Right to a family life

Danielle Cohen
By Danielle Cohen Immigration Law Solicitor Linkedin
Danielle Cohen has over 20 years of experience as a lawyer and a reputation for offering professional, honest and expert advice.
19 September 2011

We represented the Appellant who applied for settlement in the UK as she has been here since September 2003. The Appellant was a citizen of South Africa, who arrived on a visitors visa and thereafter became an over stayer. She was in a relationship with a British national, intending to marry soon. She applied for settlement with another firm of solicitors on 6th August 2009 on the basis of medical treatment, mental health issues and under Article 8 of the European Convention. The application was refused on the grounds that the Appellant failed to demonstrate that she was unable to obtain suitable medical care in South Africa. The application was also refused on the basis that her removal would not be in breach of her Article 8 ECHR Human Rights. The Secretary of State argued that most of the period of residence was without leave. Her age and the length of residency did not provide grounds for not removing her. Her ties and domestic circumstances were not sufficiently compelling.

The Appellant instructed us to assist her and we lodged the Grounds of Appeal and represented her at the Appeal hearing.

The particular angle that we have taken in preparing this appeal was to prove that the fiancé is supporting the Appellant, that they started cohabiting and that he has children from a previous relationship who visit him and with whom he maintains a tight family unit. We argued that the separation between the Appellant, her fiancé and the children will be traumatic both to the Appellant, the British fiancé and the three children. The Home Office no longer argued that there were no medical matters to consider, once we obtained a further report from a psychologist who confirmed that the Appellant is a vulnerable person who, if her vulnerabilities are likely to resurface.

The Immigration Judge found in favour of the new Appellant, saying that he found her vulnerable and her vulnerabilities are likely to resurface and make it hard for her to return to the UK once she is in South Africa. He found that she can make a positive contribution to life in the UK by her economic activities and the Immigration Judge could see no advantage in her returning to South Africa to make an entry clearance application. The Judge found that the Home Office took no account of her current relationship and the public interest in enforcing immigration control by removing her is a very weak one.

He found that there are strong factors cumulatively in favour of allowing the appeal even without consideration of the childrens’ position. The Immigration Judge said that he had no doubt that the right to a private life of the Appellant is engaged and the Immigration Judge concluded that the fiancé could not possibly be expected to relocate to South Africa because he will lose his job and his contact with his three children. In all the circumstances given the particular facts of the case, the Immigration Judge allowed the appeal on human rights stating “it is a strong appeal on family life” and he found that taking everything into account in the round, the weight of the balancing exercise fell in favour of allowing it. He also found that it was strikingly unreasonable to require either one or both of the adults to move to South Africa even temporarily.

Find out more about fiancé(e) or proposed civil partner visas.