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: [email protected] 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

Leave a Reply

Your email address will not be published. Required fields are marked *

* Copy This Password *

* Type Or Paste Password Here *