I need your help, desperately please

[Twin]

Wow Jeff, that is some lengthy case indeed! When one reads cases such as yours, one realises that one isn't doing badly afterall and should give thanks in any case! My oh my!

I am glad you finally sorted that out. It was a long time coming but you got there in the end. Let's hope i'll be able to post such success story too, soon. Congratulations in arrears!

It is not guaranteed that your DL will be extended so it is open for you to apply under the Rules in the future if you qualify

No guarantee? Goodness! I'm a bit confused about this one. So, right now i'm not within the rules, how will I then be in the rules in 3 years time (this is of course me being optimistic that one of the concession will work in my favour).

However, it does not make much sense because while being on DL you are getting more benefits than on any other category under the Immigration Rules.

I know i'm pushing my luck but do you care to share what sort of benefits a DL holder is entitled to?

Does it entitle one to work and travel?

[Jeff Albright]

No guarantee? Goodness! I'm a bit confused about this one. So, right now i'm not within the rules, how will I then be in the rules in 3 years time (this is of course me being optimistic that one of the concession will work in my favour).

The DL extension may be refused if the circumstances under which the DL was originally granted are no longer in place. For example, if you are granted DL following your successful DP3/96 application, your circumstances will be assessed again in 3 years basing on the circumstances of relationship with your husband. If your relationship no longer exists, you may be experiencing problems getting your DL extended. However, the chances of being refused are much lower because by that time you will have been in the country for 15 years and other factors will weight heavier in your favour, including your relationship with your daughter being a British Citizen.

Be aware that the DL may also be cancelled before it expires, if the circumstances under which it was granted cease to exist and it comes to the BIA's attention. Also, be aware that the DL may be subject to review before it expires. If at any time, BIA find out that you are no longer in relationship with your husband, they might review your case.

I know i'm pushing my luck but do you care to share what sort of benefits a DL holder is entitled to?

No restrictions except for the time limit. You are free to take up any employment and are free to claim any benefits. You are entitled to education as a "home student".

Does it entitle one to work and travel?

Yes, you can travel freely. You should also know that every time you enter the country the Immigration Officer may ask you questions to assess your circumstances. If they find out that your circumstances under which your DL was granted, cease to exist, they may cancel your DL and refuse entry or alternatively, they may also curtail your leave.

[Twin]

This is priceless information you've given me. Invaluable!

Now it's clear that I have to explain my circumstance to the BIA as it is now as if say my husband finally cooperate and I get my leave on the ground of us being a couple this might backfire when the leave comes up for renewal.

I will forward what I have and hope for the best. Thank you so much for your assistance. Hopefully, i'll have some good news for you soon.

Thank you! Thank you!! Thank you!!!

[tasha75]

that we would not usually proceed with enforcement action in cases where a child was born here and has lived here continuously to the age of [7]

So the DP5/96 will avail you .....

I've applied on this basis earlier this year and got refusal 2 months later. My children were born here, I've graduated here while working and raising family, no criminal conviction etc. ...nothing matters if you have "bad" immigration history. Both me and my children were served with removal papers even though as I said they were born here.
My lawyer (and I had a good lawyer - co-author of the Immigration "bible") said we couldn't appeal against the HO decision as "7-year rule" is a concession, and it's up to HO to excersize (or not) this discretion.

Must add though, we've just won an appeal albeit on different grounds.

[tasha75]

I appealed against it, represented myself and won the appeal in February this year. The Home Office wrote asking for photographs and my passport.

Jeff, may I ask you how long did you have to wait since your appeal determination for the Home Office to request your passport and eventually to return it stamped? My appeal was over 6 weeks ago and I've heard nothing from the Home office as yet.

[Jeff Albright]

My lawyer (and I had a good lawyer - co-author of the Immigration "bible") said we couldn't appeal against the HO decision as "7-year rule" is a concession, and it's up to HO to excersize (or not) this discretion.

I disagree although the DP3 and DP5/96 are indeed based on Human Rights grounds, i.e. the grounds outside the Immigration Rules. It is of course, up to the Home Office to refuse or grant an application made under these policies. However, the Human Rights Article 8 is still in force and you can use it to appeal against this refusal.
It is correct that the judge can only allow an appeal when it is alleged that a discretion under the Rules should have been excercised differently. The Home Secretary is under no obligation to exercise discretion outside the Rules and if he does not, there is no right of appeal under the Immigration Rules. However, there is a right of appeal on other grounds, for example Human Rights and Asylum.
The DP3 and DP5 are policies. This policy was put in place for a reason. And one of these reasons is to reduce the number of appeals and consequently, caseload on Appeals Directorate. The policy incorporates those principles, which are most likely to avail applicants to achieve an outcome of appeal in their favour. If the Home Office refuse an application under DP5/96, this means that it does not meet the criteria required under the Article 8 and such an application is also likely to fail at an appeal stage.

[Jeff Albright]

Jeff, may I ask you how long did you have to wait since your appeal determination for the Home Office to request your passport and eventually to return it stamped? My appeal was over 6 weeks ago and I've heard nothing from the Home office as yet.

Yes, nor did I until I chased them up. You must be firm because they do not tend to act on the determination quickly enough. I first spoke to the Presenting Officers Unit, then I wrote to the Angels Square Presenting Officers Unit in London, who was trying to appeal against the decision of the judge but were refused. They phoned me the next day they received my letter, apologised and immediately passed my file to the Appeals Implementation Unit for the status papers to be issued. I also got an apology in writing from Keith Lambert, the Director of Appeals Directorate.

[Twin]

Thanks for your contribution Tasha75.

Can you tell us on what basis your application was refused please?

The saddening thing is that my child isn't even 7 yet! I'm treading on thin ice, so it seems...

that we would not usually proceed with enforcement action in cases where a child was born here and has lived here continuously to the age of [7]

So the DP5/96 will avail you .....

I've applied on this basis earlier this year and got refusal 2 months later. My children were born here, I've graduated here while working and raising family, no criminal conviction etc. ...nothing matters if you have "bad" immigration history. Both me and my children were served with removal papers even though as I said they were born here.
My lawyer (and I had a good lawyer - co-author of the Immigration "bible") said we couldn't appeal against the HO decision as "7-year rule" is a concession, and it's up to HO to excersize (or not) this discretion.

Must add though, we've just won an appeal albeit on different grounds.

[Twin]

Jeff, it appears from Tasha's case that it does not matter whether or not one's child(ren) was born here. The HO seems to focus majorly the applicant's immigration history.

I was actually going to ask Tasha on what basis she won the appeal.

My lawyer (and I had a good lawyer - co-author of the Immigration "bible") said we couldn't appeal against the HO decision as "7-year rule" is a concession, and it's up to HO to excersize (or not) this discretion.

I disagree although the DP3 and DP5/96 are indeed based on Human Rights grounds, i.e. the grounds outside the Immigration Rules. It is of course, up to the Home Office to refuse or grant an application made under these policies. However, the Human Rights Article 8 is still in force and you can use it to appeal against this refusal.
It is correct that the judge can only allow an appeal when it is alleged that a discretion under the Rules should have been excercised differently. The Home Secretary is under no obligation to exercise discretion outside the Rules and if he does not, there is no right of appeal under the Immigration Rules. However, there is a right of appeal on other grounds, for example Human Rights and Asylum.
The DP3 and DP5 are policies. This policy was put in place for a reason. And one of these reasons is to reduce the number of appeals and consequently, caseload on Appeals Directorate. The policy incorporates those principles, which are most likely to avail applicants to achieve an outcome of appeal in their favour. If the Home Office refuse an application under DP5/96, this means that it does not meet the criteria required under the Article 8 and such an application is also likely to fail at an appeal stage.

[Jeff Albright]

Jeff, it appears from Tasha's case that it does not matter whether or not one's child(ren) was born here. The HO seems to focus majorly the applicant's immigration history.

It does matter. All Human Rights cases are assessed on an extensive consideration of various factors, i.e. series of tests based on case law in the UK courts. The relevant factors do include immigration history, as a matter of course. For example, if a person was deliberately violating the immigration rules in the past knowingly overstaying, etc., absconding, etc this will never be in his favour. However, in some cases, despite the immigration history being poor, when the Home Office had also been inefficient by failing to deal with the case, especially if you tried to chase them but they were delaying or not communicating, as a result of which you have been "hanging" here for several years, built your family life, etc, this may well help you. It is impossible to say whether a particular case is going to be successful or not without knowing all the relevant details.
Therefore, you cannot say that this or that factor will be determinative to the type of decision reached.

[Twin]

Jeff, i'm back again with my troubles - hope you don't mind

I wanted to know that since my marriage has broken down and I no longer qualify for the DP3/96 concession, would I be refused? Or, will the home office look at my daughter's factor and consider on that basis or would I have to make a fresh dp5 application after refusal or just bring it up during appeal?

My lawyer and I decided to explain my current circumstance which we have done and all i'm waiting for now is their decision.

I just wanted to know other options open to me.

I'm almost sure you've answered this question before but my nerves are getting the better of me now. Sorry. Hope you don't mind

[Jeff Albright]

Jeff, i'm back again with my troubles - hope you don't mind

Not at all - always pleased to help

I wanted to know that since my marriage has broken down and I no longer qualify for the DP3/96 concession, would I be refused?

Yes, you could be. It depends on the expertise of the particular caseworker, probably senior caseworker, dealing with your file. Remember, your application is outside the Rules so it is entirely up to your caseworker to decide this or that way.

Or, will the home office look at my daughter's factor and consider on that basis or would I have to make a fresh dp5 application after refusal or just bring it up during appeal?

Weeel... Usually, the application made under a particular policy will be decided under that policy. It depends on what you have submitted within your grounds. If your solicitor has included the details of your daughter and your caseworker is experienced enough to deal with the DP5/96 policy and is willing to consider the entire set of circumstances of your case or passes it to someone else more experienced, the submissions will be properly considered and you may end up getting leave to remain under DP5/96.
However, this does not always happen. If your caseworker establishes that one or more criteria under the policy are not met, he or she is entitled to refuse your application outright. When refusing your application, in the Reasons for Refusal Letter they will give you an opportunity to state additional grounds, which you haven't stated before. You will have the choice, either submit your additional grounds back to your caseworker within 10 days or submit those grounds together with your appeal grounds to the judge at the Asylum and Immigration Tribunal for your appeal, which also have to be done within 10 days. It is always recommended that you go for appeal after your application is refused and forget about the Home Office. The AIT is a completely independent authority and will decide your case on the broader range of relevant circumstances than the Home Office. For example, they have powers to have better regard to many factors, which may critically weigh in your favour.

[Twin]

Once again, thanks for your lucid advise.

Now, here is what baffles me. As i've said previously, a good amount of my time is spent on the internet reading similar case laws and rules, concession that relates to my case and on one of those occasions, I happened to find out that the migration and borders department deals with long residency, which of course happens to be the department handling my case. This now begs the queston: Are they dealing with my case in that regard? As I have come to understand that most cases that are similar to mine are normally dealt with by the Removal and enforcement directorate?

The other thing is: If I was only being considered on the DP3/96 policy, why then did they ask for information about my daughter ie proof of child benefit and letters from her school?

Could it be that they are looking at the DP5/96 policy as well? Or is this just standard information, which they request for?

I am only trying to console myself you see, I don't take rejection very well.

What do you think, Jeff?

[Jeff Albright]

This now begs the queston: Are they dealing with my case in that regard?

No, not the long residency. You will never qualify under the 14th year rule.

As I have come to understand that most cases that are similar to mine are normally dealt with by the Removal and enforcement directorate?

Or what they call it now "Legacy Directorate".

The other thing is: If I was only being considered on the DP3/96 policy, why then did they ask for information about my daughter ie proof of child benefit and letters from her school?

If they did then it is good for you - the caseworker is probably looking into all the circumstances of your case, which is indeed good news.

Could it be that they are looking at the DP5/96 policy as well? Or is this just standard information, which they request for?

They request what they find relevant to help them to decide. It is impossible to speculate on the way they are considering you - every case is different. You can try to get in touch with your caseworker and speak with them if you know the name on the bottom of the letter you received.

I am only trying to console myself you see, I don't take rejection very well.

You just have to be prepared either way and know what to do next. At least your solicitor and this topic will help you - the good news is that there are people around you who will always help.

So just try to keep calm and continue reading the case law. I suggest you browse through the determinations on the AIT website and I am sure you will find something similar to your situation. Knowledge is power, the more you know the easier will be for you to understand how to proceed whatever decision you get.

[tasha75]

Jeff, it appears from Tasha's case that it does not matter whether or not one's child(ren) was born here. The HO seems to focus majorly the applicant's immigration history.

yes, that was the main reason for refusal. This is what my refusal letter says:

..Although we accept that your child has spent a continuous period of 7 years or more in the UK and that you reside together with your children as a single family unit, we are not prepared to regularise you and your family's stays under the provision of the concession in view of your abusive history, which is considered to outweigh factors of your child's length of residence here.......
Whilst it is acknowledged that you may have established a family life in the UK with your children, it is not considered that your removal from the UK will amount to a breach of Article 8 since there is no insurmountable obstacles to your children accompanying you to your country should this be their wish. Your children are free to accompany you abroad (but they were still served with IS151A)....However, even if your children are unable or unwilling to accompany you, it is not considrede that your removal will amount to an unlawful interference with your family life in the UK....
...your rights to private life have also been considered. whilst it may be accepted that during your time in the UK you may have established a private life, it is believed that any interference can be justified. Your private life has been established partly whilst you have been in this country unlawfully, in the knowledge that you have no right to be here and may be removed at any time........
In view of the above we do not accept that the existence of your family or private life in the UK is a sufficiently compelling reason ....

Having spent most of your life abroad there is no reason to suppose you could not re-adapt to life in XXX (came here 10 years ago, aged 21, so most of my adult life has been spent in the UK, plus children don't speak my home language).

[tasha75]

I was actually going to ask Tasha on what basis she won the appeal.

We won the appeal on Human rights (family life) but using the European law and Baumbast and Chen case laws (or whatever they called). My partner (children dad) is EU national, and we provided proofs including from school and childcare provider that dad supports children in every possible way - financially and physically: attends parents evenings, does shopping for them, takes on days out, even changes nappies. There are also some reasons why he cannot be expected to go to my country with us.
But from what I understood at the hearing, had my partner been British or at least settled here, I would be nevertheless expected to go back and reapply to re-enter on whatever basis, e.g. fiance or spouse visa.

[tasha75]

However, in some cases, despite the immigration history being poor, when the Home Office had also been inefficient by failing to deal with the case, especially if you tried to chase them but they were delaying or not communicating, as a result of which you have been "hanging" here for several years, built your family life, etc, this may well help you.

I had an outstanding application for 3 years, which was submitted by my first lawyer, who simply disappeared 2.5 years and who was "dodgy", the fact that I only discovered when I requested my file from SAB. The HO knew about it and in all 3 years they have not even once contacted me regarding this. It did not at all helped my case, in fact it went against me, as in HO words it was my responsibility to ensure that I was adequately represented. Call me naive, but I have never thought that in a developed country like UK there could be such practising lawyers as that one. I thought they were all regulated by some professional body, even in the way he looked, dressed and behaved he gave the impression of a respectable professional man.

[tasha75]

I first spoke to the Presenting Officers Unit, then I wrote to the Angels Square Presenting Officers Unit in London, who was trying to appeal against the decision of the judge but were refused. They phoned me the next day they received my letter, apologised and immediately passed my file to the Appeals Implementation Unit for the status papers to be issued. I also got an apology in writing from Keith Lambert, the Director of Appeals Directorate.

Many thanks for your reply Jeff. When you say they were trying to appeal, was it after the allowed time has elapsed (5 days I think) or before that?
It has been 8 weeks since the appeal and they have not even written to my lawyer requesting passports.

May I ask you a few question, please?

Did you use this address:
Presenting Officers Unit
3rd Floor
Building 1
Angel Square
1 Torrens Street
London. EC1V 1SX
Tel: 0171 833 3144
Fax: 0171 837 9980

if so, did you address your letter to a particular person or just Sir/Madam, and also did you write a big angry letter, or just gave them the necessary info ( name/ref. number, date of hearing etc.) and asked "what's going on guys"

[Jeff Albright]

in view of your abusive history, which is considered to outweigh factors of your child's length of residence here.......

This statement stands out quite strongly.
Since you never told us on what exactly "abusive" was in your history here, it is difficult to speculate where they got this assumption from. Have you knowingly overstayed and were ignorant to the Rules or was it just a set of circumstances, under which you overstayed?

no insurmountable obstacles to your children accompanying you to your country should this be their wish.

The "insurmountable obstacle" is known to mean a very high threshold. What argument did you use in front of the judge to prove that there were in fact such obstacles? Is it the fact that your husband is from another EU country? What is the nationality of your children? Have they acquired the citizenship of their father?

...your rights to private life have also been considered. whilst it may be accepted that during your time in the UK you may have established a private life, it is believed that any interference can be justified. Your private life has been established partly whilst you have been in this country unlawfully, in the knowledge that you have no right to be here and may be removed at any time........

It is a known fact that they do not tend to give sufficient weight to education and achievements but the AIT usually do. I am interested in knowing how did the AIT comment on this?

[Jeff Albright]

But from what I understood at the hearing, had my partner been British or at least settled here, I would be nevertheless expected to go back and reapply to re-enter on whatever basis, e.g. fiance or spouse visa.

Actually, the experience shows this argument does carry significant weight. It does appear to constitute a part of "insurmountable obstacle" when your partner is of a different nationality and even better, a different race. It may be difficult for them to adapt to life in your country but you also have to prove that there is no viable option of entry clearance for you to return to them in the UK. If your husband is an EU national, how did you argue the fact that the entry clearance application wouldn't be an option for you?
I put forward an argument to the judge during my appeal because I am originally from a European country but my wife is black African and our daughter is mixed. I successfully argued this before the judge in relation to the facial hatred in the country I came from in addition to the fact that my wife is not settled here for immigration purposes, hence I could not apply for an entry clearance to return as her spouse. This argument has been successfully accepted in my favour.

[Jeff Albright]

I had an outstanding application for 3 years, which was submitted by my first lawyer, who simply disappeared 2.5 years and who was "dodgy", the fact that I only discovered when I requested my file from SAB. The HO knew about it and in all 3 years they have not even once contacted me regarding this.

I would say it is a very valid and smart point...

It did not at all helped my case, in fact it went against me, as in HO words it was my responsibility to ensure that I was adequately represented.

This is what they replied, haven't they? Well, I would argue this back immediately saying that it is my responsibility to have a adequate representation, and to check that my lawyer is properly registered to practise immigration law in this country but it is not my responsibility to predict the future and how these lawyers would behave in 5 years time after the Home Office finally gets round to look into my case. Also, it is the Government's responsibility to ensure that all the lawyers are adequately registered with OISC and provide adequate service according to the standards and quality.

Call me naive, but I have never thought that in a developed country like UK there could be such practising lawyers as that one. I thought they were all regulated by some professional body, even in the way he looked, dressed and behaved he gave the impression of a respectable professional man.

Exactly. I had exactly the same problem with the lawyer back in 1999 before it became mandatory for the immigration consultants to be registered with the OISC.

[Jeff Albright]

When you say they were trying to appeal, was it after the allowed time has elapsed (5 days I think) or before that?

If they appealed you would have received a notice from the Tribunal. Suggest you call the Tribunal quoting your appeal number and ask if the PEO lodged any appeal.

It has been 8 weeks since the appeal and they have not even written to my lawyer requesting passports.

Well, obviously you will have to pursue this now.

Did you use this address:
Presenting Officers Unit
3rd Floor
Building 1
Angel Square
1 Torrens Street
London. EC1V 1SX
Tel: 0171 833 3144
Fax: 0171 837 9980

If the HO did not appeal, you should contact your local POU and not the Angels Square. Angels Square mainly deal with representations before the Senior Immigration Judge, High Court or COA.
The address above is correct but the telephone number has changed a long time ago.

if so, did you address your letter to a particular person or just Sir/Madam, and also did you write a big angry letter, or just gave them the necessary info ( name/ref. number, date of hearing etc.) and asked "what's going on guys"

You should be capable and confident writing such letters yourself, as no one can advise you on this. If you are not sure what to write, ask your lawyer.

[Twin]

Thanks for your reply, Tasha.

Although, i'm still a little confused about HO's view of poor immigration history. What does this mean exactly?

Is it that one has stayed in the country for such a long period of time without attempting to regularise one's stay or that at a point in time, one made an application which was refused and then served with a removal letter or in Tasha's case, her being unaware that her solicitor was bogus and had been out of practise? I just do not understand this.

The other bit I do not understand is their seven years child concession criteria. As I understand it, regardless of the parents status ie bad immigration record or not, a parent should not be expected to be removed once his/child has accumulated 7 years residency. I mean if they can do it to Tasha, who qualified based on her child's length of residency, what then will they do to me who's child is barely 7?

I don't think the Immigration officer was right in Tasha's case at all but then again, they can easily argue that since the seven year is just a concession and not a rule. Either way, it was sad that they had to serve you removal papers.

Now, as my relationship with the father of my child has broken down, would they expect me still to go back to my country of origin to apply for a spouse visa or just altogether remove me with my child who is a British citizen, don't understand nor speak my language or ever set foot in the country? This should be good.

As it stands now, I neither qualify for the dp3 nor the dp5. I'm just eager to find out the outcome. And that aside, I have been in the country before turning 18. Part of my adolescent life and all my adult life have been lived here. Still, would they ask me to return to my home country?

Or would they ask that I leave my child with my husband, return to my home country and apply as a person seeking right to be with a British citizen?

it would be good to know my options because as it stands now, i'm prepping myself up for the worst. This might be a long battle.

[tasha75]

It is a known fact that they do not tend to give sufficient weight to education and achievements but the AIT usually do. I am interested in knowing how did the AIT comment on this?

Yes, the Home Office totally ignored it, but the judge favourably mentioned about it a couple of times in the determination letter. That apart from my breaches of immigration control I have no criminal record and am not a threat to UK society. That I gained a first class degree, was employed in a professional capacity and was hoping to study for a PhD.

[tasha75]

I put forward an argument to the judge during my appeal because I am originally from a European country but my wife is black African and our daughter is mixed. I successfully argued this before the judge in relation to the facial hatred in the country I came from in addition to the fact that my wife is not settled here for immigration purposes, hence I could not apply for an entry clearance to return as her spouse. This argument has been successfully accepted in my favour.

That was our argument as well. My partner is also black, and both my children are mixed race. Also, even though my partner is an EU national, he hasn't been here long enough to acquire a right to permanent residence, and we are not married, hence there is no Immigration rule in respect of which I could seek entry clearance.