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When is a divorce a valid? When is a marriage a valid? Apparently, only when the Home Office says so!

The following is based on a recent case, now subject of an appeal, we at Douglass Simon Solicitors, are dealing with. The scenario is one that is familiar to many couples. The parties met and pursued their relationship in the UK. The wife is British, the husband is Filipino and his original visa had expired and was an overstayer. He was already married in the Philippines albeit he had been separated for some time from his first wife.  The husband obtained a divorce, in the UK, against his first wife then he and his second wife set about to marry in the UK. In accordance with current requirements they gave notice to a designated registrar who in turn informed the Home Office, Marriage Unit, about the couple’s intention. The Marriage Unit considered the matter and confirmed that they do not have concerns about the parties proposed marriage so effectively provided their permission enabling the couple to marry in the UK.

 

After their marriage, the husband returned to the Philippines to pursue a spouse visa application to join his British wife in the UK. To our surprise the Home Office refused the husband’s application solely on the basis that according to the Home Office their marriage was not valid, because in the Home Office’s opinion the husband’s divorce from his former wife was also not valid and he was therefore not free to remarry. The Home Office reasoned that as the husband was in the UK illegally when he obtained a divorce, the divorce is not valid and therefore the subsequent marriage was also not valid. The Home Office further reasoned that as the husband was in the UK illegally the absence of legal domicile in the UK meant that the decree of divorce was not valid. The decision then goes on to state that as he was not validly divorced, his marriage in UK was also “invalid”. It is worth noting that there was a complete absence of reference to any legal doctrine in the Home Office’s decision. Let us not follow the Home Office example and refer to legal principles.

 

When assessing an application for a spouse visa the Home Office have a legal obligation to look at the Immigration Rules and part of this is E-ECP.2.7 which states: If the applicant and partner are married or in a civil partnership it must be a valid marriage or civil partnership, as specified.

In the case we are looking at, the Home Office avers that the marriage is invalid, firstly, because the divorce is not valid. This is wrong on various grounds; At the outset, the Home Office’s action is “ultra vires”. Ultra vires is a legal concept older than the Home Office, it means “acting or done beyond one’s legal power or authority”. The husband’s Decree Absolute was validly issued by a Family Court. A Decree absolute issued by the English Family Court is a court order, and as such the Home Office is bound by it just as anyone else in the UK. In disregarding the Decree absolute, the Home Office’s decision is plainly ultra vires; unlawful because it was made outside the remit or authority of the Home Office. Plainly, it was not in their power to unmake the decision.

 

Secondly, even if we are to pretend that the Home Office has some magical power to invalidate a court order (which thankfully they do not), the decision is still flawed in reasoning that the husband must be permanently and legally domiciled in the UK. The contrary was established in a House of Lords case in 2005 namely Mark v Mark [2005] UKHL 42. Baroness Hale of Richmond at § 49 of the Decision stated: “…there is no reason in principle why a person whose presence here is unlawful cannot acquire a domicile of choice in this country”. A domicile of choice is sufficient to apply for divorce in the English Court.

 

However, even assuming, that the Home Office’s contention is correct, that the Divorce is not valid, it does not automatically follow that the couple’s marriage in the UK is invalid. In English Family Law there is a distinction between an invalid marriage and a void marriage. The relatively recent case of Akhter v Khan [2018] EWFC 54 offers clear guidance on this issue. A marriage contracted by a person who is already married can be void, but it is not invalid. The Court, surmising previous case law clearly established that unlike an invalid marriage, a void marriage continues to be valid and to have legal effect until a Court dissolves it by way of a Decree of Nullity. That is to say, even if the husband’s divorce from his first wife could be invalidated, the Home Office is still bound to acknowledge the legal effects of the husband’s marriage to his second wife in the UK, as this marriage has not been annulled by the Court. The Home Office in this case appear to again simply proclaim, without any legal evidence, that the marriage is not valid. As if by magic subsuming the Family Courts’ power to grant Decrees of Nullity.

 

It is commonplace but still frustrating when an application is refused by the Home Office on an incorrect interpretation of legal doctrines. The Home Office in the above case appear to have taken the step further by magically acquiring the power to nullify a divorce and invalidate a marriage. The parties are understandably appealing the decision, but a successful appeal will unlikely make the Home Office reconsider their ever-increasing practice of making decisions without regard to legal principles. Regular readers will recall that at this point I try to provide a “moral of the story” advise, tips and hints to watch out for. Sadly, I am unable to in this case as it is entirely for the Home Office to get their law right.

Zambrano – the EU primary carer

A common scenario we encounter is where a British elderly and ill parent is in the UK, is cared for by his/her adult child and the adult child either has limited leave which is about to expire or does not have leave to remain. One possible option to consider is an application as a Zambrano carer but be warned that is not for the faint hearted.


To put this into context, between January 2012 and 30 June 2018, so a period of 6.5 years, only 1740 people were deemed to have derived rights as Non -EU carers (Source: Home Office, FOI 50286). Although the figure is exclusive of cases granted after a challenge, the number is still very small. Part of the problem is applicants’ failure to properly prepare their case. Medical reports, detailed statements setting out the dependency between the parties, in my experience, is often lacking. Applicants must remember that it is for them to make out their case. However, if we are to play the blame game, then my vote goes to the Home Office’s recalcitrant attitude towards such applications.

The leading authority – Zambrano (2011) was a European Union law case; it decided that it was wrong under EU law to refuse a non- EU applicant (in this case the Colombian father) a right of residence in Belgium (part of the European Union – as we are – for now) as this would result to depriving the EU national (in this case his two Belgian children) from “the genuine enjoyment of the substance of the rights” they have as citizens of the Union. Put simply, Mr Zambrano leaving Belgium would mean that his children will be forced to leave an EU country as they are dependent on the care provided by their non-EU father. The dependency here is due to the children’s young age rather than illness. Since the Zambrano ruling there have been a trickle of ‘Zambrano ilk’ cases. The most recent being MS (Malaysia) and it is worth noting the importance of this very recent Court of Appeal case.


The case of MS (Malaysia) v Secretary of State for the Home Department [2019] EWCA Civ 580 again examined the issue of dependency but this time the parent is the dependant. The case involved a 58-year-old Malaysian citizen who cares for her 87-year-old British mother. The latter suffers from a whole raft of ailments including heart and kidney disease. Both parties are in the UK where the daughter applied to remain to continue caring for her mother. The application was considered against the Zambrano principle. The application was refused, the applicant daughter appealed and won the appeal. The Home Office challenged the successful appeal and lost. Ironically, the Home Office’s action may now assist appellants in similar position as the case provides much needed clarity in what can often be a restrictive application of Zambrano. The court in Paragraphs 25-26 stated:


Whether the boundary (which has impediment on the right to reside on one side and compulsion to leave on the other) is crossed is clearly a matter of fact and degree. What is necessary in each case is to examine the character and quality of the relationship of dependency… because it is that dependency which would lead to the Union citizen being obliged, in fact, to leave the territory of the Union.

 

The test in the case of adult dependents is a very demanding one, which will be met only exceptionally, but remains one of practical compulsion such that the EU citizen is left with no practical choice but to leave the territory of the Union.

 

MS (Malaysia) makes clear that only exceptional cases will qualify as parties must show that the EU national ‘is left with no practical choice but to leave the territory of the Union’. Such finding is nothing new in the world of Zambrano but the passage from Lord Justice Underhill below must cause the Home Office to lament their decision to challenge the case. Lord Justice Underhill examined the Home Office’s usual tactic of justifying a refusal by reference to the existence and option of social care i.e. that the state will provide. This contention is particularly frustrating as anyone living in the real world knows that what the state can provide often falls short of the care an elderly parent requires simply because it fails to account for the emotional need of someone vulnerable and possibly at the end of their life. In MS (Malaysia), the court made clear that the existence of alternative care, such as a care home or the social services, should not be the only overriding or predominant factor.


The availability of state-funded medical and social care will, in many cases, make it hard for those who provide care for their elderly relatives to bring themselves within the Regulation. The availability of state care is not, however, to be treated as a trump card in every case, irrespective of the nature and quality of the dependency on the carer which is relied on. Just as the availability of an EU citizen parent to be a carer of a minor child does not render unnecessary an enquiry into the nature of the dependency of the child on her non-EU parent (see Chavez-Vilchez), the availability of state care does not avoid the need to enquire into the actual dependency of the EU citizen on her adult carer. The availability of alternative care is a relevant, but not always decisive factor.


Many will have experienced refusals that have been based largely on the fact that social care is available for their vulnerable family member. It is now so common that I often refer to it as the contention that ‘RULE THEM ALL’ (courtesy of the Lord of the Rings). MS (Malaysia) resoundingly said it is not a ‘trump card’. It remains to be seen whether the Home Office will pay heed to the finding. We can only hope that they do and finally have due regard to the reality of many which is that social care, more often than not, cannot discharge the needs of someone vulnerable due to young age, mental and/or physical illness as it wholly fails to consider the emotional bond that comes out of familial connection.


For more information on the status of a Zambrano carer and the latest news on how Brexit affects such applicants look at our website at www.douglass-simon.com.

New Court of Appeal case – Home Office “called out” for moving goal post

In the recent case (7 March 2019) of R (Islam) v Secretary of State for the Home Department [2019] EWCA Civ 500, the Court of Appeal considered Mr Islam’s appeal against the Home Office’s refusal of his application under the Points Based System. The main issue centred on what documentary evidence the Home Office should have considered. The Court of Appeal in exploring this also commented that:


“it is not open to the Respondent [Home Office] in effect to require an additional specified document which is not listed or to require the document itself to show or state something which is not prescribed in the paragraph as needing to be shown or stated by the document.”


The Court’s observation will ring true with many immigration practitioners. The most common facet of refusals is the Home Office’s contention that the applicant has either failed to provide enough evidence or that there was a failure to make a full disclosure of material facts. It means that the applicant did not give enough or that s/he failed by omission. A refusal is made even more frustrating where the “missing” information or documents is not even noted as a requirement in the Home Office’s own policy or guidance. The reality of such unfair treatment of evidence is apparent in ongoing cases we have. One such case is (names changed); Bonnie entered the UK under the Points Based system, she was married in Thailand to Clyde. When asked about her marital status, she declared that she is married and indeed at the time even though there were problems in the marriage she was still living with her husband, Sam. Before applying for entry into the UK she was in correspondence with Clyde. After her Points Based System application was granted, she entered the UK. Shortly after she and Clyde began living together. Clyde suffers from very serious medical conditions making it impossible for him to even travel to Thailand let alone to live there. Bonnie applied to vary and extend her leave to remain based on her relationship with Clyde. Ample evidence was provided in support of the genuineness of their relationship. Medical evidence of Clyde’s serious ill health was also submitted. Despite this Bonnie’s application was refused. The reason for the refusal? Bonnie did not declare the breakdown of her relationship with Sam (the husband in Thailand) in her Points Based system application. The Home Office stated that in failing to make that declaration Bonnie either: (a) entered the UK illegally (failure to disclose material facts) or (b) that her relationship with Clyde is not genuine. The saying “damned if you do, damned if you don’t” comes to mind.

 

Bonnie’s case would certainly benefit from the logic applied by the Court of Appeal in R (Islam). The first issue being that Bonnie’s application does not require that she declare the problems within her marriage. In fact, there is no section to even do so. The application form asked if she is married and she declared, correctly, that she is. Secondly, and of equal importance, is that in her second application, the Home Office appear compelled to ignore the considerable documents provided in support of their relationship because of the alleged “false declaration” Bonnie made in her first Points Based System application. That second application required that Bonnie provide evidence of her relationship with Clyde and this she did, amply, yet that evidence was ignored by the Home Office.

 

We are challenging the Decision and so it remains to be seen whether the Tribunal will agree with us; that the Home Office’s practice criticised in R (Islam) of requiring evidence not in fact prescribed whilst on the other hand ignoring relevant evidence, present a disservice to legislation they are bound to uphold. R (Islam) should serve as a reminder that the Immigration rules, policy and guidance are there to give effect to what the law demands and not what the Home Office wants to achieve.

 

CAN I USE THE NHS OR WILL I BE DEPORTED?

Over the years, migrants have asked this question repeatedly. There is clear confusion about what the Home Office mean by “no recourse to public funds” and this has often caused our clients to misperceive their rights. I will explore in this article the rights of overstayers, migrants who are subject to immigration control and those with indefinite leave to remain in the context of Public funds and NHS treatment. The first thing to note is that ‘public funds’ is quite separate from the NHS.

 

Public Funds

 

Most migrants with a visa in the United Kingdom will be familiar with the term “no recourse to public funds”.  What does this actually mean? Well, the Home Office Guidance states that “it means you will not be able to claim most benefits, tax credits or housing assistance that are paid by the state.”  There are some exceptions and ‘public funds’ does not include benefits that are based on National Insurance contributions. 

 

To put this into perspective, we need to think about the consequences! Where a migrant is in breach of their visa conditions, in other words, when they are claiming benefits while they are prohibited from doing so, their application to extend their visa or to be granted indefinite leave to remain is likely to be refused.

 

Things are quite clear for overstayers, they are not entitled to receive ‘public funds’, and for those with indefinite leave to remain, they are not restricted from obtaining government funding.  The misunderstanding is usually centred around those who have limited leave to remain and are subject to immigration control.  Where the migrant is studying or working in the United Kingdom under the Points Based System, the Rules are quite clear as they are not entitled to receive any ‘public funds’, but what about those who have a settled or British partner and children?

 

Migrants would not be considered as accessing ‘public funds’ if the ‘public funds’ are being received by their partner and the migrant’s partner is entitled to receive these ‘public funds’ in his/her own right. Also, where child and working tax credits are claimed by the child’s parents as a couple and one of the parents is subject to immigration control, neither parent is treated as being subject to immigration control. 

 

Often, this causes confusion and migrants claim benefits that they are not entitled to.  Migrants who are in the United Kingdom with leave as a partner must keep in mind that they may be required to prove that they will be maintained without recourse to ‘public funds’ as one of the requirements of their application to extend their leave and apply for settlement in the United Kingdom.      

 

Public Funds v NHS

 

It is important to separate ‘public funds’ from use of the National Health Service (NHS) and General Practitioners (GPs) as they are not considered to be ‘public funds.’   This means that someone may receive NHS treatment, but the same person may not be able to claim ‘public funds’.

 

Migrants with indefinite leave to remain are entitled to use the NHS for all treatments. However, the entitlement of migrants with limited leave to remain (i.e. subject to immigration control) will depend on the category of treatment they are seeking. NHS guidance distinguishes between primary care (such as seeing your GP), secondary treatment (such as attending a hospital clinic or seeing a specialist doctor or physiotherapist) and hospital treatment.  A common scenario is that a migrant, let’s call her Betty, sees her GP, that GP then refers her to a specialist hospital doctor when it is found that she needs an operation. If Betty has Indefinite leave to remain then she is entitled to receive treatment for all stages under the NHS. If Betty is a student, hence with limited leave, she can see her GP under the NHS, obtain treatment from a specialist doctor or physiotherapist under the NHS because she paid the Immigration Health Surcharge (IHS) when she applied to extend or come into the UK but any hospital treatment she receives will need to be paid for privately.

 

Betty in both of the above scenarios is considered to be ‘Ordinarily Resident’. However, if Betty is a visitor to the UK, she is not Ordinarily Resident’ so she will not be entitled to any NHS help. There are, however, some exceptions where secondary treatment is free, such as use of the Accident and Emergency Department and family planning services (as, for example, pregnancy related treatment). 

 

Overstayers are entitled to use the NHS only for primary care services, so they can see their GP but will not be able to receive NHS assistance if they need say referral to a consultant (secondary care) or an operation (hospital treatment).

 

 

“RIGHT TO RENT” scheme found discriminatory on the 1st of March 2019

 

On the 1st of February 2016 the Government introduced the “Right to Rent” scheme. Given its function, it was arguably misnamed as its purpose was not to provide Tenants with “rights” to rent but to limit it. The scheme requires landlords to check prospective tenants leave to remain in the UK. Failure to do so could lead to prosecution, fine or even imprisonment. From its inception the scheme was criticised by many as a way of passing the responsibility of immigration checks to landlords with the view to promoting a “hostile environment” against illegal immigrants. Critics of the scheme have repeatedly argued that the scheme does not work and only results to discrimination. The High Court affirmed this in the case of R (Joint Council for the Welfare of Immigrants) v Secretary of State for the Home Department [2019] EWHC 452 (Admin) that the government’s Right to Rent scheme causes racial discrimination in breach of the European Convention on Human Rights. The Judge was clear and arguably damning of the scheme, stating:

 

“In my judgment, the answer to this issue lies in the findings I have already made in relation to causation. It is my view that the Scheme introduced by the Government does not merely provide the occasion or opportunity for private landlords to discriminate but causes them to do so where otherwise they would not. The State has imposed a scheme of sanctions and penalties for landlords who contravene their obligations and, as demonstrated, landlords have reacted in a logical and wholly predictable way. The safeguards used by the Government to avoid discrimination, namely online guidance, telephone advice and codes of conduct and practice, have proved ineffective. In my judgment, in those circumstances, the Government cannot wash its hands of responsibility for the discrimination which is taking place by asserting that such discrimination is carried out by landlords acting contrary to the intention of the Scheme.

 

… I have come to the firm conclusion that the Defendant [the Government] has failed to justify the Scheme, indeed it has not come close to doing so. On the basis that the first question for the court to decide is whether Parliament’s policy, accorded all due respect, is manifestly without reasonable foundation, I so find. On that basis, there is no balancing of competing interests to be performed.

 

However, even if I am wrong about that, I would conclude that, in the circumstances of this case, Parliament’s policy has been outweighed by its potential for race discrimination. As I have found, the measures have a disproportionately discriminatory effect and I would assume and hope that those legislators who voted in favour of the Scheme would be aghast to learn of its discriminatory effect…”

 

The Government have said that it will appeal the Decision so the scheme in its current form remains. It is disappointing that despite considerable evidence provided by JCWI and others that the scheme is discriminatory, the Government has failed to acknowledge this. They appear to adopt a “the end justifies the means” approach in that as long as a hostile environment can continue against illegal immigrants, any by-product of the scheme such as discrimination is an acceptable consequence.

 

Most will accept that Immigration control is crucial for any country. The Government is tasked with ensuring that an effective immigration system is in place. The Government’s power to introduce such laws must however be tempered with checks and balances and the High Court in this case has examined the effect of the scheme with reference to considerable evidence and has concluded that the “Right to Rent” scheme is discriminatory. It is baffling that the Government petulantly insists in its continuance of the scheme. It is akin to the controversial “Certificate of Approval” process that previously required couples to obtain permission to marry from the Home Office. That scheme was in force for years despite a finding by the House of Lords judgment in Baiai (30th July 2008), that it was discriminatory. The Government finally abandoned the scheme on the 9th of May 2011, three years after the Court’s Decision against the scheme.  I hope that the Government will not take as long to abolish the “Right to Rent” scheme which is clearly untenable in its continuance. 

FILIPINOS REMARRYING IN THE UK

A common misconception is that Filipinos in the UK cannot divorce if married in the Philippines. This is wrong, but you need to distinguish between the validity of divorce in the UK and the Philippines. Picture this, Mario and Petra married in the Philippines, where they both lived. Petra left for the UK and now lives here. Unfortunately, the relationship has broken down and Petra wants to end the marriage. Both Mario and Petra are Philippine nationals. She also wishes to remarry in the UK. Petra now asks:

 

Can she divorce Mario, and will the divorce be valid in the UK? If so, can she remarry in the UK?

 

Petra is now living in the UK. English law requires that she is “habitually resident or domiciled” in the UK. This means that she must consider the UK as her residence and this is regardless of her immigration status. Factors that point to residence include the length of time she has been living in the UK.  This means that Petra can petition for divorce and this will be valid in the UK.

 

A valid divorce means that Petra can properly remarry in the UK. However, their (divorce and marriage) validity may well be different in the Philippines.

 

The validity of Petra’s divorce in the Philippines will depend on Philippine law. Her divorce is not recognised in the Philippines and the only way to dissolve her marriage there is by way of an annulment. It also follows that Petra and Mario are still married in the Philippines. This certainly produces a strange and contradictory position as Petra’s divorce and remarriage is valid in the UK but not in the Philippines. The reason for this is the incompatibility between English and Philippine Family law.

 

If Petra is planning to remarry in the UK, the good news is that her subsequent marriage is valid here and has the full force of English law. It is important that you do not fall foul of either jurisdiction as it is crucial in ensuring the validity of the second marriage. For example, if Petra wants to apply for a visa to remain in the UK or if she were to leave the UK to apply from the Philippines and return as a spouse. In this case, she will need to provide evidence that her second marriage is valid. Incidentally, an application for a spouse visa even if made from abroad will invite the application of English Immigration law. This means that an Immigration officer is required to recognise Petra’s divorce and subsequent marriage in the UK.

 

The incompatibility between the two legal systems can also impact on division of assets, custody of children and even criminal law. So, the moral of the story is, obtain advise before embarking on divorce and remarriage.

 

BRITISH CITIZENSHIP – WHAT IS GOOD CHARACTER?

In the past two years, there has been a vast increase in applications for Naturalisation as many people are concerned about Brexit and their rights to remain in the United Kingdom once the United Kingdom has left the European Union.  In this article, we will look at the requirements for Naturalisation, not only for those who are impacted by Brexit but also for any applicant who wishes to become a British Citizen.

 

The requirements for Naturalisation can be found in the British Nationality Act 1981.  All applicants are required to show that they are of full age and that they have capacity.  The former can be proven by providing the original passport of the applicant.  In terms of proving capacity, the Home Office have defined this in the Nationality Policy: Naturalisation as a British citizen by discretion which provides that:

 

the majority of applicants will meet this requirement and therefore you must always consider an application from the position that the requirement is met unless there is something to suggest otherwise, such as a report from a Referee or doctor.”

 

Applicants are also required to show that they meet the knowledge of life and language in the United Kingdom requirement.  All applicants are required to complete the Life in the UK test to show that they have sufficient knowledge of life in the United Kingdom.  The language requirement can be satisfied if the applicant has achieved an English language certificate at the prescribed level, issued by an approved college.  Alternatively, those with a degree that was taught in English will also meet this requirement (provided the Degree is deemed to be at the prescribed academic level); the requirement will also be met by those from English speaking countries which are recognised as such by the Home Office.  The language requirement is the same for Indefinite Leave to Remain applications so many applicants would have already met this requirement before they apply for Naturalisation.  EEA nationals are not required to satisfy the English language requirement and Life in the UK test when submitting their application for Permanent Residence status and they may therefore need to take steps to meet this requirement before proceeding with their Naturalisation application. Most English language certificates are only valid for two years; if this period has already lapsed, applicants could be required to undertake a new test.

 

There is also a requirement that applicants must illustrate that in the event of being granted Naturalisation, they intend to make the United Kingdom “his home or principal home”.  We have increasingly seen applications being refused on the basis that applicants have incorrectly stated that they wish to make a different country their home once they have been granted Naturalisation.  It is vital that applicants state on the application form that they wish to make the United Kingdom their home as failure to do so will result in a refusal of their application. 

 

The residence requirement for Naturalisation is often the most problematic for applicants. Applicants are required to show that they have spent five continuous years in the United Kingdom and that one of those years was after obtaining settlement.  They must also declare any absences from the UK and there is a limit on how many days can be spent outside the UK during the five years qualifying period. 

 

Finally, applicants are also required to demonstrate that they are of good character.  The good character requirement gives the Home Office a wide discretion to refuse applications where the applicant is deemed not to be of good character.  This can be for any number of reasons but most commonly criminality, financial impropriety or breach of the immigration laws.

 

Good character itself is not defined by Statute.  The Home Office published the Good Character requirement Guidance on 14 January 2019.  The guidance applies to all applicants who are applying for British citizenship over the age of 10 years.

 

A very common problem is where an applicant was previously an overstayer, but his/her leave was subsequently regularised and eventually he/she obtained settled status. The Home Office’s policy on illegal entry and overstaying was expanded in 2014, where it was confirmed that any periods of overstaying occurred in the 10 years period prior to the Naturalisation application would be taken into consideration with regard to good character.  This remains to be the case.  The new guidance does however refer to Article 31 of the Refugee Convention which requires States not to impose penalties on refugees on account of their illegal entry or unauthorised presence in the country provided that they present themselves without any delay to the authorities and have shown good cause for their illegal entry or presence.

 

Applicants should also be aware that NHS debts over £500 and unpaid Home Office litigation debts amount to evidence of bad character.  This provisions already exist in the Immigration Rules as reasons to refuse a visa, but they are now also mirrored in the citizenship guidance.

 

The good character guidance has been extended over the years and many factors including police cautions, NHS debt and Home Office litigation will be taken into consideration.  The new guidance provides some clarity on the circumstances, but it has not by any means simplified the rules.  Applicants need to be cautious when making their application to ensure that they make full and frank disclosures to the Home Office and when necessary, representations should be made to provide an explanation for any possible implications of bad character.

Paddington Bear applies for a visa

I have always been a fan of Paddington Bear. What’s not to love. He’s a resourceful, hardworking and loving bear, but how would the most loveable immigrant bear fare with an application for leave to remain in the UK?

 

Paddington, you will remember, arrived in the UK and despite initial reluctance on part of the Brown family, became an integral part of their household. Later, his Aunt Lucy joins him, and they live happily ever after with the Browns, or so we hope.  But what happens to Paddington and Aunt Lucy if they are required to apply for leave to remain? Afterall, we were not told about their immigration status in the UK and sadly there are no amnesty programmes, yet, for bears. Let’s set the scene, Paddington arrived in the UK when he was 6 years old. He was joined by Aunt Lucy when he was 10 and since then they have been living in the UK. Paddington is now 14 years old, having lived in the UK for 7 years. Aunt Lucy has been looking after Paddington since her arrival and has herself been living in the UK for 4 years. They continue to live with the Browns.

 

Paddington and Aunt Lucy should consider an application under the Immigration Rules Appendix FM: family members. EX.1(a). which provides that:

 

“(i) the applicant has a genuine and subsisting parental relationship with a child who-

(aa) is under the age of 18 years, or was under the age of 18 years when the applicant was first granted leave on the basis that this paragraph applied;

(bb) is in the UK;

(cc) is a British Citizen or has lived in the UK continuously for at least the 7 years immediately preceding the date of application; and

(ii) taking into account their best interests as a primary consideration, it would not be reasonable to expect the child to leave the UK.”

 

To qualify Aunt Lucy will need to show that she has a parental relationship with Paddington. The fact that she is his aunt rather than his parent does not preclude her from having a “parental relationship” with Paddington. The meaning of Parental relationship has not been defined by statute but under caselaw:

 

“It is not necessary for an individual to have “parental responsibility” in law for there to exist a parental relationship…..whether a person who is not a biological parent is in a “parental relationship” with a child for the purposes of s.117B(6) of the Nationality, Immigration and Asylum Act 2002 depends on the individual circumstances and whether the role that individual plays establishes he or she has “stepped into the shoes” of a parent.”

 

R (on the application of RK) v Secretary of State for the Home Department (s.117B(6); “parental relationship” (IJR) [2016] UKUT 31 (IAC)

 

The next consideration is Paddington’s circumstances; he is clearly under 18 years, is in the UK and has been living here continuously for 7 years preceding their application. The Home Office is further required to consider Paddington’s interests as “primary consideration”. Unfortunately, satisfaction of the above requirements is not enough.

 

The most difficult aspect of our loveable bear’s application is the issue of whether “it would not be reasonable to expect the child (bear) to leave the UK”. Appendix FM EX1(a) (ii) as noted above has been the subject of considerable caselaw. The Home Office’s definition of “reasonable” is akin to the story of Paddington in that it is often, in my experience, unrealistic. It is therefore crucial that Paddington submits good evidence of his integration in the UK. This can be school reports and statements from the Browns. In some cases, a Psychologist or an Independent Social Worker’s report may be helpful. It is equally important to provide evidence of the likely harm Paddington will be subject to if returned to Peru. Reports on the stability of the country, treatment of children and its education system will likely be relevant. It is for Paddington to provide evidence and persuade the Home office of his case, so he must prepare it well. Evidence and legal representations should complement each other; apply the law to the facts.

 

With any luck, Paddington and Aunt Lucy will be granted leave to remain in the UK, leaving them to live happily ever after or at least until they are next required to extend their leave to remain which should be before their leave expires in 30 months’ time. 

 

I would like to give credit for the idea of the above to Free Movement (www.freemovement.org.uk) where it explored Paddington in the context of Asylum and hostile environment in immigration.  

How to win Immigration Appeals

 

There have been substantial changes to appeal procedure and law in the last decade. Today Immigration Law is more challenging than ever; what is the secret to a successful appeal? The answer? Preparation, Preparation, Preparation.

 

The process starts with good appeal grounds which should refer to relevant law. All too often, I come across grounds that appear only to plead to the good graces of the Tribunal, this will not work. Judges are required to apply the law and no matter how sympathetic the Judge may be to your case, they are bound by legal doctrine. Apply the law to your facts. The grounds need not be long, but they must be relevant. Remember quantity does not mean quality.

 

For the hearing itself, start with a good statement. Remember that the Judge will not know your case and will be dealing with numerous cases on the day. A generic statement will at best be unhelpful. Always provide a chronology of dates as this will put into context the history of your case. This is particularly important when your case involves lengthy residence in the UK, where many events have taken place such as the birth of children.

 

Your bundle for the hearing should be indexed and paginated with the core documents such as statements taking prime position. If you are including foreign documents, these must be translated. Always bring the original documents with you but they do not need to be included in the bundle you send to the Tribunal. Do not forget to send a copy of your bundle to the Home Office’s Presenting Officer’s Unit. If you need an interpreter, you must inform the Tribunal as soon as you can, preferably when you lodge your appeal. It is good practice to call them a week before your hearing to check that they have arranged for an interpreter.

 

On the day of the hearing, your witnesses should bring their original IDs such as passports in case the Tribunal requires confirmation of their identity. Be prepared to wait as there is no allocated time other than that your hearing will be listed for the morning or afternoon session. Beware that if you are raising a “new matter” the Home Office is required to consent to the new matter’s consideration on the day. If they do not, then the matter will be adjourned or heard without the new matter. My experience is that the Home Office increasingly object to “new factors” even where they do not amount to new matters. Do not readily accept the Home Office’s contention that the new factor is a new matter – be prepared to argue against this.

 

A difficult and seemingly impossible case can be won. By the same token, a straightforward case can be lost because of lack of preparation. A very recent case I dealt with proves this. The case relates to a same sex couple both without leave to remain. The Tribunal Judge held that their removal will violate their Human Rights in that they will not be able purse their relationship. On the 28th of August 2018, both received their grant of leave. As I have said, preparation, preparation, preparation.