Presentation Transcript

1. Immigration Issues Relating to Stranded Spouses and their Children

   Stranded Spouse Seminar Dawson Cornwell: 16thMay 2012
2. Re S (Wardship: Stranded Spouses) [2010] EWHC 1669 (Fam) Mother remained stranded in Pakistan during the fact-finding hearing. Gave evidence by video-link. Did obtain a new Pakistani passport but was not re-issued with a spouse visa or given any type of leave to enter.
3. The court made an urgent plea to the immigration authorities to allow the mother to enter the country for the purposes, and the duration, of the proceedings. It also made a plea that there be some consideration as to what arrangements could be put in place to assist mothers to return to this country in similar cases, in which proceedings were being heard and hearings listed. Such hearings were best conducted with parents available in court to give clear instructions to their legal teams, and live evidence. The mother in this case would be hampered if she were unable to attend the welfare hearing in person.
4. The need for urgent action Importance of abandoned spouse being present in the jurisdiction in order to participate in proceedings. Urgency on the child’s part: delay in the immigration application leading to prolonged separation between the child and primary carer. Considerations under the CA 1989: Status quo
5. Problems with Home Office decision making It can, depending on the country, take months for an application to be processed. And if the application is refused… Entry Clearance Officer decision  Manager review  Appeal process.
6. What can be done in the family proceedings? Seek permission to disclose the papers to UKBA and the Home Office. Comply with Presidents Protocol on communicating with the Home Office: EX660. Consider whether it would be appropriate for the Court to make any recitals regarding the child’s interests, Article 8 and need for parent to be present in the UK to participate in proceedings.
7. Re M and N (Parallel Family and Immigration Proceedings) [2008] EWHC 2281 Family practitioners have an ongoing duty to keep informed of what is going on in the immigration proceedings.
8. The Immigration Rules
9. How does someone enter the UK as a spouse? Immigration Rules 281-289
10. Route 1: Married at least 4 years ago Must have lived together outside the UK. Usually settlement.
11. Route 2: Married less than 4yrs ago Married to someone present and settled in the UK. Marriage: Must be legally recognised in the country where the marriage took place. Present and settled: British citizen or ILR.
12. ii) English language test requirements. (In effect from 29 November 2010.) iii) The parties to the marriage or civil partnership have met. iv) Each of the parties intends to live permanently with the other and the marriage is subsisting.
13. v) adequate accommodation without recourse to public funds. vi) the parties will be able to maintain themselves adequately without recourse to public funds. (vii) the applicant holds a valid United Kingdom entry clearance for entry in this capacity.
14. Old requirements Rule 277 raising the age to 21. As of 28th November 2012 lowered back to 18. Rule change aimed to tackle the problem of forced marriage but held to be disproportionate interference with Article 8(Quila [2011] UKSC 45.) Certificate of approval for marriage. As of 9th May 2012 abolished. Scheme was meant to combat sham marriages but blanket ban held to be unlawful (Baiai [2008] UKHL 53.)
15. Leave to enter Should be granted leave to enter for a period not exceeding 27 months. “probationary period” Provided the marriage is still subsisting, should apply to the UK Border Agency for indefinite leave to remain not earlier than 28 days before their leave is due to expire. Should be able to obtain employment during this time. After 4 years can apply for settlement.
16. What about if the marriage breaks down?
17. During the period of probationary leave the spouse is in a very vulnerable position. Leaving the UK in itself does not invalidate the leave. However… Where a marriage has broken down during the probationary period, a person's stay in the United Kingdom may be curtailed where more than one month of their leave is remaining. (There is a right of appeal against this.)
18. Lost/stolen passports (ECB17.2) Replacing a visa (or leave) If the applicant loses or has their passport and visa stolen, we are issuing a replacement visa (or leave) leave and the full fee is required. If the applicant applies for a replacement visa (or leave) you will need to see a police report or other evidence that satisfactorily establishes that the passport is no longer in their possession. This also applies if an applicant had 'leave to remain' granted in the UK and are now applying to have it replaced overseas. If required, you may ask for supporting documentation to establish that their circumstances have not changed. ECOsmay need to refer to Evidence and Enquiry to obtain information on an applicant's leave validity granted in the UK.
19. Other types of applications…
20. In order to participate in proceedings:(ECO: post-decision evidence) Morocco* [2005] UKIAT 00038 Adecision to remove an applicant in the process of seeking a contact order may violate Article 8 ECHR, in particular on the basis that removal of a parent/applicant during contact order proceedings would be unlawful because it prejudged the outcome of the contact proceedings and, more importantly, denied the applicant all possibility of any further meaningful involvement in the proceedings which may breach Article 6 ECHR.
21. As a visitor Limitations being: Must intend to leave after six months. Must fulfill the accommodation and maintenance requirements.
22. An application outside the immigration rules The Home Office Guidance states: Leave Outside the Rules may be appropriate in other cases where individual circumstances are so compelling that it is considered appropriate to grant some form of leave.
23. Where the marriage has ended because of the sponsor's desertion the expectation is that the spouse should return to his home country. An application made in these circumstances should normally be refused. Consideration may be given to such applications, but an application should only be granted where there are exceptional compassionate circumstances over and above the desertion of the spouse. Consideration will need to be given to the applicant's circumstances in the United Kingdom and his home country. The presence of children from the relationship will also be a factor to be taken into account, especially if the children have the right of abode. But this fact alone is not sufficient to warrant granting Leave Outside the Rules or Discretionary Leave. In such cases all the individual circumstances must be taken into account.
24. Article 8 "1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
25. Family life and whether or not the removal would interfere disproportionately with it has to be looked at by reference to the family unit as a whole and the impact of removal upon each member (Beoku-Betts (2008) UKHL 39.) It will rarely be proportionate to uphold an order for removal if the effect of the order is to sever a genuine and subsisting relationship between parent and child(EB (Kosovo) [2008] UKHL 41.)
26. Section 55 Places a statutory duty on the Secretary of State to consider the best interests of the child. NB: In immigration proceedings the best interests of the child are not the paramount but the primary consideration.
27. ZH (Tanzania) (FC) (Appellant) v Secretary of State for the Home Department (Respondent) [2011] UKSC 4 Although nationality is not a "trump card" it is of particular importance in assessing the best interests of any child. The UNCRC recognises the right of every child to be registered and acquire a nationality (Article 7) and to preserve her identity, including her nationality (Article 8). In reaching decisions that will affect a child, a primacy of importance must be accorded to his or her best interests. This is not, it is agreed, a factor of limitless importance in the sense that it will prevail over all other considerations. It is a factor, however, that must rank higher than any other. It is not merely one consideration that weighs in the balance alongside other competing factors. Where the best interests of the child clearly favour a certain course, that course should be followed unless countervailing reasons of considerable force displace them.
28. The UNHCR, in its Guidelines on Determining the Best Interests of the Child (May 2008), explains at para 1.1 "The term 'best interests' broadly describes the well-being of a child. . . . The CRC neither offers a precise definition, nor explicitly outlines common factors of the best interests of the child, but stipulates that: the best interests must be the determining factor for specific actions, notably adoption (Article 21) and separation of a child from parents against their will (Article 9); the best interests must be a primary (but not the sole) consideration for all other actions affecting children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies (Article 3)."
29. Long term application: The domestic violence concession (Paragraph 289A) There is provision for spouses of British citizens and persons settled here who have been subjected to domestic violence during the probationary period to apply for indefinite leave to remain as the victim of domestic violence. Must be able to produce such evidence as may be required by the Secretary of State to establish that the relationship was caused to permanently break down before the end of that period as a result of domestic violence.
30. Judicial review proceedings? May be contemplated if the decision or lack of decision are either: Illegal Procedurally improper Irrational/unreasonable Pre-Action Protocol Relief: Mandatory order

31. Immigration issues relating to stranded spouses and their children

    Stranded Spouse Seminar Dawson Cornwell: 16thMay 2012