I am inseparable from the whiteboard, of course. But the rest is true. As I am no longer taking on representation cases in UK in-country and EEA applications, I may have finally achieved the once bragged about 100% success rate again, and one of my first ever cases becomes one of the the last ones to conclude. Years ago, I expected a big party in West London and a lot of fanfare when this day finally comes as I knew it would – but it turns out everyone is just tired. I wanted to scream, “Kamal got a residence card!” , but there was no one to scream to, as I was informed of it by text message a couple of days later at 7 am. I felt all these years like this case was taking a very important part of me – but it wasn’t, in the end, even mine. It was their case, and now it’s over.
For me, anyway – he should technically apply for PR now, or, as the case may be, settled status, as the couple have now been married well over 5 years. But this would be a new case, and even though I feel that the HO will have finally moved on now from victimising this couple, I cannot take on something of this magnitude, not anymore.
I have been asked many times over the last 4 years, why did I take this case? I have avoided similar cases afterwards. The answer is simple, really. There I was 4 years ago, having just been licensed by OISC and opened my first office in Dunstable, Beds — not exactly the capital of migration. I got a landline phone. I was sitting in that office, having finally made it – and no one was coming through the door. So I placed an ad in the Russian newspaper — I joke a lot that my whole practice started form that one ad that ran once, and it is partly true, although there were a couple of other, each in itself equally singular, things.
And the next day, my landline rang. A soft-spoken middle-aged Russian speaking woman was on the other side of the line. I had all the time in the world right then, and I found her story unbelievably extraordinary. That was before I learned that it was a story so typical that most immigration lawyers no longer wished to hear it. But it so happened that I heard it. I “came up” in Tier 1 general and made whatever limited name I did have among friends of friends thus far and on the forums, by being somewhat of an expert on Tier 1 General settlement. As most Russian immigration lawyers then, I knew next to nothing about EU Free movement rights, words like “Baumbast” and “Zambrano” having been the banes of my existence as a law student, along with the entire required subject of EU law, which I was so bad at in law school, that I had to take it twice. I knew also next to nothing about the practice of asserting them in the UK.
It is largely because of this case then, that, now, 4 years later, my practice will be over 80% EU law. I am rumoured in the Russian speaking community to be able to do wonders in respect of EU applications and even some appeals. But this remained, all these years, the case I seem to have not quite been able to resolve, until now. But that was really because of how badly messed up it was — that is, before M, my client’s wife, saw my ad in the Angliya newspaper and picked up the phone that day almost 4 years ago.
This has become known to my readers as the “marriage of convenience” or, later “marriage interview”s case. The story, which sounded incredible to me then, was typical. Indian guy in West London meets a Latvian woman at a party and they eventually get married. There is an oversupply of both single Indian men and single East European women over 35 in that neighbourhood. A lot of them get married. He is illegal, she is an EU citizen. They move in together. They later get married.
The case was burdened by the fact that she had previously been married to a man in what the HO alleged was a relationship of convenience — although one too short, anyway, to benefit him – and the groom himself had previously filed for a permission to marry (used to be a thing) another European woman, but didn’t go through with it. Whatever that was, I do not know – but it didn’t help when they have actually genuinely found each other. Naturally, no one believed either of them. They were dismissed so swiftly that no one even bothered interviewing them. The HO dispatched an “arrest team” – according to SAR disclosure – to visit the couple’s listed address at one random day in the middle of the afternoon. No one was home, eg no one opened the door. The arrest team went over to the neighbours and asked “who lives over there”? “Some Indian men, I think”, – the neighbour said. “A European woman?” – they asked. “No idea”, – said the neighbour.
The couple, who have filed their application more than 6 months prior, have by then long moved — something which was very easy to empirically prove, because the family, who had been accepted as homeless, were accommodated by the Ealing council in a temporary accommodation (where they would stay for a few years). All of their names were listed as tenants/occupiers in the council records at the new place, and generally the move was surrounded by a ton of government paperwork. So, naturally, the Home Office did not believe it, (and nor did the Tribunal later, to get a bit ahead of myself). All they cared was, that the neighbour at the old address, where they had all been staying in one room, sharing a house with other migrants, said “No idea”. The application was refused. This was May 2013, just over 5 years ago.
They appealed, and hired a well known Russian speaking immigration adviser to represent them. At the time, it was not me. I know the guy and will not name him, although I’d like very much to call him out, after all these years, as I have cleaned up more than one EU case he messed up bad while robbing the clients, and by cleaning up this case, I cleaned up his biggest mess. He is a good guy actually and a fine adviser, it is just that he does not understand EU law well, and he is inside the box, so to speak. Lacks imagination. he runs, or used to, run a well known Russian internet forum, where to many people he was God, and I am sure to many for a reason, whatever. I have not been to this site since I first saw how mad he f***d up this couple. Couldn’t bring myself to.
Which being said, his representation of them in their Appeal in January 2014 was not completely incompetent. It was just not fully competent, if you know what I mean. There were witnesses, affidavits, there was a bundle, there was a skeleton, he got up and said things. Why were they all in Birmingham, a very hostile Tribunal to which the Appellants and all witnesses had to travel from London? That is because the rep is in Wales and somehow it got listed based on HIS address (I suspect he replaced their address with c/o his to make that happen). I had a sense that he never endeavoured to actually understand whether or not they were a real couple, It did not interest him. I have his client care letter in the files here, it says you chances of success are 30%, please pay £1500. I am NOT kidding. Why take a case in which this is your assessment of chances of success? The problem is, unsophisticated people think they get the value when they are charged a lot. The bottom line is, even though ALL witnesses travelled from London, each and every one of them were misquoted, misbelieved, laughed at. The guy, to some extent well meaning, simply had no experience with this sort of thing. He was simply run over by a high speed train. They were virtually laughed out of court. Appeal was dismissed.
That happens, after all — well, to other people, anyway! 🙂 but there’s no shame. This was after all a tough one. But the adviser’s next call was unforgivable. He advised them not to appeal further but to file a new application. Whaaaaaaaat? Oh yes sure, this was a question of fact not a question of law. But the famed rep should have taken a page from HOPO playbook, HOPOs appeal factual cases ALL THE TIME and don’t even bother making them sound like legal question, well maybe just a bit. But not only their further TWO applications he dubiously assisted them in, were refused, the last time “the issue of being married was certified” (as an un-appeallable claim without any merit). That is literally what it said, even though they did spice up their future applications with things like, affidavits of people whose testimony was misquoted by the FTT judge. To the system the question of they marriage had become forgone. Because they lost in the FTT and walked away. Something one must never do in a “sham marriage” allegation case.
So her story shocked me. But then I heard myself, suddenly, say something i did not expect. “Can I come to your house?” – I asked. Was I sceptical? Oh yes. But I was also going to give them the benefit of the doubt, something they hadn’t gotten a lot of so far. I used to be a journalist. So inviting myself to someone’s house was literally the first thing that came to my mind. I wanted to see how they lived. I wanted to get to know this family, to form my own knowledge of their life and relationship. Then, I would help them. Their legal position sounded pretty bad and I had no idea what to actually do, but I was sure I’d somehow figure it out. In the next 6 months, I became a third one out odd member of that family.
I spent days in their house, I met with their friends, I went to their son’s school. I am pretty sure no idiot had ever put that much work into a simple residence card application. I had decided to focus on the kid, his interests and evidence of step parent relationship. I had the whole family sit in for a session with a renowned adolescent psychologist. I had spoken to clergy at some strange spiritual faction that they both attended (they were deathly afraid of Home Office and refused to give evidence). In the end, it was a very different case — all I wanted was to scare the HO out of certifying it, to get them to treat it as a new case. ALL of the evidence was new. It was post-the failed January 2014 appeal. That was the key. At the end of May 2015, we filed a new application.
Ironically it is only now 3 years later that I have in front of me the new SAR disclosure that concerns the time after this application was filed, and as such, includes notes written by different variously confused HO employees, including notes from people such as now-retired Linda Bateman. They all thought granting would offend their sense of justice, but it certainly seemed like something unusual was going on here. They knew they needed it to look like they were taking it seriously. At the time, there was only one thing they knew to do — invite the couple to an interview in Liverpool.
This was a seminal moment which was also a teaching moment for me. I knew the clients should not attend the interview and I advised them so. They were not helping themselves any time they were being interrogated – this much was clear from what was known of the first Tribunal hearing. I told them then, that my advice would be not to attend, because right now, we have the case, a sort of case that has 20 times more evidence than any other residence card case ever had; after the interview, all that evidence is going to be replaced with a transcript of their babbling. I should have drawn the line, but I did not.
The clients thought that interview was a good sign. Why did they think that? All other mixed race couples who had interviews were cleared and received documents. They thought an invitation was something to celebrate — not like it was, in my experience, the last step in the sham marriage investigation process after which half the people get detained. There was no stopping them. I went with them and at least no one got detained. But it did not look or sounds “good” in conventional Permanent Migration interview team parlance. the interviews have been written about a lot and what happened was exactly what was bound to happen: all our evidence was gone and never spoken about again, replaced with 5 hours of meaningless blabbering on tape. The case was refused again, based on interview transcripts only.
Yet, the interviewer did a particularly poor job writing it up – the “discrepancies” they pointed out were not even discrepancies at all, which became very clear when we produced a full transcript of the whole 5 hours. Which we had to produce ourselves because the HO only send me the CD. They did not have transcripts, only 5 pages of interviewers notes with the alleged “discrepancies”. No one properly trained or entrusted with caseworking powers at any point in making this decision actually looked at the transcripts or heard the tapes. It was dismissed, after all these resources were poured in, on the basis of a few paragraphs which were basically a vomit of nonsensical words. But we certainly overcome the certification.
The Appeal was heard at Hatton cross in March 2017. The HO and the FTT have both prepared for the case, in which a number of high profile comments were made (by me) publicly, about racism in interview selection, to prove which we ran public surveys, and such like. The same psychiatrist that evaluated the family previously was asked to evaluate the interviewing technique and its relevance to conclusions made. A lot was assembled on how meaningless and pointless all this interviewing is, how people remember false facts but forget the true ones,. etc etc. And then the last few days I had an epiphany. I said to myself — we are refused only on the basis of (1) this vomit interviewer notes which are nothing. We have full transcripts to show that what is presented as discrepancies actually wasn’t discrepancies. and (2) refusal letter said that they thought issue was precluded by losing the appeal in 2014. Not really sure issue preclusion is a thing in EU Free movement )) I wonder which one of the senior caseworkers came up with that)
Anyway. I had the Appellants to my office and made a deal — the do not attend. I forbid them. They do not go and embarrass themselves again by babbling, and subject themselves to humiliation. No testimony, no witnesses. HO does not dispute any of the evidence submitted. That the alleged errors in the interview transcript are not actually discrepancies is self-evident from the context of those quotes. There is nothing to testify about. I did not want the judge to see or personally question them. I turned up myself, alone, for the appeal, where I was met by bewildered staff who had allocated a separate room in a secure wing for this trial, which they expected to last all day, as well as a rather rare in Justice circles combination of an ethnic minority judge and an ethnic minority HOPO, presumably to address allegations of racism. All of them were livid that the Appellant was not attending, although I insisted it was his right to choose whether to give evidence or attend, since he is sending a rep to make submissions.
My bundle was 500 pages. In it, was a variety of arguments, the final one being that, this being a new territory, if the Tribunal somehow subscribes to issue preclusion here, it has no choice but to declare my client a durable partner on the basis of two years of cohabitation evidence I was now presenting (by then it had been more than 3 years since they lost the first Tribunal appeal). For some strange reason this angered the judge as he said he can’t find anyone a durable partner because of Sala which was then in effect (something I doubt since we came there by a different way, but whatever). The Appellant’s family raise pedigree cats as a sizeable side business. Having heard my arguments about the not-really-discrepancies and taken a great interest in a framed photograph of the Appellant and his step-son holding up their prize winning cat at a competition, the Judge allowed the appeal.
We thought it was the end, but it was not, as you can probably guess, because that was more than a year ago – and as you already know, the end was only this week.
To find out what happened next you need to read KK case status in CASES, freshly updated.
But basically yes, there is a way back from the damnation of your relationship as sham, even by the Tribunal. But it’s a long way and you have to act unconventionally – do not try to conform to expectations and do what people with apparent authority tell you. This is YOUR case to run. I think it’s have been a shorter way in this case if we did not attend the interview — we’d be on a stronger ground of our evidence, not the weird grounds of HO alternative reality. I also feel I owe a lot to the brave SAT team senior caseworker who eventually cut the knot, sort of — else we could have been caught in this for a much longer mess.