FLR FP and Judicial review

[remiee]

Good day to everyone in this forum. I really need some advise.

Here is a brief summary of our immigration case. I entered UK illegally in Feb 2004 and met my partner August 2005 who also came in illegal. We had 4 children born in UK Nov 2006, April 2008, Feb 2010 and June 2014. We met a solicitor in 2010 who advised us to apply using FLR-O private life in 2010 with three of our Children. The application was refused and we requested for reconsideration soon after the application refused. We did not here from HO again.

In 2014 we approached another solicitor who now advised us to apply under private life using FLR-FP since our first son is now 7 years. Unfortunately the solicitor applied and made our 7 years son as the main applicant made us his dependants which were strange, but we did not query as he was OISC level 3 advisers. Again the application was refused in 2014 and for some reason HO refunded all the fees we paid about £2Kplus.

Again the solicitor recommended and wrote HO a Pre Action Protocol letter which home still maintained their decision. Our solicitor now decided to file for judicial review.
While waiting for HO response. We received a letter from CAPITA apologizing for the delay in dealing with my 2010 application request for reconsideration and asked us to fill a form for any change in circumstances. We sent the letter to our solicitor who completed the form and sent back to CAPITA.

Yesterday 16/01/2015 we received a letter from UTIAC refusing not to grant our request for JR.
Our solicitor has now recommended to request a removal notice from HO which would trigger right of appeal.

Below are the wordings.
Following consideration of the documents lodged by the applicant and the acknowledgement of service filed be the respondent.
Decision by Upper Tribunal Judge J
The application for permission is hereby refused.
Reasons:
1. The respondent was unarguably correct in considering the case for A, (A) a minor aged 7, on the basis that (i) his parent have no right to remain and (ii) the family would return together and (iii) it was clearly reasonable to expect (child) to leave the United Kingdom with his parents.

2. It is conceded that if the applicant parent claim in their own right, the claim will fail. Hence, the grounds seek to make (Child) the vehicle through whom his family (his parents and 2 younger children none of whom has right to remain in their own right) claim a right to remain in UK as (child) dependants, thereby avoiding reliance on the reasons that renders the parents claim unarguable.

3. Paragraph 34D prevents them from doing so. As a matter of law, neither (child) parents nor his siblings are his dependants and their claims (Inc child) are bound to fail.
(3a) The applicant do show cause why the applicant should not pay the respondent’s costs of the acknowledgment of service in the sum of £640 within 7 days of service of this order upon the applicant. In the event that the applicant does not respond as directed, the order for cost shall be made final pursuant of rule 10 (7) and (8) of the Tribunal Procedure (Upper Tribunal) Rules 2008.
(3b) I further direct that making of such request is not, without further directions, to operate as a bar to removal of applicant from the UK.

My questions are.
1. What do you advise we should do?
2. Was our solicitor right to have applied using our 7 years old son as the main applicant?
3. Would my reconsideration for my 2010 FLR-O application still continue or will the UTIAC refusal for JR affect the pending reconsideration request pending as at last week before we received decision from UTIAC.
4. Could some help me explain what 3b and 3b means? (I included the 3a and 3b to enable me refer my question to it)
5. My children are now 8 years, 6 years, 5 years and my fourth child is now 6 months (not in all the application)

I will really appreciate any advice.

[Obie]

The Judge is correct. 34D (ii) prevents you from being the dependent of your child.

It does not provide for parents to be a dependent.

It is a shame that the lawyer caused you to waste so much money on a fruitless application.

He does not seem to know what he is doing.

At least he should have made one parent apply with the child, and the other parent subsequently apply.

In making an unmeritorious JR, rather than asking for a removal decision, and then proceeding with JR if refused, this lawyer has prolonged the hardship on your family, and now you are faced with a fee for the respondent.

[remiee]

@ Obie Thank you so much for the quick response. I am so worried and I don't know what to do. Please I just want to clarify since the main applicant is my 7 years son. Would the court expect him to pay the £640 to the respondent? and also what action can take against my solicitor because I paid almost £2000 as fee. Since he filed an application that lack merit. lastly what do you think will happen to my pending reconsideration request.

[Obie]

Did he renew your case for an oral hearing?

You can refer matter to the Solicitors regulations agency.

I think he should have saved the JR if the reconsideration did not work.

Your case seem to fall within the policy, so it has reasonable prospect of getting the removal decision, provided the UKBA does not contest a valid application was not made. You have a child under 18, who has been residing here for 3 years.

Did UKBA return your dependents application fees on the basis that there was no valid application made as a dependent, within 34D.

[remiee]

@Obie. Yes they returned all the application fees including my son's fee when they refused the application. below is the email I received from my solicitor. He did not mention oral hearing.

"I have received a letter from the Upper Tribunal regarding your JR. A judge has reviewed your claim and has decided not to grant permission for a hearing. This is obviously awful news and puts us back where we started other than child is that bit older and closer to being 10 and able to register as British.
The only possible course of action I can see now is to request a removal decision in order to get the right to appeal and therefore a Tribunal hearing. Let me know what you think."

Regards
Solicitor.

Before I received the letter from the Upper Tribunal regarding not granting JR for my sons application. My request for reconsideration for the application we made in 2010 as a family was still under review. I do not know if the refusal to grant JR for my son's application will affect it. I intend to ring HO on Monday with my case id and see if the case is still pending.

[Obie]

Why on earth did he go for JR then.

How can he make an application for removal decision, when a valid application for leave to remain had not been made and refused.

The good thing about your case, is that you may be able to register your young child next year.

[remiee]

@Obie. Thank you so much for the time you have taken to answer my query. Please what do you think. Before I received the letter from the Upper Tribunal regarding not granting JR for my sons application. My request for reconsideration for the application we made in 2010 as a family was still under review. I do not know if the refusal to grant JR for my son's application will affect it. I intend to ring HO on Monday with my case id and see if the case is still pending.

What would you recommend we do? Do we abandon my son's application since HO refunded our fees and many times I have rang them with my sons case id. They have always there is no application for my son, JR case was pending and that is why I wasn't sure what to do then.

Thank you.

[Obie]

The difficulty is, your lawyer never made any valid immigration decision.

If there was not a valid immigration application, then there cannot be a valid decision which can be Judicially reviewed.

You need to have a discussion with your solicitor, as things have not been done properly.

If a proper FLR(FP) application in accordance with 34D(ii), then what is there to Judicially review.

The Authorities returned your money, as no lawful application was made.

How could he have proceeded with a Judicial review, when the declaration of the application as invalid was made in accordance with the law.

[remiee]

I really need advise on what to do if I can not afford to pay the HO costs of the acknowledgment of service in the sum of £640 within 7 days of service of this order upon the applicant. Can I arrange for installment payment? Will really appreciate any advise.

[Obie]

You can ignore it or write to the court to vary it.

From my experience it is up to Home Office to enforce , and they don't usually enforce orders.

[remiee]

@Obie. Thank you for the information. Do you have a format/template that can be use if I wish to write to the court to vary it. I really do not know how to compose this letter.

[Obie]

Ask the solicitor to sort it out, as he was the one that pursued a JR, when there was no decision, or valid decision.

[remiee]

@ Obie. This the email I received from my solicitor when I questioned him on this. "This is what the Home Office are claiming £640 for. I can buy you more time by returning this letter to the court and TSOL informing them that I am not representing you in this matter and therefore the court should correspond with you directly".

[Obie]

@ Obie. This the email I received from my solicitor when I questioned him on this. "This is what the Home Office are claiming £640 for. I can buy you more time by returning this letter to the court and TSOL informing them that I am not representing you in this matter and therefore the court should correspond with you directly".

This is a very appalling behavior from someone who is supposed to be a legal representative.
It is just inappropriate for us moderators, who have our daily lives,and at the same time trying to offer something, to be picking up the pieces for him .

[remiee]

@Obie. I really appreciate your sincerity and I thank you for that. It is unfortunate that we still have some these solicitor out there just to prey on people like us.

[Obie]

I hope it gets sorted.

I suspect you should work on making a valid application on the basis of the children.

[remiee]

@Obie. Thank you for the reply.
Update:
I rang the HO this afternoon regarding my 2010 application that was refused and the subsequent reconsideration and I was told that the reconsideration request is still under review and they can't tell me when it will be concluded. Please kindly advise on below.
1. Should I wait till I get response on the reconsideration request or
2. Wait my first child to turn 10 year towards the end of next year and register him or
3. Put in a fresh FLR(fp) application.

Thank you.

[Obie]

Yes you can get your MP to chase up the reconsideration request.

See what they say on it, as circumstances regarding the children's length of residence has changed.

If then perhaps a valid application under the Family and private life policy.

If you register the end of Next year, you will not get a response until sometimes in 2017, and then you will have to make an application then. If you are OK to wait an extra 2 and half years, then that is fine.

[remiee]

Just wondering if anyone has a sample letter that I can use to write my MP to intervene and check the progress of my reconsideration request lodged since 2010/2012. I will really appreciate any help from the gurus.

[remiee]

Please just wanted to find out what difference does reconsideration submitted before 13 November 2012 and reconsideration submitted after 13 November 2012 under article 8 family and private route. I have been waiting for reconsideration request decision/outcome since 2011 still yet to be decision. I have been ringing HO and they keep saying decision has not be made. Please advice.

[mkhan2525]

Getting your MP on the case usually does the trick.

[Obie]

I concur.

They Usually respond to MP.

[remiee]

I have written to my MP and got a reply from my MP office that "Please take this as receipt of your email and J Blogg in the constituency office will respond in full in due course". Thank you for all your advice.

[mkhan2525]

That is a standard acknowledgement reply you get when you email your MP.

When you've written the email follow it up with a phone call a few days later to make sure they've received your email. This will prompt them to act swiftly.

They will communicate with you via the post.

Good luck.

[remiee]

I got a reply from my MP and it reads MP has asked me to look into your case for him as I help him with visas, etc. I have just been on to the Home Office and they have informed me that your case was last looked into on 20 Jan 2015, no decision has been made and the case is still ongoing. If you haven't heard anything in, say a month or so, please do not hesitate to contact me and I will look into it again for you.