy obtained from Church Registry. – Note Only the original register holds the “Original” document. All other copies given to people are just “CERTIFIED COPIES”. 6. Spouses passport – easy now, along with passport of children – who are also EEA citizens. 7. Easy on two counts: = 1. Self employed photographer, web developer, and programmer. = 2. A letter from employer with invitation to come and work from them in their business. 8. Envelope: easy.

As you can see from the above – the only hindrance to my free movement is the refusal of UKBA to provide my wife’s now expired passport.

I cannot travel alone. I require my primary carer to accompany myself. Therefore: Release the documents that you are ILLEGALLY withholding.


Obviously though, Should you wish to withhold my wife’s passport now, we would expect a written explanation for this detailing the grounds for withholding the travel document and outlining your reason for preventing my wife from leaving the UK contrary to United Nations convention treaties.

Yours, Mr W

==========================================================================================

Subject: FAO: Rob Whiteman – UKBA. – Various Complaints
From: Me @ Mine
To: [email protected]; [email protected]; [email protected]; [email protected];
Cc: [email protected]; [email protected];
Bcc:
Date: Friday, 12 April 2013, 0:35
Name and Address
Date: As Emailed – 11-4-13
FAO: Rob Whiteman / NWEURO8 Team CC: Nadhim Zahawi (MP) / Paula Scott (Senior Case Worker) / Finnish Solvit
* MP Ref: xxx * Home Office Ref: (Its a long reference)
Dear Sir(s)
I attach a number of files to this email. Please review the following file ’email of 11-4-13 to ukba.pdf’ for the contents of my message.
In addition to this file, I attach
  1. a copy of my Disabled Persons Blue Badge
  2. a copy of emails between myself and the Indonesian Embassy about renewing my wifes passport
  3. a copy of emails between myself and the Irish Embassy about entry to Ireland to work
  4. a copy of the Irish Entry Clearance visa requirements.
I look forward to your response, as I am sure you look forward to my further messages 🙂
Yours,
Mr W

================
Come Five PM after this chase up, I sent them a nice message, chasing them again….

Subject: Re: FAO: Rob Whiteman – UKBA. – Various Complaints
From: ME @ MINE
To: [email protected]; [email protected]; [email protected]; [email protected];
Cc: [email protected]; [email protected];
Bcc:
Date: Friday, 12 April 2013, 17:13
Name and Address
Date: As Emailed
FAO: Rob Whiteman / NWEURO8 Team CC: Nadhim Zahawi (MP) / Paula Scott (Senior Case Worker) / Finnish Solvit
* MP Ref: x * Home Office Ref: (Its a long reference)
Dear Sir(s)
I am still awaiting a response to my previous five messages addressed for the attention of Rob Whiteman. I reitterated my complaint to UKBA with a rather lengthy – and detailed letter 10th April 2013, and also again on my letter dated 11th April that was emailed slightly past midnight on the 12th April 2013 (Today). I note that it is now past 5pm, and I have had no response from yourselves via email, telephone or any other form. With the lack of other written correspondance to my complaints I therefore assume that once again my messages have been completely ignored – yet again.
I understand that Rob Whiteman would be a busy man. However, this is his job. This is the position he accepted as his career. Ultimately he makes decisions that affect many family’s who reside within the United Kingdom – on behalf of the Secetary of State for the Home Department.
I would think that with the numerous failures to respond to my messages, that the man would be able to make five minutes to write a quick email. Or even take five minutes to give instruction to his secetary. Instead of the complaint being refered back to the department of which the complaint is regarding!
Your’s
Mr W P

========================
WITHIN FIVE MINUTES:
========================

Subject: RE: FAO: Rob Whiteman – UKBA. – Various Complaints
From: Whiteman Rob (Submissions) ([email protected])
To: ME @ MINE; [email protected]; [email protected]; [email protected]; [email protected];
Cc: [email protected]; [email protected];
Bcc:
Date: Friday, 12 April 2013, 17:18

Mr P

 

I can assure you that this office is making extensive enquiries into your case. We have as you state, received numerous emails from yourself and we are working through them and through the history of your wife’s application. We will respond to you next week and I thank you for your patience in this matter, to enable us to adequately respond

 

Kind regards

 

Sanaya Setna

Assistant Private Secretary to Rob Whiteman Home Office 1st Floor Seacole, 2 Marsham Street, SW1P 4DF

Human Rights Submission to the Home Office (UKBA)

Human Rights Submission

10-04-2013
OK, I was given a rather lengthy document which outlined the extensive amount of case law which protects our family life by somebody.
I had covered some of it previously with the UKBA, however… I decided upon receipt of my last email from Rob Whitemans office that It might come in handy…
I was not at all happy that they had just refered my messages back to the Euro case work department… and I thought that the following message outlined the situation as it now stands…

Subject: Re: “I have passed your queries to the relevant caseworking team”.
From: Me@ Mine.com
To: [email protected];
Cc: [email protected]; [email protected]; [email protected];
Bcc:
Date: Wednesday, 10 April 2013, 6:29
Mr W P

Address

Date: As Emailed
FAO: Rob Whiteman
CC: Nadhim Zahawi / Paula Scott
* MP Ref: xx
* Home Office Ref: (Its a long reference) –
Dear Mr Whiteman,
I wrote my letter directed at what I believe is still the Cheif Executive. That meaning I believe that you would ultimately be the last possible internal line in my complaints in regards to UKBA.
I see that my complaint has been ignored and just refered again back to the case working department. From whom I have had no response to many more than a few of the 90 or so emails I have sent to them since the beginning of Feb 2013 (or the written communication posted to them)
I note that I have already requested that my MP Nadhim Zahawi refer the case to the Parlimentary Ombudsman. I attach a summary letter which I previously CC’d UKBA a copy of. (my previous mail also included a copy of the emails ETC…)
I believe that the response which you have sent to myself this morning clearly demonstrates that UKBA are not willing to process my complaint and therefore there is no other choice but a P.O. case to be filed.
I outline that UKBA’s published complaints proceedure gives a 20 working day timeframe to handle complaints. Neither myself nore my wife has received response in relation to the discrimination that she has suffered from UKBA. – So much that on each reporting event she has returned home very upset at the comments that have been made to her.
I note that no reply has been made in response to the fact that Paula Scott refered the complaint back to the Solihull reporting centre back on 4th March 2013.
This application was made by Mrs [Wife]. It is an EEA application, we are aware that it is non-chargeable under the Immigration and Nationality (Fees) Regulations 2011. No fee was therefore paid.
We also note that UKBA has indicated that Zambrano applications should be made on Form EEA2. Meliana did however complete and sign form ‘DRF1’ in addition, as from research UKBA European Team appeared to be sending this additional form to applicants to complete.
We further note that the UK Border Agency has stated that such applicants would be issued with a Certificate of Application, (which do not expire, but are valid as part of a statutory defence for employers against civil penalties) -and therefore, a Certificate of Application would enable an applicant to work, pending resolution of the application which is to ‘confirm’ the right of the applicant to work and live in the member state. No doubt you would agree that removal of the applicant in this case would curtail the child’s Rights under Article 20, as found in the case of Ruiz Zambrano (European citizenship) [2010] EUECJ C-34/09.
At paragraph 43:
“A refusal to grant a right of residence to a Third Country National with dependant minor children in the member state where those children are nationals and reside, and also a refusal to grant such a person a work permit, has such an effect”
We further submit that the Meliana qualifies under Article 8 and Section 55 of the Borders, Citizenship and immigration Act 2009 (“BClA“). Please, therefore also accept this application as “Human Rights” claim under section 113 of Nationality, immigration and Asylum Act 2002 in so far any decision to remove our client would be unlawful under section 6 of the Human Rights Act 1998 as being incompatible with her Convention rights.
Section 55 of the Borders, Citizenship and lmmigration Act 2009 and the Best interest of Child states that:
The United Kingdom has an obligation under article 3(1) of the United Nations Convention on the Rights of the Child as follows:
“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”
This obligation was made binding on UK immigration authorities by section 55 of the Borders, Citizenship and immigration Act 2009. This provides that in relation among other things to immigration, asylum or nationality, the Secretary of State must make arrangements for ensuring that those functions “are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom.”
In the Supreme Court decision of ZH (Tanzania) (FC) v Secretary of State for the Home Department [2011] UKSC 4 Lady Hale at paragraph 17 sited the European Court of Human Rights (ECHR) case of Uner v The Netherlands (2007) 45 EHRR 14 in which the European Court emphasised two criteria which amongst others must be considered in conducting the proportionality exercise:
“[ix] the best interests and well-being of the children, in particular the seriousness of the difficulties which any children of the applicant are likely to encounter in the country to which the applicant is to be expelled; and
[x] the solidity of social, cultural and family ties with the host country and with the country of destination”.
In the ECHR case of Neulinger v Switzerland (2010) 28 BHRC 706 the Court noted, at para 135, that“there is currently a broad consensus — including in international law — in support of the idea that in all decisions concerning children, their best interests must be paramount”.
Lady Hale states at paragraph 29 that the term ‘best interest of the child’ “involves asking whether it is reasonable to expect the child to live in another country. Relevant to this will be the level of the child’s integration in this country and the length of absence from the other country; where and with whom the child is to live and the arrangements for looking after the child in the other country; and the strength of the child’s relationships with parents or other family members which will be severed if the child has to move away.”
Lady Hale went on to state at paragraph 26 that the important thing is to consider the “best interest [of the child] first“ and that no other consideration should be treated“as inherently more significant than the best interests of the children”.
In this case, the children are British citizen and have only known the United Kingdom as their home. Meliana’s children, Chloe and Charlie have integrated into British society, standard and way of life and they have meaningful relationships and strong ties in the United Kingdom as such cannot adapt easily to life outside of the United Kingdom.
At paragraph 31 of ZH (Tanzania) (FC) Lady Hale stated that “it is not enough to say that a young child may readily adapt to life in another country.” She went on to say that the child cannot be expected to easily adapt in the case of children who have lived here all their lives and are being expected to move to a country which they do not know. We are asking the Secretary of State not to make any decision which will be adverse to the safety and *welfare* of the
child mentioned in this application.
Similarly, the case of Zaira Tinizaray v SSHD [2011] EWHC 1850 (Admin) raised the question of how to apply Section 55 (“BClA“) and of the decision of the Supreme Court in ZH (Tanzania) [2011] UKSC 4.
In this case HH Antony Thornton QC stated that it is necessary for a decision-maker to take into account the following essential matters when making a decision that requires the exercise of a section 55 duty. Such matters include:
(a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
(b) his physical, emotional and educational needs;
(c) the likely effect on him of any change in his circumstances;
(d) his age, sex, background and any characteristics of his which the court considers relevant;
(e) any harm which he has suffered or is at risk of suffering;
(f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;
(g) the range of powers available to the court under this Act in the proceedings in question.
We would ask that you give a careful consideration to the above requirements in making this decision. Any change in the children’s circumstances will adversely affect their welfare. Any decision made without applying the above criteria will mean that the Secretary of State has not complied with its duty of safeguarding the welfare of the children as required under Section 55 of the Borders, Citizenship and Immigration Act 2009.
Further, in MK (best interests of child) India [2011] UKUT 00475 (lAC) the head note to the decision states:
(i) The best interests of the child is a broad notion and its assessment requires the taking into account and weighing up of diverse factors, although in the
immigration context the most important of these have been identified by the Supreme Court in ZH (Tanzania) the Court of Appeal in AJ (lndia) [2011] EWCA Civ
1191 and by the Upper Tribunal in (Article 8-best interests of child) Nigeria [2011] UKUT 00315 (IAC).
(ii) Whilst an important part of ascertaining what are the best interests of the child is to seek to discover the child’s own wishes and views (these being
given due weight in accordance with the age, and maturity of the child) the notion is not a purely subjective one and requires an objective assessment.
(iii) Whilst consideration of the best interests of the child is an integral part of the Article 8 balancing exercise (and not something apart from it), ZH
(Tanzania) makes clear that it is a matter which has to be addressed first as a distinct inquiry. Factors relating to the public interest in the maintenance
of effective immigration control must not form part of the best interests of the child consideration.
(iv) What is required by consideration of the best interests of the child is an“overall assessment” and it follows that its nature and outcome must be
reflected in the wider Article 8(2) proportionality assessment. Consideration of the best interests of the child cannot be reduced to a mere yes or no answer
to the question of whether removal of the child and/or relevant parent is or is not in the child’s best interests. Factors pointing for and against the best
interests of the child being to stay or go must not be overlooked.
(v) lt is important when considering a child’s education to have regard not just to the evidence relating to any short-term disruption of current schooling
that will be caused by any removal but also to that relating to the impact on a child’s educational development, progress and opportunities in the broader sense.
Again, paragraph 21 of MK states that:
‘…the best interests of the child consideration – is not to be approached as a simplistic or reductionist exercise. Baroness Hale refers approvingly to the position taken by the UNHCR in para 1.1 of its Guidelines on Determining the Best interests of the Child (May 2008) that “[t]he term ‘best interests’ broadly describes the well-being of the child”. Para 1.1 goes on to state that “such well-being is determined by a variety of individual circumstances, such as the age, the level of maturity of the child, the presence or absence of parents, the child’s environment and experiences”.
In this UNHCR document and other sources on which it draws, the best interests of the child consideration is to be seen to require a broad-ranging inquiry and to encompass multifarious factors including the child’s need for security, continuity of care and affection and the opportunity to form long term attachments based on mutual trust and respect.
As stated by the same UNHCR Guidelines at Para 3:
“[t]he result of the best interest of the child determination must take account of the full range of the child’s rights, and hence consider a variety of factors. The best interests of the child are rarely determined by a single, overriding factor”.
We are aware there have been suggestions that decision-makers might benefit from a check-list relating to the welfare of the child akin to that which family court judges are required to take into account under s.1(3) of the Children Act 1989. However, it seems clear that the guidance given in ZH (Tanzania) has already accomplished the task of identifying the factors which require particular attention in cases in which children are affected by expulsion measures”
Applying, the approach in the above cases in determining the “best interests of the child” means assessing the overall well-being of the child. We urge you to consider that the children of the applicant in this case were born here in the United Kingdom, and have always known the UK as their home. They are both British Citizen’s – in addition to holding the status of being an EU Citizen. Due to this the children have legitimate expectations that they will remain in their home country with their mother.
Also the children also have also integrated in the United Kingdom. They have a half brother here –The first born son of their father – Joshua.
Chloe has made friends in school, which shows that she has formed relationships and has established roots thus she has assimilated into the British Society, culture and way of
life.
As a result, they should not be expected to leave with their mother to Indonesia.
The children Chloe and Charlie P, have obviously formed extreme emotional bonds with their mother, half brother as well as father. It would be impossible for Chloe to cope with
life in this country if her mother and brother are removed from her. In this case it will be in the child’s best interest to allow their mother and the rest of the family to remain with them – as any normal family unit.
You must be mindful that there are no arrangements for looking after the children in the UK due to their fathers poor health. As a result should their mother be required to leave the UK then the whole family unit, including British (and therefore European Union citizens) would be forced to leave the country to Indonesia (which as you are clearly aware – is outside of the EEA)
You would no doubt be aware of the findings in LD (a case pre-dating ZH (Tanzania) paragraph 26 states that:
“Very weighty reasons are needed to justify separating a parent from a minor child or a child from a community in which he or she had grown up and lived for most of her life”.
Again applying the principle in LD, it is clear that the question as to what constitutes the best interest of the child cannot be answered by a simple yes or no response. Determining his best interest involves a detailed assessment of the overall circumstances – and his family. It is our submission that in the circumstances it would be reasonable to allow the Meliana’s application.
Family life and Private Life of Chloe, Charlie, Joshua, Wayne and Meliana
Article 8 — Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
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.
In considering Article 8 cases, the Secretary of State is required to look at the family life and third party rights; AB (Jamaica) v SSHD [2007] EWCA Civ 1302 and Beoku-Betts v SSHD [2008] UKHL 39 at paragraph 4 and paragraph 43.
Beoku-Betts v SSHD [2008] UKHL at paragraph 43 states:
“there is only one, family life”, and that, assuming the appellants proposed removal would be disproportionate looking at the family unit as a whole, then each affected family member is to be regarded as a victim”.
In applying the above to this case, you will accept that if she is removed from the UK, her as well as her entire family’s family life will be jeopardised for the reason that they are a family unit.
Joshua is the son of Wayne – from a short lived previous relationship. His son lives with his mother (Miss) a mere 35 miles away (or 1 hour journey by car). However, Joshua visits currently once a fortnight for one overnight contact. This contact has reduced from weekly contact, and it is clear the impact that this reduction in contact has had on a child.
Joshua has formed a strong relationship with his half brother, sister and step mother, Meliana. Although his visits are currently short and often vary, during the time that Joshua spends with his family the time is spent with his family. Should the family unit be required to leave the UK to continue their right to a family life – this would not include Joshua – as [miss] is considered as the Primary Carer for him.
We submit that the children involved in this case should not be punished for the belief of their mother’s immigration shortcomings. This will clearly be the case if their mother and the rest of the family are removed.
We appeal to the Secretary of State to take into account the effect on every relevant family member in this case whilst you are considering this application. This includes the fact that in any event at least one child will be separated from easy access to a member of their family.
In addition to this, Meliana has established her own private life in the United Kingdom by virtue of her length of residence here. Meliana has been resident within the United Kingdom since May 2008. Over this period she has made friends, established acquaintances, and formed strong relations with her neighbours and community. We say that there is insurmountable obstacles to removing her and her family from the UK to Indonesia.
Meliana does not have a job there, nor does she have accommodation available to provide a home and shelter for herself or the rest of her family that would be required to travel with her. Taking this into consideration it will be almost impossible for her to bring up the children to the standard that they know.
We therefore reiterate the fact that it would be disproportionate to remove her and her family in this regard.  Both of the applicants children are British citizens. However if she is removed it implies that they are required to accompany their mother too. Doing so will deprive them of the rights which they are entitled to by virtue of being both British and a European Union citizen.
You will also be aware that in Chikwamba [2008] UKHL 40 the House of Lords considered that it was wrong for the Home Office to merely ask someone who has established family life in the UK to return to his or her country of origin and make an application for entry clearance to join the family here.
The reason for this is the fact that there is no guarantee that, if she should go, she will be granted entry clearance to re-join her children in the United Kingdom. Also, even if that were not the case, she cannot leave her children alone here and travel to Indonesia – albeit for “the briefest period”.
Assessment of Article 8
In considering this application, we ask the Secretary of State for the Home Department to adopt the step by step approach given by Lord Bingham in R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27 and ask;
1. Will the proposed removal be interference by a public authority with the exercise of the applicant’s right to respect for her family?
2. If so, will such interference have consequences of such gravity as potentially to engage the operation of Article 8?
3. if so, is such interference in accordance with the law?
4. if so, is such interference 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 and morals, or for the protection of the rights and freedoms of others
5. if so, is such interference proportionate to the legitimate public end sought to be achieved?
In response to these questions we submit the following:
  1. We submit that Meliana’s private life cannot reasonably be expected to be enjoyed in Indonesia. Her children were born in the UK. Chloe is three years old and Charlie is a young child of just nine months old. In addition to this Meliana has a step son, who would you could not expect to be able to travel with her to Indonesia. Together all five members of this family (Meliana, Wayne and the three children – Joshua, Chloe and Charlie – form an exceptional family unit and this should not be interfered with.
  2. We submit that in AG (Eritrea) [2007] EWCA Civ 801, at paragraph 26-28, the threshold for Article 8 to be engaged is not “especially high one”, We are of the view that any action which interferes with one of the protected rights of Meliana or her family engages their Article 8 rights.
  3. We submit that any removal will neither be in accordance with Section 55 of the Borders, Citizenship and Immigration Act, or that of ZH.
    1. The above requires the Secretary of State to consider the best interests of children in removal cases where children are involved. Any decision to remove Meliana will affect the welfare of her children – which will not be consistent with the provisions of “Section 55” OR “ZH”.
    2. The removal of a mother who has a strong and genuine emotional attachment with her children will be inconsistent with the laws which seek to safeguard and protect the best interest of the children.
  4. We agree that the Home office needs to ensure that immigration is controlled. However it would be unreasonable to remove Meliana without giving very thoughtful consideration to her circumstances.
    1. In this particular case the children are extremely young and they desperately need all the care and attention that they can get from their mother. This is exactly what she is providing for them.
    2. It will be perverse to distort the relationship between Meliana her children. This is particularly true considering that Meliana has not got any criminal records and does not pose any risk to the public.
  5. “Proportionality” – The House of Lords case of Huang v SSHD [2007] UKHL 11 stated that the ultimate question in determining proportionality is whether the refusal of leave to remain “in the circumstances where the life of the family cannot reasonably be expected to be enjoyed elsewhere, taking full account of all circumstances weighing in favour of the refusal, prejudices the family life of the appellant in a manner sufficiently serious to amount to a breach of the fundamental right protected by Article 8. If the answer is affirmative, the refusal is unlawful and the authority must so decide. It is not necessary to ask that the case meets a test of exceptionality”
Applying this to Meliana’s case, and considering all the circumstances of this case we submit that, an interference of any sort will be unlawful as it will deprive her regular contact with her children in whose life she plays very important role. Any removal will prejudice their private life in a manner that is sufficiently serious to amount to a breach of their Article 8 rights.
We urge the Secretary of State to take account of our clients age, length of residence, strong connections to the UK, and the lack any criminal records, and exercise discretion in her favour.
Proportionality;
In Huang v SSHD [2007] UKHL, the need for exceptionality was abolished; and now the assessment is based on reasonableness. In that sense the SSHD is now
required to determine whether it would be reasonable for the applicant to exercise her private and family life (Article 8 (2)) elsewhere.
At paragraph 18 of the decision in Huang “that the article imposes on member states not only a negative duty to refrain from unjustified interference with a person’s right to respect for his or her family but also a positive duty to show respect for”.
Please note from the precedent in AG [Eritrea] [2007] EWGA CIV 801; that the threshold for article 8 to be engaged is not “especially high one”.
In addition to this, We further submit yet more law.
I would submit this very useful link, which is a clear reading of the U.N.’s Rights of the Child…
I draw particular attention to the following articles – as listed on the URL above:
  1. Article 1 – All children in this case are under 18 years of age.
  2. Article 2 – You must not discriminate against these children due to their mothers nationality.
  3. Article 3 – A government must ensure that children are well looked after. In addition to this – a government must always do what is best for the children.
  4. Article 4 – A government must ensure that the children’s Article 8 right to a family life is protected.
  5. Article 6 – The best start to life involves both parents being present! (explained next)
  6. Article 7 – A child has the right to be cared for by BOTH parents.
  7. Article 8 – Governments should do everything possible to protect the right of every child and young person to a name and nationality and to family life
I don’t believe it needs explaining any further, or how said laws only serve to increase the article 8 claim in this case, in addition to solidifying the Section 55 claim.
Further on, it is pointless to even attempt to explain the meaning of Article 24 – Charter of Fundamental Rights Of The European Union. The article is self explanatory:
Article 24 – The rights of the child
  1. Children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity.
  2. In all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration.
  3. Every child shall have the right to maintaina regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests.
Seams pretty straight forward to me. Therefore, I’ve included some photographs to support the Human Rights claim… The various photos included show the attachments between Chloe, Joshua, Charlie, Meliana, Myself as well as other relatives (aunts, uncles, etc).
Your’s,
W P