dilse4srk wrote:HI All
I would like to know some reference cases which can be sighted in FTT, i would like to go through these anyway, little history of my case
came to uk as student in 2009,
got married in 2012 and refused with right of appeal
won the appeal in 2013 and home office issued 2.5 years visa
applied for renewal in 2016 for same visa using flr fp form but got refused
got appeal right in december 2016
still waiting for hearing date;
slight change in my case is (i will be becoming father in october 2017) as my partner is british so i am guessing the born child will be british as well
since we are expecting the hearing date in january 2018
Could you please let me know if the british born child will make our case strong in court
are there any reference cases which involve british born child which are few months old and did add positivity in cases
Since court asked home office to look at the best interest of child when announcing 18600 decision, would this help my case directly or in directly
Thanks
Your case would be overwhelmingly strong once your child is born. There are many case law that touches on the best interest of British children. I've copied and pasted a letter I sent with my own application which was successful. Just reference these case laws in your letter to the Home Office:
Case law on Article 8 of the ECHR
The House of Lords found in Chikwamba (2008) UKHL 40, that only “comparatively rarely,” should a claimant be forced to seek entry clearance from abroad where their Article 8 right to pursue a family life is clearly established, and where removal would cause significant disruption to family life. This ruling refers particularly to families with children. As myself and partner are a couple and parents to a young child, my removal from the UK would cause a significant disruption to our family as it would leave Miss xxx effectively as a single parent.
This principle of considering the human rights of the family members in the United Kingdom who would be most impacted by the removal of the claimant, was also upheld in Beoku-Betts (2008) UKHL 39. There, the House of Lords stated that for Article 8 purposes, the family must be thought of as a single unit: “Once it is recognized that …..’there is only one family life,’ and that, assuming the applicant’s 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….” It is clear from the above cases that consideration of the impact of refusal on the human rights of my family members in the United Kingdom is imperative for a full consideration of claims made under Article 8. Therefore, Miss xxx and our daughter’s rights under Article 8 must also be considered.
Also in AB (Jamaica) (2007) EWCA Civ 1302, the Court of Appeal decision found that the Article 8 rights of the person who is present and settled in the United Kingdom, in this case, Miss xxx and our daughter are engaged and must be considered as carefully as those of myself.
I also wish to draw your attention to the decision of the Supreme Court in ZH(Tanzania) (FC) (Appellant) v Secretary of State for the Home Deparment (2011) UKSC 4.
As Lady Hale held, giving the leading judgment, the best interests of the child must be considered first in decision affecting the child. The best interests of the child are the starting point before turning to countervailing considerations. Lady Hale’s judgment indicates, moreover, that where a decision directly affects a child’s upbringing the best interests of the child carry greater weight. Those best interests can only be displaced by countervailing reasons of considerable force.
In ZH(Tanzania), the Supreme Court considered the situation where the Secretary of State proposes to remove the parent of a British citizen child, I refer you in particular to the comments of Lady Hale in paragraphs 26 and 30 – 33 of the judgment, Lady Hale makes very clear that the welfare of the children is a primary consideration and states:
“Nor should the intrinsic importance of citizenship be played down.”
Lady Hale further states:
“As citizens, these children have rights which they will not be able to exercise if they move to another country. They will lose the advantage of growing up and being educated in their own country, their own culture and their own language. They will have lost all this when they come back as adults.”
It is clear from this that the effect of my removal on my partner and particularly on our child, a British citizen, carries great weight. If I am required to return to Ghana , then Jane and her mother would be forced to travel with me to maintain our family unit. This action could not be justified and therefore, to require me to leave the United Kingdom would be in breach of my partner’s and daughter’s Article 8 rights. To interfere with those rights simply on the basis of maintaining immigration control would be unlawful. I submit that this decision on its own is sufficient to show that I must be granted leave to remain in the United Kingdom.
Finally, I wish to refer you to the decision of the European Court of Justice in Zambrano (C-34/0 Ruiz Zambrano v Office national de l’emplol (ONEm)). This case recognizes that the third country parents of British citizen children who are dependent minors have a right in European law to residence in the United Kingdom. The family do not need to have lived in any other member States. It is unreasonable and disproportionate for Miss xxx and our daughter to be expected to relocate to Ghana in the event of my removal. As a British citizen, she should not be put in a position of choosing between her health and her life in the United Kingdom, or keeping her relationship and family intact if I was removed.
