Hi everyone, it's been a while and unfortunately I don't have good news (yet!) on our situation. Here's an update:
We got the decision from the Administrative Review team nearly a year after we lodged it, on 28 March 2023. They finally decided that the sole issue was that they did not recognise the US court order as it was not listed in the court orders in Appendix EU to the Immigration Rules.
This was the
very first instance where they indicated this was the problem. They did not address our assertion that my nephew qualified as a "child' under the definition in the rules. They have conflated the issue of the nephew/uncle relationship with what we are actually applying for: as the guardians of the child.
So I have lodged a formal appeal with the Tribunal. In that I have asserted that there are a number of issues with which we take exception, the most important one being a neglect of procedural fairness.
I have asserted that at no point whatsoever did they make clear to us that we were required to have a guardianship order from within the UK. There was not and still is not any information on the application page for children who are subject to a guardianship order or who have been subject to a surrogacy arrangement (though these are specifically outlined in the Appendix EU Rules). My argument is that if it were a specific requirement, they would have to indicate this at the outset and that the first time this was expressed to us was 15 months after the initial application, in the Administrative Review decision.
I have also asserted that according to Evidential Flexibility that they were not able to request a specific document if we weren't notified that it would be necessary for our application. Nor did the Administrative Review flag this.
I have received all my nephew's case notes via a Subject Access Request and it is clear that they did not follow the correct timeline for requesting additional evidence (they were supposed to give us 14 days, however the decision was made only 2 days after they spoke with me on the phone). Further, the caseworker only spoke with a SCW that evening and subsequently made the decision without circling back to us about the evidence in question.
I submitted this all to the Tribunal and the Home Office were supposed to respond by 18 May, this past week, however they have asked for an extension until 30 May. I have no doubt that if they were confident in their decision they would have been prepared to respond quickly.
So I am still waiting and have, up to now, not needed any legal advice! It's amazing what sort of guidance is available, but that the Home Office don't seem to want to follow.
Reading for anyone who has plenty of time on their hands:
Evidential Flexibility:
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/952663/evidential-flexibility-v11.0ext.pdfProcedural Fairness decision AGAINSt the Home office:
https://www.supremecourt.uk/cases/docs/uksc-2018-0194-judgment.pdf (in particular paragraph 6)
We're relying on procedural fairness given that we should have been given all the information to make a successful case and by neglecting to provide us with any guidance whatsoever, the Home Office knew that our application would fail from the start.
Finally we have also argued that there is no guarantee that we could secure a UK court order as the courts are inclined not to grant them if they will not benefit the child. And as we already have a legal guardianship order, they could potentially decline our request. It is this possibility that, we argue, means that we shouldn't be required to go through that costly process just for a "chance" at securing a UK order.
