Bambino-fred wrote: ↑Mon Apr 10, 2023 2:52 pm
I want to start a legal case now while they are here, based on 'the right to a family life' principle
Freemovement:
There’s actually no right to family life in the UK
You could be forgiven for assuming that is all you need. You have family in the UK, so requiring you to leave the UK would breach your Article 8 right to family life. It’s not so simple.
You also need to show that you could not enjoy your family life
elsewhere. There is no right to enjoy your family life
in the UK. Your British partner or child may well wish to stay in the UK and, as citizens, they are entitled to do so. However, in order for you to stay in the UK with them, you need to show you could not live as a family elsewhere.
...
The right to family life is not absolute. It can be interfered with in the interests of maintaining effective immigration control. All cases involve what lawyers and judges call a “balancing exercise”, with the right to family life on one side of the scales and the public interest in immigration control on the other. This is also known as the “proportionality assessment”.
The above generalisation is true for every family life case, though the specifics change from case to case.
...
As the
Home Office’s guidance puts it (on page 52):
…
a British citizen partner who has lived in the UK all their life, has friends and family here, works here and speaks only English may not wish to uproot and relocate halfway across the world, and it may be very difficult for them to do so. However, a significant degree of hardship or inconvenience does not amount to an insurmountable obstacle. ECHR Article 8 does not oblige the UK to accept the choice of a couple as to which country they would prefer to reside in....
Bambino-fred wrote: ↑Mon Apr 10, 2023 2:52 pm
1 / I assume the Home Office will allow the three of them to stay in the UK while the case is ongoing, even if their visa expires, is that correct ?
To the best of my knowledge (and I am not a lawyer, so check with one), the mere application for judicial review will neither extend their visa nor protect them from deportation. That would only occur if the judge gave an injunction preventing their deportation or removal.
And the fact that they overstayed their visa can impact not only any future UK visa application, but also Ireland's (with whom the UK shares immigration data) and any other country that factors in visa application rejections of other countries (such as the US, if your partner is not an American citizen).
Bambino-fred wrote: ↑Mon Apr 10, 2023 2:52 pm
2 / If the case is unsuccessful, will that mean the three of them will probably be refused any UK visa in the future ?
You'd have not only burnt your bridges, you'd probably have nuked all the surrounding area as well.
EDIT: Found this paragraph in another
Freemovement article while researching another thread.
Some guidance is provided by the Supreme Court, in the case of
Agyarko [2017] UKSC 11, which considered the appeals of two women who had entered the UK as visitors and overstayed. In both cases they had British partners, and both appeals were dismissed because the women could not demonstrate that their cases raised “exceptional circumstances”.
The court concluded that Appendix FM is compatible with Article 8 of the ECHR and it is up to the Home Office to decide what “exceptional circumstances” and “unjustifiably harsh consequences” mean.
There is thus case law from the UK Supreme Court that would suggest that any application made by you on the grounds you have suggested is likely to fail.
I am not a lawyer or immigration advisor. My statements/comments do not constitute legal advice. E&OE. Please do not PM me for advice.
