Category Archives: Pearsall-Immigration

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: [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

My Complaint to Rob Whiteman

Complaint to Rob Whiteman…

06-04-2013
Rob Whiteman is one of the top guys in UKBA – He used to be the Cheif Exec, but since UKBA lost Executive Agency status, thats not the case.  He is still pretty high up though…  therefore
Subject: Complaints – Updated List…. Including breaches of FOI Act by UKBA…
From: Me @ Mine
To: [email protected];
Cc: [email protected]; [email protected]; [email protected]; [email protected];
Bcc:
Date: Saturday, 6 April 2013, 4:44
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 am writing today in relation to a number of complaints that I have with the service of your staff, both in the European team, and the Solihull Reporting Centre.
As outlined numerous times previously, in emails to [email protected], [email protected] and [email protected] I requested the passports of myself, my daughter and my wife be returned back in Jan 2013. This has not been done.
I have highlighted numerous laws which state that a government cannot withhold travel documents, and prevent a person leaving any country – even his own. UKBA fail to respond to this.
My wife has been discriminated against on a number of occasions when she has been to her reporting sessions, and in various FOI requests that I have made, it is clear that a large number of your staff have the same discriminative attitude.
My wife made an application to remain in the country in 2010, which was reliant upon article 8 of the ECHR. This application was refused with no right of appeal. However, as the application was insistant upon my wifes need to leave the UK this should have attracted a right of appeal.
Further to this, I have been a worker in the EEA (Finland) in 2004. I worked for the Espoo Institute of Business. My wife submitted an EEA2 application to Euro (details above), which included a letter from my employer – the assistant principle at the school. I outlined that I have been active in the EEA and that further to Directive 2004/38/EC my wifes application should also be viewed as the spouse of an EEA national – I draw attention to the memo attached in Annex A of your FOI response 23660 (Available here:
https://www.whatdotheyknow.com/request/123723/response/302513/attach/html/2/UKBA%20FOI%20response%2023660.pdf
—–
4. Legal advice has clarified that the British sponsor in a Surinder Singh case does not need to prove that s/he continues to be a worker or self-employed person upon his/her return to the United Kingdom. The UK national is only required to show that s/he was a worker or self-sufficient person before returning to the United Kingdom. The UK national is not required to be a qualified person under the Regulations following his return to the UK.
—–
I have supplied evidence that I have been a worker in another EEA member state, yet a response to the DWP about my wifes case states that she currently has an application in for Derivative Residence under the EEA regulations – the response omits the fact that she also has an application as the partner of an EEA National (which under directive 2004/38/EC I must be treated as an EEA National upon my return – The directive states no time limit for when this treatment ends! – and infact Case ) – I am stating again… My wifes application should be treated under Singh, and Zambrano. I would appriciate written acknowledgement of this message. – and written confirmation that my wifes application shall be treated as the following:
1) The family member of an EEA National (Myself)
2) The Primary Carer of *THREE* British Citizens – Zambrano.
2a) Chloe p 2b) Charlie p
2c) Myself – WP
Any such refusal of my wifes right to reside in the UK should be based on all four points above! – Including a full explaination of how you have considered the rights of the children in a refusal…
I note: recent UK case law has actually stated that the time between the economic activity within Europe and return to the UK does not matter. I’m more than willing to take any possible refusal to court to add further case law.
I can however provide numerous case law examples which should be considered by yourselves – as a court of law would certainly consider them.
I have given you written permission to contact my GP should further information be required as to my personal health, or to contact myself and I can forward the information on to yourselves.
The ‘Evidential Flexibility’ policy states that should evidence be available and you require it, you must give the applicant sufficient chance to provide the evidence. Evidence of our childrens dependancy upon my wife can be provided should further evidence be required… Evidence of my dependancy upon my wife can be provided should it be required. This can also be obtained from my GP directly in the form of medical records – which I have previously given written permission to obtain. (Note: I have also sent a copy of my Blue Badge into yourselves, which I’m sure everybody in the department is aware of the qualifying factor to obtain, along with my prescription list with a list of medications I am currently taking).
The UKBA have failed to respond to many FOI requests posted by myself and others. Infact the UKBA have breached the FOI Act 2000 in a very recent request by myself.
I requested very specific documentation under the terms of the Freedom of Information Act which has not been complied with.
This is not the only instance of when I have failed to recieve a response to a very real freedom of information request. I understand that the UKBA previously held Executive Agency status that has now been lost. However, this did not give UKBA power to break laws.
A list of other FOI requests can be found here:
https://www.whatdotheyknow.com/request/travel_expenses_for_is96_reporti#incoming-373837 < your own internal review concluded that the response failed to meet the requirements of the FOI act
https://www.whatdotheyknow.com/request/certificate_of_application_guida#incoming-372940 < the request was sparked by previous request, which stated that no further guidance was held on the issuance of a COA… If this statement was correct, then by the legislation of FOI Act, a response should of been made swiftly (this can even mean FASTER than 20 working days – as outlined previously ^) -should the guidance requested in this FOI request exist, it means the response to the initial request withheld information requested, and illegally covered up the information being held…
https://www.whatdotheyknow.com/request/eea_family_permits_wife_mother_o#incoming-370844 < click on “show quoted sections” i draw attention to the response of UKBA on 28th Feb – look at the quoted email from UKBA – Subject Line – Internal review of Freedom of Information request – EEA Family Permits (Wife & Mother of British Citizens …. UKBA failed on its own obligation to conduct an internal review of my request within the timelines it publishes…
https://www.whatdotheyknow.com/request/public_funds_for_a_partner_of_a#outgoing-261299 < requested information on what is considered as a public fund as per ukba and its statement of “No recourse to public funds” and a list of benefits which the partner / spouse of a british citizen is able to access… – as explained on your own guidance… – this request was ignored, despite further reminders…
https://www.whatdotheyknow.com/request/universal_credits_and_partner_wh_3#outgoing-261297 < another FOI request ignored – in relation to Universal Credits and removal of Working / Child tax credits…
https://www.whatdotheyknow.com/request/is96_reporting_conditions_and_li#incoming-369110 < your response was late, and your internal review played down the fact that your response was late… a late response is still a breach of the FOI Act… a day or a month, its a breach… – If my car insurance expires today, and I drive my car on a public highway tomorrow… Can I use the excuse “Oh, its only a day” when I go before a judge for driving without insurance?
Now, with the complaints above, I would expect a full written response. My address is included above. Should further information be required, I would be more than happy to response by either email or post.
Yours,
Mr W P

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

Subject: Re: Complaints – Updated List…. Including breaches of FOI Act by UKBA…
From: [email protected] Mine.com
To: [email protected]eoffice.gsi.gov.uk;
Cc: [email protected]; [email protected]; [email protected]; [email protected];
Bcc:
Date: Saturday, 6 April 2013, 16:56
Mr W P ADDRESS
Date: As Emailed
FAO: Rob Whiteman
CC: Nadhim Zahawi / Paula Scott
* MP Ref: x
* Home Office Ref: (Its a long reference)
Dear Mr Whiteman,
Further to my previous email today, I also highlight a relevant section of Directive 2004/38/EC.
————–
Article 4
Right of exit
1. Without prejudice to the provisions on travel documents applicable to national border controls,
all Union citizens with a valid identity card or passport and their family members who are not
nationals of a Member State and who hold a valid passport shall have the right to leave the territory
of a Member State to travel to another Member State.
2. No exit visa or equivalent formality may be imposed on the persons to whom paragraph 1
applies.
3. Member States shall, acting in accordance with their laws, issue to their own nationals, and
renew, an identity card or passport stating their nationality.

————-

I also highlight the fact that Chapter 10 of the EU handbook states that if a request to treat an application as a priority is not to be completed, then this must be explained in writing. Neither myself nore my wife have received a response confirming, or refusing to treat her application with priority. Therefore, please confirm the status of her application.
Yours
Mr W P

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

Subject: Re: Complaints – Updated List…. Including breaches of FOI Act by UKBA…
From: Me @ Mine
To: [email protected]; [email protected];
Cc: [email protected]; [email protected]; [email protected];
Bcc:
Date: Tuesday, 9 April 2013, 1:23
Mr W P Address Date: As Emailed
FAO: Rob Whiteman
CC: Nadhim Zahawi / Paula Scott
* MP Ref: x
* Home Office Ref: (Its a long reference)
Dear Mr Whiteman / Euro,
Further to my previous messages of 6th April 2013, which have again been ignored (I recieved a response stating that I would receive a response the next day from Rob Whitemans email address – this has not happened?)…
The ruling was:
1. European Union law and, in particular, its provisions on citizenship of the Union, must be interpreted as meaning that it does not preclude a Member State from refusing to allow a third country national to reside on its territory, where that third country national wishes to reside with a member of his family who is a citizen of the Union residing in the Member State of which he has nationality, who has never exercised his right to freedom of movement, provided that such refusal does not lead, for the Union citizen concerned, to the denial of the genuine enjoyment of the substance of the rights conferred by virtue of his status as a citizen of the Union, which is a matter for the referring court to verify.
See the key wording that I have underlined for yourselves. As explained previously, I have also demonstrated to UKBA the fact that I have indeed exercised my right to freedom of movement within the EU when I worked in Finland. This therefore means that the ruling of this case cannot be relied upon to prevent my rights as an EU citizen to allow my wife to reside in the United Kingdom under Directive 2004/38/EC as the Family Member of an EEA national. Should documentation be required from myself to prove that I have been residing within the UK since my return from Finland under the Directive rules, I can provide numerous P60’s, Tax Returns, P45s, Payslips, College Letters, ETC all showing that from the point that I returned from Finland, I have been qualified under one of the following categories:
– Worker
– Self Employed
– Job Seeker
– Student
With my current status in the UK standing as a worker.
Although, the following document, in response to FOI request 23660
Confirms that such documentation is not required…
Yours
W P

=================
I received the following response to these (anybody think I might be beginning to P*ss them off yet?)

Subject: RE: Complaints – Updated List…. Including breaches of FOI Act by UKBA…
From: Whiteman Rob (Submissions) ([email protected])
To: Me @ Mine; [email protected]; [email protected];
Cc: [email protected]; [email protected]; [email protected];
Bcc:
Date: Tuesday, 9 April 2013, 9:56

Dear Mr P

 

Thank you for your three emails to Rob Whiteman. I have passed your queries to the relevant caseworking team and have asked them to make contact with you directly in response to your concerns.

 

Kind regards

 

Sanaya Setna

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

=============
Obviously, I don’t need to say how upset I was that the guy couldn’t even respond to my messages personally.
I therefore decided to respond with a massive Human Rights email, outlining my utter frustration…
See next post….

Section 55 Borders, Citizenship and Immigration Act 2009

Section 55…

06-04-2013
Another chase up for our documents… and also sending out… Sec 55-Duty regarding the welfare of children…
Subject: Re: Futher information…
From: Me @ Mine
To: [email protected]; [email protected]; [email protected];
Cc: [email protected];
Bcc:
Date: Saturday, 6 April 2013, 2:25
name and address
Date: As Emailed
FAO: Paula Scott / Rob Whiteman
CC: Nadhim Zahawi
* MP Ref: x
* Home Office Ref: (Its a long reference)
So, yet more days pass and still I am without either my passport on my doormat, or a response from UKBA. My passport was requested back in Jan 2013.
Surely even UKBA (or should I refer to you as the Immigration and Visa Service now?) would realise that withholding my passport for such a length of time breaches both my rights afforded by UN Treaties (International Law) and EU Directive 2004/38/EC.
I refer to my rights as being breached: 1) The right for myself to leave any country, including “my own”… (previously sent details of this treaty)…
2) Breach of my right to travel across Europe.
In addition to this, you are also breaching the rights of my children – so this is yet another message DEMANDING YOU RETURN OUR DOCUMENTS!
In addition to this, I thought I would send yet another very useful link to yourselves… obviously, you should already be well aware of this though…
http://www.legislation.gov.uk/ukpga/2009/11/section/55
Borders, Citizenship and Immigration Act 2009

Section 55 – Duty regarding the welfare of children

(1)The Secretary of State must make arrangements for ensuring that—
(a)the functions mentioned in subsection (2) are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom, and
(b)any services provided by another person pursuant to arrangements which are made by the Secretary of State and relate to the discharge of a function mentioned in subsection (2) are provided having regard to that need.
(2)The functions referred to in subsection (1) are—
(a)any function of the Secretary of State in relation to immigration, asylum or nationality;
(b)any function conferred by or by virtue of the Immigration Acts on an immigration officer;
(c)any general customs function of the Secretary of State;
(d)any customs function conferred on a designated customs official.
(3)A person exercising any of those functions must, in exercising the function, have regard to any guidance given to the person by the Secretary of State for the purpose of subsection (1).
(4)The Director of Border Revenue must make arrangements for ensuring that—
(a)the Director’s functions are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom, and
(b)any services provided by another person pursuant to arrangements made by the Director in the discharge of such a function are provided having regard to that need.
(5)A person exercising a function of the Director of Border Revenue must, in exercising the function, have regard to any guidance given to the person by the Secretary of State for the purpose of subsection (4).
(6)In this section—
“children†means persons who are under the age of 18;
“customs functionâ€, “designated customs official†and “general customs function†have the meanings given by Part 1.
(7)A reference in an enactment (other than this Act) to the Immigration Acts includes a reference to this section.

Childrens Rights Alliance for England

Childrens Rights Alliance for England…

04-04-2013
Reading of the Rights of a Child – Per CRAE – http://www.crae.org.uk/rights/uncrc.html
Subject: Futher information…
From: Me @ mine
To: [email protected]; [email protected]; [email protected];
Cc: [email protected];
Bcc:
Date: Thursday, 4 April 2013, 5:21
Name and Address
Date: As Emailed
FAO: Paula Scott / UKBA
CC: Nadhim Zahawi
* MP Ref: x
* Home Office Ref: (Its a long reference)
So, another day passes, and another day without either my passport on my doormat, or a response from UKBA.
I thought I would send a very useful link, which is a clear reading of the UN’s rights of a child…
I particularly like Article 7, point 2…. stating BOTH parents…
“Does the UN Convention on the Rights of the Child apply in the UK?
YES, the UK Government agreed to make all laws, policy and practice compatible with the UN Convention on the Rights of the Child when it ratified it on 16 December 1991 (though it registered some reservations which have since been removed). As international law, the Convention is meant to be followed and should be referred to by courts, tribunals and other administrative processes when making decisions that affect children.”
Obviously, a Zambrano ruling is based upon children therefore this very strong international LAW should bear a lot of weight within any response to my wifes application as the primary carer for myself, and our two children.
Yours,
W P

Childrens Rights – How Relevant for Zambrano…

Childrens Rights – How Relevant for Zambrano…

30-03-2013
United Nations Rights of the Child, and Civil and Political Rights, Article 24 of TFEU – Childrens Rights
From: My @ email To:[email protected]” ; “[email protected]” ; “[email protected]Cc:[email protected]Sent: Saturday, 30 March 2013, 6:28 Subject: Return of Passports / Further Information

name address
Sat 30th March 2013.
FAO: Paula Scott / UKBA
CC: Nadhim Zahawi
* MP Ref:  m
* Home Office Ref: (Its a long reference)
Perhaps (well, no, I am actually pretty sure that) the following should also be taken into consideration, when UKBA consider Zambrano…
The United Nations Declaration of the Rights of the Child http://www.un.org/cyberschoolbus/humanrights/resources/child.asp
Specifically Article’s 1 and 6.
In addition to the specific statement: “to the end that he may have a happy childhood “. (We all know children prosper with both parents present.
6. The child, for the full and harmonious development of his personality, needs love and understanding. He shall, wherever possible, grow up in the care and under the responsibility of his parents, and, in any case, in an atmosphere of affection and of moral and material security; a child of tender years shall not, save in exceptional circumstances, be separated from his mother. Society and the public authorities shall have the duty to extend particular care to children without a family and to those without adequate means of support. Payment of State and other assistance towards the maintenance of children of large families is desirable.
As I a request has already been sent for my wifes application to be processed with urgency, and you have recieved numerous requests for our travel documents etc to be returned, I cannot see the hold up with complying with either a written statement of why you will not process the application with urgency, or indeed process the appliction.
Please inform us of what stage my wifes application is currently being held…
Obviously, with all of the evidence, and the level of dependancy on my wife by three British Citizens (two children and one adult – myself) I do not see what the issue is with confirming her right to reside by way of a DRC.
And even more so, As obviously, my wife is the Primary Carer for both children. The Declaration of the Rights of the Child states that you cannot seperate the mother and young child.
I understand that UKBA are also aware that should the application for a DRC be refused, upon appeal the ruling would be over turned. – following on from the guidance refered to in previous messages in relation to the Ex1 for the FLR application…
So, Once again, I repeat:
Please return all documents held by UKBA. This is not a request to cancel the application for confirmation of my wifes right to reside but simply to return all documents held. Including Passports / Marriage Certificate / Birth Certificates ETC.
The United Nations INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS states in Article 12 the following:
Once again I refer to the restrictions imposed upon my wife stating that she must reside at [XXX Address]. This appears to breach Article 12.1
And Article 12.2 appears to be broken by UKBA withholding our passports. A person is not free to leave a country if they cannot obtain their passport, which has been held unlawfully.
Yours,
W P

—————————

Subject: Re: Return of Passports / Further Information
From: ME @ Mine . COM
To: Me @ Mine; [email protected]; [email protected]; [email protected];
Cc: [email protected];
Bcc:
Date: Saturday, 30 March 2013, 15:08
Name and Address
Sat 30th March 2013.
FAO: Paula Scott / UKBA
CC: Nadhim Zahawi
* MP Ref: m
* Home Office Ref: (Its a long reference)

In addition,

Arcticle 24 (of charter of fundamental rights of EU)
Rights of a Child:
Reads as follows:
2. In all actions relating to children, wheather taken by public or private instistions,the child’s best interest must be a primary consideration.
3. Every child shall have the right to maintain a personal relationship on a regular basis and a direct contact with both his or her both parents, unless that is in contrast to his or her best interests.
yours, W P