TRICKY ONE - ASYLUM DEPENDENT

[tapera]

I need a bit of advice here...

I was on the old style work permit until I was made redundant in June 2009 due to the vagaries of the credit crunch. My wife joined me in 2007 as a dependent and in April 2009 we had a baby.My visa was up to 2013 and I was due to qualify for my ILR in April 2010 but of course that is academic now. I tried to look for another job but as you know employers in certain fields have been reluctant to employ foreigners due to the recession and the new Points Based System rules. I tried for just over six months to no avail.

As we had lost income we were in dire straits. My wife had an asylum issue due to the cirmstances in which she left our home country and her previous security job in our home country one of the most oppressive dictatorships on earth. In March 2010 she then approached the Home Office which subsequently refused her asylum claim and at the same time curtailed our leave to remain - I am now a dependent on that claim. My passport is with the Home Office but has now expired.

We appealed, the appeal was denied but we have been given permission to appeal to the Upper Tribunal, which we are doing.

Jobs in my field are beggining to pick up, I am thinking of applying for some of them.

MY QUESTIONS ARE:

1) WILL THE HOME OFFICE ORDER ME TO LEAVE AS SOON AS I ASK FOR MY PASSPORT?

2) WILL THE HOME OFFICE ALLOW ME TO GET BACK INTO TIER 2 , AS I AM NOT THE ASYLUM CLAIMANT, I AM JUST HERE AS A DEPENDENT TO MY WIFE?

PLEASE HELP

[Mr Rusty]

Your wife and you cannot be required to leave the UK until your asylum appeal is resolved.

However, what's the point of asking for your passport back? It's expired, and if you get a new one, it will have no current LTR endorsed in it. No employer is going to look at you.

Your Leave has been curtailed - that means exactly what it says, and your only right to be in the UK now is as an asylum dependant, which confers no right to work.

Unless your wife's asylum appeal succeeds, you have no future in the UK. Even if it does, your time accrued as a work permit holder will no longer count towards ILR, you would have to start again.

You may feel with hindsight that your wife's asylum claim was a pretty bad idea.

[avjones]

As I understand it, you don't have permission to work at the moment, so it's unlikely to be easy to find employment.

[zhashim]

I agree with Mr. Rusty; you will not be removed from the country without a valid travel document or while you have a valid appeal pending. Your Upper Tribunal appeal must first be resolved (after which you still have the Judicial Review route open in very limited cases).

Your applying for a Tier 2 visa is dependent upon your being hired by a sponsor - which will be difficult as you do not currently have leave to remain - most employers will want to ward clear.

One matter in particular concerns me.

You say your wife came to the country in 2007, and I am sure that you made your application for asylum immediately thereafter. Having now had a child, your circumstances have changed and you can therefore move to have your asylum application submitted as fresh due to the provision of fresh evidence (e.g. birth of your child); the UKBA will have to take notice of this, as per R v SSHD ex parte Mahmood [2001] WLR 840 CA.


Were you my client, I would advise you to follow through your current application till you are Appeal Rights Exhausted (ARE), and then move to have a fresh application submitted.

It may not get you immediate leave to remain, but certainly the longer your case goes on the stronger your case for established family life becomes.

I would discuss the matter further with your solicitor. You definitely have enough loose strings to try to form a good case and a talented solicitor and barrister team should be able to come up with it for you.

[Mr Rusty]

You say your wife came to the country in 2007, and I am sure that you made your application for asylum immediately thereafter. Having now had a child, your circumstances have changed and you can therefore move to have your asylum application submitted as fresh due to the provision of fresh evidence (e.g. birth of your child); the UKBA will have to take notice of this, as per R v SSHD ex parte Mahmood [2001] WLR 840 CA.

My understanding of the OP from "In March 2010 she then approached the Home Office" was that the asylum claim was not submitted until then, after he lost his job. In that case any issue would be covered under 'One-stop' procedures.
Perhaps the OP can enlighten us.

[zhashim]

You say your wife came to the country in 2007, and I am sure that you made your application for asylum immediately thereafter. Having now had a child, your circumstances have changed and you can therefore move to have your asylum application submitted as fresh due to the provision of fresh evidence (e.g. birth of your child); the UKBA will have to take notice of this, as per R v SSHD ex parte Mahmood [2001] WLR 840 CA.

My understanding of the OP from "In March 2010 she then approached the Home Office" was that the asylum claim was not submitted until then, after he lost his job. In that case any issue would be covered under 'One-stop' procedures.
Perhaps the OP can enlighten us.

Forgive me, I do believe you are correct. I must have misread part of the original post

[Mr Rusty]

You say your wife came to the country in 2007, and I am sure that you made your application for asylum immediately thereafter. Having now had a child, your circumstances have changed and you can therefore move to have your asylum application submitted as fresh due to the provision of fresh evidence (e.g. birth of your child); the UKBA will have to take notice of this, as per R v SSHD ex parte Mahmood [2001] WLR 840 CA.

My understanding of the OP from "In March 2010 she then approached the Home Office" was that the asylum claim was not submitted until then, after he lost his job. In that case any issue would be covered under 'One-stop' procedures.
Perhaps the OP can enlighten us.

Forgive me, I do believe you are correct. I must have misread part of the original post

But irrespective of the date of her claim, the existence of the child is something which should have been considered at the first appeal hearing, and certainly shall be at the Tribunal, and the OP could not credibly seek to advance it as a "new situation" subsequently. I can't see where "Ex Parte Mahmood" has any relevance.

The OP should beware of legal advisors telling him that "the longer his case goes on" the better chance he has. There will be no shortage of such people willing to make fresh applications for as long as his money lasts, but in the end his right to family life is the same as it is now. He, his wife and child are all foreign nationals and if their applications to remain in the UK fail, they can all exercise that right in their own country.

[avjones]

I'm with Rusty. I can't see where ex p Mahmood comes in, and one-stop would certainly apply.

[zhashim]

My (mis)interpretation of the OP was that the asylum application was made prior to the birth of the child. Since the birth of the child has relevance to private and family life, that is where Mahmood would apply.

This is a hypothetical divergence though.

[Mr Rusty]

.. the birth of the child has relevance to private and family life....

No doubt about that, but whether or not the birth post-dates the asylum claim, the fact is that this case is still under appeal and it is inconceivable that the fact of the birth has not/will not feature in the appeal process.

It's nonsense to suggest that an applicant can accrue some change of circumstances, but keep schtum about it at appeal so that he can ambush UKBA with a new application if the appeal is dismissed. If the OP tried that in this case, a fresh application could possibly be refused and certified with no right of appeal.

Whatever the date the child was born, Mahmood has no relevance at all to this case

[avjones]

My (mis)interpretation of the OP was that the asylum application was made prior to the birth of the child. Since the birth of the child has relevance to private and family life, that is where Mahmood would apply.

"My wife joined me in 2007 as a dependent and in April 2009 we had a baby............

In March 2010 she then approached the Home Office which subsequently refused her asylum claim and at the same time curtailed our leave to remain"