We are pleased to have been successful in an appeal which has led to our client obtaining leave to remain on the basis that he has a partner settled in the UK. This is despite our client making an application within the UK and therefore not satisfying the eligibility requirement of making an application outside of the UK.
Background
But first, a bit of background to the case in question.
Our client is a Chinese national who initially came to the United Kingdom illegally in 2007. He married his wife, a British national, in 2018.
In 2020, our client sadly contracted a form of liver cancer. He underwent a medical trial to assess new medication and on 22nd June 2021 underwent major surgery.
Later that year, our client made an application for leave to remain with his wife. The application was refused as the client failed to meet the eligibility requirement, that is to say making an application abroad. The Home Office further stated that there were no insurmountable obstacles for both he and his wife to continue their relationship in China and that there were no exceptional circumstances to render the refusal unjustifiably harsh.
We subsequently appealed the decision.
The Appeal
The appeal we submitted was heard by the First-tier Tribunal. The Secretary of State for the Home Department (SSHD) relied on their reasons given in the refusal of the application. They further added that the client can simply leave the clinical trial and return to China to make an application for entry clearance.
Our key arguments were as follows:
1. Although the SSHD’s responsibility of enforcing effective immigration control is in the public interest, similarly our client’s involvement in a clinical trial for the treatment of liver cancer was similarly on the interest of the public.
2. We argued that during his current medical state, should he be forced to make an application from abroad, it would result in him being away from his wife who he has relied on heavily since his health has deteriorated. We argued that this was a clear violation of his rights under the European Convention of Human Rights.
3. Any air travel would put our client at risk of COVID-19 infection which could cause terrible consequences given his current condition.
The case was reserved and after a few weeks, we received a decision allowing the appeal.
Our Comments
This was an appeal in which we were determined to see a successful outcome as we could see the severe effect that it would have on our client’s condition should he be forced to return to China.
The refusal letter by the Home Office had a lack of empathy and understanding when making a decision and we are both pleased and unsurprised that the Tribunal would not share their view.
We wish our client all the best for the future.
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