Julian Norman successful in Upper Tier Tribunal
21 August 2017
Julian was instructed on a direct access basis, acting pro bono, via the Children’s Society who work with Drystone Chambers to seek help for their clients. The case concerned a family of four who had overstayed in rather unusual circumstances: the father had been a soldier in the British Army, but had not served for the requisite five years which would have enabled them to settle in the UK. He had served in Iraq and was suffering with Post Traumatic Stress Disorder. Having left the Army, he no longer had leave to remain, and the mother was expecting the second child. The family remained in the UK and sought leave to remain on human rights grounds. Unfortunately their appeal was initially dismissed, they sought leave to appeal, and Julian was instructed for the rehearing.
She argued that notwithstanding that the father had not achieved five years’ service, and that his discharge had been dishonourable, nevertheless the weight to be attached to the public interest in removing over stayers was tempered by the application of the Armed Forces Covenant, which recognises the particular debt of society to those who have served and their families. The two children had been in the UK for over seven years and it would not be reasonable to expect them to leave, particularly since one was now entitled to leave in their own right. Applying s.117B NIAA 2002 the family should be entitled to stay on human rights grounds.
Allowing the appeal, Upper Tribunal Judge Canavan commented that “Ms Norman sought to argue that The Armed Forces Covenant recognised the duty that society owes to support members of the armed forces who have been injured (including mental injury) in the course of their duty. While the Covenant provides important recognition of the service provided by members of the armed forces nothing in the Covenant or the immigration rules suggests that the mere fact of service would justify granting leave to remain. However, the service that the appellant gave to the UK, albeit that it ended in dishonourable discharge, is a matter that, in my view, can be taken into account as part of the overall assessment of what weight should be given to the public interest. It is also in the public interest that the service provided by members of the armed forces, whether they are British citizens or not, is recognised.” A copy of the determination in this case can be found via clicking on the thumbnail below: