Hi All
Been following this forum for years and hope someone would help.
Based on the facts below, mother in laws visit visa refused, Pre Action Protocol unsuccessful, solicitor suggests its a strong case with good merit for judicial review but would like a second opinion.
Recently applied for my mother in laws visit visa and it got refused due to non-submission of her bank statement. We fully sponsored the visit from UK and thought her bank statement wouldn't be necessary. The below were submitted. Note: the objective of travel is to come and visit her elder daughter and her family. The daughter was pregnant and the baby was due on end of Aug 18. She wanted to be present in the lovely occasion of the birth of her grandchild and spend some time with all etc.
i) UKVI Application form
ii) Passport
iii) Letter of invitation from daughter & son-in-law including tour details.
iv) Letter of sponsorship from my son-in-law and relevant documents i.e. bank statements, payslips etc.
v) Property deed
vi) Recent water bill
vii) Husband's death certificate
viii) Birth Certificate of 11 year old daughter
ix) Birth Certificate of other daughter
x) x3 Family photo of daughters and elderly parents who will be remaining in Bangladesh while she visits.
xi) Her national identity card
xii) Recent valuation of asset (land & property)
xiii) Copy of tenancy agreement as Landlord.
xiv) Recent 6-month rent receipts.
The application got refused giving the following reason as .
------------ Solicitor has applied for Pre Action Protocol bringing the below points -------------
Proposed Grounds for Review:
1. Whether your decision dated xxxx to refuse our client's applications for entry clearance as a family visitor are unlawful and unreasonable.
2. Whether the failure to consider exceptional and compassionate circumstances is unreasonable, disproportionate and there was a procedural mistake.
3. Whether the failure to make appealable immigration decision with an in-country right of appeal is unlawful/unreasonable in the circumstances of this case.
1.
Our client submits that she made an application for entry clearance as a family visitor to be present at the time of her daughter/sponsor's (xxx) baby delivery, which was due on xxx to support the family in this crucial time and also to spend time with her daughter's family members. However, the entry clearance officer (ECO) though recognised the importance of the purpose of the visit he simply ignored the applicant's submissions and refused her application on xxx without proper and adequate consideration. It is clear on the face of the refusal letter that the ECO failed to consider the that Mrs xxx, a solvent woman of over 50 years old having her parent and two daughters living with her in Bangladesh. Further, she has strong tie in Bangladesh, she has lands with two storeyed property of her own in Bangladesh. Further to note, applicant's son-in-law, provided a letter with the application dated xxxx, clearly addressing the applicant's personal, social and financial conditions, her true intention to visit the UK as well as his own financial and other conditions to support her mother-in-law's visit. Those clearly show the applicant's strong credibility as a family visitor. It also proves that she is not a person to overstay or unlawfully stay in the UK or there is no risk that she can be a burden on the UK's Immigration control or national security' or welfare system. The ECO failed to take into consideration all these and refused her applications on ordinary grounds. The ECO failed to recognise and appreciate the significance and necessity of the purpose of the proposed visit and deprived the applicant and the sponsor daughter and her family. Therefore, the ECO failed to consider the applicant's right of family life under Article 8 of ECHR. For all these reasons, your decision to refuse her entry clearance is unlawful and unreasonable. Our client submits that the ECO also acted unreasonably by making the conclusions that she is not a genuine visitor and that she would not leave the UK at the end of her visit. Her personal, social and financial conditions clearly prove her to be genuine visitor. But the ECO acted unlawfully in not considering those facts. Further, the applicant submitted adequate evidence by way of providing the ECO with her property deed, Valuation of (land & property), tenancy agreement as landlady including receipts of rent, deed of her own land- pertaining to her financial conditions, income and expenditures, ability to travel to and from the UK, though her sponsoring daughter and son-in-law have stated in their sponsorship declaration that they would pay her food costs.But unfortunately, the ECO did not take into account all those at all and or adequately. In light of above, it is submitted that the ECO acted unreasonably in stating that the documents submitted by the appellant are readily available in Bangladesh. The ECO erred in not considering that it is not simply sufficient without a strong basis to make an overall comment that such are generally available easily in Bangladesh. Further, the ECO did not provide any cogent evidence in this specific case in support of the contention that the documents provided by the applicant have been easily obtained. The ECO failed to produce any evidence to undermine the documents submitted by the applicant. The ECO also failed to take into account that the rental receipts submitted by the applicant are consistent with all of the other evidence in particular Recent valuation of the properties of the applicant and House Rent deed. Moreover, the applicant submitted sufficient documents in relation to her strong ties to Bangladesh: she has her own property in Bangladesh and she also has her family members in Bangladesh including her elderly and daughters-younger one is 11 years old who is dependent on the applicant, which prove that she will undoubtedly return to Bangladesh upon completion of her visit, which also proves that she has no intention to make the UK her permanent home. The ECO also failed to consider the declaration made by her sponsoring daughter & son-in- law and the applicant in their letters where they clearly stated that she will return to her home country at the end of her visit and she has no reason to stay longer in the UK and she has strong family, financial and social ties in Bangladesh. She also stated that she is a sound and solvent person in Bangladesh as she has her own source of income from her rental and other property and she is not dependant on anybody. The ECO failed to properly consider these extraordinary circumstances of the applicant that prove her clear intention to return to Bangladesh upon completion of her trip.The ECO made an unreasonable and thus unlawful decision to refuse her application totally ignoring her submissions and declarations. The ECO made a general conclusion without paying proper attention to the exceptional nature of this application. The ECO failed to apply Secretary of State's discretion in considering a very credible and solvent applicant's application and thus deprived her of the joy and happiness to meet the sponsor daughter, her husband/sponsor son-in-law, one child and newborn child. The sponsor daughter has also been deprived to have her mother by her side at the time of the birth of her child, the applicant could help her pregnant daughter in looking after her family for the first few months after the delivery of her daughter. As a result, it is submitted that the ECO failed to use your common sense and a degree of intelligence and fairness.
See Forrester, R (on the application of) v Secretary of state Home Department [2008] EWHC 2307 where the following paragraphs from that case are of particular importance (emphasis added):
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Our client submits that the ECO also failed to apply discretion in her favour although there had been compassionate circumstances in her application. Applying discretion would have a material impact upon the conclusions that can be found in ECO's decision on her application. Our client also submits that the Secretary of State was reminded of discretion outside the
rules- see Thebo, R (on the application of) v Entry Clearance Officer Islamabad (Pakistan) [2013] EWHC 146 (Admin):
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2,
Our client submits that there were significantly exceptional and compassionate circumstances in her application as she applied to go to the UK to be by the side of her pregnant daughter, being one of the sponsors, and to see their newborn child, which is an unforgettable memory for any person. She gave birth to the second child on xxx through cesarean section, her husband works full time. Consequently, he would not be able to give necessary care and assistance to his wife. As a result, applicant's presence in the UK even for a few months, at this critical moment of the sponsors, would help the family a lot to overcome the difficulties and hardship they would go through for the first few months. The ECO failed to give proper considerations to our client's application. The ECO made unreasonable and disproportionate decision by concluding that there was doubt about xxx income and circumstances and that she has evidenced strong family, social or economic ties to her country of origin, Bangladesh, to demonstrate that she intends to leave the UK on completion of her visit. Such conclusion clearly shows that the ECO simply ignored all the applicant's documents, letters, statements and credible account of her financial ability, strong family, social and economic ties and expressed intention to leave the UK. Therefore, the ECO made a wrong conclusion by deciding that the applicant did not accurately present her circumstances or intention in wishing to enter the UK. Therefore, the ECO's decision is unreasonable and disproportionate.
3.
Further or alternatively the applicant submits that her application clearly attracted right of appeal as it is related to human rights as she wished to visit her daughter and her family respectively and was deprived of the opportunity to be by the side of her daughter at the time of giving birth to her child. Our client submits that she is eligible for a right of appeal due to her exceptional and compassionate circumstances. But the ECO failed to consider these facts adequately and did not grant her a right of appeal. As a result of the ECO's unreasonable, unlawful and disproportionate refusal, our client has been deprived of a right of appeal which she would have been entitled to.
Submission:
Our client is challenging the decision of the xxx based on two significant facts that were overlooked or misconstrued by the Entry Clearance Officer.
First fact: By submitting deeds along with the valuation of the property she owns, and the income generated from the property as rent, the applicant depicts a financial picture which was disregarded by the ECO simply ignoring by addressing that those are readily available in Bangladesh. Thus the Entry Clearance Officer's interpretation of the appellant's financial condition without proper investigation is completely unjustifiable which should be considered as a lack of transparency on his/her part. This was given as one reason the application was refused, despite being untrue.
Second fact: The application is not merely for a typical family visit. The applicant's visit is a necessary one to support her daughter as she comes towards the successful completion of her complicated pregnancy and briefly thereafter, since the work of the husband does not allow him sufficient time off to attend to her. There is no reason to think the applicant would care to remain in the UK beyond the dates she has applied for. Her daughters, parents and all other relatives are citizens of Bangladesh and they live permanently in Bangladesh where she is owner of her house and other lands (which are worth several hundred thousand GBP). Please note that the applicant's son- in- law (daughter's husband) is a British citizen whereas her daughter is on Limited Leave to Remain. Therefore, she needs to make application for further leave to remain in the UK by the next year. Therefore, they are highly aware of the Immigration Rules in the UK. The ECO should understand that the UK sponsors (applicant's daughter and her husband) are not in a position to let the applicant overstay or breach conditions of stay. For the sake of the applicants interest and her daughters interest, the applicant will comply all rules very strictly.
Conclusion: In light of the above arguments it will be argued that the ECO's decision of xxxx to refuse our client's application for entry clearance is unlawful and unreasonable.The ECO's failure to adequately consider our client's exceptional and compassionate circumstances and supporting evidence in her application is unreasonable and disproportionate. Your decision of not to give a right of appeal is unlawful and unreasonable. Even if the applicant cannot come to the UK before the delivery of the baby and or she cannot be here at the time of the birth of her child, the sponsor daughter still needs her mother to come to the UK and support in post-natal period and meet her newborn child and other family members in the UK as she is now and will be very busy with the new baby she cannot travel to Bangladesh to meet the applicant. She has not seen her mother since her arrival into the UK in 2015. We further reserve our position with respect to whether there has been an abuse of power.
The Way Forward: We ask that you withdraw your decision dated xxxx to refuse our client's application for entry clearance and allow her application. Alternatively, we ask you to grant our client a right of appeal. If we did not receive a suitable response from you within 14 days, we will issue judicial review proceedings without further notice and will seek the cost of these against your client. We would, therefore, be grateful for your prompt response by return.
----------------------- PAP reply by ECM -------------------------------
I have carefully considered the grounds raised therein, the refusal notice and the documentation in support of the application.
It is noted that your PAP relates to little more than a general disagreement with the decision. It remains that your client has not demonstrated her own circumstances and ties to Bangladesh, at least based on what was presented with the application. The challenge to the financial element of the refusal comes from the belief that the ECO has been dismissive with the documentation provided. On the contrary, the ECO carefully considered these in their assessment of the application and found that although rental agreements had been provided, the nature of the documents, in isolation, is of little evidential value, when there is no objective other documentation to support this. The applicant had made statements, and provided a limited amount of documents which, on balance, were not able to clearly demonstrate her circumstances for the reasons noted by the ECO.
It is noted that Article 8 has also been raised, but only as a mere assertion. It is noted that the limited grounds raised would not be sufficient to engage any breach of Article 8.
Should your client feel they are able to address the reasons for refusal, then it always remains open for her to make a fresh application.
For the reasons noted above, therefore, I maintain the refusal of the ECO, noting it demonstrates careful assessment of all aspects of the application and comes to a well-reasoned, balanced and fair decision.
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The solicitor is ready to file the judicial review as he believes that there is strong merit on the case based on above points but would like a second opinion.
Many thanks
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