Immigration and Nationality issues in Family Proceedings: Five things to remember

25 May 2022

Natalie Wilkins

The UK explicitly adopted a “hostile environment for illegal migration” 10 years ago today, but in immigration and family proceedings there are a variety of ways to secure the best interests of children and their families, as Natalie Wilkins explains below.

1.      A child, parent or potential carer not having leave to enter or remain in the UK is not necessarily a significant obstacle to the child being able to stay with a family member in the UK

Often, I see family cases having somewhat stalled because there is a concern that a potential solution will not be viable, due to a lack of immigration status. It is best to get advice on this quickly, so all options are understood. If it is in the child’s best interests to stay in the UK it should normally be possible to obtain status for them and/or a potential carer. A notable exception to this is cases involving criminal offending or very serious deception, where there are other considerations at play, The view of the family court as to the arrangements which serve the child’s best interests will be given very significant weight when it comes to immigration/nationality decisions. Apart from anything else, the Home Office is under a statutory duty to promote and safeguard the welfare of children in the UK.

Parents and carers

The Home Office regularly grants leave (i.e. permission) not just so someone can enter or remain in the UK to care for a child*, but also so they can stay here to pursue family court proceedings or enter in order to be assessed. The Home Office has discretion to grant indefinite leave to remain (ILR)** which I often advise in cases where stability is vital for the arrangements for the child to succeed.

In protracted proceedings, leave granted to a parent who is participating can make a real difference – for example, if they can work, open a bank account, and rent property, that gives opportunities for better contact and assessment, and may help fund immigration legal advice. It also mitigates the significant mental toll of having no status which can impact on parenting capacity.

It is therefore important to explore this possibility at an early stage.

If the answer is initially no, remember there is always the possibility for that person to go back with better evidence or appeal and checking they are supported to do so is very important.

Children in Care

Especially for a child in care, it is extremely important to make sure that the appropriate actions are taken to safeguard their status – such as appealing asylum refusals, applying for indefinite leave to remain (ILR)** and considering Article 8 ECHR options ‘outside the Rules’, even when they do not meet Rules criteria – such as having been here for seven years. Local authorities are obliged to provide help with applications to the EU Settlement Scheme for children in care and applications can still be made despite the deadline of 30 June 2021 having passed. If a mistake is made, obtain legal advice immediately because both the Home Office and the Tribunal may have discretion to rectify errors. There is a good chance they will exercise this discretion, to protect children who have been left vulnerable through no fault of their own.

See this report for more guidance on how to protect these children.

* there is a specific category in the Immigration Rules for this which applies to many separated parents.

**where there is no limit on the time you can remain in the UK or what you can do here e.g. work, study. Also known as ‘settlement’.

 

2.      Gather information about immigration/international aspects as soon as possible

Especially in care proceedings, once it is identified there may be an issue with somebody’s status, it is important to clarify whether they already have the benefit of independent immigration advice. If not, try to refer them as soon as possible.

If instructing someone like me to give expert advice, choose an appropriate person sensitively to gather some information about their situation, such as:

  • when they arrived in the UK;
  • what leave to remain they have had and when that might have expired;
  • whether any applications are outstanding/anticipated.

Bear in mind how anxious someone might be feeling about their situation, particularly about whether that might impact on their ability to continue to see or care for a child.

Where there is a crossover with complex private family proceedings, exceptional case funding might be a possibility to cover the cost of advice.

Get the right information

Although a request on a EX660 form is useful, bear in mind that the information the Home Office provides may be incorrect or not tell the whole story. Information from the immigration representative, once instructed, about planned applications/appeals and/or doing a subject access request for their full file is often necessary.

Disclosure of documents

One of the most practical things a family lawyer can do to assist a party to proceedings who has an immigration case is to ensure suitable provision in the order for disclosure of relevant documents to the Secretary of State for the Home Department AND the First-tier and Upper Tribunals (Immigration and Asylum Chamber). This saves the cost and delay of having to come back later and make a specific application. Where there are informal arrangements reached between parents, a written agreement or even just a letter from the other parent can evidence an ongoing relationship and in-person contact with the child.

Information about immigration status can also inform other related questions such as:

  • that person’s entitlement to support, including mainstream benefits and asylum support;
  • and whether anything else could be done to improve that access (such as lifting a ‘no recourse to public funds’ condition).

As mentioned above, clarifying such issues can have a positive impact on an individual’s ability to care for a child which can lead to fairer and more realistic assessments and more successful placement outcomes.

 

3.      Question prejudicial narratives

I have routinely observed the starting assumption that an immigrant parent’s primary, or even sole, motivation for seeking to spend time with their child is to obtain leave to remain. So frequent is this experience, that I believe it points to a systematic problem which risks discriminatory treatment of immigration parents. It is vital to assess the full picture and question whether this assumption makes sense.

  • Has this parent actually lived with the child for many years?
  • What about this person makes you think they do not love and want a relationship with their children as most people do?
  • Are they actually making an application for leave on a totally different bases (e.g. for protection reasons or due to a relationship with other children)?

It is unfair to make assumptions about a parent without a proper factual and legal understanding of their status. Getting this clear avoids the family court working on the basis of a fundamental and prejudicial misunderstanding of the dynamics at play. The child’s perspective is also relevant in my view – is this person a loved and valuable parent regardless of any possible initial or even ongoing cynical motivations?

Where it becomes clear the family court has been misled about the relationship to a parent’s immigration status, it is incumbent on legal representatives to correct this immediately, regardless of who they are representing, as part of their overriding duty to the court.

 

4.      Check whether the child is or could be a British national

Especially for children in care, the best way to secure their welfare from an immigration perspective is to explore whether they are or could become a British citizen. British nationality law is complex and there may be routes available that are not immediately obvious.

Obtaining British nationality for a child is valuable in so many ways – for their identity, their stability and security, their access to services and higher education, and for protection from deportation in case of criminal offending. This has been recognised by the Supreme Court.

Local authorities seeking to secure a child’s best interests should consider themselves under a duty to investigate this by seeking appropriate legal advice and funding applications where necessary.

When seeking advice, remember to provide information about the child’s date and place of birth and the immigration history of key family members – child, parents and possibly grandparents. The Project for the Registration of Children as British Citizens has some excellent resources on this issue.

 

5.      Be alert to the possibility of modern slavery and what can be done to assist victims/survivors of modern slavery and domestic violence

Immigration and family lawyers understandably come at cases from a very different perspective. The child-focused approach of the family court means that the priority must be on protecting a child from situations where they might be harmed. Parents who are unable to extricate themselves from risky circumstances are themselves viewed as a risk factor to the child. An immigration lawyer representing that parent, however, can advise on routes that may help a parent get the support they need to be free and stable.

Working with survivors of modern slavery (including trafficking, sexual exploitation and labour exploitation) is a specialist subset of immigration and asylum law. Recognition can bring access to vital services for recovery including therapy, accommodation/financial support and legal aid. While there is no specific modern slavery leave, survivors can be granted discretionary leave in some circumstances and may also have good claims for asylum. Understanding the psychological impact of such experiences, and the recovery process may be highly relevant to questions of parenting capacity and hope for the future.

There are specific provisions of the Immigration Rules helping immigrants, with limited leave to enter or remain as a partner, obtain indefinite leave to remain where they have been victims of domestic violence (DVILR). The evidence required for such applications can be quite onerous and they have to be argued carefully to attract a right of appeal. Specialist assistance is advisable (and avoids any section 84 breaches) for such applications. Also note that you must have already had had leave as a partner to apply under this category. There have been cases where bad advice has led to an application wrongly being made for DVILR which has disastrously barred the victim from the correct option or access to services.

A note from the author

Of course, I would say this – as an immigration/family specialist – but it really is valuable to obtain specialist immigration law advice at an early stage if you are not sure how to proceed in family cases with parallel immigration issues or proceedings. Sometimes we can help you find a quick resolution to an issue that would otherwise delay the outcome for the child. Also, we can shed light on immigration law jargon, procedure and categories that might open up other avenues to resolution.

Remember: section 84 of the Immigration and Asylum Act 1999 means that you cannot provide immigration legal advice unless you are regulated; contravention is a criminal offence. You can check if an advisor who is not regulated by the Law Society, Cilex, Bar Council etc is registered with the OISC on the government website.

 

This article was written by Natalie Wilkins

Natalie practices in asylum, immigration and nationality, family, housing and public law. She has represented many vulnerable clients, including children, clients with serious mental health difficulties, domestic violence survivors and victims of trafficking. She also provides expert opinions in care proceedings where there are immigration or international family law issues.

Our family team is delighted recently to have welcomed Zara Walker. Like Natalie, Zara brings crossover expertise to the team as her practice also includes the areas of criminal law, prison law and inquests.

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