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As a direct access immigration barrister practising in this field for a considerable while in London and the surrounding reasons I have often been struck by the failure in making applications to engage lawyers and to provide detailed representations along with the application.

Following the changes to the appellate structure and grounds of appeal (see amended s.82.- 84 of the Nationality, Immigration and Asylum Act (as amended) all such appeals fall to be considered as article 8 appeals.

There is case law that says that if an individual meets the requirements of the Immigration Rules then it will be likely that an appeal ought to succeed under article 8 as otherwise it would be arguably be perverse to dismiss an application in such circumstances.

This means that it is hugely important that the factual bases of the Immigration Rules are complied with and that if there are any exceptional circumstances, such as health or more particularly children then these are set out in depth in the representations that accompany the lawyers letter – if the lawyer or agent proposes to send a letter without any representations then I would be hugely worried and concerned that matters are being missed.

An example of is where children are involved, the case of Mundeba (s.55 and para 297(i)(f)) [2013] UKUT 88(IAC) is of huge importance, the headnote of which provides, inter alia:

i) The exercise of the duty by the Entry Clearance Officer to assess an application under the Immigration Rules as to whether there are family or other considerations making the child’s exclusion undesirable inevitably involves an assessment of what the child’s welfare and best interests require.
ii) Where an immigration decision engages Article 8 rights, due regard must be had to the UN Convention on the Rights of the Child. An entry clearance decision for the admission of a child under 18 is “an action concerning children…undertaken by…administrative authorities” and so by Article 3 “the best interests of the child shall be a primary consideration”.
iii) Although the statutory duty under s.55 UK Borders Act 2009 only applies to children within the UK, the broader duty doubtless explains why the Secretary of State’s IDI invites Entry Clearance Officers to consider the statutory guidance issued under s.55.
iv) Family considerations require an evaluation of the child’s welfare including emotional needs. ‘Other considerations’ come in to play where there are other aspects of a child’s life that are serious and compelling for example where an applicant is living in an unacceptable social and economic environment. The focus needs to be on the circumstances of the child in the light of his or her age, social backgrounds and developmental history and will involve inquiry as to whether:-
a there is evidence of neglect or abuse;
b. there are unmet needs that should be catered for;
c. there are stable arrangements for the child’s physical care;
The assessment involves consideration as to whether the combination of circumstances are sufficiently serious and compelling to require admission.
v) As a starting point the best interests of a child are usually best served by being with both or at least one of their parents. Continuity of residence is another factor; change in the place of residence where a child has grown up for a number of years when socially aware is important: see also SG (child of a polygamous marriage) Nepal [2012] UKUT 265 (IAC) [2012] Imm AR 939 .

It is quite clear that where there is a case which engages article 8 it is vital raise such matters as soon as possible.

This is made clear as given the remainder of the appellate provisions in respect of the 2002 Act provide that you cannot raise new matters later.

It is therefore of vital importance given both article 8 and also the inability to raise new evidence that it is vital to raise such material when the application is made. This means that it is vital to contact a reputable lawyer at the beginning and to get the best possible application made at the outset.

I have had cases where individuals have had their applications dismissed and have been prevented from bringing new applications / grounds of appeal at the hearing and have lost.

Please, if you are thinking of bringing someone over or bringing someone over for a holiday or longer period of time that the application is made properly, one of the difficulties is that if the application is made poorly that you can be banned for up to 10 years, therefore my advice is please contact a reputable lawyer.

I am able to assist with out of country applications for Entry Clearance and have been pleased to succeed. One of the key reasons why we have been able to succeed is that we have worked with the client and by sharing the password with them and working closely have been able to put together the best application possible.

This is one area when you are unable to easily make good a poor application.

I look forward to hearing form you if you wish to discuss this or any immigration matter.