Case Management – Appendix FM – Tips and Strategies

Speaker: Chengetai Mupara
Chambers: Great James Street Chambers

Chengetai Mupara – Case Preparation

Draft Chronology
• Years spent living in the UK
• Years spent outside the UK
• Procedural history
• Date of application
• Date of refusal
• Date of service of PAP
• Date/deadline for PAP response
• Deadline for judicial review

Taking Instructions
A Few Tips
#Tip: Use the online application as a data capturing tool
#Tip: Validity issues. Paper applications change several times a year. The online application form does not expire.
#Tip: You are in control of events, facts and evidence before you submit the application. Make it count. Once application has been submitted you lose all control.

Weak Points
Identify potential problems with the application.
• Suitability
• The very large age gap
• The client is an over-stayer
• Potential involvement in a sham marriage
• The relationship is very new and it developed at a rapid pace
• The Home Office will suggest applying for entry clearance from abroad

 

Strong Points
Identify the strong points
• New relationship
• Parties over 18
• The parties are married.
• Minimum Income Threshold is met
• Accommodation requirements are met

Evidence Gathering
There is a requirement to provide evidence in Art 8 cases.
#Tip: consult Appendix Specified Evidence
#Tip: design a standard Witness Statement for each type of application.
#Tip: deal with every single requirement. Set out how it is met. Identify the evidence in support.

Suitability
Spent and unspent convictions, warning, caution to be declared on application form.
#Tip: If your client has no criminal convictions, cautions or warnings let the Home Office know about. Some clients have very little else going for them.

Eligibility #Tip: Address ALL relevant eligibility points even if it is obvious.
Immigration status – this is a common reason for refusal.
#Tip: there is no point in avoiding the issue. Address is and set out how EX.1 applies.

Relationship Requirements
#Tip: Do not assume that it is obvious to everyone that your client and their partner love each other dearly. It is not so obvious to everyone.
#Tip: The client should refrain from saying, “my husband and I are in a genuine and subsisting relationship”. People do not speak like that generally. It will sound as if it is the lawyer’s statement and not the client’s evidence.

Financial Requirements
Minimum Income Threshold
#Tip: Do the maths! Even if you think it’s obvious to you. You may need to rely on Gen Excep. 3.1.
#Tip: Use best evidence such as P60, HMRC records/docs. Not all bank statements are necessary.

Accommodation
Proof of rent/ownership and size of property. Evidence available online.
Tip: describe the property, and the number of people living in it. Saying that there will not be a breach of the Housing Act 1985 is best left to your legal representations.

Legal Representations
This is your opportunity to shine but don’t get carried away. Stay focused.
#Tip: Identify the relevant rule even if you think its too obvious.
#Tip: Identify each requirement of the rule.
#Tip: Say how your client meets each rule.
#Tip: Identify which requirement your client does not meet and the evidence that they are unable to submit. Provide reasons, solutions, mitigation and explanations.

Proportionality
The correct test outside the rules is not exceptional circumstances. It is proportionality per GM (Sri Lanka) [2019] EWCA Civ 1630, 2019 WL 04889118.

Slide 14
There are no limit to factors to be considered outside the rules:

Slide 15
List all relevant factors.
• The Applicant arrived in the UK as a child
• The Applicant last lived in country of origin as a child
• The Applicant was educated in the UK
• The Applicant will not be a burden on the state
• The parties cohabit

You can contact Chengetai Mupara via his clerks on clerks@greatjamesstreet.co.uk

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