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As a direct access immigration barrister I am dealing with a lot of refusals by the Secretary of State to properly consider individuals and family’s protected rights under article 8 of the ECHR.

Often clients come to me where they have a refusal and have not been given an in country right of appeal for advice. There are really two options, the first is to do nothing and to wait for enforcement action. While this has the benefit of being cheap it also has the disadvantage of uncertainty and if the case is a good one there being a considerable delay in obtaining the status to which the client is entitled. The other option to go through the pre action process and to lodge a claim for Judicial Review. The benefit to this is that it will lead to a resolution of the client’s case relatively quickly the downside being the cost.

However the following account is worth bearing in mind when deciding whether to proceed with judicial review as the client has been offered a reconsideration of his case and should be able to recover the costs of the judicial review (though this is a separate issue and one that will be covered in a different post)

In an on-going spate of refusals, the Secretary of State has declined to grant applications for leave to remain despite the fact that a family unit has, on the face of it, satisfied the requirements of the Immigration Rules (276ADE) by having children born in this country who have remained here for over 7 years of their life. The Secretary of State has repeatedly held that, whilst the requirements of the Rules may have been satisfied, it is not disproportionate to require such families to leave the United Kingdom and for children to relocate given the fact that the entire family unit is moving.

This is rarely an accurate evaluation of the truth. Children born in the United Kingdom and over seven years of age often know no other way of life and would find it incredibly difficult to relocate and settle elsewhere; very often it is the case that the children are unable to speak the language of their parents’ home country and their education would be disrupted.

A recent client fell into this category: his children were born here and knew no other way of life; yet the Secretary of State still refused the family’s application. He is therefore delighted that, even though he had instructed me to lodge an application for judicial review outside of the three-month time limit, the Secretary of State has offered to reconsider his application in return for withdrawal of the judicial review application. I will update this post as to the Secretary of State’s final decision on the matter. 

Paul Turner is a highly regarded direct access immigration barrister practising from Mansfield Chambers, the Chambers of Michael Mansfield QC, 5 Chancery Lane, London, WC2A 1lG and a door tenant at 39 Park Square Leeds LS1 2NUand is licensed by the Bar Council to provide advice and representation directly to the public.