Failure to Clarify Immigration Status in Care Proceedings by Lucy Coen

Failure to Clarify Immigration Status in Care Proceedings

In the recent matter of Y (Failure to Clarify Immigration Status), Re [2024] EWFC 159, the High Court gives useful guidance in respect of public law children cases where there is a question in relation to the immigration status of either the subject child or parents.

At paragraph 35 of the judgment the court reminds parties the question of immigration status, in care proceedings involving a foreign national child or a family with a connection to a foreign jurisdiction, must be considered at the point the proceedings are issued. The judgment then goes on to give valuable guidance on how to approach this issue, including seeking disclosure from the Home Office by way of an EX660. Once relevant information is disclosed from the Home Office, parties can then identify any issues arising from a child’s immigration status and if necessary secure the evidence or expert opinion required to address those issues ahead of the Issues Resolution Hearing or Final Hearing.

The court reminds parties that it is unacceptable to leave issues in respect of a child’s immigration status unresolved when the court makes a final public law order. This case provides a helpful recap that the remit of the family court is constrained to the legal, procedural and constitutional boundaries that demarcate its powers and as such if immigration issues arise once proceedings have concluded the power of the family court to influence the Home Office and make orders in respect of a child are limited.

From paragraph 21 to 24 there is a useful discussion on the limitations of the family court in respect of its influence of the Secretary of State for the Home Department’s [SSHD] decision making. The court prompts us that it has long been established that the courts should not make orders that impinge upon or prevent the exercise by the Secretary of State for the Home Department of powers lawfully conferred upon him by Parliament in the context of immigration and asylum [para 21]. Whilst the SSHD does have to consider the best interests of the child in its decision making they do not have to follow a particular decision made within care proceedings. It is important to be aware of the interplay between the two when considering public law final orders for a child and how that may interact with their immigration status.

At Broadway House Chambers, two members of the Immigration Team can provide advice in relation to UK immigration and nationality issues for children within care proceedings. Susan Sanders and Lucy Coen both practice in immigration, asylum and nationality as well undertaking work in public children law, given them both a valuable insight into the type of issues arising and discussed in this case. They are both able to provide written advice or advice in conference and have done so numerous times in ongoing care proceedings.