Charles Russell LLP wins landmark immigration High Court case

19 Apr, 2013

Charles Russell LLP has won a landmark immigration High Court case, R (Zhang) v Secretary of State for the Home Department. The judgement ruled the long-established Immigration Rule to be unlawful and contrary to Article 8 of the European Convention on Human Rights.

 

The decision has huge implications and means that, lawfully, resident family members of investors, entrepreneurs and skilled workers will be able to “switch” from their current visa into a “Dependant of a Points-Based System Migrant” visa from within the UK, rather than having to leave the UK and apply from abroad. Previous rules required a lawfully resident migrant to temporarily leave the UK.

 

Shahram Taghavi (pictured), Head of Immigration at Charles Russell said: “This is a welcome decision  that will have  significant impact on families who have previously been separated from their Points-Based System migrant family members who are lawfully in the UK. Our client, Dr Zhang, experienced much emotional distress, separation from her husband for over two months and great financial loss when she was required to submit an application from her country of nationality rather than from within the UK. Today’s decision from the High Court is a timely reminder that family life is a fundamental human right that should not be interfered with without good reason.” 

 

The case involved a Tier 1 migrant (Dr Ng) who had recently married his Tier 2 migrant wife (Dr Zhang). Both were from categories of migrants that the Immigration Rules encouraged to come and remain in the UK. After being made redundant by her employer, Dr Zhang was forced to leave the UK and apply for a new visa from China in order to become Dr Ng’s Points-Based System ”Dependant”. Her forced departure from the UK led to separation from her husband and also denied her the opportunity to accept a new job offer from Ulster University. The Court ruled that, as no valid reason could be offered for separating a husband and wife in such circumstances, the requirement to temporarily leave the UK was unlawful and violated the couple’s human rights.

 

Mr Justice Turner held :”There is no doubt in this case that the claimant’s Article 8 rights were both engaged and infringed. She was in a loving marriage and had, as I find it, no real option but to endure separation from her new husband for about two months. She had an impeccable immigration record and both she and her husband were very likely to continue to make a valuable contribution to the economic wellbeing of the UK . The claimant is the sort of applicant in respect of which immigration should be encouraged rather than deterred. Those who show the sort of promise to make a valuable contribution to the UK could only be discouraged from coming here in the first place if it were the case that if they were to marry a foreign national here then, as a matter of routine, that spouse would be required to return to his/her country of origin as a precondition of “switching” to a “Partner” visa.”

 

Shahram Taghavi acted as both the lawyer and junior advocate in the case along with Nathalie Lieven QC of Landmark Chambers. The decision will not be appealed and the parties are now negotiating damages under the Human Rights Act.

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