Ukrainian widow wins human rights challenge over Home Secretary’s decision to refuse leave to remain application



Court of Session Outer House
Court of Session Outer House

A Ukrainian widow seeking leave to remain in the UK with her daughter and son-in-law has successfully challenged a decision by the Secretary of State for the Home Department (SSHD) to refuse her claim as “clearly unfounded”.

A judge in the Court of Session reduced the decision, which precluded an in-country appeal, after ruling that the Home Secretary failed to properly consider the petitioner’s right to a family life with her daughter and grandchildren.

Lord Beckett heard that the petitioner Valentya Yakovleva, 66, raised judicial review proceedings seeking reduction of the decision.

The court was told that the Ukrainian citizen had visited her only daughter in central Scotland regularly since 2001, and following the death of her husband she entered the UK in July 2010 on a six-month visitor’s visa, but never left.

Her application for leave to remain on compassionate grounds was refused and a subsequent human rights claim was also refused with no right of appeal.

On 18 September 2015 she was served with a notice requiring her to state any additional grounds she relied on to remain in the UK and her response was met with the decision complained of, dated 14 October 2015.

The petitioner argued that the SSHD left relevant considerations out of account in reaching a decision on private life under the Immigration Rules.

She also attacked the SSHD’s assessment outwith the Immigration Rules of the implications of Article 8 of the European Convention of Human Rights.

The petitioner, who had been detained from her daughter’s home on 8 December 2015 at the instigation of the SSHD before being bailed shortly before Christmas, was supported by her family and so was “financially independent” of the state.

It was averred that the SSHD failed to assess whether the petitioner had family life with her daughter, son-in-law and grandchildren and whether “that relationship of dependency” amounted to family life; and failed to indicate what weight the relationships were given in assessing proportionality.

It was also submitted that her private life was established before she came to the UK and for the first six months when she was here after July 2010 she was here lawfully, and while it may have developed while she had a “precarious” immigration status, it was not established in those circumstances.

The onus was on the SSHD to establish that her decision was proportionate, therefore it was argued there should be an analysis of proportionality and an explanation why an Immigration Judge taking the facts at their highest could not reach a contrary conclusion.

But on behalf of the respondent it was submitted that the petitioner was “bound to fail” because the “strong public interest in maintaining immigration control pointed to her removal” where she had over-stayed for five years.

It was argued that the type of relationship which the petitioner has with her relatives in Scotland “does not carry the same weight” as that between partners or between a parent and a dependent child and so her claim based on family life and private life was “relatively weak”.

In 2011 when the petitioner became an over-stayer one child was aged six and the other was aged one, meaning the relationships had been substantially established while the petitioner was in a “precarious position” as an over-stayer, it was submitted.

However, the judge ruled that there had been an “error” in the making of the decision in the particular circumstances of the case.

Lord Beckett said: “In the petitioner’s case, her unlawful presence in the UK since January 2011, weighs heavily in the balance against her. However, whilst it may be relatively straightforward to identify that where a couple commence a relationship or cohabitation any family life or private life is established whilst one of them is in a precarious immigration position, that exercise is less straightforward in the petitioner’s circumstances. She was already a mother and grandmother and in that sense, if not in an Article 8 sense, had established a family life and private life before she overstayed.”

The judge also observed that while she has been in Scotland, armed conflict and acts of terrorism had erupted in Eastern Ukraine.

“Accordingly,” he added, “the proportionality assessment in this case requires a careful assessment of the weight to be accorded to the petitioner’s family and private life balanced against the requirements of immigration control and Article 8(2) justifications.

In a written opinion, Lord Beckett said. “I am not satisfied that this happened in the petitioner’s case…Whilst most of the factors relied on by the petitioner are referred to at one point or another in the decision letter, I cannot detect where there was any evaluation of the petitioner’s family life or full consideration of proportionality in the light of it.

“The decision to certify is inextricably linked with the view reached by the SSHD as to the merits of the claim after what I have concluded was a flawed analysis. Whilst counsel for the SSHD argued that any error was immaterial on the basis that an appeal was bound to fail because the petitioner’s immigration history would inevitably outweigh any family or private life, I am not persuaded that it is inevitable that on a careful consideration of all of the relevant issues an immigration judge would, in the particular circumstances of this case, be bound to refuse the appeal.”

© Scottish Legal News Ltd 2021