An 11 year old girl represented by Latta & Co Solicitors has won her immigration appeal before the Upper Tribunal. As a result she is allowed to remain the UK with her mother, stepfather, and other close relatives.
This was a case in which officials from the UK Home Office had detained the Appellant and her mother for several hours on their arrival at Heathrow airport. The mother had a correct form of visa but her daughter did not. Eventually the officials allowed them to enter the UK but ordered that the daughter must leave within 2 weeks. Soon afterwards other Home Office employees, on a Home Office telephone enquiry line, informed the family that their daughter could remain in the UK by making an application for further leave to remain within that 2 week period. Therefore they made this application. A decision on the application was then delayed due to delays in obtaining documents from the girl’s country of origin. Eventually the Home Office refused the application. The Appellant appealed to the First-tier Tribunal. The First-tier Tribunal upheld the Home Office refusal decision. The Appellant obtained permission to appeal to the Upper Tribunal. She then instructed Latta & Co Solicitors to represent her before the Upper Tribunal.
Two hearings before the Upper Tribunal followed. At the first hearing an Upper Tribunal Judge agreed that the First-tier Tribunal decision contained material errors in law. Therefore he directed that the appeal be re-heard. At the re-hearing before the Upper Tribunal the Home Office argued vigorously that the Appellant must return to her country of origin and make a new visa application from there. Latta & Co argued that this would have been expensive, impractical, legally very difficult and wholly contrary to the girl’s best interests. The Upper Tribunal Judge agreed that the best interests of the child required that she be allowed to remain in the UK. Those best interests outweighed any wrongdoing on the part of her mother by failing to obtain the correct visa for her daughter originally. Therefore the appeal was allowed.
Successful Immigration Appeal for 11-year old client by RG
If the media is anything to go by, you would be forgiven for thinking that bringing family members to join those who are settled in the UK or those who are British Citizens is an easy process.
Article 8 of the European Convention on Human Rights (ECHR) provides that everyone has the right to respect for his private and family life, his home and his correspondence. This is not an absolute right as public authorities such as the Home Office may interfere with this right if this is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others
However, in the past few years the Home Office have introduced increasingly complex Immigration Rules with numerous requirements that must be met by those seeking to enter or remain in the UK. Appendix FM contains the Immigration Rules which apply to family members in particular.
Arguably the biggest obstacle for most applicants will be the minimum financial threshold that they need to meet. Currently an applicant has to provide evidence that their gross annual income is at least £18,600. If the applicant has children, an additional gross annual income of £3,800 is required for the first child and an additional £2,400 for each further child.
This begs the question, is the right to a family life a human right or a privilege for only those who can afford to keep their family together? The increasingly difficult requirements which applicants have to meet would suggest that the latter is true.
However, it is possible to make an application to enter or remain in the UK outside of the Immigration Rules. This requires a technical and detailed knowledge of the current case law on Article 8.
Our team of experienced solicitors at Latta and Co can assist you with making applications to the Home Office both inside and outside of the Immigration Rules. If you would like to discuss your options, please contact our office for further information on 0141 222 2185 or email us now at email@example.com.
Family Life – A human right or a privilege? by SAW
“Divorce: The legal dissolution of a marriage by a court or other competent body.”
Common impressions of divorce within our society today center around blame, hostility and the breakdown of family units. A sense of apprehension strikes at the thought of the ‘divorce process’ and the acrimonious relationships to follow.
Here in Scotland, there is a way in which these views can be erased and the process of divorce for separating couples can involve minimal animosity.
We recently introduced a new member to our ever-growing team here at Latta & Co and with this new introduction comes a new service.
Elise Thomson has trained as a Collaborative Lawyer, which aims to deal with the separation of couples out with court and through carefully constructed and supported meetings. The collaborative divorce process offers a non-confrontational way of agreeing both legal and practical arrangements of a couple’s divorce.
When a family unit breaks down, there are several crucial considerations which must be addressed with immediacy; how will our assets split equally? Where will our children stay? How will I cope financially alone? However, it is understandable that during this time, tensions will be running high between both parties and better judgment may be clouded. Where there are young children involved, their best interests must be at the forefront of any decision made. Throughout the separation, communication is key, and the collaborative process ensures discussions move forward with the assistance of a Collaborative Lawyer. Children are protected from the fallout associated with a traditional court case, civil contact is kept intact and you retain the control over the decisions made for your future.
Divorce does not have to be an unfair or troublesome process. The separation can be done objectively and successfully with the help of the collaborative approach. If this is something that you think would suit your current circumstances, contact Elise Thomson on 0141 222 2185.
Divorce in Scotland – A Collaborative Approach by HLB
As of 06 April 2015, there have been several changes in respect of specified application forms, fees to accompany these applications forms and the introduction of a ‘health surcharge’.
Specified Applications and Fees
The Home Office update the specified application forms on a yearly basis, however the changes this year are likely to have a greater impact on applicants than ever before. In particular, one of the areas where there has been the most notable change is in respect of the Discretionary Leave application. Previously, this application was not accompanied by a Home Office fee.
The new application form, FLR(DL), includes the following fees when applying for an extension of Discretionary Leave:
|1 Applicant – £649Yourself and 1 dependant- £1298
Yourself and 2 dependants – £1947
Yourself and 3 dependants – £2596
These fees have been increased where the applicant is applying for settlement on the Discretionary Leave application form as noted below:
|1 Applicant – £1500Yourself and 1 dependant – £3000
Yourself and 2 dependants - £4500
Yourself and 3 dependants – £6000
In addition, all applications forms have now been amended to include a reminder regarding the duty to state all reasons to remain in the United Kingdom, as per section 120 of the Nationality, Immigration and Asylum Act 2002.
In relation to the ‘health surcharge’, the new legislation will result in nationals from outside the European Economic Area (EEA) who are coming to the UK for longer than six months being required to pay a ‘health surcharge’ when they make their immigration application. This will also be due by non-EEA nationals already in the UK who apply to extend their stay.
The health surcharge will be £200 per year and £150 per year for students. This must be paid upfront and for the total time the migrants have been given permission to stay in the UK. Dependents will generally pay the same amount as the main applicant.
Upon payment of the surcharge, migrants will have the same access to the NHS as a UK permanent resident while their stay in the UK is lawful.
If you believe you may be affected by these changes, please contact our office for further information on 0141 222 2185 or email us now firstname.lastname@example.org.
Home Office Application Changes by HC.
All of us hope that we will never be in a situation like this but what happens if you are suspected of an offence and detained by the police? Do you know your rights?
Read this short blog and you will at least be aware of what you can do to help and protect yourself.
You are detained by the police under section 14 of the Criminal Procedure (Scotland) Act 1995 as the police suspect you of committing an offence. This legislation allows the police to keep you detained for up to 12 hours, at that point they must release you or in exceptional circumstances, apply to extend the time limit.
The police will administer you with a caution at this time advising you that you do not have to say anything but if you do your answers will be noted and may be used in court against you. This means that you are not obliged to provide any information to the police officers APART from your name, date of birth, address, nationality and place of birth.
Once you arrive at the police station the police should again administer the caution to you and the police will go though some paperwork. They will ask you if you wish a telephone consultation with a solicitor and a private consultation with a solicitor. We would always advise you to provide the details of your lawyer and request that they be contacted to speak with you and request that they attend at the police station for a private consultation with you. This ensures that you are protected at all points during the detention. Your solicitor will advise you prior to interview and also be present throughout the duration of the police interview. This protects you and makes sure that the police act correctly. It also ensures that you do not incriminate yourself and that your defence is as strong as possible from the very outset.
We can assist at all stages of criminal cases. Remember “Latta & Co” and we will attend at your police interview in all police stations in Scotland. We have a 24 hour line for your emergencies.
Call us on 0141 222 2185 or email us now email@example.com to discuss your case. Questions welcomed.
Do you know your rights if detained by the police? by MR.
Apologies about the lack of recent blogs, but that is due to the fact that we have been focusing on our office move. We are delighted to advise that as of the 11th August 2014 we shall be relocating to the 2nd floor of 137 Sauchiehall Street, Glasgow, G2 3EW. Our telephone numbers will remain unchanged.
In the PW case, Latta & Co were instructed to judicially review a refusal of the Upper Tribunal to grant permission to appeal in an asylum and Article 8 ECHR case centred upon the best interests of PW’s infant child. That challenge was successful, and the decision can be found here.
PW’s asylum and Article 8 ECHR appeal was refused by an Immigration Judge on 19th April 2013. She attempted to challenge that decision. Parliament has said that she should have had two chances to challenge the decision by virtue of section 11(1) of the Tribunals, Courts and Enforcement Act 2007. PW attempted to exercise those two chances, but was ultimately denied. Such refusals cannot be appealed further, and are described as “excluded decisions”. Given that there were no further appeal rights, and that she felt that the decision refusing her the chance to challenge the Immigration Judge’s decision was plainly wrong, she sought judicial review of the relevant refusal.
This is a complicated, highly technical and emerging area of law. There are few successful cases nationwide. That is perhaps understandable, given that to be successful in this type of action it has to be shown that there was either some important point of principle or practice that requires resolution; or some other compelling reason for the case to be allowed to proceed. In Scotland, this is known as the second appeals test and is interpreted in light of the decision of the Supreme Court in Eba v Advocate General 2012 SC (UKSC) 1. It is not difficult to see that this is a high test to meet. However, Lord Glennie decided that PW’s case did meet that test.
In this case PW raised three heads of challenge. Success was found in the third ground. The Immigration Judge had to decide what was in the best interests of PW’s infant child under Article 8 ECHR. It was argued that the Immigration Judge had failed to properly assess these interests separate from the requirement to maintain effective immigration control. It was pointed out that there was an apparent divergence in the case law of the Upper Tribunal, Immigration & Asylum Chamber, and the Outer House of the Court of Session.
Lord Glennie agreed that the law in relation to assessment of the best interests of a child was far from clear. There was said to be uncertainty or a difference of view between the Upper Tribunal and the Outer House that must be clarified. As such, his Lordship found that there was an important point of principle or practice that required to be resolved.
The decision of the Upper Tribunal in PW’s case to refuse her permission to appeal to resolve the law was said by Lord Glennie to be so unreasonable that no reasonable Upper Tribunal Judge could have taken that decision. The refusal to grant permission to appeal was set aside.
It can be seen from the PW case that the approach taken by the Upper Tribunal in denying appellants permission to appeal where there is a clear uncertainty in the law is manifestly wrong and ultimately challengeable by judicial review. The eventual outcome of the PW case is likely to lead to further guidance being issued on how to properly assess the best interests of an infant child in the context of Article 8 ECHR; and to colour the approach taken by the Home Office and Immigration Judges in undertaking such assessment.
It is still too early to tell what the ultimate result will be in the PW case as the litigation remains ongoing. However, if you have recently received a decision of the Upper Tribunal refusing you permission to appeal, contact us and we can assess whether or not it is possible to take the judicial review step for you. For more information look at our Judicial Review Page.
Success in Challenging the Unappeallable by BP.
When a marriage breaks down it can be an extremely distressing time for both spouses. At that difficult time, the last thought on your mind is likely to be the financial consequences of a divorce. Latta & Co have put together five points to bear in mind as you navigate the separation from your spouse. Our experienced solicitors can provide you with advice on separation and subsequent divorce proceedings.
In Scotland the irretrievable breakdown of a marriage can be established in 4 ways:
b) Unreasonable behaviour
c) 1 year separation where both spouses consent
d) 2 years separation.
This means that if the marriage simply no longer works then you have to wait for a period of separation before a divorce. It’s also important to remember that all financial matters must be settled before a divorce can be granted.
If you are leaving an abusive relationship, we recommend that you seek urgent support and protection. Latta & Co can provide emergency appointments in these cases.
The financial division on divorce is based on the assets and debts at the date of separation and their value at that date.
This means that if your spouse has been adulterous or behaved badly in the marriage you are not automatically entitled to a greater financial settlement in the divorce. Your estranged spouse’s behaviour will only be taken into consideration if it had a detrimental effect on the financial property and resources.
The matrimonial property is the property that was obtained as a result of the marriage. This means that some property may be excluded if it was purchased prior to the marriage. The starting point for a fair share is generally 50%. A different division can be sought if there was an economic imbalance as a result of the marriage or one party will be responsible for the upbringing of the children.
The law in Scotland has moved away from a person being financially tied to an ex-spouse for a substantial period of time. This means that your ex-spouse will no longer be entitled to payment of a periodical allowance until remarriage or death. The courts prefer to order a lump sum payment on divorce where possible.
More information on our divorce page or for an appointment with one of our divorce / family lawyers contact us via telephone on 0141 222 2185, email firstname.lastname@example.org or book a consultation here via the website.
How should the Home Office treat further submissions made by an applicant who has not been found to be credible by an Immigration Judge, but who produces evidence from other sources to back up his position? That was one question which was considered recently in the case of MMM v Secretary of State for the Home Department  CSOH 43.
In the MMM case, the applicant was a Zimbabwean national who had been in the United Kingdom since March 2008. After various procedures, which included an appeal to an Immigration Judge, his claim for asylum was ultimately rejected. However, during the passage of time that he had spent in the United Kingdom MMM had formed a relationship with his British national partner, JM. He thereafter made a claim to the Home Office for leave to remain based upon this relationship, and his length of stay in the United Kingdom, in September 2013 (ie. Under Article 8 of the ECHR).
The Home Office refused that claim. Latta & Co were instructed by MMM to challenge the refusal via judicial review procedures. That challenge was heard by Lady Scott, who issued her decision on 6th March 2014.
The decision can be found here.
Lady Scott noted that the Home Office in this claim had begun with a “clear and adverse view of” MMM, and that the Home Office view was that MMM was not credible nor genuine. Following on from this starting point, the Home Office had decided that MMM’s claim was a “last ditch attempt” to remain in the United Kingdom and this, coupled with his poor immigration history, meant that no reasonable Immigration Judge would allow him permission to remain in the United Kingdom based upon the evidence submitted with the claim.
Lady Scott decided that the Home Office had fallen into a procedural error by rejecting all supporting evidence lodged with this claim (which included 12 supporting statements from persons other than MMM and JM confirming the relationship) as being automatically suspect or tainted. In effect, the Home Office had decided that all evidence lodged was suspect given that their view was that MMM himself was previously found to be suspect – a view rejected completely by Lady Scott. The Home Office had also completely failed to consider the content of the evidence submitted in support of the case. The Judge stated that the Home Office had begun their assessment of this case from the wrong starting point; and failed to consider all evidence lodged, therefore had not considered the claim properly.
Lady Scott also considered the complicated nature of the law relating to Article 8 ECHR claims as a result of the Home Office 2012 rules in relation to this matter. The Judge noted that such claims are fact sensitive, and the Home Office here had simply failed to identify the factors which could realistically lead to a finding in favour of MMM. The Judge also found that the Home Office had failed to consider whether or not to allow MMM to stay in the UK outside the terms of the Immigration Rules.
What is clear from the terms of the decision is that claims for leave to remain in the United Kingdom based upon a relationship with a British national are complicated. The approach taken by the Home Office in this case was fairly typical. MMM was, on this occasion, able to successfully challenge that decision. The importance of expert legal help here cannot be overstated. If this potentially applies to you, please click on our Judicial Review Page for more information.
How not to do Article 8 ECHR – an analysis of MMM by BP.
The Children’s Hearing system has been in operation in Scotland since 1971. The Children’s Hearings (Scotland) Act 2011 came into force on 24th June 2013. This new act made a number of changes to the Children’s Hearing system. One of these changes is the new definition of people who have the right to be involved in the Children’s Hearing system (known as a “relevant person”) along with a procedure for applying to become a relevant person. This means that the child’s relations other than their parents could become relevant persons – Grandparent Rights.
An application to become a relevant person to the child is now determined at a Pre-hearing panel. The Pre-hearing panel will make an applicant a relevant person if they consider that the applicant “has (or recently had) a significant involvement in the upbringing of the child”. If the Pre-hearing panel refuse to deem an individual a relevant person, then there is a right of appeal to the Sheriff Court.
The status of relevant person gives an individual the right to both attend the Children’s hearing and to appeal any decision.
In a recent appeal by AMM against the determination of a Pre-hearing Panel at Kirkcaldy Sheriff Court, Sheriff McCulloch decided that a grandmother was a relevant person. The background of the case was the grandmother had given the child’s mother (her daughter) support and advice in the child’s upbringing. The child has stayed with his grandmother every Friday overnight along with other days and occasional weekends. The child’s grandmother had assisted her daughter as best she could. Further, when the child was initially removed from his mother’s care, he was initially placed in the care of his grandmother for a period of just over three weeks.
Sheriff McCulloch decided that the test of significant involvement was met by the child’s grandmother and quashed the decision of the Pre-hearing panel. Sheriff McCulloch stated “it was quite clearly the case that the (child’s grandmother) had been involved in the care and upbringing of the child on a regular, weekly basis; that she had provided assistance and guidance to the child’s mother; and for a period in excess of three weeks she had the sole responsibility for the care and upbringing of the child….”
Sheriff McCulloch’s decision is not binding across Scotland. However it is clear that grandparents and other relations could meet the test of significant involvement in the child’s upbringing. This will be determined on a case by case basis. Latta & Co can provide advice to individuals wanting to become relevant persons. We also provide assistance and support for both Pre-hearing panels and Children’s hearings.
Grandparent rights in Children’s Hearings by AM.