More on Section 55 of the Borders Act…

Section 55 of the Borders Act…

26-06-2013
So I made three requests relating to the welfare of children ETC…
Request 27089: https://www.whatdotheyknow.com/request/section_55_of_the_immigration_ac
Request 27044: https://www.whatdotheyknow.com/request/ukba_interpretation_of_un_rights
Request 27272: https://www.whatdotheyknow.com/request/ukba_splitting_families
The requests yeilded the following response: https://www.whatdotheyknow.com/request/section_55_of_the_immigration_ac#incoming-396605
Of which the document: EVERY CHILD MATTERS – CHANGE FOR CHILDREN Statutory guidance to the UK Border Agency on making arrangements to safeguard and promote the welfare of children Issued under section 55 of the Borders, Citizenship and Immigration Act 2009 (November 2009) http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/legislation/bci-act1/change-for-children.pdf?view=Binary
Was provided to myself….  It is quite lengthy reading… but outlines a number of points…
I note the response didn’t meet the Home Office requirements.  Further information was clearly available: http://webarchive.nationalarchives.gov.uk/20130401151715/https://www.education.gov.uk/publications/eOrderingDownload/Framework%20for%20the%20assessment%20of%20children%20in%20need%20and%20their%20families.pdf
I made a number of requests to local authorities to outline the “need of a child” etc. https://www.whatdotheyknow.com/request/a_childs_best_interests_care_arr_3 https://www.whatdotheyknow.com/request/a_childs_best_interests_care_arr_2 https://www.whatdotheyknow.com/request/a_childs_best_interests_care_arr to link a few (more are available on my WDTK profile).
All of which pretty much state the same: “We cannot remove a child from their parent, unless it prevents harm to the child”…
So… appears clear… UKBA cannot expect a parent to leave a child…  as obviously such an action can have serious concequences on a childs mental health:
NOTE ALSO… Article 8 and Zambrano Immigration Directorate Instructions: See annex A of my FOI request responsehttps://www.whatdotheyknow.com/request/159548/response/392395/attach/2/FOI%2027354.pdf(a) Cases where the primary carer is being removed or deported to a country outside the EEA, but a Zambrano right is refused on the basis that the British citizen will be able to continue to live in the EEA with another parentIn some circumstances the case worker will refuse to recognise that the adult migrant has a right to residence here on the basis of Zambrano because the child or disabled adult could remain in the UK with another parent or carer and would not therefore be compelled to leave the EEA. Where a refusal is made on this basis, and the case worker is then considering the Article 8 rights of the primary carer, they cannot conclude that there will be no interference with family life because the family can live together as a family unit in a country outside the EEA. To do so would directly conflict with the basis upon which recognition of the Zambrano right had been refused.

Waiving the fee on human rights applications

Waiving the fee on human rights applications

26-06-2013

As you stated, it is possible to be exempted from having to pay a fee for a human rights based application.

This can be done using Appendix 1 to Form FLR(O), available here: http://www.ind.homeoffice.gov.uk/sitecontent/applicationforms/flr/flro1
This information is good news after almost six months of attempts to retrieve this information from the Home Office: HO Ref: 27758 https://www.whatdotheyknow.com/request/refused_application_prior_to_jul HO Ref: 27105 https://www.whatdotheyknow.com/request/fee_remissions_for_applications
I’ve also decided to get in touch with the BBC again, as it appears they are in the mood to discuss the issue happening at present… ———————–Hi, I was directed to your post: http://www.bbc.co.uk/news/uk-23029195

I was already well aware of this route, and had infact began the process to accomplish this to enable my wife to remain with myself and our two extremely young children.My wife has been in the country since 2008, Although we understand she did need a visa, we were left with the decision “leave or stay” when we just couldnt afford to apply for leave to remain.

We have two young children, in 2010 we applied for a human rights application which was refused, stating that there was no reason that I and our daughter couldnt go to indonesia to live with my wife (and thus keep our family together)…

This appeared clearly contrary to what the law says etc, and the right of our child, a british citizen to remain in the country…

So a few years of hassle, constant reporting to solihull etc and it had got “too much”.  The staff were rude, and uttlerly disgraceful with the manner in which they spoke to my wife.

We had already wasted money contacting solicitors, sending in an application etc, and nothing… but we didnt have a choice…

Then one night I was browsing the internet and found “immigrationboards.com” and posted a quick write up on there with our story… – not expecting to receive any help…

However, the people there were fantastic…  they were pretty much at one point, all in our shoes in some manner… with a struggle against the UKBA…

We knew we needed to sort my wifes leave to remain…

We found out the three possible options… 1) Singh [which you know] 2) Zambrano… Case C-34/09 and then 3) Human Rights (Which we had already tried and failed)

We submitted our zambrano application… and then on Feb 7th my wife reported again…  We had come to the conclusion that a trip to Ireland was the best option… No language barrier, no hassles… (The republic is another EEA state and works just as well as France)

So as UKBA were holding my wifes passport, she requested it back.

Richard in the centre was outright rude, and condecending, with the words “You will never get into Ireland. They will refuse you entry. Your only option is to go home”

As your aware, Directive 2004/38/EC (The singh route baseline now)… states that an EEA member state cannot refuse entry to a family member of an EEA national. and thus, Richard was clearly talking out of his…

After months of trying, we finally secured the return of my wifes (now expired) passport.

However, the third option was still an open one… Why uproute my family to secure our family life… Article 8 enshrines the right to repect for our home also… (clearly disrespecting this, if i need to go to ireland to ensure we can live together)…

So I had already asked, considering one solicitor had mentioned he had heard (through the grape vine) that Article 8 could allow free applications (our biggest problem being, HOW could we afford to pay an application fee… On Jan 30th, I submitted the following FOI request to the Home Office / UKBA: https://www.whatdotheyknow.com/request/refused_application_prior_to_jul —– what fee remissions are possible for an application. my solicitor informed me that there are possible fee waivers/reduction in exceptional cases – esp. in cases involving article 8 of the human rights.

how would one proceed with an application FLR(M) if such a fee was not paid. Please can you send a copy of all guidance given to UKBA officials which deals with fee remissions ETC. ——

After six months of chasing, and even a second attempt: https://www.whatdotheyknow.com/request/fee_remissions_for_applications

I was still getting no closer…

Infact, another person had submitted the same request (Just Legal Group): https://www.whatdotheyknow.com/request/application_fees_2

which yeilded no real answer…

So, after attempts at making the ICO get the information requested… I filed my Pre Action Protocol letter threatening Judicial Review…

Yesterday, I received a partial set of good news from Ollie Carlise (Rob Whiteman’s personal secetary)… He stated: — Waiving the fee on human rights applications

As you stated, it is possible to be exempted from having to pay a fee for a human rights based application. This can be done using Appendix 1 to Form FLR(O), available here: http://www.ind.homeoffice.gov.uk/sitecontent/applicationforms/flr/flro1

So, this was good news…  The case was true… no fee payable… but only in certain circumstances…: “You will only be considered to be destitute if: a) You do not have adequate accommodation or any means of obtaining it (whether or not your other essential living needs are met); or b) You have adequate accommodation or the means of obtaining it, but cannot meet your other essential living needs.”

Destitution… is there a real definition of it?…

We have two young children living with us… one is less than a yr old, and the other almost four – Both British.  Both our children.

Zambrano (option 2) states that an EU state cannot remove a parent for whom an EU citizen is dependant upon, and the state must give that parent a right to work and live there and confirm it with a residence permit…

Therefore my wife has a right to live in the country… UKBA / The Home Office still appear to refuse this right…

A child is emotionally, financially, and physically dependant on both of their parents.

Article 24 of the TFEU states that a child has a right to meaningful personal contact with both parents… UNCRC states pretty much the same… plus more…

ukba goes against both…

The home office wrote to me stating that human rights will not be taken into account in the zambrano application… however, this itself goes against the Human Rights Act… as in any action taken, the act must be taken into account… (I can provide the letter to yourselves) – it just goes to show how above the law Mrs May and the Home Office believe they are.

Our story is very detailed and complex, and if you would like any further info we are more than happy to supply it…

We know numerous people in simular situations to ourselves, with british children who are expected to leave the country…  all of whom want ukba brought to account…

They breach numerous acts of law, and brush it aside.

They allow their staff to undermine people, and treat them like dirt, and nothing gets done about it.  Something must change.