Home Office blunder means that Jackie Young faces deportation back to South Africa
On 13th February 2012 an application was made on behalf of JY outside of the rules on the grounds on the basis of her Article 8ECHR rights (established family and private life) in the UK. The application was made prior to the change in immigration rules which took effect on 9th July 2012. However, the Home Office wrongfully considered her application under the new rules (i.e. post 9th July) under Appendix FM and Rule 276 ADE. Under the new rules the Home Office refused JY’s application for leave to remain.
The Home Office did not accept JY had an established private and/or family life in the UK despite evidence being sent in support of her application to exhibit her strong family connections. The evidence submitted with the application demonstrated the fact that her stepfather, her mother and two sisters were all living in the UK and she was engaged to be married to a British citizen; whom she had been living with for a period of 3 years. Her circumstances were such that her immigration status should have been preserved by herArticle 8 credentials.
The crux of JY’s case is that the decision by the Home Office amounts to a disproportionate breach of her Article 8 rights. The newimmigration rules should not have been applied when considering her case and so the decision made by the Home Office was therefore not in accordance with the law.
With the Home Office’s refusal of JY’s application came with it a Deportation Notice; Removal Directions were served. The decision to remove JY from the country and return her to South Africa again raised the issue of a direct violation of JY’s Article 8 rights. As per Article 8(2) interference with Article 8 as a qualified right under the ECHR must be justifiable and fall within the ambit of one of the “permissible aims” of interference. Such permissible aims include national security, public safety and economic factors; none of which applied in JY’s case. Further, the interference must be proportionate to the permissible aim(s) which involves a balancing exercise between JY’s private/family life set against the permissible aims of interference (none of which applied in her circumstances).
Due to funding limitations JY was unable to appeal the decision and was left with no option but to return to South Africa. As she left voluntarily within a 60 day period she should be able to apply for entry clearance to return to the UK but this will incur further expenses which could have been so easily avoided had the Home Office considered her application properly.