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Immigration Issues in Family Cases
Overview There are three main issues of immigration law in family law cases: (1) The best interests of children; (2) The right of parents / guardians to remain in the UK with their child; and (3) The right for British / European children to remain in the UK even if their parents have no other right of residence.
Best Interests of the Child The immigration authorities and any judicial decision maker must consider the best interests of the child as a primary consideration in any immigration decision.
Sources of Law The prevailing statutory provision for children in immigration cases is s.55 UK Borders Act 2009. S.55(1) is: 55Duty regarding the welfare of children (1)The Secretary of State must make arrangements for ensuring that (a)the functions mentioned in subsection (2) are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom, and (b)any services provided by another person pursuant to arrangements which are made by the Secretary of State and relate to the discharge of a function mentioned in subsection (2) are provided having regard to that need.
Children Act 1989 Rather than rights or best interests, as now used in immigration context, speaks of welfare of the child. Section 1(1) of the Children Act 1989 provides: When a court determines any question with respect to: (a) the upbringing of a child; or (b) the administration of a child s property or the application of any income arising from it, the child s welfare shall be the court s paramount consideration
The Human Rights Act 1998 In immigration cases, children s rights are most likely within: ARTICLE 3 No one shall be subjected to torture or to inhuman or degrading treatment or punishment. ARTICLE 8 Everyone has the right to respect for his private and family life, his home and his correspondence. 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.
The Charter of Fundamental Rights of the European Union Article 24 The rights of the child 1. Children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity. 2. In all actions relating to children, whether taken by public authorities or private institutions, the child s best interests must be a primary consideration. 3. Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests. Although Treaty of Lisbon in force since 01/12/2009, until decision of the Grand Chamber of CJEU n NS (C411/10) v SSHD and ME (C 493/10) and others v Refugee Applications Commissioner, Minister for Justice, Equality and Law on 21/12/2011 had been a question mark over the justiciability in the UK and Poland of the rights set out in the European Charter.
Best interests of child - immigration case law Rare references to the CRC prior to 2009 (e.g. the unlawful detention case of ID and Others v SSHD [2005] EWCA Civ 38). Prior to 2009 none of the lead domestic judgments on Article 8 issues in the immigration context refer expressly to the CRC, or to the best interests or even welfare of the child: EB (Kosovo) v SSHD [2008] UKHL 64; Huang v SSHD [2007] UKHL 11; Beoku-Betts v SSHD [2008] UKHL 39; Chikwamba v SSHD [2008] UKHL 40. This despite term best interests of the child coming to the forefront in decisions of the ECtHR, notably the body of case law on removal and deportations: Uner v The Netherlands (2007) 45 EHRR 14; Boultif v Switzerland (2001) 33 EHRR 50; Maslov v Austria [2009] INLR 47; Rodrigues da Silva, Hoogkamer v Netherlands (2007) 44 EHRR 34,
LD (Article 8 best interests of child) Zimbabwe [2010] UKUT 278 (IAC), promulgated 02 August 2010, Although questions exist about the status of the UN Convention on the Rights of the Child in domestic law, we take the view that there can be little reason to doubt that the interests of the child should be a primary consideration in immigration cases. A failure to treat them as such will violate Article 8(2) as incorporated directly into domestic law.
ZH (Tanzania) v Secretary of State for the Home Department UKSC 04, before Lord Hope, Deputy President Lady Hale, Lord Brown, Lord Mance, Lord Kerr, date of judgment 01 February 2011 The lead case on weight to be given in Article 8 proportionality assessment to best interests of children affected by a decision to remove or deport one or both of their parents from the UK, in particular cases where the effect of removing or deporting a non-citizen parent Is that a child will also have to leave. Case concerned the proposed deportation of a Tanzanian mother who had an appalling immigration history. She had two children with her British national partner, and the children were both British nationals. As Lady Hale observed, although British nationals themselves cannot be deported, parents can take their British children with them if they are deported, with the children having little or no choice in the matter. Since the children s father lived in the UK, they would be torn between one parent in the UK or the other in Tanzania. The court found that it would not be proportionate to deport the mother.
Guidance on content of best interests of the child ZH judgment endorses the following as relevant: British nationality is not a trump card but nationality and the rights arising from citizenship (such as language, culture and education in their own language) are important in assessing the best interests of the child (paras 30-32) and diminishing a child s rights to assert his or her nationality will not normally be in his or her best interest (para 46); The strength of child s relationships with parents or other family members which will be severed if child has to move away (para 29); The child s level of integration into this country and length of time absent from the other (para 29); Where and with whom the child is to live and arrangements for looking after the child in the other country (para 29); Recognising that the interests of all family members may not be identical (para 35); The views of children capable of forming them (paras 34-37).
Best interests guidance since ZH (Tanzania) Remains legitimate to give some regard to the previous policy that seven years residence by a child under 18 would afford a basis for regularising the position of child and parent in the absence of conduct reasons to the contrary: EM (Zimbabwe) v SSHD UKUT 98 (IAC), promulgated 10 March 2011, reiterated in SC (Zimbabwe) [2012] UKUT (IAC), promulgated 22 February 2012 (and endorsed in post 09/11/2012 changes) Subject to any very strong contraindication, is in the best interests of a young child to live with and be brought up by his or her parents. Where it is in the best interests of a child to live with and be brought up by parents, removal with the parents does not involve separation of family life: OEA and Others v SSHD [2011] UKUT 315 (IAC) promulgated 22 July 2011;
Best interests guidance since ZH (Tanzania) (cont.) When a child is very young he or she will be primarily focused on self and the caring parents or guardian. Long residence once there have been links made by a child with the community outside the family is likely to have a greater impact on his or her wellbeing: OEA and Others v SSHD [2011] UKUT 315 (IAC); ZH was not ruling that the ability of a young child to adapt to life in a new country was an irrelevant factor, rather that the adaptability of a child in each case must be assessed: OEA and Others v SSHD [2011] UKUT 315 (IAC); When considering a child s best interests under a s55 duty the matters specified in the statutory checklist at s 1 of the Children Act 1989 should be taken account of: R (Tinizaray) v SSHD [2011] EWHC 1850 (Admin) promulgated 25 October 2011; Not sufficient for a decision maker to rely solely on information provided by a child s parent and further information must be sought if it is clear that that information is either incomplete or potentially slanted R (Tinizaray) v SSHD [2011] EWHC 1850 (Admin).
Gerardo Ruiz Zambrano v Office national de l emploi (ONEm) (Case C- 34/09) CJEU Grand Chamber, date of ruling 08 March 2011 Dramatic decision with potentially wide-ranging implications for best interests considerations in the cases of children who are nationals of a European Union Member State. Colombian national, three children, first Colombian, second two Belgian Belgian Employment Tribunal asked CJEU for preliminary ruling on whether the provisions of the TFEU, particularly the non-discrimination, citizenship (Article 20 TFEU) and free movement provisions, combined with the provisions at Articles 21 (non-discrimination), 24 (rights of the child) and 34 (social security and social assistance) of the European Charter of Fundamental Rights and Freedoms are to be interpreted so as confer on a relative in the ascending line who is a third country national, upon whom his minor children, who are European Union citizens, are dependent, a right of residence in the Member State of which they are nationals and in which they reside, and also exempt him from having to obtain a work permit in that Member State.
Gerardo Ruiz Zambrano (cont.) In a judgment that astonished many, the Court ruled that the citizenship status at Article 20 TFEU is wholly independent of rights derived from the free movement provisions and the Citizens Directive (Directive 2004/38/EC). The fact that free movement rights have not been used is not in itself determinative of whether an EU law matter is in issue. Member State nationals are all Union Citizens, and hold that status regardless of whether they have ever moved within the Union. Member States must not deprive European Union citizens of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen :
Clarifying scope of Zambrano Shirley McCarthy v Secretary of State for the Home Department, CJEU Case Number: C-434/09, Third Chamber, date of ruling 05 May 2011 Mrs McCarthy was not a worker, and had never exercised her right of free movement. When considering her EU citizenship rights the Court contrasted her situation with the position of the Belgian national children in Zambrano. The Court again focused on the test of whether the European Citizen was being deprived of the genuine enjoyment of the substance of the rights associated with her status as a Union citizen: 49. [...] no element of the situation of Mrs McCarthy, as described by the national court, indicates that the national measure at issue in the main proceedings has the effect of depriving her of the genuine enjoyment of the substance of the rights associated with her status as a Union citizen, or of impeding the exercise of her right to move and reside freely within the territory of the Member States, in accordance with Article 21 TFEU.
Clarifying scope of Zambrano Murat Dereci and Others v Bundesministerum fur Inneres CJEU Case C- 256/11, Grand Chamber, date of ruling 15 November 2011 Although Directive 2004/38 could not apply, because none of the Union citizens were a beneficiary under Article 3(1) of that Directive, failure to make use of right of free movement did not per se mean that the case involved a purely internal situation, and effect on citizenship rights and possible engagement of European Union law rights fell for separate consideration. However: 68. The mere fact that it might appear desirable to a national of a Member State, for economic reasons or in order to keep his family together in the territory of the Union, for the members of his family [...] to be able to reside with him in the territory of the Union, is not sufficient in itself to support the view that the Union citizen will be forced to leave Union territory if such a right is not granted.
Clarifying scope of Zambrano Sanade and Others (British children Zambrano Dereci) v SSHD [2012] UKUT 00048 (IAC), Mr Justice Blake, Upper Tribunal Judge Jordan, promulgated 07 February 2012 Ruiz Zambrano makes it clear that where the child or indeed the remaining spouse is a British citizen and therefore a citizen of the EU, as a matter of EU law it is not possible to require the family as a unit to relocate outside of the EU or for the SSHD to submit that it would be reasonable for them to do so. Where in the context of Article 8 one parent ("the remaining parent") of a British citizen child is also a British citizen (or cannot be removed as a family member or in their own right), the removal of the other parent does not mean that either the child or the remaining parent will be required to leave, thereby infringing the Zambrano principle, see Dereci. The critical question is whether the child is dependent on the parent being removed for the exercise of his Union right of residence and whether removal of that parent will deprive the child of the effective exercise of residence in the UK or elsewhere in the Union.
Inter-relationship between family and immigration proceedings
Article 8 Inter-relation between family and immigration proceedings generally occurs when children are involved. Two main scenarios - Individual is attempting to remain in the UK in order to obtain contact or residence order in the family courts - Individual is attempting to remain in the country in order to fight local authorities attempt to remove children from care
Boughanemi v France (1996) 22 EHRR 228 The concept of family life on which Article 8 is based embraces, even where there is no cohabitation, the tie between a parent and his or her child, regardless of whether or not the latter is legitimate; Although that tie may be broken by subsequent events, this can only happen in exceptional circumstances.
Potential for development of family life Even if currently no contact or very limited contact, when considering existence of family life, the potential for development of family life is relevant. See Singh v ECO [2004] EWCA Civ 1075 potential for development of family life is relevant in determining whether family life already exists
Ciliz v Netherlands(29192/95) Parents separated. Father initially had no contact with his son, then irregular contact and failed to keep appointments. Father instigated formal contact proceedings in respect to his son. Whilst on-going, the Netherlands refused him permission to remain in the country, he was expelled from the country and refused permission to return. As he was unable to take part in the family proceedings, the family courts refused a formal access arrangement. ECtHR held that father s actions did not amount to exceptional circumstances breaking the family life ties and the authorities not only prejudged the outcome of the proceedings relating to the question of access by expelling the applicant when they did, but, and more importantly, they denied the applicant all possibility of any meaningful further involvement in those proceedings for which his availability for trial meetings in particular was obviously of essential importance.
How has this been interpreted domestically? Following Ciliz, Court of Appeal heard MS (Ivory Coast) [2007] EWCA Civ 133. SSHD had undertaken to not remove individual whilst contact proceedings were on-going but not granted leave. CA held not sufficient. The Tribunal had to decide whether the appellant's removal on the facts as they were when they heard the appeal, i.e. with her outstanding application for contact with her children, would have violated Article 8 of the ECHR if Secretary of State removed her. It was not open to the Tribunal to rely on the Secretary of State's assurance or undertaking that the appellant would not be removed until her contact application had been resolved. Short period of DL could be granted, which could be extended if necessary.
What if family court order in place? (part 1) R (Anton) v SSHD [2005] 2 FLR 818 33. A judge of the Family Division cannot in the exercise of his family jurisdiction grant an injunction to restrain the Secretary of State removing from the jurisdiction a child who is subject to immigration control-even if the child is a ward of court.. 34. This does not mean that the family court cannot make a residence order in respect of a child who is subject to immigration control.what it does mean, however, and this is an important point, is that neither the existence of a care order, nor the existence of a residence order, nor even the fact that a child is a ward of court, can limit or confine the exercise by the Secretary of State of his powers in relation to a child who is subject to immigration control."
Nimako-Boateng[2012] UKUT 00216 (IAC) Confirmed Anton - A residence order could not operate as a bar on the SSHD making a decision to remove a child. The SSHD was not a party to family proceedings and the order was not to be read as directed to the SSHD. Also considered different aims of the two jurisdictions. Paramount versus primary considerations. The family court is best placed to evaluate the best interests of the child in proceedings brought before it. Both the decision itself and the reasons for the outcome are material to the consideration of the Article 8 balance to be conducted by the immigration judiciary and may be a decisive consideration. Reasoned decisions of such courts are not to be ignored in immigration appeals. Indeed the problem facing immigration judges is that, although they must attach weight to the best interests of the child, in many cases they will often not be able to assess what those interests are without the assistance of a decision of the family court. The family court has, amongst other things, procedural advantages in investigating what the child's best interests are, independent of the interests of the parent, as well as the necessary expertise in evaluating them (para 32).
RS (India) [2012] UKUT 00218 (IAC) (part 1) Nimako-Boateng considered different aims of two jurisdictions. This case emphasised the need for communication between the two jurisdictions. Tribunal made contact themselves with judge in family proceedings who forwarded a copy of transcript of fact finding hearing. The court acknowledged the problem of 'who goes first' where there are parallel proceedings in immigration and family cases. Needs to be informed communication between the judge deciding the immigration question and the judge deciding the family question. It is important that a system be established so that both jurisdictions can be alerted to proceedings in the other and appropriate relevant information can be exchanged, without undermining principles of importance to both jurisdictions.
RS (India) [2012] UKUT 00218 (IAC) (part 2) Where parallel family proceedings on-going, questions to consider are: i) Is the outcome of the contemplated family proceedings likely to be material to the immigration decision? ii) Are there compelling public interest reasons to exclude the claimant from the United Kingdom irrespective of the outcome of the family proceedings or the best interest of the child? iii) In the case of contact proceedings initiated by an appellant in an immigration appeal, is there any reason to believe that the family proceedings have been instituted to delay or frustrate removal and not to promote the child's welfare? iv) In assessing the above questions, the judge will normally want to consider: the degree of the claimant's previous interest in and contact with the child, the timing of contact proceedings and the commitment with which they have been progressed, when a decision is likely to be reached, what materials (if any) are already available or can be made available to identify pointers to where the child's welfare lies?
RS (India) [2012] UKUT 00218 (IAC) (part 3) Next stage is:- i) Does the claimant have at least an Article 8 right to remain until the conclusion of the family proceedings? ii) If so should the appeal be allowed to a limited extent and a discretionary leave be directed? iii) Alternatively, is it more appropriate for a short period of an adjournment to be granted to enable the core decision to be made in the family proceedings? iv) Is it likely that the family court would be assisted by a view on the present state of knowledge of whether the appellant would be allowed to remain in the event that the outcome of the family proceedings is the maintenance of family contact between him or her and a child resident here?
Mohan v SSHD[2012] EWCA Civ 1363 Most recent authority on the subject. Approved Nimako-Boateng and RS (India) in general. However, disapproved of suggestion in RS (India) that the tribunal should consider whether it is likely that the family court would be assisted by the expression of a provisional view of the likely eventual outcome of the immigration appeal. Maurice Kay LJ stated that this would usually be inappropriate in an apparently finely balanced case. Moreover, it does not live easily with the principle that, when the Tribunal proceeds to its ultimate decision, it must do so on the basis of the material before it at that time.
Practicalities Communication between immigration and family solicitors is key; Permission to disclose documents from the family proceedings to the immigration solicitors for use in the immigration proceedings must be sought; Realistic time frames must be given; Consideration should be given to the need for expert reports.
Immigration Issues That May Arise in Family Cases
Immigration issues arise in family cases when one party has no or limited leave to remain in the UK; The party without leave may be in or out of the UK; In both cases, if the person is engaged in contact proceedings, he should be given discretionary leave to remain until the contact proceedings are completed - MS (Ivory Coast) [2007] EWCA Civ 133; Being engaged in contact proceedings is not the only element person s immigration and / or criminal history will be relevant.
Engaging in contact proceedings as a visitor There is nothing to preclude a person engaging in contact proceedings with leave to remain as a visitor; However, leave to enter as a visitor is for a maximum of 6 months and cannot be extended; In addition the applicant must genuinely be seeking leave to enter for a specified time or in any event for no longer than 6 months.
Must not be intending to remain in the UK permanently ; Will need adequate funds to be accommodated and maintained for the proposed period of stay.
Must not be intending to remain in the UK permanently ; Will need adequate funds to be accommodated and maintained for the proposed period of stay.
Immigration Officer may also be concerned about funds; Seeking entry 2 nd + time will become increasingly difficult to satisfy immigration officer that intentions are genuinely as a visitor; Can ask family court judge to provide a letter.
Remaining Permanently in the UK Where the child is a British or EEA citizen and the parent without leave is the primary carer, the parent should be given leave to remain (Zambrano and Regulation 15A [Derivative Right of Residence]). Regulation 15A applies only where the child is an EEA (not British national); Zambrano does not just apply to EEA / non- British nationals).
In a Zambrano case the parent is entitled to State benefits - Pryce v London Borough of Southwark and Secretary of State for the Home Department
Where the parent is not the primary carer New Regulations probably unlawful by requiring the person without leave to be the primary carer (in Zambrano both parents were to be given leave), and for other detailed requirements; However, in a family case where the parent without leave to remain is not the primary carer, it is likely the child will not have to leave the UK if the non-primary carer parent is not given leave to remain therefore not a Zambrano / Reg 15A case.
Where Zambrano does not apply, then s.55, article 8, ZH (Tanzania) invoked (will apply in any event but Zambrano gives a definitive right and should be used as the primary source of obtaining leave to remain); Any decision must be in the best interests of the child; However best interests of the child is not a trump card. Article 8 rights of child, parent and any other family member should be taken into account (Beoku-Betts v Secretary of State for the Home Department [2008] UKHL 39 (25 June 2008).
Huang v Secretary of State for the Home Department [2007] UKHL 11 (21 March 2007) In an article 8 case where this question is reached [proportionality], the ultimate question for the appellate immigration authority is whether the refusal of leave to enter or remain, in circumstances where the life of the family cannot reasonably be expected to be enjoyed elsewhere, taking full account of all considerations weighing in favour of the refusal, prejudices the family life of the applicant in a manner sufficiently serious to amount to a breach of the fundamental right protected by article 8. If the answer to this question is affirmative, the refusal is unlawful and the authority must so decide.
Sanade and others (British children - Zambrano Dereci) [2012] UKUT 00048: Zambrano now makes it clear that where the child or indeed the remaining spouse is a British citizen and therefore a citizen of the European Union, as a matter of EU law it is not possible to require the family as a unit to relocate outside of the European Union or for the Secretary of State to submit that it would be reasonable for them to do so.
Without adverse characteristics (criminal offences or serious adverse immigration history) there is a good chance that the nonprimary carer, but with contact with child, should be given discretionary leave to remain. Very fact dependent and cannot be guaranteed.
There are many other ways in which the parent may be able to get leave under the Rules or the Regulations. Regulations can provide a remedy in a surprising number of cases if there is a European connection. Immigration options often far from obvious.
Determining If the Child is British Governed by the British Nationality Act 1981; British if born in the UK and either parent is settled in the UK; British if born outside the UK and one parent is British other than by descent;
If born outside the UK by parent who is British by descent, then child entitled to be registered as a British citizen if various conditions apply (including 3 years residence by British parent in the UK before the birth); Registration and naturalisation is discretionary; No appeal against refusal to grant citizenship.