Errors by the decision maker to apply the right test to partner and child applications

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 January 2024

We acted for appellants who were Brazilian nationals, a mother, and a son.

The first appellant arrived in the UK in 2013. In 2015, she met another Brazilian national and they began a relationship resulting in the birth of the second appellant.

In 2018, they travelled to Brazil, returning to the UK in January 2019 where they were refused leave to enter and returned to Brazil the same day.

On 22nd of May 2019, the sponsor was issued with 30 months leave to remain based on his relationship with his son from a previous marriage. The sponsor acquired Portuguese nationality in 2020 and subsequently in June 2021 he applied for indefinite leave to remain under the EUSS. In July 2021, the first appellant and the sponsor got married in Brazil and entered the UK from Portugal in October 2021 where they were refused leave to enter due to previous overstay of the visit visa but were granted immigration bail. We made an application for leave to remain on the appellants’ behalf and in January 2023, the sponsor was granted indefinite leave to remain under the EUSS.

In April 2023, the first appellant gave birth to a British child and in May 2023, their applications for leave to remain were refused. We lodged an appeal against the decision in May 2023. The issues were:

  • Whether Article 8 (1) was engaged through the appellant’s family life with the sponsor and with the British child?
  • Whether removal of the appellants would result in unjustifiably harsh consequences for them and their family members and therefore be disproportionate interference.

The respondent has inexplicably failed to consider the first appellant’s relationship with her husband and British son despite the fact that her application for leave to remain was based on her private and family life. The respondent applied an incorrect legal test to whether family life is engaged; it is not required to show that family life does go beyond normal emotional ties when they claimed family life is between spouse and parents and minor children as is the case here.

The respondent wrongly asserted that the first appellant had spent 13 days in the UK and further asserted that the appellant and her children could return to Brazil as a family unit. Whilst it might involve a degree of disruption to private life, it was deemed to be proportionate and a legitimate aim of maintaining effective immigration control and in accordance with Section 55 duties. It was not conceded that the first appellant’s circumstances were sufficiently compelling or compassionate to either use discretion to allow her to remain in the UK without the necessary entry clearance or to live outside the rules. The refusal of the second child failed to engage with the fact that the second appellant had a relationship with his father and his British brother and has consequently entirely misdirected herself with regard to the application of the Immigration Rule R-LTRC1.1(d)ii. The respondent wrongly asserted that the second appellant has been living in the UK for 13 days only with his mother as a family unit and could be supported by his mother on return to Brazil. She considered that there were no exceptional circumstances which would warrant a grant of permission to stay outside the rules.

Two days before the hearing was due to take place the Secretary of State withdrew her decision, having failed previously to follow the courts procedure and to review the decision in timely fashion. Our argument that there is clearly a family life established between the first appellant the sponsor and the children will now have to be considered.

We argued that public interest considerations are met, in that the appellants are financially independent and are being entirely financially supported by the sponsor who has his own business. We proved that the requirement of Section 117B(6) NIAA 2002 are met and the first appellant clearly has a genuine and subsisting relationship with her youngest child who is a qualifying child and is a British citizen. We argued that it would not be reasonable to expect him to leave the UK and his established family unit. The sponsor himself who has lived in the UK for more than 22 years has family life and no parents or friends remaining in Brazil. The sponsor is actively involved in his sons’ lives and is a joint primary carer.

For this reason, we have succeeded in overturning the Home Office decision given that the decision to remove them will result in unjustifiably harsh consequences for each member of the family unit.