Immigration issues relating to stranded spouses

Report
Immigration Issues Relating to
Stranded Spouses and their
Children
Stranded Spouse Seminar
Dawson Cornwell: 16th May 2012
MEHVISH CHAUDHRY, RENAISSANCE CHAMBERS
[email protected]
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.
MEHVISH CHAUDHRY, RENAISSANCE CHAMBERS
[email protected]
• 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.
MEHVISH CHAUDHRY, RENAISSANCE CHAMBERS
[email protected]
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
MEHVISH CHAUDHRY, RENAISSANCE CHAMBERS
[email protected]
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.
MEHVISH CHAUDHRY, RENAISSANCE CHAMBERS
[email protected]
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.
MEHVISH CHAUDHRY, RENAISSANCE CHAMBERS
[email protected]
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.
MEHVISH CHAUDHRY, RENAISSANCE CHAMBERS
[email protected]
The Immigration Rules
MEHVISH CHAUDHRY, RENAISSANCE CHAMBERS
[email protected]
How does someone enter the UK
as a spouse?
Immigration Rules 281-289
MEHVISH CHAUDHRY, RENAISSANCE CHAMBERS
[email protected]
Route 1: Married at least 4 years ago
Must have lived together outside the UK.
Usually  settlement.
MEHVISH CHAUDHRY, RENAISSANCE CHAMBERS
[email protected]
Route 2: Married less than 4yrs
ago
i) 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.
MEHVISH CHAUDHRY, RENAISSANCE CHAMBERS
[email protected]
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.
MEHVISH CHAUDHRY, RENAISSANCE CHAMBERS
[email protected]
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.
MEHVISH CHAUDHRY, RENAISSANCE CHAMBERS
[email protected]
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.)
MEHVISH CHAUDHRY, RENAISSANCE CHAMBERS
[email protected]
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.
MEHVISH CHAUDHRY, RENAISSANCE CHAMBERS
[email protected]
What about if the marriage
breaks down?
MEHVISH CHAUDHRY, RENAISSANCE CHAMBERS
[email protected]
• 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.)
MEHVISH CHAUDHRY, RENAISSANCE CHAMBERS
[email protected]
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.
ECOs may need to refer to Evidence and Enquiry to obtain
information on an applicant's leave validity granted in the UK.
MEHVISH CHAUDHRY, RENAISSANCE CHAMBERS
[email protected]
Other types of applications…
MEHVISH CHAUDHRY, RENAISSANCE CHAMBERS
[email protected]
In order to participate in proceedings: (ECO: postdecision evidence) Morocco* [2005] UKIAT 00038
A decision 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.
MEHVISH CHAUDHRY, RENAISSANCE CHAMBERS
[email protected]
As a visitor
Limitations being:
• Must intend to leave after six months.
• Must fulfill the accommodation and
maintenance requirements.
MEHVISH CHAUDHRY, RENAISSANCE CHAMBERS
[email protected]
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.
MEHVISH CHAUDHRY, RENAISSANCE CHAMBERS
[email protected]
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.
MEHVISH CHAUDHRY, RENAISSANCE CHAMBERS
[email protected]
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."
MEHVISH CHAUDHRY, RENAISSANCE CHAMBERS
[email protected]
• 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.)
MEHVISH CHAUDHRY, RENAISSANCE CHAMBERS
[email protected]
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.
MEHVISH CHAUDHRY, RENAISSANCE CHAMBERS
[email protected]
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.
MEHVISH CHAUDHRY, RENAISSANCE CHAMBERS
[email protected]
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)."
MEHVISH CHAUDHRY, RENAISSANCE CHAMBERS
[email protected]
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.
MEHVISH CHAUDHRY, RENAISSANCE CHAMBERS
[email protected]
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
MEHVISH CHAUDHRY, RENAISSANCE CHAMBERS
[email protected]
Immigration issues relating to
stranded spouses and their
children
Stranded Spouse Seminar
Dawson Cornwell: 16th May 2012
MEHVISH CHAUDHRY, RENAISSANCE CHAMBERS
[email protected]

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