rise&shine wrote:Hi everyone
I will appreciate advise on my situation pls. Solicitor rang yesterday to tell me our application had been refused again.
10 months ago, I and my daughters both born in UK (now 9 & 7 yrs old) applied through a solicitor using FLR (FP) forms. HO caseworker wrote to ask for DNA test of me, my girls and their dad (solicitor mentioned in covering letter he has LLR), although the ground was on 7yrs concession but she mentioned him to make it stronger case.
We've went separate ways over 5yrs now, we hardly talk; was not surprised he refused when I ask if he could give DNA sample. Solicitor wrote caseworker to explain I can't produce the test result cos of that and inability to fund it (applied using fee exemption). Caseworker wrote solicitor that he will contact in future after seeking advice from senior member of his team.
Solicitor wrote my local MP to help chase the case 7 months after the last correspondence, a week after, a refusal letter stating refusal to produce DNA test result as reason.
Now Solicitor said we need to appeal (surprisingly, we have right to appeal), she said we need to do the DNA test. She expects me to pay for appeal, DNA test, her service and that of a barrister. I have not seen the refusal letter, do not know the date on it but Solicitor said appeal must be made before the end of next week, I don't know where she expects me to get the money in less than a week.
My questions pls: since the letter from HO 7 months ago is with us, can the Solicitor challenge the decision without an appeal?
If ex is still adamant, what can I do/any other option?
Is my Solicitor after her bank balance or working in our interest? Do I need to look for another one?
If I can't manage to do anything in good time, can't apply for appeal by next week, what other options do we have?
Thank you
Sorry to hear of your refusal.
It seem out of the ordinary for a case worker to demand a DNA test. As you haven't given much info regarding this will I be right to assume there is a doubt in either or both of you being parents of the children/child?
I have read quite some few articles and looked at the 7yrs child concession rule and couldn't find any clause as part of the requirements. If you can please elaborate on the reasons why the caseworker requested this perhaps it will help.
The rules regarding the 7yrs concession is quite straight forward:
"The key test for a non-British citizen child remaining on a permanent basis is the length of residence in the UK of the child – which the rules set at at least the last seven years, subject to countervailing factors"
The argument in my opinion is what constitute countervailing factors; here I will submit its good character requirement
Reading from your brief there isn't anywhere, where there is a doubt apart from the DNA requirement. It therefore could be 'honesty and deception' issue.
Moving forward my humble suggestion is if the father of the children refused DNA test, you really can't force him otherwise,especially since he isn't the main focus of your application and you really don't need him to be considered for the 7yrs child concession. Now, since you have the right of appeal you might want to consider doing the test plus the children and present it as part of your appeal documentation/evidence.
You also did mention about change of solicitors and finance difficulties. I will suggest at this stage your most priority is to submit the appeal within the time lapse, hence changing of solicitor at this stage wouldn't be a smart move. If you are struggling to raise the funds, you can actually appeal yourself without a solicitor (but as you are aware it's rather complicated without knowing the appropriate case laws). There are some few pro bono solicitors that might take your case, but your time might be too short.
Try
http://www.barprobono.org.uk Tel: 020 7092 3960 Email:
enquiries@barprobono.org.uk
Seven years was recognised as an important if arbitrary period of residence for children by the previous President of the Upper Tribunal in EM (Zimbabwe) CG [2011] UKUT 98 (IAC) and continued to be recognised in other cases including Azimi-Moayed and others (decisions affecting children; onward appeals) [2013] UKUT 197 (IAC). When the Immigration Rules were changed in July 2012 (Statement of Changes HC 194), seven years of residence by a child was formally incorporated into the rules as a sufficient period to justify continued residence by the child and parents.
I do remember on this thread someone had very similar case to yours and perhaps will share her experience. Looking at your case, you do have a strong chance of winning the appeal if you satisfy the issues raised by the caseworker I.e DNA test. I genuinely can't see how your daughters will be expected to move to your home country when the rules are clearly in their favour.
"The Rules deal clearly with how to treat British citizen and other children in cases where we would otherwise intend to remove their parent(s) and how countervailing factors should weigh in the decision. There are some circumstances where children may be allowed to stay on a permanent or temporary basis on best interests grounds. The key test for remaining on a permanent basis is around the length of continuous residence of a child in the UK – which we have set at 7 years, subject to countervailing factors. We consider that a period of 7 continuous years spent in the UK as a child will generally establish a sufficient level of integration for family and private life to exist such that removal would normally not be in the best interests of the child. A period of 7 years also echoes a previous policy (known as DP5/96) under which children who had accumulated 7 years’ continuous residence in the UK were not deported, which is still referenced by the Courts on occasion"
Please don't see my write up as a legal opinion. It's always best to seek proper legal advice. I can see you winning the case on appeal; but you MUST clear all the clouds surrounding your application.
Good Luck.
in your appeal and try your luck.