The case was about a Syrian Dr with an impeccable immigration history who had applied for permanent residence under the immigration rules. At the time when she had applied for permanent residence, her Iranians husband had permission to remain under the points-based system on the basis of a Tier 2 work permit holder. The Syrian Dr made her application as the wife of her husband. We completed a form called (SET M), which is an application for permanent residency based on marriage and her application was refused by the Home Office but she was granted limited leave to remain instead.
We advised the client that the decision was wrong and that she should have been given permanents residence and not just limited permission to remain.
We advised she should proceed to the upper tribunal by way of judicial review of the decision of the Home Office refusing to grant her permanent residence by only granting her limited permission to stay. Following a letter to the Home Office in which we gave 21 days to change their mind and grant our client permanent residence, we filed an application for judicial review to the Upper tribunal.
The home office had alleged that we should have use the form SET (0) which is an application for permanent residence in relation to other categories that do not have a specific form, instead of making the application under form SET (M) which in fact was in our view the correct application form as it was for permanent residency based on marriage.
We challenged the Home Office and were successful, and the very experienced Upper Tribunal judge accepted that the forms were “difficult to understand and almost impenetrable” and that “the mistake as to which form to use was easily made.” He held that it would or at least should have been obvious to the Home Office from the application made by us that the client was seeking to make an application for permanent residence and that the Home Office retained a discretion and she should have been given the opportunity if the Home Office thought that the form was the wrong form to correct it by submitting the application on form SET (0). They should not have rejected the application for permanent residence outright. Accordingly, the Upper Tribunal rejected the decision of the Home Office.
The Government then decided to appeal out of time (may we add), the decision of the Upper Tribunal in our favour, to the Court of Appeal, having previously written to the Upper Tribunal and stating in clear and unequivocal terms that they would not be seeking permission to appeal to it.
Surprisingly even though they had written to the upper tribunal to say they would not be seeking permission to appeal, the government decided to ignore the tribunal and apply out of time to the Court of Appeal for permission to appeal. This we considered being both professional and unmeritorious. Nevertheless, we had to provide a statement to the Court of Appeal as to the reasons why the Court should not grant permission to the Government to appeal to it.
The Court of Appeal agreed with us and the government lost and were ordered to pay our client’s legal fees. These are matters that we are still assessing with a view to trying to reach an agreement with the government’s solicitors, failing which they will need to be assessed by the court. But needless to say, the fees will be substantial.
In the meantime, the Home Office has lost the case, we asked them therefore to now grant the client permanent residence. They tried to make life very difficult for our client by stating that if the client wanted permanent residency then despite the ruling of the court, she should still complete the form that they had originally asked to complete.
Clearly the Home Office did not want a precedent to have been set by our success whereby someone could get status in the UK by completing an incorrect form even though it may be obvious from the contents of the form and cover letter the purpose for which the application was being made and the fee may be the same on both forms.
We advised our client in the circumstances that it would simply be better to sign a new form without even completing the contents of it and send it to the Home Office. They were happy with that and within a matter of days, the client received her permanent residence status.
Gulbenkian Andonian Immigration Solicitors London will battle to preserve the rights of their clients come what may!
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