Backpackers unable to prove cohabitation -

Problem

A young Cambodian woman had come to visit her boyfriend ,a British Citizen, in the United Kingdom, having cohabited whilst backpacking overseas for a number of years.

In the course of the visit , the pandemic prevented her departure and so an application for Leave to Remain as partner on the basis of two years cohabitation mostly in South Asia was made. Unable to furnish voluminous utility bills, our clients did furnish letters from the resort and from their hosts overseas to corroborate cohabitation. The Home Office disputed the length of cohabitation and so refused the application. At this stage MAGNE & CO were instructed.

We were unable to make contact with the resort in Thailand where the couple had resided for a year as it had closed on account of the pandemic. Direct approaches and through intermediaries there were unsuccessful. Given the transient nature of back packing, potential witnesses would come and go over the relevant period of cohabitation.

Strategy

Friends who could act as witnesses were dispersed throughout the world, and so statements were taken from Cambodia, Thailand, The Czech republic and aboard a Merchant Ship. These friends identified themselves and each other in various group photographs provided. .Extracts from their passports showing presence at the relevant time were obtained and samples of social media provided. A surplus of statements was taken, because we did not know whether any may have difficulty in appearing via the on line Court platform on the day of hearing.

We obtained confirmation from the Cambodian Embassy, that any visa for the British Citizen sponsor to accompany his partner would be refused on account of the pandemic.

We obtained a statement from our client’s former partner, with whom he had had a child, commenting on the daughter’s relationship with her father and the extent to which he now showed greater responsibility to her.

We obtained the sponsor’s National Insurance records to show that he had had twenty six jobs in twelve years. We obtained his school records to show that he had been expelled from six out of the thirteen schools he had attended and been asked to leave from all but one of the remainder. We provided the medical reports from his child hood commenting that he had the most extreme form of ADHD his clinicians had seen. We took a statement from his mother.

We relied upon the same to explain the difficulties he would have if required to make a life overseas and also to contrast his past difficulties with his current period of employment stability , and paternal responsibility to his daughter by a previous relationship.

We told the Court , when our client became pregnant and furnished a birth certificate upon arrival.

Solution

Upon receipt of a copy of the Birth Certificate of the child, the Home Office conceded.

This case illustrates the interweaving points that an appeal may bring, that then fall aside. In the first instance the appeal turned on a simple question of fact, namely whether a couple had lived together for two years, a task rendered more difficult by the closure of the establishment where the parties remained. The vagaries of life applied to the witnesses as well, and so more statements had to be taken in case one or two would become unavailable.

If this evidence were to be disbelieved, our client would then have to argue that it would be unreasonable for the sponsor to reside with her overseas.

This would include the question of whether the sponsor would be allowed to join her in her home country. At the time of the pandemic, he would not, but this would shift over time and no hearing date had been fixed. For this reason we supplied evidence to the disruption to the emotional ties between him and his daughter by a previous relationship.

We also wanted to place our sponsor’s own conduct in the context of his difficulties arising from a severe form of ADHD , lest a judge draw dismissive inferences. By the same, it showed the stability that our client brought to him which had never before been achieved.

The case had started out on a dispute of cohabitation in Thailand. It turned at the end, on the birth of  a baby. In between, we are never certain which of the potential issues are those that will become determinative and so they must all be prepared for.

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