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Immigration Status of a Parent in an Application for a Child Arrangements Order by Lucy Coen

Thu 19th Mar 2020

There can often be an interplay between family and immigration proceedings. This article seeks to give some guidance to family practitioners when the immigration status of a parent in contact proceedings is a live issue.

It is first important to define terms used within the immigration context which you may come across.

SSHD – Secretary of State for the Home Department

Asylum seeker – a person seeking asylum in the UK who is yet to have their claim determined

Refugee – a person who has been recognised by the SSHD as requiring the protection of the state, usually granted leave to remain for a period of 5 years.

Leave to Remain – Permission to remain in the UK

Limited Leave to Remain – Any leave to remain that is granted for a limited period, DL is a form of limited leave to remain.

Discretionary Leave to Remain (DL) – Leave to remain in the UK for a limited period granted outside of the immigration rules.

Indefinite Leave to Remain (ILR) – Leave to remain in the UK without any time limit – often referred to as settlement.

Removal – an administrative process for a person who does not have leave to remain in the UK. Notice of liability for removal is usually given. An individual may have grounds to appeal a decision to remove him/her.

Deportation order – Where SSHD makes an order because the person’s presence in the UK is not conducive to the public good. An individual may have grounds to revoke a deportation order.

In Children Act proceedings it may be that the immigration status of either parent is insecure and has to be considered as part of the overall exploration of the way in which this may impact the child and their welfare.

If the court or the parties require information from the SSHD in regards to the parties’ immigration matters, a formal application can be made by the court using the form EX660. Questions can be asked of the SSHD regarding the parties including if there are any outstanding immigration applications.

When a party in contact proceedings has ongoing immigration proceedings it is important to note that orders made by the Family Court do not bind the SSHD and any Immigration Tribunal. As such the Family Court is not prohibited from making orders in private law children matters as a consequence of any outstanding immigration applications pertaining to the child or either parents. The Family Court’s paramount consideration is the welfare of the child, and if contact with the parent is deemed to be in their best interests, a child arrangements order can be made.

If a parent has a pending immigration appeal the Protocol on communications between judges of the Family Court and Immigration and Asylum Chambers of the First Tier Tribunal and Upper Tribunal may be engaged. When an order is made by the Family Court the SSHD shall take this into account when reaching a decision on any application, the Immigration Tribunal is also to take the same approach. Section 55 of the Borders, Citizenship and Immigration Act 2009 requires the immigration decision maker and the Tribunal to give primary consideration to the child’s best interests and make decisions which safeguard and promote the child’s welfare. Thus any ongoing proceedings and subsequent findings in the Family Court in a Children Act case will be relevant to any decision in immigration proceedings that impact the child.

It may be that your client who is seeking contact with their child has insecure immigration status in that they have no leave to remain in the UK. It is important that the client also seeks immigration advice and submits an application to the SSHD for leave to remain in the country at least while the contact proceedings are ongoing. Ideally this application should be made on the basis that their removal out of the UK would amount to a breach of Articles 6 and 8 of the European Convention on Human Rights. Although there is no SSHD policy in respect of this, it may be that three to six months of discretionary leave is granted whilst family proceedings are ongoing. If a “spend time with” child arrangements order is made at the conclusion of proceedings, the client can apply to extend their leave under Appendix FM of the Immigration Rules.

-Lucy Coen

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