A law firm has said the UK Border Agency made a mistake when it refused right to remain to their client from the Philippines, who is in a civil partnership with a British national.
Law firm Dias Solicitors applied for Judicial Review following their Filipino client’s rejection for a civil partner visa from the UK Border Agency (UKBA).
Dias Solicitors, who will be lodging a Judicial Review request on 26 December with the UKBA believe that the government department made a legal error, when refusing a leave to remain application for their client.
A statement sent to PinkNews by Dias Solicitors said: “The Home Office refused the application because the application was made when the Claimant’s visa had expired and therefore they want the couple to go and live in the Philippines rather than the UK.
“The Claimant submits that she submitted an application within the 28 day period provided, as her visa expired on 14th December 2012 and she submitted her application on 8th January 2013.
“Home Office Guidance states that the application will only fall for refusal if the application is made after 28 days:
“Under paragraph E-LTRP.2.2 of the Immigration Rules, an applicant is permitted to submit an application for leave to remain and the Home Office will ‘disregard’ a period of up to 28 days after the visa expired.
“E-LTRP.2.2. The applicant must not be in the UK in breach of immigration laws (disregarding any period of overstaying for a period of 28 days or less), unless paragraph EX.1. applies.”
It added: “Accordingly, the Claimant had submitted her application within this permitted period and her application for variation of leave should have been considered as a normal application under Appendix FM of the Immigration Rules.
“Yet in the refusal letter and in the letters to her MP the Home Office have only considered her application ‘outside’ of the Immigration Rules, as if the 28 day exemption did not exist.”
Prior to Judicial Review, Dias Solicitors sent a letter before action to the UKBA on the 1st of November to explain the mistake made and gave them 28 days to respond.
However, since the Home Office has not replied to the letter before action, Dias Solicitors pushed for a Judicial Review application which they believe is the client’s “only route to justice.”
The claimant made an application to the UKBA on the 8th January 2013 “to vary her leave to remain in the United Kingdom from a student to civil partner, based on her civil partnership with a British National” (S).
The civil partnership was entered into on 28th December 2012 while the claimant first came to the UK from the Philippines on the 22nd October 2009.
The claimant’s application contained supporting evidence which detailed reasons why the civil partnership could not be continued in the Philippines.
The reasons referred to the lack of recognition for civil partnerships and rights for LGBT couples to buy property and adopt in the Philippines.
It was also stated that S did not speak the native language in the Philippines and had an ageing mother who required her care in the UK as well as an established scientific career in UK defence industry.
The claimant and S then contacted their local MP Maria Miller who is also the Secretary of State for Culture, Media and Sport, after they received did not receive a response from the UKBA for 9 months.
After this, the couple received a letter of refusal for their LTR visa application from Mark Harper MP, Minister of State for Immigration, on behalf of the UKBA where he said: “Mrs. [SDS] did not have any valid leave at the time she submitted her application and therefore the Home Office decision does not attract a right of appeal.
“Mrs [SDS] has no basis of stay in the UK and should make arrangements to leave as soon as possible or will be liable to enforcement action.
“It is open to Mrs [SDS] to obtain prior entry clearance to return to the UK as a civil partner. I cannot comment on the outcome of any application she may make, as it will be for her to satisfy the Entry Clearance Officer abroad that she meets the relevant requirements of the Immigration rules.”
In response to the refusal, S told Pink News: “Amongst other ridiculous things, they stated that there were ‘no insurmountable obstacles’ with regard to us continuing our relationship in the Philippines, and that it would be ‘a hardship’ for me to relocate, but not impossible.
“So, what does ‘no civil rights as a couple and no recognition of civil partnership’ count as then? There would be no settlement visa from the Philippines that I could apply for as a spouse. Additionally, why should I be forced to try to seek employment in a country where I don’t speak the language, and where the skills acquired from my employment in Defence would be inapplicable?”
The solicitors’ statement added to this saying: “It is wrong for the Home Office to claim the couple can alternatively live together in the Philippines.
“The Claimant’s spouse would not be able to enter the Philippines as a spouse because a Civil Partnership is not recognized in the Philippines.
“The Sponsor would only be allowed under Philippine Immigration Rules to enter the Philippines as a visitor. A visitor’s stay in the Philippines is limited to a period of 21 days. Inevitably the family life of the couple would only last for a maximum of 21 days before she would have to leave.
“In short, this lack of recognition of the legality of their relationship does amount to an insurmountable obstacle.”
S also said: “We continue to spend every day under immense emotional stress and frustration, while we continue to raise funds for our legal fees. Family and friends have helped, and we have parted with many personal items of sentimental value in order to raise money.
“We wanted to bring this case to the attention of Pink News, as we are wondering how many other international LGBT couples have been subjected to this kind of disgraceful treatment from UKBA, and wanted others to know that if they receive refusals from the Home Office, that they need to challenge.”
Christopher Dias, Solicitor and Partner at Dias Solicitors told Pink News: “This case is another example of how the Home Office do not seem to be aware of their own rules, and the devastating consequences of this failure.
“This young couple should be looking forward to their one year anniversary on 28 December; instead they still face an uncertain future.”