Derivative Rights of Residence( Zambrano Adults): Reasonableness Test and Quality of Life Arguments Dangerous, Inapplicable and Inarguable Says the Upper Tribunal

The recent decision in Ayinde and Thinjom raises  issue  as  regards  whether the case of Zambrano   can ever  in practice be relied upon  successfully  by  foreign national  primary carers of dependant  adult British citizens residing in the UK.

The Upper Tribunal’s decision further   raises as  an issue of serious  consideration,  whether, rather than seek to pursue a derivate right of residence   by reliance upon the EEA Regulations,  making an Article 8 or Appendix FM  claim in   an appropriate  case for  foreign national  carers of  dependant  British adults  might  achieve the desired outcome.

 Ayinde and Thinjom (Carers – Reg.15A – Zambrano) [2015] UKUT 560 (IAC):

  • First Appellant: Adult Son Caring for  Adult British  Citizen Mother:

Mr Ayinde, a Nigerian citizen was aged 41years at the time of the hearing. He had  entered the UK in 2001 and made a claim for asylum which failed. He further made a claim for settlement  and this also did not succeed.   In 2011 he made two applications for leave to remain as a carer of a British citizen,  and  sought to  rely upon  the Zambrano principle. These applications were refused in November 2011 and March 2012 respectively. On  19 July 2012, he again  sought a derivative residence card under  Regulation  18A of the 2006 EEA regulations which was inserted into the Regulations  with effect from 16 July 2012. He claimed that he was a carer of his British  mother who  was born on 18 August 1948. The application was  refused on the basis that the evidence provided did not establish that his mother could not call upon the services of others for her daily needs, including those provided by the NHS. She had been admitted as a hospital in-patient on five occasions, the last being in 2008. The Secretary of State argued  that adequate assistance was provided for her care, including access to social services. She concluded, therefore, that the appellant had failed to demonstrate that his mother would be unable to reside in the United Kingdom if he were required to leave.  At the hearing in the First Tier Tribunal, the appellant put forward among other matters, that the  health facilities in Nigeria could not meet his mother’s  requirements.  Further in the UK, she had her house that she liked, was able to go to church every week, with his assistance and had friends. He  stated that he was able to provide a good level of care for her. In Nigeria,  the Appellant  would not be able to afford the medication that she needed. She had her tumour monitored in this country which needed to be  checked  for re-growth. She also had a problem with her thyroid which was regularly monitored. In addition, the appellant gave evidence that his mother suffered from paranoid schizophrenia, type II diabetes, was partially sighted and was suffering the residual effects from a brain tumour which was excised in February 2009. She was on a variety of medications. He had been living with her since November 2008, performing the routine tasks of assisting to bathe her, preparing food and doing the shopping. He was also  responsible for ensuring that the bills were paid.

  • Second Appellant: Wife caring for British Husband:

Ms Thinjom originated from Thailand and was 48years old at the time of  the  hearing and her  British husband was 85years old.  The appellant  had entered the United Kingdom in June 2012 in order to visit her relatives here. On 18 July  2012 she applied for a derivative residence card as the primary carer of  Mr Stevens, a British  citizen.  She married her  British spouse couple  on 13 August 2012.  The evidence was that  the British citizen’s health had deteriorated to the extent that he had become increasingly reliant upon his wife’s care. They live in sheltered accommodation in Camden. He was in receipt of pension and benefits. Although he had two daughters, he did  not see them. He also had  an older sister who was  seriously ill. Mr Stevens had had three ‘mini strokes’, suffered from diabetes and hypertension and  was  in remission from cancer of the bladder. Prior to his marriage, Mr Stevens had been paying for a carer who visited him twice a week for two hours on each occasion. Since then, he stated that his health had deteriorated to the extent that he could not  now walk very far and his wife helped  him with bathing, shaving cooking, shopping washing and cleaning. His GP confirmed the level of care provided by his wife. Mr Stevens explained that he was  wholly dependent upon his wife for every aspect of his physical care and that, were she to leave, he would have to be taken into care in a residential home which he would not wish.

  • The Arguments:

In each case, the First-tier Tribunal Judge allowed the Appellants’ appeals  against the decision of the Secretary for State  to refuse to issue them with a derivative residence card.  The First Tier Tribunal Judge  sought to apply the principle developed by the Court of Justice of the European Union in Ruiz Zambrano (European citizenship) [2011] EUECJ C-34/09 as incorporated into domestic United Kingdom law by the insertion of  Regulations 15A and 18A into the Immigration (European Economic Area) Regulations 2006. In reaching their decisions, both Judges concluded that it would not be reasonable to require the respective appellants to leave the United Kingdom.

It was argued, in summary, on behalf  of the Appellants that  their actions as carers rendered them able to benefit from the principle in Zambrano which, it was  submitted, enables non-nationals who are the primary carers of dependent British citizens the right to reside and to work on the basis that, without their support and their earnings it must be assumed that the British citizen would ultimately have to leave the EU with their carers.  There was a further submission that the Courts have recognised that the concept of European citizenship entails more than a bare right of residence and have acknowledged that a ‘ serious impairment’ of the EU citizen’s standard or quality of life, resulting from the carer having to leave the EU, could in practice compel the EU citizen to follow. Considerable reliance was also  placed upon Articles 1, 3, 7, 21, 25 and  34  the Charter of the Fundamental Rights of the European Union.  It was argued that the genuine enjoyment of the substance of their rights conferred by virtue of their status as citizens of the Union included the right to maintain their dignity.

The Secretary of State strongly resisted the arguments and also argued that the fundamental flaw in the appellants’ case  was  obvious from the case-law of the Court of Justice and domestic courts which make it clear that the Zambrano principle only applies when a Union citizen will, as a matter of fact, be forced to leave the Union.  The Secretary of state argued that  principle does not apply where that is not the case, even if the quality of life of the Union citizen would be substantially diminished as the result of the primary carer’s departure.  The Secretary of State classified the  appeals as a wish to secure a better quality of life for the British citizens concerned which is outside the right to reside in the United Kingdom. That right remains possible as a matter of substance. It was argued that the British citizens seek both the right to reside in the United Kingdom (which they currently enjoy and which is guaranteed them both as British citizens) and the right to reside with the lifestyle of their choice with carers of their choice and in a place of their choice (which is not guaranteed under European law).

  • ECJ and Domestic Caselaw Considered:

In addition to considering the principles in the case of Zambrano, the Upper Tribunal also considered the following ECJ and domestic caselaw:

  • Dereci & Ors (European citizenship) [2011] EUECJ C-256/11– paragraphs 66 to 68 considered;
  • Yoshikazu Iida v Stadt Ulm [2012] EUECJ C-40/11– paragraphs 71, 72, 76 and 77 considered;
  • & S v Maahanmuuttovirasto v L [2012] EUECJ C-356/11– paragraphs 47, 48, 49 and 56 considered;
  • Damion Harrison (Jamaica) & AB (Morocco) v SSHD [2012] EWCA Civ 1736– paragraphs 57, 62, 63, 66 and 67 considered:
  • Sanneh, R (on the application of) v the SS for Work and Pensions & Anor [2013] EWHC 793 (Admin)– paragraphs 95,96,99 and 100 considered.
  • Upper Tribunal’s Decision:

The Upper Tribunal considered that the  Appellant’s submissions as  related to the scope of the rights protected by Union citizenship were  flawed. The Tribunal  observed that the  rights associated with citizenship of the EU are the rights created by the European Treaties, however that it was noticeable that the rights do not trespass upon the rights derived from being a citizen of the individual’s country of nationality. There is a demarcation between the rights created and preserved by the TFEU and those rights that are created or preserved under national law.

The Upper Tribunal could see no significant difference between the argument advanced to  before them  and that made by the Appellant’s counsel in Damion Harrison,  where it was roundly rejected by the Court of Appeal. The Tribunal considered that reliance on broad principles of human dignity as contained within the Charter of the Fundamental Rights of the European Union did  not assist the appellants. In order to permit the elderly to lead a life of dignity and independence, the country of which he or she is a national must provide adequate facilities for their care but that did not imply this requires the national authorities to permit a right of residence to the carer of choice of its elderly citizens.

As regards the appellants argument  that the genuine enjoyment of the substance of the rights of their British family members includes the right of those suffering the effects of increasing age, infirmity or illness should be protected against losing their home and losing the care provided by their family members, the Tribunal  considered that submission ran “dangerously” close to arguing that those who are unable to benefit from carers from within their family are at risk of suffering a violation of their rights by being cared for by local authority carers or social workers or by the NHS or by being placed in a care-home. This  was considered to be  misconceived. The Tribunal  stated that the support provided by local authorities, care agencies, residential homes and hospitals has at its core the preservation of the dignity of those under their care. Care workers would justifiably feel aggrieved at the suggestion that their care falls below a standard that preserves the dignity of their patients. The fact that examples can be found of care falling below acceptable standards was  not to the point.

As regards the First Appellant, the Upper Tribunal found that the First-tier Tribunal Judge did not find as a fact that  the British citizen mother would leave. The approach of both Judges was that it would not be reasonable for the British citizens to leave. It was considered that the First-tier Tribunal Judges’ solution in adopting a reasonableness test, diluted the relevant test, perhaps even distorted it. The First Tier  Judge  was found to have erred by failing to appreciate that an essential element of the Zambrano principle was that it had to be established that the British Citizen would leave the Union if her son left.  The Judge had also  applied a reasonableness test which was inapplicable when the question was whether  the British Citizen mother was unable to remain in the United Kingdom. Further the Judge  excluded from his consideration the provision that would be made by social services and the NHS when this was a vital part of the assessment.  The Upper Tribunal  found that it was simply impossible to claim that she was  unable to remain in the United Kingdom once her son leaves.

As regards the second Appellant, the Upper Tribunal considered that the First Tier Judge erred by failing to appreciate that an essential element of the Zambrano principle was that it had to be established that Mr Stevens would leave the Union whereas the evidence established that he would not. Further, the  Judge  had applied a reasonableness test which was inapplicable when the question was whether Mr Stevens was unable to remain in the United Kingdom. The Upper Tribunal found  in fact,  that  Mr Stevens was unable to leave the United Kingdom.

In each appeal, the Upper Tribunal decided that the claim that in each of the appeals that the Zambrano principle should be extended to permit their carers to remain in the United Kingdom must be rejected.

ARISING ISSUES

  •  Zambrano Distinguished :

The Upper Tribunal considered that the two Appellants circumstances   were  very different from the situation in Zambrano.  It was noted that whilst a minor child can survive without his parents in an adoption, foster-care or a children’s home may provide a proper and adequate level of care,  such alternative care is only likely to be contemplated if there are serious reasons for breaking the relationship between a child and one or both of his parents. Serious wrong-doing on the part of both parents (or, more often, of one of the parents) may justify the separation. However, elderly adults could  more readily survive without a family member to act as their carer if there are adequate support mechanisms in existence to provide them with alternative care to an appropriate standard. It is beyond the range of proportionate responses that a minor should be required to go into some form of alternative care (be it adoption, foster-care or residential care) in order to enjoy his EU rights were both his parents required to leave. The same considerations however do not  normally apply in relation to the infirm or elderly.

The Upper Tribunals stated that in Ruiz Zambrano, it was not the difference between the standard of care that the Zambrano parents provided to the children at home and the standard of care provided by child care agencies that prompted the Court of Justice to reach its decision. A comparison of alternative care arrangements was not being considered. It was not, therefore, the quality of life or care that was in issue but what would happen to the Zambrano children, that is, whether they would remain or leave. For the Zambrano children, the answer was obvious: the children would go with their parents. It was impossible to contemplate an outcome in which they would not be driven to leave. That was considered to be  a far cry from the situation facing  the circumstances of the British adults neither of whom will leave the United Kingdom.

The Upper Tribunal also considered that the recognition that children are in need of specific forms of protection is acknowledged in the UN Convention on the Rights of the Child which recognises that children should grow up in a family environment. Further Article 9.1 of the Convention provides that the United Kingdom normally provides that a child should not be separated from his parents against their will, except in defined and limited circumstances. Similarly, the Immigration Rules and the IDIs reinforce the special place that children have in the deportation of a parent who falls within the definition of a foreign criminal. It is an exception to the public interest in favour of removal if it is established that removal is ‘unduly harsh’ to a qualifying child, see s. 117C (5) of the Nationality, Immigration and Asylum Act, 2002, as amended. No comparable system of regulation applies in relation to the needs of the elderly, certainly in the context of recognising the rights of family members to maintain family life together. The  Upper Tribunal considered that the distinction  was  intentional. It informs a consideration of the Zambrano principle when attempts are made to apply it to persons other than minor children.

  • Comparisons of the conditions that a British citizen will meet on being forced to settle elsewhere:

It was considered that the Tribunal is entitled to look critically at a claim that a person will be forced to leave the EU because of a refusal by the national authorities to grant his carer leave to remain. The reason for such a critical look is because the claim advanced will be the very opposite: it will be a claim that the carer be permitted to remain and the British citizen will not be required to move.

Further, if the claim is based on the British citizen being forced to leave the Union, the likelihood of this occurring has to be assessed by reference to the benefits the Union citizen is receiving in the UK and will be entitled to receive were the appellant to leave. Hence, if the British citizen is in receipt of free healthcare, subsidised accommodation (or an allowance to assist in the payment of rent) and state benefits, pensions and fringe benefits in the form of concessions available to the elderly, there will be a significant evidential hurdle in attempting to make out a case that the British citizen will, as a matter of fact, leave the United Kingdom. In reality if these benefits are not available in the country to which he claims he will be forced to travel by reason of the refusal of a grant of a derivative residence card to his carer, the likelihood of his doing so is likely to be remote. Hence the Tribunal will also have to compare the conditions that a British citizen will meet on being forced to settle elsewhere when assessing whether he is being forced to leave the United Kingdom. The greater the disparity, the less likely it will be that the British citizen will in fact leave the United Kingdom. A bare assertion that the British citizen will be forced to leave the United Kingdom is unlikely to be sufficient; all the more so if this has been his only home for many years.

  • No Violation of Human Dignity If Adult British citizen  Is In  Receipt of Professional Care Support in the UK:

The Upper Tribunal further stated that  whilst the two  appeals were put on the basis that the British citizen has a right to human dignity which is inviolable and must be respected and protected, some care must be taken before reaching such a conclusion. It is not enough that the British citizen would prefer that his carer is permitted leave to remain in the United Kingdom. There is nothing intrinsically lacking in human dignity in being offered the professional help of care workers or being placed into residential accommodation with a sliding-scale of support ranging from a home adapted to the individual’s needs, through to accommodation with a warden, through to a residential home; through to full nursing care. It would be plainly incorrect to say that it is a violation of an individual’s rights to human dignity to be placed into care or to receive help from professional healthcare workers.

  • Principles Arsing Out of Ayinde and Thinjom:

(i)       The deprivation of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizens identified in the decision in Zambrano is limited to safeguarding a British citizen’s EU rights as defined in Article 20.

(ii)   The provisions of reg. 15A of the Immigration (European Economic Area) Regulations 2006 as amended apply when the effect of removal of the carer of a British citizen renders the British citizen no longer able to reside in the United Kingdom or in another EEA state. This requires the carer to establish as a fact that the British citizen will be forced to leave the territory of the Union.

(iii)     The requirement is not met by an assumption that the citizen will leave and does not involve a consideration of whether it would be reasonable for the carer to leave the United Kingdom. A comparison of the British citizen’s standard of living or care if the appellant remains or departs is material only in the context of whether the British citizen will leave the United Kingdom.

(iv)   The Tribunal is required to examine critically a claim that a British citizen will leave the Union if the benefits he currently receives by remaining in the United Kingdom are unlikely to be matched in the country in which he claims he will be forced to settle.

  • Article 8 Forum More Appropriate?:

It was noted by the Upper Tribunal that having rejected the application for a derivative residence card, the Secretary of State informed the two Appellants  that the decision did not require them to leave the United Kingdom and invited  them to make a claim under Article 8 with reference to Appendix FM and paragraph 276ADE if they wished to do so.  It was observed that in the case of Ms Thinjom, the grounds of appeal to the Tribunal did not raise an Article 8 claim. In the case of Mr Ayinde, the grounds of appeal to the Tribunal were considered to  have  raised a formulaic assertion that the Secretary of State’s decision was in breach of Article 8 but there is no suggestion this was pursued before the First-tier Tribunal. The Judge made no mention of a viable Article 8 claim and there was no cross-challenge before the Upper Tribunal that the First-tier Tribunal Judge should have determined such a claim. Therefore no Article 8 claim was  before the Upper Tribunal.

It was also observed by the Upper Tribunal  that originally, the  appeal contained three linked cases. The third appeal concerned a claimant, a citizen of Algeria, the mother of a British citizen born 4 January 2012, who sought leave to remain in the United Kingdom with her son, and the child’s father.  This  was also a claim by a foreign national seeking to remain as the carer of a Union citizen, the application was made pursuant to Article 8 of the ECHR and in pursuit of a protected private and family life and not under the EEA Regulations.  It was  noted that the case  was, therefore, of a radically different character from the two appeals. At the outset of these appeals, the Secretary of State offered to make a fresh decision and the parties in the third appeal settled the appeal before the Upper Tribunal  in the form of an order.

Having considered that the First Tier Tribunal erred  in allowing  the  two appeals, it was considered by the Upper Tribunal that  is for these reasons that such  claims were  more readily conceived in terms of Article 8.  The Upper Tribunal stated that  factors that render the forced departure of a British citizen less and less likely (dependence on the raft of assistance provided by the state, the local authority and the health service) are likely to add weight to a human rights claim whilst diminishing the strength of a claim based upon forced departure. It re-enforced the soundness of the Secretary of State’s  approach in the third of the formerly conjoined appeals.

The Upper Tribunal  however acknowledged that whilst significantly different on the facts,   the third withdrawn case  underlined  the place in the legal system where the claims of the two  appellants properly lie and that the claims do not lie under the Immigration (European Economic Area) Regulations 2006 as amended.

CONSIDERATIONS AND CONCLUSION

 The Upper Tribunal pointed towards Appendix  FM and the Immigration Rules.

The first Appellant  from Nigeria, not  requiring care himself,  is clearly unable to reply upon  the  onerous adult dependant  relative rules, which would  in any case require  obtaining of prior  entry clearance.

As regards reliance upon paragraph 276ADE of the Immigration Rules, having regard to private life arguments,   having only  arrived in 2001, he would be unable to  show that he  meets  the “20year requirement”.

Seeking to argue that although he has been here  less than 20 years but  that  there would be very significant obstacles to  his  integration into Nigeria, would be very unlikely to succeed in light of the   difficult  in -built test  within paragraph 276ADE (vi).

Raising exceptional circumstances is a possibility, however,  in particular as the appellant is an adult child, he  would also  need to have regard to and distinguish   the case of Kugathas v SSHD 2003] EWCA Civ 31 which provides:

“14.Mr Tam relies in particular on the Commission’s decision in S v United Kingdom (1984) 40 DR 196. At page 198 of the report, the Commission said:

  • “Generally, the protection of family life under Article 8 involves cohabiting dependents, such as parents and their dependent, minor children. Whether it extends to other relationships depends on the circumstances of the particular case. Relationships between adults, a mother and her 33 year old son in the present case, would not necessarily acquire the protection of Article 8 of the Convention without evidence of further elements of dependency, involving more than the normal emotional ties.”

This, while it is not black-letter law, sets out what I would accept is a proper approach.

25.Because there is no presumption of family life, in my judgment a family life is not established between an adult child and his surviving parent or other siblings unless something more exists than normal emotional ties: see S v United Kingdom (1984) 40 DR 196 and Abdulaziz, Cabales and Balkandali v United Kingdom [1985] 7 EHRR 471. Such ties might exist if the appellant were dependent on his family or vice versa. It is not, however, essential that the members of the family should be in the same country. The Secretary of State accepts that that possibility may exist, although in my judgment it will probably be exceptional. Accordingly there is no absolute rule that there must be family life in the United Kingdom, as the Immigration Appeal Tribunal held.”

As regards the second Appellant from Thailand, there appearing to be no child to the marriage, and having no leave  to remain,  it might be that in the consideration of  a claim under Appendix FM,   by  reference to  the criteria  for applications for  limited leave to remain as a partner, in the course of consideration of  the   claim,  she might be expected to return home and apply for entry clearance as a spouse and might be met with the  case of R (on the application of Chen) v Secretary of State for the Home Department) (Appendix FM – Chikwamba – temporary separation – proportionality) IJR [2015] UKUT 00189 (IAC), which provides in its headnote:

“(i)     Appendix FM does not include consideration of the question whether it would be disproportionate to expect an individual to return to his home country to make an entry clearance application to re-join family members in the U.K. There may be cases in which there are no insurmountable obstacles to family life being enjoyed outside the U.K. but where temporary separation to enable an individual to make an application for entry clearance may be disproportionate. In all cases, it will be for the individual to place before the Secretary of State evidence that such temporary separation will interfere disproportionately with protected rights. It will not be enough to rely solely upon the case-law concerning Chikwamba v SSHD [2008] UKHL 40.

(ii)      Lord Brown was not laying down a legal test when he suggested in Chikwamba that requiring a claimant to make an application for entry clearance would only “comparatively rarely” be proportionate in a case involving children (per Burnett J, as he then was, in R (Kotecha and Das v SSHD [2011] EWHC 2070 (Admin)).

(iii)     In an application for leave on the basis of an Article 8 claim, the Secretary of State is not obliged to consider whether an application for entry clearance (if one were to be made) will be successful. Accordingly, her silence on this issue does not mean that it is accepted that the requirements for entry clearance to be granted are satisfied.

(iv)     In cases where the Immigration Rules (the “IRs”) do not fully address an Article 8 claim so that it is necessary (pursuant to R (Nagre)) to consider the claim outside the IRs, a failure by the decision maker to consider Article 8 outside the IRs will only render the decision unlawful if the claimant in fact shows that there has been (or, in a permission application, arguably has been) a substantive breach of his or her rights under Article 8”.

The considerations in regards to  the success of the claims by reference to Appendix FM and Article 8 might have been at the forefront of the two  Appellants and  probably also  have formed   the  basis upon which  why a separate Article 8 claim was not advanced.

For now however,  unless  a further  challenge  by  any of the two Appellants( or any other future  claimants)  proceeds and  succeeds,  the  decision of the Upper Tribunal appears   to  have firmly closed  the door in relation to arguments  that foreign  national carers can rely upon the principles in the case  of Zambrano  to seek to obtain a right of residence in the UK  by reference to adult dependant  British citizens.

Appendix FM Spouses and non – EEA family members: Preservation and Retention of Rights following Divorce or Death of Sponsor

The Immigration Rules and EEA Regulations do make provision for  some  preservation and retention of  immigration status  rights in relation to foreign spouses married to UK settled  or EEA sponsors, who might otherwise be left in a vulnerable position, possibly with  British or EEA children to look after,  in the event  of the  death or divorce from  the said sponsor.

The UK Government ‘s proposed  changes in immigration  and asylum  appear to have  left  the requirements for  these  category of applicants largely  untouched for some  time- the   reason perhaps being undeniable that they fall in a group that needs  provision of  measures in place   in order to preserve their rights of residence in the UK  and some  might even say their dignity.

TRANSITIONAL PROVISIONS: BEREAVED SPOUSES AND VICTIMS OF DOMESTIC VIOLENCE

 From 9 July 2012, the Immigration Rules have contained a new framework for consideration of applications  as regards  Family life with a partner; Family life as a child of a person with limited leave as a partner or parent; Family life as a parent of a child in the UK; Adult dependent relatives; bereaved partners and victims of domestic violence.

Home Office Guidance, “!Immigration Directorate Instruction Family Migration: Chapter 8 Transitional Provisions   Family Members under Part 8 and Appendix FM of the Immigration Rules  August 2015”,  is also  used by  the Home Office when  considering applications for leave to remain or indefinite leave to remain under Part 8 of the Immigration Rules which fall under the transitional provisions in paragraphs A277 to A281 of the Rules.   The  guidance applies among other matters to   applications made on or after 9 July 2012, by persons who were granted entry clearance or limited leave to remain under Part 8 of the Rules before 9 July 2012 and who apply for further leave on the same basis. Under the transitional provisions, Part 8 will apply through to indefinite leave to remain to those persons who were granted leave for example as spouses, on the basis of an application submitted before 9 July 2012.

Part 8 of the Immigration Rules also provides the   requirements to be met by a person who is the victim of domestic violence and who is seeking indefinite leave to remain in the United Kingdom. The relevant immigration rules in this category are  therefore paragraph 289A, in Part 8  of the Immigration Rules,  applicable to those who were granted limited leave to enter or remain as a partner of a British citizen or a settled person before 9 July 2012 (before 30 November 2013 if the sponsor is a full time member of HM Forces who is British); Section DVILR.1.1 of Appendix FM of the Immigration Rules is applicable to those who were granted limited leave, as a partner of a British citizen or person settled in the UK, on or after 9 July 2012; Part 6 of Appendix Armed Forces.  Leave will be  granted under either paragraph 276D, 289B section 4, paragraph 40 of Appendix Armed Forces or section D-DVILR.1.1 of Appendix FM.

From 9 July 2012, where the home office  grant the applicant as a post-flight partner under Appendix FM, the applicant will qualify under section DVILR only if their partner had settled status at the date of their original application for leave to enter.

Paragraphs 287(b), in Part  8 of the Immigration Rules makes provision for spouses, who are bereaved during the probationary period to be granted indefinite leave to remain in the UK.  Paragraph A277A(c) of Part 8 provides for an applicant (where the application is for indefinite leave to remain as a bereaved partner) who does not meet the requirements of Part 8 for indefinite leave to remain as a bereaved partner only because paragraph 322(1C)(iii) or 322(1C)(iv) of the General Grounds for Refusal applies, to be granted further limited leave to remain under Part 8 for a period not exceeding 30 months and subject to such conditions as the Secretary of State considers appropriate, provided any requirement to pay the immigration health charge under the Immigration (Health Charge) Order 2014 is met under paragraph A277D(b). Applicants will be eligible to apply for settlement once they are able to meet all of the requirements for indefinite leave to remain.

As applications under Part 8  of the Immigration Rules are  covered by transitionary provisions, the considerations below will  therefore  refer  to applications for leave to remain  by reference to Appendix FM  in relation  to bereaved spouses or  victims of domestic violence.

  • INDEFINITE LEAVE TO REMAIN AS A BREAVED SPOUSE

Section BPILR of Appendix FM makes provision for a partner of a British Citizen or a person settled in the UK who is bereaved during the probationary period to be granted indefinite leave to remain in the UK, provided that the relationship was subsisting and that they intended to live together permanently in the UK at the time of the death of the applicant’s partner.

The applicant must not fall for refusal under any of the grounds in Section S-ILR: Suitability-indefinite leave to remain.

To meet the eligibility requirements for indefinite leave to remain as a bereaved partner, all the requirements in paragraphs E-BPILR.1.2.to 1.4. must be met.

The applicant’s last grant of limited leave must have been as a partner (other than a fiancé(e) or proposed civil partner) of a British Citizen or a person settled in the UK or a bereaved partner.

The person who was the applicant’s partner at the time of the last grant of limited leave as a partner must have died. At the time of the partner’s death, the relationship between the applicant and the partner must have been genuine and subsisting and each of the parties must have intended to live permanently with the other in the UK.

If the applicant meets all of the requirements for indefinite leave to remain as a bereaved partner the applicant will be granted indefinite leave to remain. If the applicant does not meet the requirements for indefinite leave to remain as a bereaved partner only because paragraph S-ILR.1.5. or S-ILR.1.6. applies, the applicant will be granted further limited leave to remain for a period not exceeding 30 months, and subject to a condition of no recourse to public funds. If the applicant does not meet the requirements for indefinite leave to remain as a bereaved partner, or limited leave to remain as a bereaved partner under paragraph D-BPILR.1.2., the application will be refused.

The rules relating to indefinite leave to remain for bereaved partners are intended to benefit only those applicants whose partner has died at any point during the qualifying period of limited leave as a partner and who make their application whilst they still have entry clearance or leave to remain as a partner in the UK.

The Rules should also be applied to cases where the applicant’s partner dies after an application for indefinite leave to remain has been submitted but before a decision has been reached.

Home Office Guidance provides that an applicant for indefinite leave to remain as a bereaved partner does not need to comply with the requirement not to have overstayed by more than 28 days (at paragraph E-LTRP.2.2.), provided that the circumstances of any period of overstaying relate to a period of bereavement and where compassionate considerations therefore apply.

An application made out of time where all the other requirements of the rules are met should  therefore be considered sympathetically. An application should not normally be refused solely on the grounds that the applicant is in the UK without leave. Acceptable reasons for the delay in making an application could be that the partner’s death only occurred shortly before the application for settlement was due or that the distress of bereavement has led the applicant to overlook or not address the need to regularise their immigration status.

The applicant is required to provide their own passport as well as  provide their late partner’s death certificate .

As much evidence as possible is required to show  that  the applicant and  their  late partner were living together as a couple from the time they  were granted leave to enter or remain in the UK as his or her partner until his or her death, such as letters, bills and other correspondence from official sources addressed to both or each of  them  at the same address.

The relevant application form is SET(O) and for single applicant there is currently a fee of £1500 to pay.

As per Home Office Guidance, “Knowledge of language and life in the UK for settlement and naturalisation, Statement of Intent, changes to the requirement from October 2013 April 2013”, the   Home Office recognise that some groups are in a particularly vulnerable situation prior to obtaining permanent residence in the UK. The knowledge of language and life in the UK (the KoLL) requirement does not therefore apply to applications for settlement from spouses of British citizens or persons settled in the UK who have been victims of domestic violence or whose spouse has died.

There is no need to  meet the maintenance  or accommodation requirements.

The applicable Home office  Guidance  in reference to  the bereaved partner category can be found from  Section 16 of the  “Immigration Directorate Instruction Family Migration: Appendix FM Section 1.0a  Family Life (as a Partner or Parent):  5-Year Routes  August 2015”.

  • VICTIMS OF DOMESTIC VIOLENCE

The provisions in the Immigration Rules allow those who have leave in the UK as the partner of someone with the right of permanent residence and whose relationship has genuinely broken down, because of domestic violence, during their probationary period of leave, to be granted indefinite leave to remain .

The relevant and current Home Office Guidance is  “Victims of domestic violence – version 13.0 Published for Home Office staff on 29 May 2015”.

To meet the eligibility requirements for indefinite leave to remain as a victim of domestic violence the applicant must meet all the requirements of paragraphs E-DVILR.1.2 and 1.3.

The applicant’s relationship with their partner must have broken down permanently as a result of domestic violence.

If the applicant meets all of the requirements for indefinite leave to remain as a victim of domestic violence the applicant will be granted indefinite leave to remain.

If the applicant does not meet the requirements for indefinite leave to remain as a victim of domestic violence only because paragraph S-ILR.1.5. or S-ILR.1.6. applies, the applicant will be granted further limited leave to remain for a period not exceeding 30 months. If the applicant does not meet the requirements for indefinite leave to remain as a victim of domestic violence, or further limited leave to remain under paragraph D-DVILR.1.2. the application will be refused.

Destitution domestic violence (DDV) concession:

The destitution domestic violence (DDV) concession  has been effective from 1 April 2012.

A person who flees domestic violence and intends to make a claim for settlement can notify the Home Office if they wish to be considered for limited leave under the DDV concession. This is on the basis that they claim to be destitute.  The Home Office operates this policy outside of the Immigration Rules. Where successful, the home office grant under this concession three months limited leave to remain outside the rules with recourse to public funds. This  is intended to  give the applicant access to  vital services such  as temporary accommodation to a  refuge in order to leave their abusive partner and submit a settlement application under the domestic violence rules.

Applicants must submit their SET(DV) application before their 3 months limited leave expires. The Home Office encourages those who are granted three months leave to remain to submit a SET(DV) application within eight weeks of their initial grant to make sure their case is considered before their concession leave expires.

Where an applicant fails to submit their SET(DV) application within the three months limited leave they become an overstayer and will become subject to removal.

To benefit under the DDV concession victims of domestic violence who need access to public funds, must complete and submit the LOTR (DDV) notification form to the Home Office using the email address Domestic.Violence@homeoffice.gsi.gov.uk where possible.

 Definition of Domestic  Violence:

The government introduced a new definition of domestic violence from 31 March 2013.

The definition of domestic violence and abuse is any incident or pattern of incidents controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality. The abuse can include, but is not limited to,  psychological; physical; sexual ; financial; emotional; controlling behaviour is a range of acts designed to make a person subordinate and/or dependent by; isolating them from sources of support; exploiting their resources and capacities for personal gain; depriving them of the means needed for independence; resistance and escape; regulating their everyday behaviour ; coercive behaviour is an act or a pattern of acts of assault, threats, humiliation and intimidation; other abuse that is used to harm, punish, or frighten their victim.

There is no difference between psychological (mental) abuse and physical abuse when it comes to assessing if a person has been the victim of domestic violence.

In the domestic violence context, family members, whether directly related, in-laws or step-family, are defined as: mother; father; son; daughter; brother; sister; grandparents.

The legal definition of injury is when any harm is done to a person by the acts or omissions of another.

The rules are only for people who have been the victim of domestic violence during their probationary period of leave.

The rules are not intended to benefit people whose relationship broke down because they were the perpetrator of domestic violence or where the relationship broke down for reasons other than being a victim of domestic violence.

Home Office Guidance states that the fact that the relationship broke down due to domestic violence during the very early stages of the probationary period is not an adverse factor in reaching a decision. If an applicant meets the requirements in the Immigration Rules,   the decision maker  must grant settlement regardless of how much of the probationary period is completed.

The Home Office can accept  that the relationship was subsisting when domestic violence occurred if evidence is provided that the couple were living at the same address when the incident took place. The fact the couple are still living at the same address when the application is made is not  to be taken as an indicator the relationship has not broken down, as this could be due to a number of reasons.

Evidence to Prove Domestic Violence:

In order to prove that domestic violence has occurred the applicant needs to  submit supporting documents with their application.

The Home Office is required to  take a relevant court conviction or  full details of a relevant police caution issued against the sponsor against the sponsor  as proof of domestic violence

Without notice (also called ex-parte) order : A without notice order is a type of interim order. Courts give these orders when they think it necessary to set out conditions of an injunction immediately even though the respondent (the alleged perpetrator of the violence) does not know an injunction is being sought. Because a without notice order is given on the basis of a perceived risk rather than a finding of fact or admission of guilt, the Home Office  cannot accept them as proof of domestic violence.

Interim order :An interim order is an order which sets out the conditions the respondent must meet until a final hearing. The Home Office must  take these as proof domestic violence has occurred.

 Final order :Final orders are made where there has been a full hearing and are made for a specified period or until a further order (indefinite) is issued. The judge will give some final orders as a ‘finding of fact’.  The Home Office  must take these as proof that domestic violence has occurred.  The court order will state if there is ‘no finding of fact’.  If this is the case, the giving of the non-molestation order is not evidence on its own domestic violence has occurred.  In such circumstances, if not already provided,  the decision maker is required to request all the evidence submitted to the court and make a decision based on all the evidence provided.  The decision maker is required to reflect on what a judge considers when he or she gives an order, the consistency and credibility of evidence provided and the standard of proof required by immigration law when making a decision based on such evidence.

The Home Office  Guidance states that some evidence may suggest domestic violence has occurred but the alleged perpetrator has not been found guilty by a court or admitted to guilt. These include a non-molestation order or letter from the Chair of a multi-agency risk assessment conference (MARAC. The decision maker is  required to  treat this evidence with caution and consider it along with all evidence supplied.
The Home Office Guidance details some evidence that might be available and  which is  considered would help prove domestic violence. It is not an exhaustive list:

  • “ medical report from a doctor at a UK hospital which confirms the applicant has injuries consistent with being a victim of domestic violence – these may not be physical injuries – for a definition of injuries see Definition of domestic violence
  •  a letter from a General Medical Council (GMC) registered general practitioner which confirms they examined the applicant and are satisfied the applicant had injuries consistent with being a victim of domestic violence
  •  a report or letter from a doctor employed by HM Forces confirming the applicant has injuries consistent with being a victim of domestic violence
  •  an undertaking given to a court that the perpetrator of the violence will not approach the applicant who is the victim of the violence – however many undertakings are given in order to resolve a non-molestation order proceeding without further costs and hearings:
  • an undertaking is not an admission of guilt and a power of arrest cannot be attached to it. There is equal chance the applicant has given an undertaking to court themselves – you must investigate whether this is the case by either consult with your senior caseworker or write out for further information
  •  police report which confirms attendance at an incident resulting from domestic violence
  •  letter from a social services department which confirms its involvement in connection with domestic violence
  •  if appropriate, letter from a welfare officer connected to HM Forces
  •  letter of support or a report from a domestic violence support organisation or, if appropriate, from an organisation providing support to family members of HM Forces”.

Home Office decision makers are required to treat with caution all witness statements from friends or family and letters from official sources that relay  reports by the applicant but do not confirm the incident. This type of evidence is required  to be verified where possible and treated as additional evidence when  the decision maker  builds  the case background.

If an applicant submits evidence to show they have been subjected to domestic violence from someone other than their partner, they can still qualify for settlement under the rule. Evidence must clearly show the violence has been the reason for the breakdown of the relationship, for example where the person who abuses the applicant is a member of the sponsor’s family and against whom the sponsor offers no protection.

Paragraph 289A, Part 6 of Appendix Armed Forces and section DVILR.1.1 of Appendix FM of the Immigration Rules for indefinite leave to remain (ILR) as a victim of domestic violence do not require a person to have valid leave to remain in the UK at the time of application. The rules only require a person to have or previously been admitted or granted as a spouse; civil partner; un-married partner or  same-sex partner.

If an application is received from a person without valid leave to remain in the UK, the home office will consider the reason the application was  out of time and must make a judgement on whether this affects the assessment of the evidence submitted in support of the application.

As regards domestic violence applications, the home office can  delay a decision on the application until the outcome of a hearing if they have confirmation from the court the case is listed to be heard  and the date the case is due to be heard. Submitting a domestic violence application in time  is  however important   rather than await the outcome of the final proceedings because if the application is refused when submitted as an overstayer, there is likely to be no right of appeal.

The relevant application  form  is SET(DV)  for a  single applicant and there is currently  a fee of £1500 to pay.  Applicants  may  claim an exemption from paying the fee  if they  are destitute. A person who appears to be destitute will be exempt from paying the application fee for indefinite leave to remain as a victim of domestic violence.  If the applicant claims to be destitute they must submit the SET(DV) application form as normal, but will not submit the specified fee. They must provide a letter which says why they are destitute and provide additional evidence to show they:

  • do not have access to enough funds to pay the specified application fee;
  •  have total and necessary reliance on a third party for essential living costs, such as basic accommodation and food . If a person shows they are totally reliant on third party support,   the home office considers  them destitute.

As per Home Office Guidance, “Knowledge of language and life in the UK for settlement and naturalisation, Statement of Intent, changes to the requirement from October 2013 April 2013”, the Home Office recognise that some groups are in a particularly vulnerable situation prior to obtaining permanent residence in the UK.. The knowledge of language and life in the UK (the KoLL) requirement does not therefore apply to applications for settlement from spouses of British citizens or persons settled in the UK who have been victims of domestic violence or whose spouse has died.

There is no need to  meet the maintenance  or accommodation requirements.

  • DIRECT FAMILY MEMBERS

Currently the relevant Home Office Guidance is “Direct Family Members of European Economic Area (EEA) nationals – v3.0 Published for Home Office staff on 29 September 2015”.

Direct family members of European Economic Area (EEA) nationals must come within the definition of a family member in Regulation 7 of the Immigration (European Economic Area) Regulations 2006 (as amended).

Family members who come under regulation 7(1)(a), (b) and (c) of the Immigration (EEA) Regulations 2006 are often called ‘direct’ family members.

The following can be considered as direct family members:

  • spouse or civil partner;
  • direct descendants of the EEA national or their spouse or civil partner who are: dependants of the EEA nationals or their spouse or civil partner
  • under the age of 21;
  • dependent direct relatives in the ascending line of the EEA national or their spouse or civil partner An EEA or Swiss national and their direct family members’ right of residence does not depend on holding a document issued under the EEA regulations. Direct family members do not have to apply for documentation using one of the EEA applications forms. Current Home Office Guidance states that the   home office can accept a letter asking to be considered under European law and that they must not reject an application because an application form has not been used or fully completed. Current Home Office Guidance also states that unless a family member holds a qualifying EEA State residence card issued in Germany or Estonia, non-EEA family members of an EEA national seeking entry into the UK must apply for an EEA family permit if they do not have a residence card or permanent residence card. However, it is possible for them to demonstrate their right of admission under EU law at the UK border if they do not have one of these documents. Although persons with a right to reside as a direct family member do not need to complete an application form, they can apply for a document using the following forms:
  • EEA(FM) – application for a registration certificate (EEA national) or residence card (non-EEA national).
  • EEA(PR) – application for a document certifying permanent residence (EEA national) or permanent residence card (non-EEA national).From 1 July 2013, each applicant applying under EEA provisions must pay a fee(£65.00) for consideration of their application. EEA family permit applications are still free of charge. In line with the Immigration (Provision of Physical Data) Regulations 2006 (as amended), from 31 March 2015, a non-EEA national applying for a residence card, derivative residence card or permanent residence card has to enrol their biometrics in order to be issued a document confirming their right to reside in the UK under European Union law. Direct family member are required to undertake and submit the following:
  • pay the specified fee;
  • give their biometric information, if they need to do so;
  • a valid passport or identity card for the EEA national sponsor ;
  • their own valid passport (or identity card if they are an EEA national) ;
  • evidence the sponsor is a qualified person or has permanent residence;
  • a spouse – a marriage certificate;
  • a civil partner – civil partnership certificate;
  • evidence of relationship to the sponsor child or stepchild – documents which name the EEA national sponsor or their spouse as the parent, for example a full birth certificate;
  • adopted child – a legal adoption document;
  • a relative in the ascending line must produce documents to show the full ascending line, for example: a father or mother must produce their child’s birth certificate naming them as the parent; a grandfather or grandmother must produce their child’s birth certificate naming them as the parent, and their grandchild’s birth certificate, which names their parent

The EEA national sponsor does not need to have applied for or been issued with a registration certificate before a direct family member applies.

Residence cards issued to  direct family members are valid for a maximum of five years.

If the family members have lived in the UK for a continuous period of 5 years, direct family members of an EEA national sponsor are allowed to live in the UK on a permanent basis. They must meet all the conditions of regulation 15(1)(a) or (b) of the Immigration (EEA) Regulations 2006. Permanent residence cards are valid for 10 years and can be renewed, unless the right of permanent residence is lost.

Dependency:

A child aged 21 or over and any relatives in the ascending family line must prove they are dependent on the EEA national sponsor or their spouse or civil partner. Where dependency is necessary, the family member does not need to be living or have lived in an EEA state where the EEA national sponsor also lives or has lived. Their dependency on the EEA national sponsor does not need to have existed before they came to the UK. This follows from the Court of Appeal judgment in the Pedro case.

In order to consider essential living needs, the decision maker is required to consider whether the applicant needs financial support to meet their essential needs from the EEA national, their spouse or civil partner. Where the applicant cannot meet their essential living needs without the financial support of the EEA national, they are  to  be considered dependent even if they also receive financial support or income somewhere else

Home Office Guidance states that the decision maker does not  need to consider the reasons why the applicant needs the financial support or whether they are able to support themselves by working.  Essential needs include accommodation, utilities and food. Dependency must be shown by financial documents that show money being sent by the sponsor to the applicant.

If the applicant is receiving financial support from the EEA national as well as others, they must show that the support from the EEA national is supporting their essential needs. The applicant does not need to be dependent on the relevant EEA national to meet all or most of their essential needs. For example an applicant can still be considered dependent if they receive a pension to cover half of their essential needs and money from the relevant EEA national to cover the other half.

The applicant must provide proof of their dependency such as bank or building society statements; evidence of money transfers; evidence of living in the same household if applicable; other evidence to show their EEA national sponsor has enough money to support them and the applicant is reliant on them for this.

Where they cannot provide valid proof to show they are currently dependent on their EEA national sponsor, or the sponsor’s spouse or civil partner,  the decision maker is  required to  check the guidance for extended family members to see if they satisfy the conditions of Regulation 8(2) of the  2006 Regulations.

Unless there are public policy, public security or public health grounds which would justify a refusal, and the EEA national sponsor provides the required evidence,   the home office are required to    issue a registration certificate (if the applicant is an EEA national), a  residence card (if the applicant is a non-EEA national)

EEA nationals and their family members can be removed from the UK on the grounds of public policy; public security  or public health

  • RETAINED RIGHTS OF RESIDENCE

Currently the relevant Home Office Guidance is “ Family members of European Economic Area (EEA) nationals who have retained the right of residence – v2.0 Valid from 7 April 2015”

Regulation 10 of the EEA Regulations  provides for certain family members of EEA nationals to keep their right of residence in the UK under Regulation 10 when the EEA national:

·         dies – regulation 10(2)

·         leaves the UK – regulation 10(3)

·         divorces their spouse or dissolves their civil partnership – regulation 10(5)

·         the family member is the parent of a child who retains the right of residence – regulation 10(4

The family member will retain the right to reside in these circumstances if they can satisfy the relevant conditions of Regulation 10. If the family member cannot satisfy the conditions, the  home office will  refuse their application and revoke any registration certificate or residence card that has already been issued.

Extended family members who have previously been recognised as the family member of an EEA national under the Regulations may retain the right of residence in certain circumstances. To benefit from the provisions of regulation 10, a family member must have been issued with either a residence card, or a registration certificate

Death of the EEA national sponsor: regulation 10(2

To qualify under regulation 10(2) the applicant must meet the following conditions:

·         the EEA national died on or after 30 April 2006 and was a qualified person or had a right of permanent residence when they died;

·         the applicant was living in the UK for at least one year immediately before the EEA national’s

·         death as:

-a family member of the EEA national qualified person, or

an EEA national with a permanent right of residence

·         they would be a worker, self-employed person, or self-sufficient person if they were an EEA national, or they are the family member of a non-EEA national who is a worker, self-employed or a self-sufficient person.

They must also remain a worker or self-employed person or a self-sufficient person to continue to retain their rights under the Regulations. Students and jobseekers: Home Office Guidance states that a non-EEA national who is a student or a jobseeker does not meet these conditions, unless they have enough resources to be self-sufficient.

If the non-EEA national meets the conditions of Regulation 10 but later becomes a student or  jobseeker they will no longer have the retained right of residence unless they have enough resources to be self-sufficient.

The  retained right of residence will end if the applicant subsequently obtains the right of permanent residence.

Upon submission of the application, the applicant must provide evidence of :

·         Their nationality. This must be their valid passport or identity  card;

·         The nationality of the EEA national sponsor. This must be a valid passport or     EEA ID card;

·         Their relationship to the EEA national;

·         The EEA national’s death certificate;

·         The EEA national exercising  free movement rights at the time of their death;

·         Their residence in the UK as the family member of an EEA national for at least     one year immediately  before the EEA national’s  death;

·         That they are a worker, self employed, or self sufficient person  of the family member of such a person

Direct descendants who retain right of residence: regulation 10(3):

The direct descendants (either EEA or non EEA) of an EEA national can retain a right of residence in certain circumstances. This is in line with regulation 10(3) of 2006 Regulations.

Direct descendants include children, grandchildren, and great-grandchildren

Direct descendants may meet the requirement of regulation 10(2). However, if they do not meet the requirement of 10(2) then they may still meet the requirements of regulation (10) (3).

A direct descendant will meet the conditions of regulation 10(3) when they are the direct descendant of:

·         a qualified person or an EEA national with a permanent right of residence who has died on

or after 30 April 2006

·         a person who ceased to be a qualified person when they ceased to reside in the UK, or

·         the spouse or civil partner of the qualified person or the EEA national with a permanent

right of residence referred to in the first sub bullet when they died, or is the spouse or civil partner of a person referred to in the second sub bullet;

·         they were attending an educational course in the UK immediately before the qualified person, or the EEA national with a permanent right of residence, died or ceased to be qualified and they continue to attend that course. If the direct descendant was not in education immediately prior to the EEA national sponsor dying

or leaving the UK then they do not meet the conditions of Regulation 10(3).

A direct descendant’s right of residence will end as soon as they gain the right of  permanent residence, or they finish education.

When submitting an application, the applicant  must provide evidence of

·         Their nationality. This must be their valid passport or identity card;

·         Their relationship to the EEA national;

·         The EEA national’s    death certificate;

·         Proof the EEA national has left the UK, if applicable;

·         The EEA national exercising free movement rights prior to death or their leaving the UK;

·         The child being educated in the UK immediately prior to the EEA national leaving the UK

or dying ;

·         The child’s continuing education in the UK, eg a letter from their school ;

Parent of a child who retains the right of residence: regulation 10(4):

The parent of a child/children of an EEA national can retain a right of residence in certain circumstances. This is in line with regulation 10(4) of the EEA Regulations.

It will mainly be non-EEA national parents who apply under this regulation however an EEA national parent who is not a qualified person in their own right may also apply under this regulation..

If the applicant has custody of a child who satisfies the conditions of regulation 10(3), they will

retain the right of residence under regulation 10(4) in the following circumstances:

·         for as long as their child also retains this right of residence under regulation 10(3);

·         where the child reaches the age of 21 (unless the child needs their parent to stay in order to allow them to complete their education):

·         until the parent no longer has custody of the child, or

·         until the parent gains the right of permanent residence.

Where a person is claiming a retained right of residence on the basis of that they are the parent of a child with a retained right under regulation 10(3) reaches the age of 21, they will have a continued right of residence only where the child requires their presence to be able to continue their education in the UK. In such instances, only evidence that shows the adult child’s dependence on the parent

is due to a severe physical or mental disability is likely to be considered to demonstrate that the

adult child would be unable to continue their education if their parent did not continue to have a right to residence in the UK. The Home office consider that such cases are likely to be rare and will need to be considered on an individual basis.

The applicant must provide the same evidence that their child must provide as set out above. They must also provide  evidence of the following:

·         Their     nationality. This must be a valid passport or ID card;

·         Being the parent of the child;

·         Their relationship to the EEA national;

·         The custody of the child if appropriate;

·         Their custody of the child if appropriate, for example a court order or a letter that has been officially sworn by a solicitor confirming that the parent has custody.

End of relationship with EEA national sponsor: regulation 10(5):

The non-EEA national spouse or civil partner of an EEA national can, in certain circumstances,

retain a right of residence when their relationship ends. This is in line with regulations 10(5) of the EEA Regulations .

If a non-EEA national separates from their EEA national spouse or civil partner they remain a

family member with the right to live in the UK for as long as they are married to, or in a civil partnership with, an EEA national sponsor who continues to exercise free movement rights in the UK, or who has acquired a right of permanent residence. They continue to have a right to live in the UK until such time as either:

  •  a divorce is finalised and a decree absolute is issued
  •  the marriage is annulled or
  •  the civil partnership is dissolved

Once the marriage or civil partnership has been officially ended, the non-EEA spouse or civil

partner, and anyone who was related to the EEA national sponsor by marriage, must meet the requirements of regulation 10(5) in order to retain a right of residence in the UK.

A non-EEA national spouse or civil partner will lose their right of residence if: the EEA national leaves the UK while they are still married or in a civil partnership (meaning they are no longer a ‘qualified person’), and the non-EEA national does not qualify for a retained right of residence under any other part of Regulation 10.

The relationship is considered to have been terminated on the date that the following documents  are issued:

  •  Decree Absolute;
  •  Decree of Annulment, or
  •  Certificate of Dissolution.

The relationship must have terminated on or after 30 April 2006 when the Regulations  came in to force. If it terminated before this date then the applicant cannot have retained a right of residence.

A non-EEA national who is a student or a jobseeker does not meet the relevant conditions, unless they have enough resources to be self-sufficient. If the non-EEA national meets the conditions of Regulation 10 but later becomes a student or jobseeker they will no longer have the retained right of residence unless they have enough resources to be self-sufficient.The applicant must provide evidence of:

·         Their nationality. This must be their valid passport and ID card;

·         The nationality of the EEA national sponsor which must be a valid passport or EEA national ID;

·         The identity     of the EEA national exercising free movement rights at  the time the relationship was terminated;

·         The marriage   or civil partnership lasting at least 3 years immediately before the initiation

or proceedings for divorce, annulment or dissolution;

·         Their residence in the UK for at least one year during the marriage;

·         The termination of their relationship with the EEA national on or after 30 April 2006. This could be a Decree Absolute; Decree of Annulments or Certificate of Dissolution

·         Being a worker, self-employed person or self- sufficient person or the family member of such a person.

Applicants who cite domestic violence or    other difficult  circumstances as reasons  for the end of their relationship are required to  provide extra evidence.

Domestic violence: Home Office using discretion to make enquires on applicant’s behalf:

The relevant Home Office Guidance in this    regards  is “Direct Family Members of European Economic Area (EEA) nationals – v3.0 Published for Home Office staff on 29 September 2015.

 When the relationship between a family member and their EEA national sponsor has ended and domestic violence or other difficult issues are cited in the application, they may apply to retain their right of residence under regulation 10(5)(d)(iv) of the EEA Regulations. The Home Office Guidance acknowledges   that  where  there has been a breakdown in the relationship between the applicant and their EEA national sponsor, it may not always be possible for them to get the documents needed to support their application such as proof of the EEA  national sponsor’s nationality and evidence they are exercising free movement rights.

The Guidance provides that decision makers must take a pragmatic approach if the applicant

provides proof to show they were the victim of domestic violence and cannot provide evidence relating to their EEA national sponsor’s nationality or free movement rights as asking them to do  so in these circumstances could put the applicant at risk. It is  considered that the pragmatic  approach does not apply if there has been a breakdown in the relationship but there is no element of domestic violence involved.

The Home Office further acknowledge that applicants may have difficulty providing evidence to cover a continuous 5 year period when they are applying for a document confirming a permanent

right of residence. If there are periods of time that the applicant cannot provide documents for or where checks with Her Majesty’s Revenue & Customs (HMRC) do not cover the full 5 year period  the decision maker is  required to  must discuss the case with  their  senior caseworker.

They will decide whether to apply discretion based on the individual circumstances of the case.

The senior caseworker is required look at the amount of information provided by the applicant along with the level of evidence that has been gathered. If it is agreed with the  senior caseworker  that     the decision maker  can make additional enquiries, the applicant must give  as much detail as  they can about the EEA national sponsor. If the applicant cannot provide proof of the EEA  national sponsor’s identity, nationality or proof of relationship, then the decision maker must check existing records to see if their identity has been established in any previous applications.

If the applicant can give the name of the EEA national sponsor’s employer or their place of study or if existing records   hold these details,  the  Home Office  can contact the employer or educational establishment to enquire if the EEA national sponsor is working or studying there – the decision to contact the employer or educational establishment must be made according to the facts of the individual case and along with a senior caseworker and  the decision maker  must not mention the domestic violence to the employer or educational establishment.

Where the decision is made not to get information directly from the EEA national’s employer or educational establishment,   the  decision maker  must make enquiries with Her Majesty’s Revenue & Customs (HMRC) to try and gather the necessary information, for example because of the exceptional circumstances of the case or because the EEA national is self-employed

Home Office Guidance states that it will not be possible to make enquiries on behalf of the applicant if the EEA national sponsor is exercising free movement rights as a self-sufficient person; is studying but the applicant cannot state where; needs to have comprehensive sickness insurance, but no previous application has been made for a registration certificate and the applicant is unable to provide evidence of comprehensive sickness insurance for themselves and the EEA national.

In such cases, and where any enquiries the decision maker  has made on behalf of the applicant  have not given  the information needed,  the decision maker  must discuss the case with  their senior caseworker. They will then decide if  they  can apply discretion based on the particular circumstances of the case.  If they decide that the decision maker  cannot apply discretion then the decision maker refuse the application.

CONCLUSION

Although there might at times be  citable  deficiencies  and  problems  in relation to  some of the statutory  provisions  themselves,  at least for applicants able to  fulfil the relevant requirements, they are able to place reliance upon them and this is even more the important  having regard  ton the need to safeguard the welfare and best interests of the children the foreign spouse might have had with the deceased or divorced Sponsor.

Parent Route Applications – Of Zambrano, the Immigrations Rules, Appendix FM and Exceptional Circumstances

A parent may have left the UK or been removed, yet have a British child here remaining with the other parent. Even without a continuing relationship with the UK resident parent, the parent abroad may still wish to continue to have a family life with their British child and therefore  want to apply for entry clearance to come to   the UK.

A parent may be here with irregular status yet have  children who are British residing in the UK  or who have resided here continuously for 7years and are still under 18years of age. That parent may want to remain here with them and wish to submit an application for leave to remain.

A parent may also wish to switch from being a student and apply for leave to remain here under a different category where they have a child who is British following on from a relationship, for example, with a British citizen or a person who is settled here.

Several options are open, however   the different avenues also have their advantages and disadvantages worthy of consideration prior to submitting   an application.

DERIVATIVE RESIDENCE CARD APPLCIATIONS- “ZAMBRANO” APPLICATIONS

The ECJ judgment in the, case of Ruiz Zambrano (C34/09), established that member states cannot refuse a person the right to reside and work in the host member state, where that person is the primary carer of a Union citizen who is residing in their member state of nationality and refusal of a right of residence to that primary carer would deprive the Union citizen of the substance of their European citizenship rights by forcing them to leave the EEA. This means that the primary carer of a British citizen who is residing in the UK has a right to reside under EU law if their removal from the UK would require the British citizen to leave the EEA.

A primary carer of a British citizen will qualify for a derivative right of residence under Regulation 15A(4A) of the EEA Regulations where they satisfy the conditions set out in that paragraph. The conditions are that the applicant is the primary carer of a British citizen who is residing in the UK, and would be unable to reside in the UK or in another EEA state if their primary carer were required to leave the UK.

A primary carer is defined in regulation 15A(7) as a direct family member or legal guardian of the person from whom they would claim a derivative right, and the person who:

  1. has primary responsibility for that person’s care, or
  2. shares the responsibility for that persons care equally with one other person who is not an exempt person.

Therefore an application which meets the criteria for a derivative right of residence may qualify for a right of admission to the UK under amended Regulation 11 of the 2006 EEA Regulations; a right to an EEA family permit under amended Regulation 12 of the 2006 Regulation; and a right to a derivative residence card under regulation 18A of the Regulations.

In country applicants for a Directive Residence card are required to submit   “DRF1” application Form.

The relevant Home Office Guidance is, “Derivative rights of residence Ruiz Zambrano cases, 12th December 2012, 21/2012”.

FAMILY LIFE AS A PARENT OF A CHILD IN THE UK – ENTY CLEARANCE APPLICATION

The most relevant Instructions Guidance policies are:

  • Immigration Directorate Instruction Family Migration: Appendix FM Section 1.0a Family Life (as a Partner or Parent): 5-Year Routes, August 2015;
  • Immigration Directorate Instruction Family Migration: Appendix, FM, Section 1.7A, Adequate, Maintenance & Accommodation, August 2015

To meet the eligibility requirements for entry clearance as a parent of a child in the UK, all of the requirements in paragraphs E-ECPT.2.1. to 4.2. must be met. The applicant must be outside the UK and must be aged 18 years or over.

The Relationship requirements, Financial requirements and English language requirement must be met.

If the applicant meets the requirements for entry clearance as a parent they will be granted entry clearance for an initial period not exceeding 33 months, and subject to a condition of no recourse to public funds.

If the applicant does not meet the requirements for entry clearance as a parent the application will be refused.

FAMILY LIFE AS A PARENT OF A CHILD IN THE UK – LEAVE TO REMAIN APPLICATION

Appendix FM provides:

“EX.1. This paragraph applies if

  • (a)
  • (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) it would not be reasonable to expect the child to leave the UK; or
  • (b) the applicant has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen, settled in the UK or in the UK with refugee leave or humanitarian protection, and there are insurmountable obstacles to family life with that partner continuing outside the UK.

EX.2. For the purposes of paragraph EX.1.(b) “insurmountable obstacles” means the very significant difficulties which would be faced by the applicant or their partner in continuing their family life together outside the UK and which could not be overcome or would entail very serious hardship for the applicant or their partner”.

And Appendix FM also provides:

“Section R-LTRPT: Requirements for limited leave to remain as a parent

R-LTRPT.1.1. The requirements to be met for limited leave to remain as a parent are-

  • (a) the applicant and the child must be in the UK;
  • (b) the applicant must have made a valid application for limited or indefinite leave to remain as a parent or partner; and either
  • (c)
  • (i) the applicant must not fall for refusal under Section S-LTR: Suitability leave to remain; and
  • (ii) the applicant meets all of the requirements of Section ELTRPT: Eligibility for leave to remain as a parent, or
  • (d)
  • (i) the applicant must not fall for refusal under S-LTR: Suitability leave to remain; and
  • (ii) the applicant meets the requirements of paragraphs E-LTRPT.2.2-2.4. and E-LTRPT.3.1-3.2.; and
  • (iii) paragraph EX.1. applies”.

A successful application  that meets the requirements of   R-LTRPT.1.1. (a) to (c) leads to the 5year Route to settlement.     The 5-year route as a partner or parent is for those who meet all of the suitability and eligibility requirements of the Immigration Rules at every stage.  Applications for leave on the 5-year routes to settlement can be made from outside the UK or in the UK. Overseas applicants need to apply for entry clearance as a partner on forms VAF4A and VAF4A Appendix 2, or as a parent on forms VAF4A and VAF4A Appendix 5. An applicant in the UK may apply for the 5-year partner route on form FLR(M), or the 5-year parent route on form FLR(FP).  Appendix FM must be read together with Appendix FM-SE, which sets out the specified evidence that must be submitted with an application, and Appendix O, which sets out the English language tests approved for an application for entry clearance or limited leave to remain as a partner or parent. An applicant must provide all of the documents specified in Appendix FM-SE that are relevant to their application under Appendix FM. The grant of leave to remain under the  10year  route  is  subject to a condition of no recourse to public funds  To qualify for  settlement, the  applicant must have demonstrated sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom in accordance with the requirements of Appendix KoLL of the  Rules.

In an in country application, an applicant who fails to meet certain of the eligibility requirements their application under the 5-year route will be refused, and consideration given to whether they qualify under the 10-year partner, parent or private life routes.

A successfully application  that meets the requirements of   R-LTRPT.1.1. (a), (b) and (d) leads to the 10year Route to settlement. The 10-year route as a partner or parent is only applicable to in-country applications, is for those who meet all of the suitability requirements, but only certain of the eligibility requirements as a partner or parent where paragraph EX.1. of Appendix FM is also met.

Paragraph EX.1. is not an exception to the Rules, but to certain eligibility requirements of the 5-year partner and parent routes under Appendix FM. It  is considered to  provide  the basis on which an applicant in the UK who does not meet all of the eligibility requirements of the 5-year partner or parent route can qualify for leave to remain under the Rules on the basis of their family life in the UK. An applicant in the UK can  apply directly for the 10-year partner, parent or private life routes using form FLR(FP),  where  they know they cannot meet certain of the eligibility requirements of the 5-year routes.

From 6 April 2015, the Immigration Rules contain paragraph GEN.2.3(1) and (2) of Appendix FM and paragraph 276A01(1) and (2), which provide that, where an applicant in the UK has been on temporary admission or temporary release for a continuous period of more than 6 months at the date of application qualifies for leave under the 10-year partner, parent or private life routes or for leave outside the Rules on the basis of exceptional circumstances, they may be granted leave to enter rather than leave to remain.

The grant of leave to remain under the 10year route is also subject to a condition of no recourse to public funds however   there is a possibility of being able to able to apply to lift the condition where the Secretary of State considers that the person should not be subject to such a condition. To qualify for settlement , the applicant must have demonstrated sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom in accordance with the requirements of Appendix KoLL of these Rules.

Option A- Leave To Remain Application – Five year Route to Settlement :

The most relevant Home Office Instruction Guidance policies are:

  • Immigration Directorate Instruction Family Migration: Appendix FM Section 1.0a Family Life (as a Partner or Parent): 5-Year Routes, August 2015.
  • Immigration Directorate Instruction Family Migration: Appendix, FM, Section 1.7A, Adequate, Maintenance & Accommodation, August 2015.

To qualify for limited leave to remain as a parent all of the requirements of paragraphs E-LTRPT.2.2. to 5.2. must be met.

Further the applicant meets all of the requirements of Section ELTRPT: Eligibility for leave to remain as a parent and the applicant must not fall for refusal under Section S-LTR: Suitability leave to remain.

Relationship requirements:

The child of the applicant must be-

(a) under the age of 18 years at the date of application, or where the child has turned 18 years of age since the applicant was first granted entry clearance or leave to remain as a parent under this Appendix, must not have formed an independent family unit or be leading an independent life;

(b) living in the UK; and

(c) a British Citizen or settled in the UK; or

(d) has lived in the UK continuously for at least the 7 years immediately preceding the date of application and paragraph EX.1. applies.

Either-

(a) the applicant must have sole parental responsibility for the child or the child normally lives with the applicant and not their other parent (who is a British Citizen or settled in the UK);or

(b) the parent or carer with whom the child normally lives must be-

(i) a British Citizen in the UK or settled in the UK;

(ii) not the partner of the applicant (which here includes a person who has been in a relationship with the applicant for less than two years prior to the date of application); and

(iii) the applicant must not be eligible to apply for leave to remain as a partner under this Appendix.

(a) The applicant must provide evidence that they have either-

(i) sole parental responsibility for the child, or that the child normally lives with them; or

(ii) direct access (in person) to the child, as agreed with the parent or carer with whom the child normally lives or as ordered by a court in the UK; and

(b) The applicant must provide evidence that they are taking, and intend to continue to take, an active role in the child’s upbringing.

Immigration status requirement:

The applicant must not be in the UK-

(a) as a visitor; or

(b) with valid leave granted for a period of 6 months or less, unless that leave was granted pending the outcome of family court or divorce proceedings;

The applicant must not be in the UK –

(a) on temporary admission or temporary release, unless the applicant has been so for a continuous period of more than 6 months at the date of application and paragraph EX.1.applies; or

(b) in breach of immigration laws (disregarding any period of overstaying for a period of 28 days or less), unless paragraph EX.1. applies.

Financial requirements:

The applicant must provide evidence that they will be able to adequately maintain and accommodate themselves and any dependents in the UK without recourse to public funds, unless paragraph EX.1. applies.

English language requirement:

The applicant has to meet the English requirement unless they are exempt.

If the applicant meets the requirements in paragraph R-LTRPT.1.1. (a) to (c) for limited leave to remain as a parent the applicant will be granted limited leave to remain for a period not exceeding 30 months, and subject to a condition of no recourse to public funds, and they will be eligible to apply for settlement after a continuous period of at least 60 months with such leave or in the UK with entry clearance as a parent under paragraph D-ECPT.1.1. If the applicant does not meet the requirements for limited leave to remain as a parent the application will be refused.

Option B- Leave To Remain Application – Ten year Route to Settlement:

The most relevant Home Office Instructions Guidance policy is  :

  • Immigration Directorate Instruction Family Migration: Appendix FM Section 1.0b Family Life (as a Partner or Parent) and Private Life: 10-Year Routes, August 2015-This guidance must be used by decision makers considering whether to grant leave to remain on a 10-year route to settlement following a valid Human Rights application or claim for leave to remain on the basis of family life as a partner or parent or on the basis of private life in accordance with the some specified parts of the Immigration Rules and Appendix FM, or where considering whether to grant leave to remain outside the rules on the basis of exceptional circumstances.

The applicant must meets the requirements of paragraphs E-LTRPT.2.2-2.4. and E-LTRPT.3.1-3.2.; and paragraph EX.1. applies.

If the applicant meets the requirements in paragraph R-LTRPT.1.1. (a), (b) and (d) for limited leave to remain as a parent they will be granted leave to remain for a period not exceeding 30 months and subject to a condition of no recourse to public funds unless the Secretary of State considers that the person should not be subject to such a condition, and they will be eligible to apply for settlement after a continuous period of at least 120 months with such leave, with limited leave as a parent under paragraph D-LTRPT.1.1., or in the UK with entry clearance as a parent under paragraph D-ECPT.1.1. If the applicant does not meet the requirements for limited leave to remain as a parent the application will be refused.

Option C – Paragraph 276ADE of the Immigration Rules :

Parents may seek to rely upon Paragraph 276ADE   of the Immigration Rules placing reliance upon the 7year rule as a basis of stay where they apply together as a family along with the qualifying child:

Requirements to be met by an applicant for leave to remain on the grounds of private life

276ADE (1). The requirements to be met by an applicant for leave to remain on the grounds of private life in the UK are that at the date of application, the applicant:

(i) does not fall for refusal under any of the grounds in Section S-LTR 1.2 to S-LTR 2.3. and S-LTR.3.1. in Appendix FM; and

…………

(iv) is under the age of 18 years and has lived continuously in the UK for at least 7 years (discounting any period of imprisonment) and it would not be reasonable to expect the applicant to leave the UK…”

Limited leave to remain on the grounds of private life in the UK may be granted for a period not exceeding 30 months provided that the Secretary of State is satisfied that the requirements in paragraph 276ADE(1) are met or, in respect of the requirements in paragraph 276ADE(1)(iv) and (v), were met in a previous application which led to a grant of limited leave to remain under this sub-paragraph. Such leave shall be given subject to a condition of no recourse to public funds unless the Secretary of State considers that the person should not be subject to such a condition.

Where an applicant does not meet the requirements in paragraph 276ADE(1) but the Secretary of State grants leave to remain outside the rules on Article 8 grounds, the applicant will normally be granted leave for a period not exceeding 30 months and subject to a condition of no recourse to public funds unless the Secretary of State considers that the person should not be subject to such a condition.

Limited leave to remain on the grounds of private life in the UK is to be refused if the Secretary of State is not satisfied that the requirements in paragraph 276ADE(1) are met.

CONSIDERATIONS- ADVANTAGES AND DISADVANTAGES

 

  • Right to work

A person who submits a valid application for a derivative residence card will be issued with a certificate of application which will facilitate their taking employment while their application is under consideration.

Where an applicant applies under the parent route,  having no leave to remain and an  accompanying right to work, they are unable to work unless and until their application is determined positively.

  • Settlement :

The 5 or 10year parent route can lead to settlement where the eligibility and qualifying requirements are met.

The Home Office generally consider that unless there are truly exceptional reasons, the expectation is that applicants should serve a probationary period of limited leave before being eligible to apply for indefinite leave to remain , if they meet the requirements. The Home Office however accept  that there may be rare cases in which a longer period of leave is considered appropriate, either because it is clearly in the best interests of a child (and any countervailing considerations do not outweigh those best interests), or because there are other particularly exceptional or compelling reasons to grant leave for a longer period (or settlement). There is thus discretion to grant a longer period of leave where appropriate. In all cases the onus is on the applicant to provide evidence as to why they believe that a longer period of leave (or ILR) is necessary and justified on the basis of particularly exceptional or compelling reasons.

As regards a Zambrano  application, the right of residence is not a right conferred by Directive 2004/38/EC but is a right derived from the right of Union citizenship contained in Article 20 of the Treaty on the Functioning of the European Union (a „derivative right‟). Therefore someone who has a derivative right of residence is not entitled to all of the benefits which flow from a right of residence arising under the Directive. In particular, those who acquire a derivative right of residence cannot rely on their status as a basis for bringing other family members to the UK under the Regulations(expect in the specific case of dependants); acquire permanent residence in the UK; rely on the public policy protection against removal or deportation from the United Kingdom that is given to those exercising free movement rights.

There is thus no right to permanent residence for persons claiming to have a derivative right of residence.

Derivative residence cards will ordinarily be issued for a period of five years.

Home Office Guidance provides that in certain circumstances, caseworkers may issue for an alternative period depending on the individual facts of the case. For example, where a primary carer is claiming a derivative right of residence for their child who is due to reach the age of majority in 3 years‟ time caseworkers should only issue a document for three years.

  • Qualifying children:

Only British children can enable a parent to place reliance upon the judgment in Zambrano.

It is however is also important to note that those with primary responsibility of a dependant British adult may also place reliance upon Zambrano. The Home Office consider that cases where the British citizen is at, or over the age of 18, then the level of evidence required to demonstrate primary and shared responsibility will be significantly higher than in cases involving children. This is because it can generally be assumed an adult has the capacity to care for their own daily needs unless there are reasons such as a severe physical or mental disability which would prevent this. In order to demonstrate primary/shared responsibility for adults, the majority of the care must be provided by the primary carer(s). Evidence from the NHS/local authority/private care may be submitted to support this. Appropriate medical evidence must also be presented that confirms the British citizen is, and will remain, wholly dependent upon the primary carer. Details must be provided as to whether any other sources of care are available and what the predicted effect would be on the British citizen if the primary carer was no longer able to care for them. The Home office consider that such cases are likely to be rare and will require consideration on an individual basis.

The relevant Home Office Guidance in relation to the 10year route to settlement   mentioned above states :

“This section applies to applications for leave to remain and further leave to remain as the parent of a child in the UK, and where the child:

 is under the age of 18 years at the date of application; and

 is living in the UK; and

 is a British Citizen; or

 has lived in the UK continuously for at least the 7 years immediately preceding the date of application

The category of qualifying children is therefore  wider  than that  in  a Zambrano application however the same Guidance  states:

The decision maker should note that a parent wishing to remain in the UK on the basis of their settled child who has NOT lived in the UK continuously for at least 7 years immediately preceding the date of application, cannot meet the requirements of the parent routes. The child living in the UK must either be British, or have lived in the UK continuously for at least the last 7 years, for the parent to meet this requirement of these rules”.

  • The “ reasonableness “ test in Exception 1 and the test of whether the British citizen will be forced to leave the EEA if the primary carer was forced to leave:

The Zambrano Home Office Guidance provides that even where there is evidence of primary and shared responsibility, evidence to show why the British citizen would be forced to leave the EEA (for example because they cannot access alternative care in the UK) is still required. The Home Office consider that if there is another person in the UK who can care for the British citizen, then a derivative residence card must be refused on the basis that such a refusal would not result in the British citizen being forced to leave the EEA. Caseworkers are required to assess whether there is another direct relative or legal guardian in the UK who can care for the British citizen and, in the case of a child, who has already had established contact. In making this assessment, the burden of proof remains on the applicant and the standard of proof is the balance of probabilities. This means the onus is on the applicant to demonstrate that their removal would force the British citizen to leave the EEA. If there is no information to demonstrate this, then home office Caseworkers are required to make further enquiries with the applicant as to the status or whereabouts of the other parent in the case of a child, or alternative care provisions in the case of a British citizen adult.

The Home Office state that examples of when it may be appropriate to issue a derivative residence card to a primary carer would be where:

  • there are no other direct relatives or legal guardians to care for the
  • British citizen; or
  • there is another direct relative or legal guardian in the UK to care for
  • the British citizen but there are reasons why this carer is not suitable; or
  • in the case of an adult British citizen, there are no alternative care
  • provisions available in the UK.

The home office also consider that an example of when a person may be considered unsuitable to care for a child would be where there are child protection issues which would prevent this child being placed with this particular relative/legal guardian- for example as a result of a particular criminal conviction or because of findings in family law proceedings. Another example might be where the person in question would be unable to care for the child due to a physical or mental disability.

A lack of financial resources or an unwillingness to assume care responsibility would not, by itself, be sufficient for the primary carer to assert that another direct relative or guardian is unable to care for a British citizen. Caseworkers are therefore directed to start from the assumption that where there is another direct relative or legal guardian in the UK, that they can care for the British citizen unless there is sufficient evidence to the contrary.

Paragraph EX.1. within Appendix FM  is not a standalone requirement, but where it applies it provides an exception to meeting certain eligibility requirements of the 5-year parent route. Applicants being considered under the 10-year parent route must meet the requirements in paragraph EX.1. of Appendix FM.

The Home Office consider that the criteria set out in paragraph EX.1.(a) reflects the duty in section 55 of the Borders, Citizenship and Immigration Act 2009 to have regard to the need to safeguard and promote the welfare of children who are in the UK,  ie their best interests. The Home Office are of the view  that the  requirements in paragraph EX.1.(a) and in paragraph 276ADE(1)(iv) reflect the duty in section 55 of the Borders, Citizenship and Immigration Act 2009 to have regard to the need to safeguard and promote the welfare of children who are in the UK, , as reflected in case law, in particular, ZH (Tanzania).

Under paragraph EX.1.(a), the decision maker must assess whether the applicant has a genuine and subsisting parental relationship with a child under the age of 18 who is in the UK and is a British Citizen or has lived in the UK continuously for at least the 7 years immediately preceding the date of application, and whether it is reasonable to expect the child to leave the UK, and must carefully consider all of the information provided in the application.

Relevant Home Office Guidance  as regards the 10year route to settlement   considers that save in cases involving criminality, the decision maker must not take a decision in relation to the parent or primary carer of a British Citizen child where the effect of that decision would be to force that British child to leave the EU, regardless of the age of that child. This is stated to reflect the European Court of Justice judgment in Zambrano. Where a decision to refuse the application would require a parent or primary carer to return to a country outside the EU, the case must always be assessed on the basis that it would be unreasonable to expect a British Citizen child to leave the EU with that parent or primary carer. In such cases it is considered  that it will usually be appropriate to grant leave to the parent or primary carer, to enable them to remain in the UK with the child, provided that there is satisfactory evidence of a genuine and subsisting parental relationship. In cases where a decision to refuse the application would require a parent or primary carer to return to a country within the EU, it may be possible to require the child to return or go there with that person. However, consideration must still be given to whether it would be reasonable to expect the child to leave the UK.

For non – EEA children,  the  requirement is to  consider whether, in the specific circumstances of the case, it would be reasonable to expect the child to live in another country. Relevant considerations are likely to include: whether there would be a significant risk to the child’s health; whether the child would be leaving the UK with their parent(s); the extent of wider family ties in the UK ; whether the child is likely to be able to (re)integrate readily into life in another country; any country specific information, including as contained in relevant country guidance; other specific factors raised by or on behalf of the child.

In relation  to the  parent route, parents  may highlight the differences in the quality of education, health and wider public services or in economic or social opportunities between the UK and the country of return and argue that these would work against the best interests of the child if they had to leave the UK and live in that country. The Home Office  view is  that other than in exceptional circumstances, this will not normally be a relevant consideration, particularly if the parent(s) or wider family have the means or resources to support the child on return or the skills, education or training to provide for their family on return, or if Assisted Voluntary Return support is available.

It can thus be seen that with such a stringent approach in relation to both Zambrano and Appendix FM applications, it is no surprise why in practice derivative residence applications and those applicants with children relying upon the “ 7year Rule” are usually refused by the home office.

  • Overstaying:

Applicants   submitting a derivative residence application, may do so even where they have no leave to remain, however parents applying under the 5year route to settlement are unable to place successful reliance   upon this route apply where they are overstayers. When considering refusing an application on the grounds that it was made by an applicant who has overstayed by more than 28 days, the home office is  required to consider any evidence of exceptional circumstances which prevented the applicant from applying within the first 28 days of overstaying. A visitor who has overstayed (by any period of time) cannot qualify for the 5-year route.

  • Suitability Requirements and General Grounds for Refusal:

These do not apply to Zambrano applications, however in considering all applications for entry clearance or leave to remain as a partner or parent the decision maker must consider whether the suitability requirements in Appendix FM of the Rules are met. If the applicant falls for refusal on the basis of suitability, the application will be refused. It is noteworthy that applicants applying as a partner or parent under Appendix FM under the 5year and 10year route to settlement are not subject to the General Grounds for Refusal, except for the provisions in paragraph 320(3), (10) and (11) which continue to apply to applications under Appendix FM as set out in the General Grounds for Refusal:

  • Fees and the NHS Health Surcharge:

Applicants applying for a Derivative residence card need only provide the £65.00 fee required per applicant.

For those applying for entry clearance,   for leave to remain under the parent   route, substantial fees are required to be paid. For leave to remain applications, a fee of £649.00 per applicant is required to be submitted with Form FLR(FP).

Further, as from 6 April 2015, under the Immigration (Health Charge) Order 2015, applications for leave to remain under the 5-year  and 10year  partner and parent routes are subject to the immigration health charge of £500.00  in addition to the application fee, unless they are not required to pay the immigration health charge

  • No Recourse to public funds:

The Immigration Rules approved by Parliament govern the no recourse to public funds policy in grants of leave made under the 10-year partner, parent and private life routes under the Rules and in grants of leave made outside the Rules under ECHR Article 8 on the basis of exceptional circumstances. Grants of leave under the 5-year partner or parent routes are always subject to a condition of no recourse to public funds. In all cases where limited leave is granted on a 10-year route as a partner or parent under Appendix FM; limited leave on the grounds of private life is granted under paragraph 276BE(1) or paragraph 276DG; or limited leave is granted outside the Rules on the basis of exceptional circumstances relating to family life under GEN.1.10-1.11. of Appendix FM or to private life under paragraph 276BE(2), leave will be granted subject to a condition of no recourse to public funds, unless the applicant meets the terms of the relevant Home Office Guidance regarding the 10year route to settlement. The condition of no recourse to public funds will not be imposed, or will be lifted, only where the applicant meets the requirements of paragraph GEN.1.11A of Appendix FM or paragraph 276A02 of the Immigration Rules. Whether to grant leave subject to a condition of no recourse to public funds, and whether to lift that condition where imposed, is a decision for the Home Office decision maker to make on the basis of the relevant above quoted   Guidance in relation to the 10year route to settlement. The Court of Appeal held in Sanneh & Ors v Secretary of State for Work and Pensions and Others [2015] EWCA Civ 49 that the right to reside under Zambrano arises on the date on which the Zambrano conditions are met. There is no need to wait until the point is reached where the Zambrano carer’s removal from the EU is imminent . Consequently, Zambrano carers like Ms Sanneh were entitled to mainstream welfare benefits by virtue of their right to reside until that right was deliberately excluded by the Social Security (Habitual Residence) (Amendment) Regulations 2012 (SI 2012/2587) which came into force on 8 November 2012. In brief the Court concluded that Member states are under an obligation to pay Zambrano carers who are in need and unable to work an amount that is sufficient to enable them to support themselves and their EU citizen child/children within the EU. In the UK, section 17 of the Children Act 1989 fulfils that obligation. Zambrano carers are not entitled to social assistance paid at the same level as that paid to EU citizens lawfully here. The levels of social assistance available to Zambrano carers in the UK, following the amendment to the habitual residence test, is not in breach of any requirement of EU law. Nor is it in breach of the Human Rights Act 1998 or the Equality Act 2010.

  • Sole Parental Responsibility and Primary Responsibility:

A parent applying under Appendix FM   may show they have sole responsibility of the child and a parent placing reliance upon a Zambrano application is required to show they have primary responsibility.

As regards Zambrano applications, the decision maker considers whether an applicant has primary responsibility or shares equal responsibility with another person for that British citizen’s care. Primary or shared responsibility will generally be established where that child is living with the primary carer(s) and the majority of their care is being provided for by that primary carer(s). Home Office guidance states that evidence to demonstrate this responsibility can include custody/guardianship orders, or if this is not available, any additional evidence which shows:

  • that the child lives with the primary carer(s) or spends the majority of
  • their time there;
  • that the primary carer(s) makes the day to day decisions for that child,
  • for example decisions relating to their education or health; and
  • that the primary carer(s) has financial responsibility for that child.

How this is evidenced will vary depending on the facts of the case, but the primary carer(s) may submit letters from the child’s school, GP or from a solicitor to demonstrate primary/shared responsibility

Sole parental responsibility having regard to Appendix FM may need to  be interpreted in line with the definition within  the Guidance relating  to  the 5year and 10year route to settlement. According to  the  Home Office,  sole responsibility means that one parent has abdicated or abandoned parental responsibility and the remaining parent is exercising sole control in setting and providing the day-to-day direction for the child’s welfare.  A parent who claims to have sole responsibility must provide evidence they have exercised this role since the other parent abdicated or abandoned their parental role. This may be over a period of several years or may be several months before an application. Some day-to-day responsibility (or decision-making) for the child’s welfare may be shared with others, for example, relatives or friends, for practical reasons.  As long as the applicant is ultimately responsible and answerable for the welfare of the child, this does not prevent the applicant from being a parent with sole responsibility within the meaning of the Immigration Rules. The  Guidance however warns that decision makers must not make a decision that would have the effect of denying a parent who has not abdicated or abandoned parental responsibility contact with that child. The decision maker must carefully consider each application and on a case by case basis. The burden of proof is on the applicant to provide satisfactory evidence that they meet the Rules.

Considerations of  “Normally lives with”;  “Person who the child normally lives with” and “Direct access”   are also set out within the said Guidance.

  • Meeting Financial and Accommodation Requirements :

It is not a requirement in a Zambrano application that the applicant show that they can be maintained and accommodated without recourse to public funds. To qualify for entry clearance or leave to remain as a parent on the 5-year route to settlement, the applicant must meet the financial requirements. In order to meet the financial requirements the applicant must provide evidence that they will be able to adequately maintain and accommodate themselves and any dependants in the UK without recourse to public funds.

  • English Language Requirement:

To qualify for entry clearance or leave to remain as a parent on the 5-year route to settlement the applicant must meet the English language requirement. This is not applicable in a Zambrano application. 

  • Right of Appeal:

A person who is refused a document on the basis that they do not have a derivative right to reside will have an appeal under regulation 26(3A) where they have produced:

  1. a valid national identity card issued by an EEA state or a passport and
  2. an EEA family permit; or
  3. proof that–
  4. where the person claims to have a right under regulation 15A(4A), that he or she is the direct relative or guardian of a British citizen;
  5. where the person claims to have a right under regulation 15A(5), that he or she is under the age of 18 and is the dependant of a person satisfying the criteria in (i).

Therefore, for example, an applicant mother who submits a full birth certificate showing the father’s detail but no evidence of the child’s entitlement to citizenship such as the father’s British passport or evidence of his settled status, then upon a refusal decision, there will be no right of   appeal.

From 6 April 2015, under changes made by the Immigration Act 2014, all applications for leave to remain under the 5 year and 10year year partner and parent and private routes which are refused (except as a bereaved partner) will attract a right of appeal on the basis that a human rights claim has been refused, regardless of whether the application was made at a time when the applicant had valid leave to remain.

In some cases however,  attracting a right of appeal does not equal to an in -country right of appeal if the application is refused and the decision is certified thus denying an in -country right of appeal.

  • Article 8 considerations, Exceptional Circumstances, Compassionate Circumstances:

With a Zambrano application, the home office are most likely to neglect or refuse to consider Article 8 human rights considerations or any compassionate circumstance or Section 55 issues. Therefore although detailed submissions may be made the Regulation 15A application, the home office upon consideration and refusal may have no regard to them.

When an application falls for refusal under the Immigration Rules, the decision maker  is required to move on to a second stage and consider whether there are any exceptional circumstances on the basis of Article 8 that would warrant a grant of entry clearance or leave to remain outside the Immigration Rules  on Article 8 grounds because refusal would result in unjustifiably harsh consequences for the applicant or their family. Where a decision is to be made on entry clearance outside the Immigration Rules, the decision maker must refer details of the case to the Referred Casework Unit (RCU).

The Home Office Guidance on the 10year route to settlement  provides that compassionate factors are compelling compassionate reasons on a basis other than family or private life under Article 8, which might justify a grant of leave to remain outside the Immigration Rules, even though the applicant has failed to meet the requirements of the Rules and there are no exceptional circumstances in their case.  While exceptional circumstances on the basis of Article 8 must be considered in every case falling for refusal under the Rules, compassionate factors only need to be considered if they are specifically raised by the applicant.  Compassionate factors are, broadly speaking, exceptional circumstances, e.g. relating to serious ill health, which might mean that a refusal of leave to remain would result in unjustifiably harsh consequences for the applicant or their family, but not constitute a breach of Article 8.  Where an applicant is granted limited leave to remain on the basis of compassionate factors, the decision letter and associated status documentation clearly show that the grant has been given outside the Immigration Rules on the basis of compassionate factors, and should not indicate that the grant is on the basis of their family or private life.

  • Length of time to consider applications:

As the rights claimed on the Zambrano basis do not stem directly from the Free Movement Directive, they are not subject to the normal 6 month timescales, but are considered “as soon as practicable”.

The current published customer service standards for processing applications for those applying for to remain on a temporary basis is stated to be 8weeks for postal applications. As the home office probably realise that   this time estimate is unrealistic in practise in most cases, they have qualified this time period to state that if there is a problem with the application or if it is complex, they will write to explain why it will not be decided within the normal standard. They state that they will write within the normal processing time for the 8 week standard and within 12 weeks for the 6 month standard.  For the home office to write on their own accord to applicants following an acknowledgment of the application and undertaking   of biometrics, rarely   happens and as such even applications relying upon Appendix FM are known these days to take considerably longer than 6months.

 CONCLUSION

Each case and application is different and therefore different consideration in play in each case will determine which route to take advantage of. Although the Home Office may seem to take some delight in almost routinely refusing Zambrano applications or those applications relying upon the “7year rule”, where there is a right of appeal, there is always some chance and hope that such cases may succeed on appeal.

Adult Dependant Relatives: Very Deliberately Onerous Rules

Prior to 9 July 2012, seeking to  bring  adult  relatives to the UK had its own  challenges for Sponsors,  however the  then applicable rules  were  not as onerous and  harsh  as  the adult dependant   rules now in effect via  Appendix FM  of the Immigration Rules.

Upon a glance of the   current rules,   a legally  unassisted  Sponsor cannot be blamed   for believing  that  the  requirements are  straight forward- after all if a parent is well advanced in age, ill and  needs  care,  what more could the UK Government  possibly want  in support other  than  proof of the familial relationship and a  medical evidence including  an ability to house and  feed  the  parent in the UK?   The rules were  changed by the Government  for a reason however  when  considering how  restrictedly they  are applied in practice by entry  clearance officers,   one cannot help  but  be of the view  that perhaps the main objective was to  reduce considerably  and quickly  the number of adult  dependant relatives  seeking to enter the United Kingdom.

The question is whether  there is  now general acceptance that these rules are here to  stay as unchallengeable/unamendable,    with  an  accompanying   forgone conclusion  that    applications/appeals  under these  new rules  are almost  bound to fail or  will resort be had  to other legitimate avenues permitting  entry of adult dependent relatives   to the UK?

SUMMARY REQUIREMENTS FOR ENTRY CLEARANCE AND THE  REQUISITE EVIDENCE

To meet the eligibility requirements for entry clearance as an adult dependent relative all of the requirements in paragraphs E-ECDR.2.1. to 3.2. of Appendix FM must be met.

The applicant is also expected to  meet the requirements at section S-EC, Suitability  requirements for entry clearance.

Appendix FM-SE provides for the relevant required  specified evidence.

Immigration Directorate Instructions, Appendix FM Section FM 6.0 , Adult dependent relatives are also relevant for consideration.

The maintenance and accommodation requirements are also assessed using the entry clearance officer’s guidance. For even  further detailed guidance on adequate maintenance and accommodation regards should also be  paid to the Immigration Directorate Instructions, Chapter 8, Section FM 1.7A – Adequate Maintenance and Accommodation.

  • The Applicant:

Those eligible to apply for entry clearance as adult dependent relatives are narrowly defined as:

(a) parent aged 18 years or over;

(b) grandparent;

(c) brother or sister aged 18 years or over; or

(d) son or daughter aged 18 years or over of a person (“the sponsor”) who is in the UK.

Where the applicant is the sponsor’s parent or grandparent they must not be in a subsisting relationship with a partner unless that partner is also the sponsor’s parent or grandparent and is applying for entry clearance at the same time as the applicant.

  • The Sponsor:

The sponsor must at the date of application be-

(a) aged 18 years or over; and

(i) a British Citizen in the UK; or

(ii) present and settled in the UK; or

(iii) in the UK with refugee leave or humanitarian protection.

Evidence of the family relationship between the applicant(s) and the sponsor should take the form of birth or adoption certificates, or other documentary evidence.

  • Need for Personal Care Arising from Three Conditions:

The applicant or, if the applicant and their partner are the sponsor’s parents or grandparents, the applicant’s partner, must as a result of age, illness or disability require long-term personal care to perform everyday tasks.

The applicant must be incapable of performing everyday tasks for themselves, e.g. washing, dressing and cooking

Evidence that, as a result of age, illness or disability, the applicant requires long-term personal care should take the form of:

(a) Independent medical evidence that the applicant’s physical or mental condition means that they cannot perform everyday tasks; and

(b) This must be from a doctor or other health professional.

  • Unavailability or Unaffordability of the Level of Care in the Applicant’s Country:

The applicant or, if the applicant and their partner are the sponsor’s parents or grandparents, the applicant’s partner, must be unable, even with the practical and financial help of the sponsor, to obtain the required level of care in the country where they are living, because-

(a) it is not available and there is no person in that country who can reasonably provide it; or

(b) it is not affordable.

The relevant Immigration Directorate Instructions state that the entry clearance officer  should consider whether there is anyone in the country where the applicant is living who can reasonably provide the required level of care.

This can be a close family member such as a :

  •  Son
  •  Daughter
  •  Brother
  •  Sister
  •  Parent
  •  Grandchild
  •  Grandparent

or another person who can provide care, e.g. a home-help, housekeeper, nurse, carer, or care or nursing home.

If an applicant has more than one close relative in the country where they are living, those relatives may be expected  to pool resources to provide the required care.

Independent evidence that the applicant is unable, even with the practical and financial help of the sponsor in the UK, to obtain the required level of care in the country where they are living should be from:

(a) a central or local health authority;

(b) a local authority; or

(c) a doctor or other health professional.

If the applicant’s required care has previously been provided through a private arrangement, the applicant must provide details of that arrangement and why it is no longer available.

If the applicant’s required level of care is not, or is no longer, affordable because payment previously made for arranging this care is no longer being made, the applicant must provide records of that payment and an explanation of why that payment cannot continue. If financial support has been provided by the sponsor or other close family in the UK, the applicant must provide an explanation of why this cannot continue or is no longer sufficient to enable the required level of care to be provided.

  • Adequate Maintenance and Accommodation And Care of the Applicant in The UK:

The applicant must provide evidence that they can be adequately maintained, accommodated and cared for in the UK by the sponsor without recourse to public funds.

If the applicant’s sponsor is a British Citizen or settled in the UK, the applicant must provide an undertaking signed by the sponsor confirming that the applicant will have no recourse to public funds, and that the sponsor will be responsible for their maintenance, accommodation and care, for a period of 5 years from the date the applicant enters the UK if they are granted indefinite leave to enter.

The accommodation must be owned, or occupied exclusively, by the sponsor. The addition of the applicant to the accommodation must not contravene the UK statutory regulations on overcrowding or on public health.

Maintenance may be provided by the sponsor, or by any combination of the funds available to the sponsor and the applicant.

The Immigration Directorate Instructions also state that   in all cases the applicant must provide evidence from the sponsor that the sponsor can provide the maintenance, accommodation and care required, in the form of any or all of the following:

(a) Original bank statements covering the last six months;

(b) Other evidence of income – such as pay slips, income from savings, shares, bonds – covering the last six months;

(c) Relevant information on outgoings, e.g. Council Tax, utilities, etc, and on support for anyone else who is dependent on the sponsor;

(d) A copy of a mortgage or tenancy agreement showing ownership or occupancy of a property; and

(e) Planned care arrangements for the applicant in the UK (which can involve other family members in the UK) and the cost of these (which must be met by the sponsor, without undertakings of third party support).

  • Outcome of Application:

If the applicant meets the requirements for entry clearance as an adult dependent relative of a British Citizen or person settled in the UK they will be granted indefinite leave to enter.

If the applicant meets the requirements for entry clearance as an adult dependent relative and the sponsor has limited leave the applicant will be granted limited leave of a duration which will expire at the same time as the sponsor’s limited leave, and subject to a condition of no recourse to public funds. If the sponsor applies for further limited leave, the applicant may apply for further limited leave of the same duration, if the relevant requirements continue to be met, and subject to no recourse to public funds.

If the applicant does not meet the requirements for entry clearance as an adult dependent relative the application will be refused.

THE PROBLEM WITH THE NEW RULES

As stated above,  the new rues are  clearly  onerous.

It is not possible to apply to switch into this category. Applications  must be made whilst  outside the United Kingdom.

Where the need for personal care does not arise out of the 3 stated conditions, then an  application which  places reliance upon other external issues will not succeed.

Promises of third party support will not be accepted as these are considered vulnerable to a change in another person’s circumstances or in the sponsor’s or the applicant’s relationship with them.

Where an application/appeal for  settlement  as an adult dependant relative is unsuccessful, then  this in effect may  act  as a bar to the future success of a visitor visa application.

Where despite reasonable efforts,   the medical evidence   provided at appeal is discounted as  “defective/inadequate/mere opinion/unhelpful”,  then  the further  application fee costs of a second fresh entry  clearance  application following  rectification  of  that  medical  evidence(  also at a cost)  may prove prohibitive.

If there is to be a second fresh  application for entry clearance following an unsuccessful appeal, unless there is  has been  a significant change since any last appeal decision,  combined with fresh, supportive, relevant  and   appropriate   medical or other evidence, the  findings  of the previous Tribunal will  impact upon any next appeal.

Even where it can be established that there are no other relatives for the applicant to turn to in the country of origin, a mere  hint  from the facts of the case of the existence of a  family friend, or a  well meaning neighbour in that country can be relied upon to  refuse or dismiss an appeal  on the basis that  the applicant can look  towards them  for care as opposed to  looking towards settlement in  the UK with the Sponsor.

Aunts, cousins, uncles, nephews   and  nieces are excluded    from applying  relying upon the new rules.

SUBMITTING AN APPLICATION UNDER THE RULES THAT MAY BE ABLE TO WITHSTAND A REFUSAL  DECISION OR  AN APPEAL

Hope may be placed upon  the application/appeal succeeding outside the Immigration Rules, however that may  be too  much to hope for and as such  it is essential that  Sponsors take some reasonable  time  to prepare  towards an application  having regard  in particular to the  submission of  medical evidence that is  indeed “expert”,  independent ,  impartial and reliable as this may increase  the chances of success in case  of an appeal.

An issue at appeal may  be what material was before the expert at the time of preparation of a report. It is  therefore  important that  a   medical  expert  is shown to have been  provided with  all  relevant documents applicable to the case  such any  other medical reports  in existence  and to have   been appraised of all relevant  circumstances so that the  medical  report  is not seen as just mere opinion as  opposed to expert medical evidence.

Although the entry clearance officer  is required to exercise  some discretion in relation to issues of evidential flexibility  as regards the documents when considering the application,  later attempts to seek to submit  “better” and  more relevant evidence at appeal  is highly  likely to result in the presenting officer at appeal seeking to resist admission of  that evidence vigorously.

It is also  worth considering undertaking the necessary prior concerted efforts to undertake investigations  provable  by way  of documentary  evidence  in relation to  approaching relevant central/local health authorities  in order to  seek to obtain evidence or information about the availability and suitability  of the required level of care in the applicant’s country.   Undertaking background   research  as regards the  availability  of care for the elderly in that country may  also assist including  investigations  as to whether   home help  or  residential/nursing  care is available and even  where it  is,  whether  there is some  reasonable degree of  protection in that country against  the risk of elderly abuse.

Witness statements in support of the application or appeal need to be as  comprehensive as possible.  It is either in that witness statement  or a separate document that the planned care arrangements  may be set out. For example clarifications would need to be made   as regard how the care would be provided to the applicant after  arrival  where the  Sponsor spends  time in employment. The Sponsor’s spouse/partner  may   be expected to assist with day to day care of the  relative in his/her absence.  As regard provision  of health care for  the applicant whilst in  the UK, obtaining  a quotation  as regards the private  health insurance  payable for submission  with  the application  may assist.

BY – PASSING THE  ADULT DEPENDANT RULES AND PURSUING OTHER AVENUES

The long term plan for Sponsors with parents and grandparents   is   to enable   settlement in  the UK and such although a visit visa application  may seem an immediate solution to continuing family life,  the better route for consideration may be  the Surinder  Singh Route having regard to EC law. Only British citizen sponsors however can take advantage  of  that avenue.

More detailed clarifications in relation to  the  Surinder  Singh route can be found   here;

https://ukimmigrationjusticewatch.wordpress.com/2015/10/22/appendix-fm-and-surinder-singh-manufacturing-eea-rights-and-evading-the-financial-minimum-income-threshold-requirement/

Surinder Singh and parents/grandparents as direct family members:

The relevant question is whether parents or grandparents can be viewed as  family members.

The EEA Regulations 2006  provide:

 “Family member 7.

(1) Subject to paragraph (2), for the purposes of these Regulations the following persons shall be treated as the family members of another person—

(a)his spouse or his civil partner;

(b)direct descendants of his, his spouse or his civil partner who are—

(i)under 21; or

(ii)dependants of his, his spouse or his civil partner;

(c)dependent direct relatives in his ascending line or that of his spouse or his civil partner;

(d)a person who is to be treated as the family member of that other person under paragraph (3

(2) A person shall not be treated under paragraph (1)(b) or (c) as the family member of a student residing in the United Kingdom after the period of three months beginning on the date on which the student is admitted to the United Kingdom unless—

(a)in the case of paragraph (b), the person is the dependent child of the student or of his spouse or civil partner; or

(b)the student also falls within one of the other categories of qualified persons mentioned in regulation 6(1).

(3) Subject to paragraph (4), a person who is an extended family member and has been issued with an EEA family permit, a registration certificate or a residence card shall be treated as the family member of the relevant EEA national for as long as he continues to satisfy the conditions in regulation 8(2), (3), (4) or (5) in relation to that EEA national and the permit, certificate or card has not ceased to be valid or been revoked.

(4) Where the relevant EEA national is a student, the extended family member shall only be treated as the family member of that national under paragraph (3) if either the EEA family permit was issued under regulation 12(2), the registration certificate was issued under regulation 16(5) or the residence card was issued under regulation 17(4).”

The   EEA Regulations also  provide in Regulation 9:

Family members of British citizens .

 (1) If the conditions in paragraph (2) are satisfied, these Regulations apply to a person who is the family member of a British citizen as if the British citizen (“P”) were an EEA national.

 (2) The conditions are that—

(a) P is residing in an EEA State as a worker or self-employed person or was so residing before returning to the United Kingdom;

(b) if the family member of P is P’s spouse or civil partner, the parties are living together in the EEA State or had entered into the marriage or civil partnership and were living together in the EEA State before the British citizen returned to the United Kingdom; and

(c) the centre of P’s life has transferred to the EEA State where P resided as a worker or self-employed person.

(3) Factors relevant to whether the centre of P’s life has transferred to another EEA State include— (a) the period of residence in the EEA State as a worker or self-employed person; (b) the location of P’s principal residence; (c) the degree of integration of P in the EEA State.

(4) Where these Regulations apply to the family member of P, P is to be treated as holding a valid passport issued by an EEA State for the purpose of the application of regulation 13 to that family member”.

Having   regard to the above,  a financially dependent parent/grandparent  of a British citizen may rely upon Surinder Singh and apply for a family permit  so long  as  the British citizen was engaged in genuine and effective economic activity  in  another EEA state before returning to the UK.     Having regard to Regulation 9 , it appears that it is only  the spouse/civil partner who is required to have lived  together  with the British Sponsor in the EEA State or had entered into the marriage or civil partnership and were living together in the EEA State before the British citizen returned to the United Kingdom.

Surinder Singh and extended family members: Who is an extended  family member?

Relatives such as aunts, uncles, adult siblings are  extended family members. Physically and mentally fit adult siblings will not succeed under the  dependent  adult relative rules,  however along with other   relatives can they  seek to rely upon the Surinder  Singh route?

Regulation 8 of the EEA Regulations states:

“Extended family member” 8.

(1) In these Regulations “extended family member” means a person who is not a family member of an EEA national under regulation 7(1)(a), (b) or (c) and who satisfies the conditions in paragraph (2), (3), (4) or (5).

(2) A person satisfies the condition in this paragraph if the person is a relative of an EEA national, his spouse or his civil partner and—

 (a)the person is residing in a country other than the United Kingdom and is dependent upon the EEA national or is a member of his household;

(b)the person satisfied the condition in paragraph (a) and is accompanying the EEA national to the United Kingdom or wishes to join him there; or

(c)the person satisfied the condition in paragraph (a), has joined the EEA national in the United Kingdom and continues to be dependent upon him or to be a member of his household.

(3) A person satisfies the condition in this paragraph if the person is a relative of an EEA national or his spouse or his civil partner and, on serious health grounds, strictly requires the personal care of the EEA national his spouse or his civil partner.

(4) A person satisfies the condition in this paragraph if the person is a relative of an EEA national and would meet the requirements in the immigration rules (other than those relating to entry clearance) for indefinite leave to enter or remain in the United Kingdom as a dependent relative of the EEA national were the EEA national a person present and settled in the United Kingdom

(5) A person satisfies the condition in this paragraph if the person is the partner of an EEA national (other than a civil partner) and can prove to the decision maker that he is in a durable relationship with the EEA national.

(6) In these Regulations “relevant EEA national” means, in relation to an extended family member, the EEA national who is or whose spouse or civil partner is the relative of the extended family member for the purpose of paragraph (2), (3) or (4) or the EEA national who is the partner of the extended family member for the purpose of paragraph (5)”.

The relevant Home Office Guidance is “Extended family members of European Economic Area (EEA) nationals – v2.0 Valid from 7 April 2015”.

There is no limit on the distance of the relationship between the EEA national or their spouse or civil partner and the extended family member as long as they can provide valid proof of the relationship between them.

A non exhaustive definition  within the Guidance  of “relative “ includes brother sisters , aunts, uncles,  nephews, nieces and cousins. The applicant must provide evidence of their relationship to the EEA national sponsor to prove they are either related to the EEA national sponsor, or in a durable relationship with them. Documents such as birth certificates must be  provided  to show the connection between each relative.

Extended family members do not have automatic rights to enter and reside in the UK. Under Regulation 7(3) of the 2006 EEA regulations, an extended family member has the same rights as a direct family member, providing they continue to satisfy the conditions of Regulation 8 and they have been issued with an EEA family permit or a residence ca

Regulation 8(2):

In order to satisfy Regulation 8(2), financial evidence of dependency  is required to be submitted such as bank statements, or money transfers between the EEA national and extended family member whislt the extended family members was outside the UK.  The extended family member must demonstrate they were dependent on the EEA national in a country other than the UK, or  a member of the EEA national’s household in a country other than the UK.  On 8 November 2012 the EEA regulations were amended following a ruling in the case of Rahman from the Court of Justice of the European Union (ECJ). The ruling made it clear that   the entry clearance officer can  consider the extended family member to be dependent even though they may not have lived in the same country as the EEA national. For example, the EEA national has provided financial support to the extended family member while they lived in another country. The financial support they received shows dependency.

If the applicant is claiming a right of residence on the basis that they were a member of the EEA national’s household, then they must have been living with the EEA national in that household in the same country.

The applicant does not need to be dependent on the EEA national to meet all or most of their essential needs.

Regulation 8(2)(c) of the regulations states a person only continues to satisfy the requirements of Regulation 8 if they remain dependent upon the EEA national or a member of their household.

Evidence of dependency may include (but is not limited to):

Financial dependency that existed before the applicant came to the UK and financial dependency continues now the applicant lives in the UK. Evidence of this can include:

  • bank statements, or
  • money transfers.

Being a member of the relevant EEA national’s household before they came to the UK. Evidence of this can include:

  • joint tenancy agreements, or
  • a letter from the local council.

Being a member of the relevant EEA national’s household in the UK. Evidence of this can include:

  • joint bank or building society statements
  • joint tenancy agreement, or
  • official correspondence addressed to them at the household
  •  Regulation 8(3):As regards Regulation 8(3), a detailed medical report from a GP, specialist or consultant, showing their medicinal condition and the type   of care they require. A letter or statement from the EEA national who provides their care is required to explain in detail the level of care they give. The evidence provided must demonstrate that the level of care needed is possible.

The Asylum and Immigration Tribunal (AIT) in the case of TR (reg 8 (3) EEA Regs 2006) [2008] UKAIT 00004 found that for a relative to satisfy regulation 8(3) they must meet the following conditions:

  • the ‘serious health grounds’ need to be significantly beyond ordinary ill health:
  • the applicant must provide detailed medical evidence to prove this
  •  ‘personal care’ must be provided on a day to day basis and relate to the physical and/or mental tasks and needs the applicant requires to function, and
  • ‘strictly’ must be restrictively interpreted to emphasise the need for the personal care to be provided on a day to day basis.

Regulation 8(4):

As regards Regulation 8( 4), the applicant does not need to have valid entry clearance to enter the UK to satisfy this condition. Detailed  reference is required to be made to Guidance Appendix FM Section FM 6.0 Adult dependent relatives, ie the  guidance that  has effect from 13 December 2012.

Regulation 8(5):

In relation to Regulation 8(5), the  stated requirement   is that the relationship is durable and evidence covering  2years is expected by the Home office however depending on the  facts of the case less than 2years  of evidence can be submitted for example where there is joint responsibility  for a child to that relationship.

Evidence to be submitted can include joint bank or building society statements; joint tenancy agreements; council tax bills or utility bills in joint names.

Issue of a Residence Card to an Extended Family member:

Regulation 17(4) of the EEA Regulation provides:

“Issue of residence card

……………

(4) The Secretary of State may issue a residence card to an extended family member not falling within regulation 7(3) who is not an EEA national on application if—

(a)the relevant EEA national in relation to the extended family member is a qualified person or an EEA national with a permanent right of residence under regulation 15; and

 (b)in all the circumstances it appears to the Secretary of State appropriate to issue the residence card.

 (5) Where the Secretary of State receives an application under paragraph (4) he shall undertake an extensive examination of the personal circumstances of the applicant and if he refuses the application shall give reasons justifying the refusal unless this is contrary to the interests of national security”.

Regulation 17(4) makes   the issuing   of a  residence card to an extended family member  a matter  of discretion.

When making a decision, regard must be had to the effect the decision has on the EEA national exercising their free movement right. Consideration needs to be given to  whether the EEA national will be prevented from exercising their free movement rights if  the extended family member’s  application is refused , and the facts and circumstances of the relationship and dependency for each case.  In a case where the applicant meets the definition of durable partners, it is likely that to refuse a residence card would prevent the relevant EEA national’s free movement rights. This is because the parties are considered to be in a long-standing and enduring relationship akin to marriage however  consideration must be given to circumstances of each case.

Extended family members do not benefit from the higher protection of public policy, public security or public health until they have been issued a document under the Regulations.

So Can Extended family fall within the scope of Surinder Singh?

The problem is that extended family members do not fall within the definition  of  family members having regards to Regulation 9 of  EEA Regulations.

In the  unreported case of Kamila Santos Campelo Cain v Secretary of State for the Home Department IA/40868/2013), the Upper Tribunal, in a decision dated 13 October 2014,    noted that at the heart  of that  appeal  lay the issue of  whether an unmarried partner is  entitled to the benefit of the decision in Surinder  Singh.    The Appellant, a Brazilian national,  was in a relationship with a British citizen. The parties had 3  young children together. The British partner had  exercised  treaty rights  in Spain between January 2010 and September 2011 and for four months in Portugal until January 2012.  The parties had lived together in  Spain and Portugal and had returned to the UK in January 2012.  On 6 June 2013,  the Appellant made  an application  for a residence card as the family member  of an EEA national.   Regulation  8(5) was relevant to the appeal.  The Upper Tribunal  stated at  paragraph  54 of  their decision  that they were  satisfied that  Regulation 9  is inconsistent  with the principle in Surinder  Singh in its application to the Appellant  as a durable partner, being an extended  family member.  As per paragraph  32 of  their decision, in their judgment, the Upper Tribunal considered that  the exercise  of the right of free movement  by an EEA  national is likely  to be adversely   affected by  the inability  of a durable partner to reside  with the EEA national  in the host state, as it would  be were his or her spouse to be denied  residence status. The Upper Tribunal stated at paragraph  39 of their decision  that they considered that the Surinder  Singh principle  does  extend  to a  person such as the appellant  who is in a durable relationship and as per paragraph  41,  she was entitled  to the benefit of the principle   in Surinder  Singh.  The Upper Tribunal concluded that  the appropriate course of action was for the appeal to be allowed as not being in accordance with the  law  on the basis that it remained  for the Secretary of State  to exercise her discretion in relation to where or not to  issue the Appellant  with a residence card as an extended family member.

There perhaps remains scope to  run an argument  via   appropriate  cases  in relation to  extended family members and  giving  consideration  to  having the British citizen,   whilst in the EEA state,  to seek to submit an application  for a family permit for the dependent relative   to join him  and reside there by reliance upon Articles  3(2), and 10   of parent  Directive.

“Article 3

Beneficiaries

1.This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of Article 2 who accompany or join them.

2.Without prejudice to any right to free movement and residence the persons concerned may have in their own right, the host Member State shall, in accordance with its national legislation, facilitate entry and residence for the following persons:

(a) any other family members, irrespective of their nationality, not falling under the definition in point 2 of Article 2 who, in the country from which they have come, are dependants or members of the household of the Union citizen having the primary right of residence, or where serious health grounds strictly require the personal care of the family member by the Union citizen;

(b) the partner with whom the Union citizen has a durable relationship, duly attested.

The host Member State shall undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people.

 Article 10

Issue of residence cards

  1. The right of residence of family members of a Union citizen who are not nationals of a Member State shall be evidenced by the issuing of a document called “Residence card of a family member of a Union citizen” no later than six months from the date on which they submit the application. A certificate of application for the residence card shall be issued immediately.
  2. For the residence card to be issued, Member States shall require presentation of the following documents:

(a) a valid passport;

(b) a document attesting to the existence of a family relationship or of a registered partnership;

(c) the registration certificate or, in the absence of a registration system, any other proof of

residence in the host Member State of the Union citizen whom they are accompanying or

joining;

(d) in cases falling under points (c) and (d) of Article 2(2), documentary evidence that the

conditions laid down therein are met;

(e) in cases falling under Article 3(2)(a), a document issued by the relevant authority in the

country of origin or country from which they are arriving certifying that they are dependants

or members of the household of the Union citizen, or proof of the existence of serious health

grounds which strictly require the personal care of the family member by the Union citizen;

(f) in cases falling under Article 3(2)(b), proof of the existence of a durable relationship with the Union citizen”.

Where the  EEA family permit is obtained for the  dependent  relative, and following their arrival in that EEA  state, further  consideration can  be given to applying for a residence card  and  then for the  dependent  relative to seek to  enter the UK with the residence card  relying upon the case of McCarthy Case C‑202/13.   The ECJ  held in  that case , pursuant to Article 5 of Directive 2004/38, a person who is a family member of a Union citizen and who holds a valid residence card issued under Article 10 of Directive 2004/38 by the authorities of another Member is not subject to the requirement to obtain a visa or an equivalent requirement in order to be able to enter the territory of that Union citizen’s Member State of origin.

CONCLUSION

Sponsors of adult dependant relatives are therefore not  left  without alternatives and as such  either submission of a well prepared application/appeal  under the current  rules  or reliance upon  EC law,  may well enable   success despite the  Government’s efforts to frustrate  genuine  efforts to bring loved ones to the UK.

Appendix FM and Surinder Singh: Manufacturing EEA Rights and Evading the Financial Minimum Income Threshold Requirement?

The pressing issue  for some time in the media  has been as regards  the  European refugee crisis.  Whilst the crisis  was  on going,  Theresa May, on 6 October 2015  managed to find time to  squeeze in   proposed  changes  as regards the “new British approach”  in relation to dealing with  asylum  claimants and  refugees- changes  which appear  intent,  arguably, upon eroding   established   rights in relation  to this  group.   Less than a month prior to Mrs May’s  October speech, on 17 September 2015 a  new Immigration  Bill  was published  which is  expected to come into effect in 2016 and along with it   brings yet further  unwelcome changes.  Yet again on  20 October 2015,  the Government  announced   that from 1 February 2016, all private landlords in England will have to check that new tenants have the right to be in the UK before renting out their property.  On 13 October 2015, the UK  Government  had fresh  success in relation to the issue of deportation of foreign national criminals    in Kiarie, R (On the Application Of) v Secretary of State for the Home Department [2015] EWCA Civ 1020, with the Court of Appeal  in effect   upholding the  Government’s  “Deport first, Appeal later “   policy following their guidance and interpretation of section 94B of the Nationality, Immigration and Asylum Act 2002, as inserted by the Immigration Act 2014.  Whether that challenge proceeds to  the Supreme Court, having regard to  length of time  it has taken for MM v Secretary of State for the Home Department [2014] EWCA Civ 985( challenge to the financial minimum income threshold),  to be heard in the Supreme Court,  it maybe that the  “Deport first, Appeal later” policy  will in the meantime  time have already been  extended to  non – deportation appeal cases.

Despite all these changes, it is  difficult to ignore  the fact that  the currently existing  negatively  impacting  changes in relation to family migration  as regards the introduction  of the  financial minimum income threshold,  brought into effect   on 9 July 2012,  is still  undesirably  affecting would be applicants and their children including   those already refused leave to enter or remain   for failure to meet the necessary requirements.

Having regard to the current circumstances, the question is whether there is  an alternative  option that in effect permits   the   evasion   of  the financial  minimum  income threshold so as to enable British Sponsors to  bring   their partners/spouses   to the UK via the  Surinder Singh route?

WHAT ARE THE CURRENT NATIONAL PROVISION   REQUIREMENTS?

From 9 July 2012,  the UK Government  has required  via Appendix FM of  the Immigration Rules,   that a financial requirement  of £18,600 be met by  applicants applying for entry clearance,  leave to remain  or indefinite leave to remain in the UK as the non-EEA national partner of a person who is a British Citizen; or present and settled in the UK; or in the UK with refugee leave or humanitarian protection.

Appendix FM provides:

Definitions

GEN.1.2. For the purposes of this Appendix “partner” means-

  • (i) the applicant’s spouse;
  • (ii) the applicant’s civil partner;
  • (iii) the applicant’s fiancé(e) or proposed civil partner; or
  • (iv) a person who has been living together with the applicant in a relationship akin to a marriage or civil partnership for at least two years prior to the date of application, unless a different meaning of partner applies elsewhere in this Appendix”

Therefore where an applicant is not exempt,  there is financial  minimum income threshold that must be met. The minimum income threshold for a partner applying under Appendix FM from 9 July 2012 without dependent children, is £18,600.  An additional gross annual income of £3,800 is required for the first child sponsored in addition to the partner and an additional £2,400 for each further child.

The financial requirement does not apply to a child who is  a British Citizen (including an adopted child who acquires British citizenship); is an EEA national (except where a non-EEA spouse or partner is being accompanied or joined by the EEA child of a former relationship who does not have a right to be admitted to the UK under the Immigration (EEA) Regulations 2006); is  settled in the UK or who qualifies for indefinite leave to enter; or qualifies otherwise under Part 8 or Appendix Armed Forces of the Immigration Rules in a category to which the financial requirement does not apply.

Where the applicant has to meet the minimum income threshold, the financial requirement can be met in the following 5 ways:

  • Income from salaried or non-salaried employment of the partner (and/or the applicant if they are in the UK with permission to work).
  • Non-employment income, e.g. income from property rental or dividends from shares.
  • Cash savings of the applicant’s partner and/or the applicant, above £16,000, held by the partner and/or the applicant for at least 6 months and under their control.
  • State (UK or foreign) or private pension of the applicant’s partner and/or the applicant.
  • Income from self-employment, and income as a director of a specified limited company in the UK, of the partner (and/or the applicant if they are in the UK with permission to work).

If the applicant’s partner is in receipt of any of the following benefits or allowances in the UK, the applicant will be able to meet the financial requirement at that application stage by providing evidence of “adequate maintenance” rather than meeting an income threshold:

  • Carer’s Allowance.
  • Disability Living Allowance.
  • Severe Disablement Allowance.
  • Industrial Injuries Disablement Benefit.
  • Attendance Allowance.
  • Personal Independence Payment.
  • Armed Forces Independence Payment or Guaranteed Income Payment under the Armed Forces Compensation Scheme.
  • Constant Attendance Allowance, Mobility Supplement or War Disablement Pension under the War Pensions Scheme.

SOME DISADVANTAGES TO APPLICANTS WITH THE CURRENT SYSTEM IN PRACTICE

The income threshold can be considered  by some to be too high   and  some applicants cannot  or will never be able to meet the requirement.

Decision-makers cannot exercise any discretion or flexibility with regard to the level of the financial requirement that must be met.

Promises of support from a third party cannot be counted towards the financial requirement.

Although the ways for meeting the  financial  requirement  are varied, the rules as  regards  which  sources can and cannot be combined with each other  may be   quite complex  for some legally unassisted applicants.

Not only must regard be had to the requirements in Appendix FM itself but also Appendix FM-SE which sets out the evidential  requirements.  In addition,  various Home office Guidance policies also  need to be considered  including  Guidance, Appendix FM: Financial Requirement.

Cash savings can be combined with certain income,  however once again the calculations may be complex to some. In an entry clearance or  leave to remain application where there is no  income from other sources that can be combined  with cash savings, the total  savings that must be held are £62.500.

CHALLENGES TO THE  MINIMUM INCOME  THRESHOLD

There has been litigation challenging the lawfulness of the financial requirement ongoing since 2013;

  • In July 2013 the High Court did not strike down the rules as unlawful in general, but found that the way they are applied would amount to a disproportionate interference with family life in certain types of case- (MM & Ors v Secretary of State for the Home Department [2013] EWHC 1900 (Admin).
  • In July 2014 the Court of Appeal allowed the Government’s appeal against the High Court’s decision-( The Court of Appeal in MM v Secretary of State for the Home Department [2014] EWCA Civ 985)
  • In May 2015, the Supreme Court granted permission to appeal against the Court of Appeal’s decision. The hearing is expected to take place in early 2016.

WHAT IS THE SURINDER SINGH ROUTE?

As a starting point,  family members of British citizens do not qualify for an EEA family permit. The case of Surinder Singh, however  provides that nationals of a Member State who are exercising an economic Treaty right in another Member State will, on return to their home state, be entitled to bring their non-EEA family members to join them under EC law:

Surinder Singh Case C-370/90

“9 On application by the Secretary of State for the Home Department for judicial review of that determination, the High Court of Justice (Queen’ s Bench Division) referred the following question to the Court for a preliminary ruling :

“Where a married woman who is a national of a Member State has exercised Treaty rights in another Member State by working there and enters and remains in the Member State of which she is a national for the purposes of running a business with her husband, do Article 52 of the Treaty of Rome and Council Directive 73/148 of 21 May 1973 entitle her spouse (who is not a Community national) to enter and remain in that Member State with his wife?”

12 It should also be observed that it is not alleged that Mr and Mrs Singh’ s marriage was a sham. Moreover, although the marriage was dissolved by the decree absolute of divorce delivered in 1989, that is not relevant to the question referred for a preliminary ruling, which concerns the basis of the right of residence of the person concerned during the period before the date of that decree.

23 However, this case is concerned not with a right under national law but with the rights of movement and establishment granted to a Community national by Articles 48 and 52 of the Treaty. These rights cannot be fully effective if such a person may be deterred from exercising them by obstacles raised in his or her country of origin to the entry and residence of his or her spouse. Accordingly, when a Community national who has availed himself or herself of those rights returns to his or her country of origin, his or her spouse must enjoy at least the same rights of entry and residence as would be granted to him or her under Community law if his or her spouse chose to enter and reside in another Member State. Nevertheless, Articles 48 and 52 of the Treaty do not prevent Member States from applying to foreign spouses of their own nationals rules on entry and residence more favourable than those provided for by Community law.

24 As regards the risk of fraud referred to by the United Kingdom, it is sufficient to note that, as the Court has consistently held (see in particular the judgments in Case 115/78 Knoors v Secretary of State for Economic Affairs [1979] ECR 399, paragraph 25, and Case C-61/89 Bouchoucha [1990] ECR I-3551, paragraph 14), the facilities created by the Treaty cannot have the effect of allowing the persons who benefit from them to evade the application of national legislation and of prohibiting Member States from taking the measures necessary to prevent such abuse.

25 The answer to the question referred for a preliminary ruling must therefore be that Article 52 of the Treaty and Directive 73/148, properly construed, require a Member State to grant leave to enter and reside in its territory to the spouse, of whatever nationality, of a national of that State who has gone, with that spouse, to another Member State in order to work there as an employed person as envisaged by Article 48 of the Treaty and returns to establish himself or herself as envisaged by Article 52 of the Treaty in the territory of the State of which he or she is a national. The spouse must enjoy at least the same rights as would be granted to him or her under Community law if his or her spouse entered and resided in the territory of another Member State”.

The Surinder Singh judgment was implemented into the 2006 EEA Regulations by way of Regulation 9.

The Immigration (European Economic Area) (Amendment) (No.2) Regulations 2013 were amended on 01 January 2014 to include a new threshold test to tighten the circumstances in which family members of British Citizens can rely on Surinder Singh.

The new requirement at regulation 9(2)(c) and 9(3) requires the British citizen to have transferred the centre of their life to another EEA member state, where they resided as a worker or self-employed person with their spouse or civil partner before returning to the UK. Regulation 9 provides:

Family members of British citizens 9.

(1) If the conditions in paragraph (2) are satisfied, these Regulations apply to a person who is the family member of a British citizen as if the British citizen (“P”) were an EEA national.

2) The conditions are that—

(a) P is residing in an EEA State as a worker or self-employed person or was so residing before returning to the United Kingdom;

(b) if the family member of P is P’s spouse or civil partner, the parties are living together in the EEA State or had entered into the marriage or civil partnership and were living together in the EEA State before the British citizen returned to the United Kingdom; and

(c) the centre of P’s life has transferred to the EEA State where P resided as a worker or self-employed person.

3) Factors relevant to whether the centre of P’s life has transferred to another EEA State include—

(a) the period of residence in the EEA State as a worker or self-employed person;

(b) the location of P’s principal residence;

(c) the degree of integration of P in the EEA State.

(4) Where these Regulations apply to the family member of P, P is to be treated as holding a valid passport issued by an EEA State for the purpose of the application of regulation 13 to that family member”.

 The Home office have  an accompanying  Notice  from  the European Operational Policy Team,  Regulation 9 (Surinder Singh Cases), 01 January 2014.  This notice is stated to  provide  guidance to case workers on how to consider applications from the non-EEA national spouse or civil partner of a British citizen who has exercised Treaty rights in another EEA member state. The Notice also  provides:

“Consideration

  1. Regulation 9(2)(c) requires a British citizen to demonstrate that they have transferred the centre of their life to another EEA member state where they were residing as a worker or self employed person.
  2. Regulation 9(3) specifies the factors to be considered when deciding whether a British citizen has transferred the centre of their life to another member state. These include, but are not limited to:
  3. the period of residence in another EEA member state as a worker or self-employed person;
  4. the location of the British citizen’s principal residence; and
  5. the degree of integration of the British citizen in the host member state.

The criteria are indicative and it is not necessary to meet all three.

Period of residence in another EEA member state

  1. In general, the longer the British citizen has resided in another EEA member state as a worker or self-employed person, the more likely it is that they have transferred the centre of their life to that member state.
  2. For example, a British citizen who has lived and worked in another member state for a period of two years is more likely meet the requirement of regulation 9(2)(c) than a British citizen who was employed in another Member state for a period of four months.

Principal residence

  1. The principal residence is the place and country where the British citizen’s life is primarily based.
  2. For example, a British citizen worked in France for three months, staying in a hotel during the week and returning to their main home in the UK at the weekends. In this case they are unlikely to meet the requirements of regulation 9(2)(c) as their principal residence would be considered to be the UK.

Degree of integration

  1. When considering the degree of integration in another EEA member state, relevant factors may include:
  2. Does the British citizen have any children born in the host member state? If so, are the children attending schools in the host member state?
  3. Does the British citizen have any other family members resident in the host member state?
  4. Has the British citizen immersed themselves into the life and culture of the host member state? For example, have they bought property there? Do they speak the language? Are they involved with the local community?
  5. For example, a British citizen is working in France, is fluent in French and has bought a house there. Their children were born in France and are educated in a French school where the British citizen sits on the school council. In this example it is likely that the British citizen has moved the centre of their life to France. Contrast with the example of a British citizen who will be working in France for three months, who resides in a hotel and returns to the UK every weekend. They don’t speak the language and educate their children in a school in the UK. In this second example they are less likely to have moved the centre of their life to the UK.
  6. It should be noted that the factors set out in regulation 9(3) are not determinative. The question as to whether the British citizen would be deterred from exercising their free movement rights were their spouse/civil partner refused, must be determined having regard to all relevant factors.

The more of these factors that are present on a case, the more likely the British citizen is to be considered as having transferred the centre of their life.

 Appeal rights

  1. Where any of the above factors are not satisfied, the application should be refused in line with regulation 9(2)(c).
  2. All such refusals would attract an in-country right of appeal subject to the restrictions in regulation 26”.

IS DELIBERATE EVASION  OF NATIONAL  PROVISIONS VIA THE SURINDER SINGH ROUTE PERMISSABLE?

Without specifically referring to the Surinder Singh  route, the 2006 Regulations were amended to provide:

 “Abuse of rights or fraud 21B.

(1) The abuse of a right to reside includes—

(a)engaging in conduct which appears to be intended to circumvent the requirement to be a qualified person;

(b)attempting to enter the United Kingdom within 12 months of being removed pursuant to regulation 19(3)(a), where the person attempting to do so is unable to provide evidence that, upon re-entry to the United Kingdom, the conditions for any right to reside, other than the initial right of residence under regulation 13, will be met;

(c)entering, attempting to enter or assisting another person to enter or attempt to enter, a marriage or civil partnership of convenience; or

(d)fraudulently obtaining or attempting to obtain, or assisting another to obtain or attempt to obtain, a right to reside.

(2) The Secretary of State may take an EEA decision on the grounds of abuse of rights where there are reasonable grounds to suspect the abuse of a right to reside and it is proportionate to do so.

(3) Where these Regulations provide that an EEA decision taken on the grounds of abuse in the preceding twelve months affects a person’s right to reside, the person who is the subject of that decision may apply to the Secretary of State to have the effect of that decision set aside on grounds that there has been a material change in the circumstances which justified that decision.

4) An application under paragraph (3) may only be made whilst the applicant is outside the United Kingdom.

(5) This regulation may not be invoked systematically.

(6) In this regulation, “a right to reside” means a right to reside under these Regulations”.

The accompanying Guidance mentioned below is to be read in conjunction with Regulation 21(b):

Abuse of rights, fraud and verification of EEA rights of residence This guidance applies and interprets the Immigration (European Economic Area) Regulations 2006 (as amended). These regulations make sure the UK complies with its duties under the Free Movement of Persons Directive 2004/38/EC, 27 January 2015:

“Abuse of rights and fraud

This section sets out the powers given by the Directive 2004/38/EC (the directive) and the Immigration (European Economic Area) Regulations 2006 (the regulations) for the Home Office to take action to tackle any abuse of rights or fraud by European Economic Area (EEA) nationals and their family members.

Free Movement Directive

Article 35 of the directive states EEA Member States can adopt the necessary measures to refuse, terminate or withdraw any right given by the Directive if there is a case of abuse of rights or fraud, such as marriages of convenience.

Fraud

For the purposes of the directive, fraud may be defined as deliberate deception or contrivance made to obtain the right of free movement and residence under the directive.

In the context of the directive, fraud is likely to be limited to forgery of documents or false representation of a material fact concerning the conditions attached to the right of residence.

Abuse of rights

For the purposes of the directive, abuse may be defined as an artificial conduct entered into solely with the purpose of obtaining the right of free movement and residence under community law which, even though formally observing the conditions laid down by community rules, does not comply with the purpose of those rules.

The EEA Regulations

Regulation 21(B) of the regulations came into effect on 1 January 2014. This allows the Secretary of State to make an ‘EEA decision’ where there are reasonable grounds to suspect the fraud or abuse and it is proportionate to do so given all the circumstances of the case”

…………

Marriages of convenience

This page tells you when it is appropriate to make a decision under regulation 21B(1)(c) of the Immigration (European Economic Area) Regulations 2006 (the regulations) when considering cases involving marriages of convenience.

Recital 28 of directive 2004/38/EC (the directive) defines marriages of convenience as marriages contracted for the sole purpose of enjoying the right of free movement and residence under the directive that someone would not otherwise have.

The key factor is the couple not having the intention to lead a genuine marital life or create a family as a married couple.

More information on assessing whether a marriage is genuine can be found in the related link: Direct family members.

The regulations already contain terms for a non- European Economic Area (EEA) national who has entered into a marriage of convenience with an EEA national to:

 have an application for documentation refused

 have any existing documentation revoked, and

 be administratively removed from the UK

Regulation 21B(1)(c) extends this power so an EEA decision can be made if there are reasonable grounds to suspect a person has either:

 entered

 attempted to enter, or

 assisted another person to enter or attempt to enter, a marriage of convenience

This applies equally to EEA nationals who, for example, would not otherwise be removable because they are in the UK in a qualified capacity or have permanent residence. In these instances any removal action would be taken under regulation 19(3)(c).

There must be reasonable grounds to suspect the fraud and abuse and the decision must be proportionate. For further information on what is reasonable and proportionate, see related links.

Entering a marriage of convenience

Non-EEA nationals who have entered into a marriage of convenience must be treated as a normal immigration offender under the Immigration Rules unless the person has already been issued a document under the regulations as the spouse of an EEA national.

If a document has been issued, the non-EEA national must be considered under the regulations. Removal action can be taken under regulation 19(3)(a) and/or 19(3)(c).

Attempting to enter to a marriage of convenience

Non-EEA nationals who try to enter into a marriage of convenience with an EEA national can be treated as normal immigration offenders under the Immigration Rules, as they have not yet validly contracted the marriage.

Assisting another person to enter a marriage of convenience

If there are reasonable grounds to suspect a person has assisted another person to enter into a marriage of convenience, then regulation 21B(c) gives you power to make an EEA decision against that person.

EEA nationals who have entered, tried to enter or helped another person to enter a marriage of convenience can also be removed from the UK under regulation 19(3)(c).

……

Reasonable grounds of suspicion

This page tells you how to assess if there are reasonable grounds to suspect a person has been engaged in fraud and abuse in line with regulation 21B of the Immigration (European Economic Area) Regulations 2006 (the regulations).

…….

 Marriages of convenience

Whether there are reasonable grounds to suspect a person has entered, attempted to enter or assisted another person to enter a marriage of convenience will depend on the individual facts of the case.

For example, the following indicators may be present where a person is attempting to enter into a marriage with an EEA national that is not genuine:

 significant cultural difference

 significant age difference

 the parties cannot speak the same language

 the parties have poor immigration histories, including a history of deception and previous fraudulent attempts to gain leave to remain (this can include asylum claims)

 there is no evidence of previous cohabitation

 there is evidence to suggest one party is already married.

 Where the marriage has already taken place, in addition to the above points, there may be additional indicators. For example:

a section 24 report has been received

the applicant is the potential beneficiary of known operational activity or has intel unit interest

 there is evidence to show the marriage took place by proxy

the non-EEA national has submitted a London issued passport

one of the parties had a child shortly before the marriage and the other party is not the parecentral reference system (CRS) checks show the applicant had a different spouse at the time a visa was issued but they were declared ‘single’ on the marriage certificate bank statements show large unexplained payments into the EEA national sponsor’s bank account near to the date of the marriage, this does not include payment of a dowry in cases of nationals of countries where dowries are common

the applicant has been previously married to someone else and has not produced evidence to demonstrate that marriage has been dissolved

the marriage is bigamous

 there are clear and substantial reasons to doubt the validity of the documentary evidence produced in support of the application, this includes ‘photo-shopped’ photographs

the applicant was married at a church or venue that has been targeted by the Home Office, details of which can be found on the European caseworker database

In cases where you have reasonable grounds to suspect the marriage is not genuine, it may be necessary to conduct an interview to verify the applicant’s claim. For further guidance on marriage interviews, see related link: Direct family members.

In cases where one person has assisted another person to enter a marriage of convenience, information related to these cases will come from intel sources and can include, for example, allegations or information from external sources such as the police”.

Having regard to Surinder Singh as set out above, it appears that   what is more relevant in these types of applications as regards the issue or appearance of seeming  to “by pass” national provisions is concerned, is whether the marriage can be viewed as a sham ie a marriage of convenience.   Where it cannot be so viewed, then arguably, regardless of the parties’ intentions or motives the entry clearance officer or home office should not seek to refuse a Surinder Singh application on this basis.

The ECJ has however already addressed the question more relevantly and directly in :

Akrich Case 109/01:

“45 In light of those considerations the Immigration Appeal Tribunal decided to stay the proceedings and to refer to the Court the following questions for a preliminary ruling: Where a national of a Member State is married to a third-country national who does not qualify under national legislation to enter or reside in that Member State, and moves to another Member State with the non-national spouse, intending to exercise Community law rights by working there for only a limited period of time in order thereafter to claim the benefit of Community law rights when returning to the Member State of nationality together with the non-national spouse:

(1)is the Member State of nationality entitled to regard the intention of the couple, when moving to the other Member State, to claim the benefit of Community law rights when returning to the Member State of nationality, notwithstanding the non-national spouse’s lack of qualification under national legislation, as a reliance on Community law in order to evade the application of national legislation; and

(2)if so, is the Member State of nationality entitled to refuse:

(a)to revoke any preliminary obstacle to the entry of the non-national spouse into that Member State (on the facts of this case an outstanding deportation order); and

(b)to accord the non-national spouse a right of entry into its territory?

The questions referred

59.In light of all the foregoing considerations, the reply to the questions raised should be that:

– In order to be able to benefit in a situation such as that at issue in the main proceedings from the rights provided for in Article 10 of Regulation No 1612/68, a national of a non-Member State married to a citizen of the Union must be lawfully resident in a Member State when he moves to another Member State to which the citizen of the Union is migrating or has migrated.

Article 10 of Regulation No 1612/68 is not applicable where the national of a Member State and the national of a non-Member State have entered into a marriage of convenience in order to circumvent the provisions relating to entry and residence of nationals of non-Member States.

– Where the marriage between a national of a Member State and a national of a non-Member State is genuine, the fact that the spouses installed themselves in another Member State in order, on their return to the Member State of which the former is a national, to obtain the benefit of rights conferred by Community law is not relevant to an assessment of their legal situation by the competent authorities of the latter State.

– Where a national of a Member State married to a national of a non-Member State with whom she is living in another Member State returns to the Member State of which she is a national in order to work there as an employed person and, at the time of her return, her spouse does not enjoy the rights provided for in Article 10 of Regulation No 1612/68 because he has not resided lawfully on the territory of a Member State, the competent authorities of the first-mentioned Member State, in assessing the application by the spouse to enter and remain in that Member State, must none the less have regard to the right to respect for family life under Article 8 of the Convention, provided that the marriage is genuine.

Although the Home Office seem to harbour deep suspicions of  there being  a prevalence  of  “sham marriage”   where EU rights of residence are concerned to the extent that  in practise even  a married couple  with a child  together can be  called to attend a marriage interview,  where the  Surinder Singh route  is  concerned, absent such a “sham marriage” or other fraud   and where the  requirements of Regulation 9 are met, the claim should succeed.

The added advantage is that the ECJ has clarified in Eind (C-291/05) that the British sponsor in a Surinder Singh case does not need to show they continue to be a worker or self-employed person upon their return to the UK.

In the cases of O and S, the ECJ was asked to further consider the circumstances under which a family member can rely on rights under the free movement directive on the basis of the ECJ judgment in Surinder Singh.

O (C-456/12) and S (C-457/12)

In summary the judgments in O and S stated that:

-Surinder Singh rights can arise if an EEA national has genuinely resided in another member state and has, during that residence, created or strengthened family life with their family member

-Surinder Singh rights cannot arise if the EEA national has only travelled to another member state for a short period, such as a weekend or holiday, even if multiple short periods were to be considered together

-in the case of EEA nationals who live in their own member state but work in another, or who regularly travel to another member state in the course of their work, the court confirmed that member states can refuse applications from family members of such workers, except where a refusal would discourage the EEA national from effectively exercising his right to work in another member state

– the court confirmed that the scope of EU law does not cover cases of abuse

CONSIDERATIONS AND CONCLUSION

Only British  nationals  can seek to  avail themselves of this   route to bring their  partners/spouses to the  UK.  Excluded unfortunately  therefore are  Sponsors settled in the UK  by way of indefinite  leave to remain, or with limited leave to remain as refugees or with humanitarian protected status.

Although Regulation 9 of the 2006 EEA Regulations only require that the British national shall have been residing in an EEA State as a worker or self-employed person, it   is evident having regard to Article 7     of the Parent Directive that all  Union citizens shall have the right of residence on the territory of another Member State for a period of longer than three months if they are workers or self-employed persons in the host Member State or have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State.

Partners/Spouses of EEA nationals can therefore apply   for EEA family permits, however the  case of McCarthy Case C‑202/13, held that, pursuant to Article 5 of Directive 2004/38, a person who is a family member of a Union citizen and who holds a valid residence card issued under Article 10 of Directive 2004/38 by the authorities of another Member is not subject to the requirement to obtain a visa or an equivalent requirement in order to be able to enter the territory of that Union citizen’s Member State of origin.

Having resort to  the Surinder Singh route  means that in addition  to  avoiding the disadvantages mentioned above, the other additional practical  benefits are:

  • Absence of the exorbitant entry clearance or leave to remain application fees required in an application under Appendix FM;
  • No need to make provision for the substantial Immigration NHS health Surcharge;
  • The relevant statutory provisions are much less complex

Therefore whilst the challenge to the minimum  income  threshold proceeds, currently British national sponsors  who  cannot meet the  financial minimum income threshold and are  wishing  to  sponsor their  foreign partners to come to the UK, are  at  full  liberty to take advantage  of   the Surinder Singh  route.

Kiarie, v The Secretary of State for the Home Department: Court of Appeal States that Substantial Weight Must Be Attached To The Public Interest In Deporting Non – EEA Foreign National Offenders Before Their Appeals Are Heard

The proceedings in the Court  of Appeal in Kiarie, R (On the Application Of) v The Secretary of State for the Home Department [2015] EWCA Civ 1020  related to  two Appellants  liable to deportation  by reason of  criminal  offending.   The appeals  concerned  the interpretation and application of section 94B of the Nationality, Immigration and Asylum Act 2002 as inserted by the Immigration Act 2014.   Where a person liable to deportation has had a human rights claim refused by the Secretary of State but has a right of appeal against that decision, section 94B empowers the Secretary of State to certify the claim if she considers that removal of the person pending the outcome of such an appeal would not be unlawful under section 6 of the Human Rights Act 1998. The effect of certification is that any appeal must be brought from outside the United Kingdom.

Section 94B of the 2002 Act provides::

“94B. Appeal from within the United Kingdom: certification of human rights claims made by persons liable to deportation

(1) This section applies where a human rights claim has been made by a person (‘P’) who is liable to deportation under –

(a) section 3(5)(a) of the Immigration Act 1971 (Secretary of State deeming deportation conducive to public good) …

(2) The Secretary of State may certify the claim if the Secretary of State considers that, despite the appeals process not having been begun or not having been exhausted, removal of P to the country or territory to which P is proposed to be removed, pending the outcome of an appeal in relation to P’s claim, would not be unlawful under section 6 of the Human Rights Act 1998 (public authority not to act contrary to Human Rights Convention).

(3) The grounds upon which the Secretary of State may certify a claim under subsection (2) include (in particular) that P would not, before the appeals process is exhausted, face a real risk of serious irreversible harm if removed to the country or territory to which P is proposed to be removed.”

The Court of Appeal  observed that there was  no dispute that a decision to certify under section 94B is amenable to judicial review, nor  was there any real dispute about the correct interpretation of section 94B, though that interpretation was  not accurately reflected in the Secretary of State’s accompanying  Guidance to caseworkers. The Court stated that the  Guidance contained  an incomplete and misleading statement of the statutory test. On behalf of the Secretary of State,  it was  accepted that the Guidance needed  “clarification” and  there was a  stated intention to amend it following judgment in the  appeals. The  Court of Appeal ‘s view was  that the problem went  beyond a need for clarification as  the  Guidance was liable to mislead decision-makers into applying the wrong test.

The Court further made it clear that a  judicial review challenge  is limited to the section 94B certification and does not extend to the deportation decision itself or to the related refusal of the person’s human rights claim. Section 94B will arise for consideration only in cases where there is a right of appeal against the refusal of the human rights claim. The section is concerned with the distinct question whether the person can lawfully be removed pending such an appeal. Further the Court of Appeal noted  that  there was  no right of appeal against the section 94B certification itself.

The Court clarified that as to the applicable principles on judicial review of a decision under section 94B, the terms of the statute require the Secretary of State to form her own view on whether removal pending an appeal would breach Convention rights. For that purpose, in an article 8 case such as the present,  the Secretary of State had  to make relevant findings of fact and conduct a proportionality balancing exercise in relation to the facts so found. The  findings of fact are open to review on normal Wednesbury principles, applied with the anxious scrutiny appropriate to the context. The Court is obliged to form its own view, whilst giving appropriate weight to any balancing exercise carried out by the primary decision-maker.

The Court of Appeal considered that the  central provision in section 94B is subsection (2): the power to certify arises only “if the Secretary of State considers that … removal of P to the country or territory to which P is proposed to be removed, pending the outcome of an appeal in relation to P’s claim, would not be unlawful under section 6 of the Human Rights Act 1998 …”  Therefore Secretary of State cannot lawfully certify unless she considers that removal pending the outcome of an appeal would not be in breach of any of the person’s Convention rights as set out in schedule 1 to the Human Rights Act.

The Court of Appeal also clarified that by subsection (3), a ground for certification is that the person would not, before the appeals process is exhausted, face “a real risk of serious irreversible harm” if removed to the country or territory to which he or she is proposed to be removed. That ground does not, displace the statutory condition in subsection (2), nor does it constitute a surrogate for that condition.  The Court made it clear that even if the Secretary of State is satisfied that removal pending determination of an appeal would not give rise to a real risk of serious irreversible harm, that is not a sufficient basis for certification. She cannot certify in any case unless she considers, in accordance with subsection (2), that removal pending determination of any appeal would not be unlawful under section 6 of the Human Rights Act.  It was noted by the Court that that  the risk of serious irreversible harm is not the overarching test was rightly accepted by Secretary of State.  In the Court’s judgement, it  followed  that the Secretary of State’s Guidance on section 94B is  inaccurate and misleading in focusing as it does on the criterion of serious irreversible harm in subsection (3) and failing to focus on the central provision in subsection (2).

The Court of Appeal also stated  that it was  obvious from the wording of section 94B, that where the statutory condition in subsection (2) and the criterion in subsection (3) are met, the Secretary of State has a discretion whether to certify or not

At paragraph 37 of the judgment, the Court of Appeal   made it clear  that there may in practice be relatively few cases where removal for an interim period pending an appeal would be in breach of Convention rights in the absence of a risk of serious irreversible harm, but it is a possibility which must be focused on as a necessary part of the decision-making process. Consideration must be given, in particular, to whether removal pending determination of an appeal would interfere with the person’s rights under Article 8 and, if so, whether removal for that interim period would meet the requirements of proportionality. Unless the decision-maker considers that there would be no such interference or that any such interference would be proportionate, the claim cannot lawfully be certified under section 94B.

The Court of Appeal  further observed that it may be thought that less weight attaches to the public interest in removal in the context of section 94B, when the only question is whether the person should be allowed to remain in the United Kingdom for an interim period pending determination of any appeal, than when considering the underlying issue of deportation for the longer term.  The Court however emphasised that  the very fact that Parliament has chosen to allow removal for that interim period, provided that it does not breach section 6 of the Human Rights Act, shows that substantial weight must be attached to that public interest in that context too. The Court stated that  Parliament has carried through the policy of the deportation provisions of the UK Borders Act 2007 into section 94B- in deciding the issue of proportionality in an Article 8 case, the public interest is not a trump card but it is an important consideration in favour of removal.

PROCEDURAL AND SUBSTANTIVE ASPECTS

The Court of Appeal  dealt with the arguments and issues  having  regard to two aspects:

  • Whether, in allowing the appellant’s removal pending determination of any appeal and requiring such an appeal to be brought from outside the United Kingdom, certification was in breach of the procedural guarantees inherent in Article 8 of the ECHR.
  • Whether in allowing the appellant’s removal pending determination of any appeal and requiring such an appeal to be brought from outside the United Kingdom, certification was in breach of the appellant’s substantive rights under Article 8 of the ECHR

Procedural Aspects:

As to the procedural aspects, it was submitted on behalf of the appellants  that an out of country appeal would not provide them with fair and effective involvement in the appellate process and would not meet the procedural guarantees inherent in article 8; or, at least, that the Secretary of State did not take the necessary steps to satisfy herself that the procedural guarantees of Article 8 would be met by an out of country appeal before certifying under section 94B.

The Court however indicated  acceptance of  the general thrust of the case advanced on behalf of the Secretary of State. The Court rejected the submission that an out of country appeal against a deportation decision would deprive the appellants of effective participation in the decision-making process and of a fair procedure. The Court decided that  the Secretary of State was  entitled to proceed on the basis that an out of country appeal will meet the procedural requirements of Article 8 in the generality of criminal deportation cases.  If particular reasons are advanced as to why an out of country appeal would fail to meet those requirements, they must be considered and assessed, however  on the evidence before the court, in relation to each of the present appellants that certification under section 94B, requiring an appeal against the relevant deportation decision to be brought from outside the United Kingdom, is not a breach of the appellant’s procedural rights under article 8.

The reasons in further detail given by the Court were;

“64.First, I accept that an out of country appeal will be less advantageous to the appellant than an in country appeal. But article 8 does not require the appellant to have access to the best possible appellate procedure or even to the most advantageous procedure available. It requires access to a procedure that meets the essential requirements of effectiveness and fairness. Entry clearance cases may often be more straightforward but they too can raise human rights issues, and experience in them shows that an out of country appeal is capable of meeting those requirements. Moreover, the available statistics regarding success rates in such cases paint a far more favourable picture for appellants than was suggested by the observations of Sedley LJ in R (BA (Nigeria)) v Secretary of State for the Home Department (see paragraph 54 above).

65.The Secretary of State is entitled, in my view, to rely on the specialist immigration judges within the tribunal system to ensure that an appellant is given effective access to the decision-making process and that the process is fair to the appellant, irrespective of whether the appeal is brought in country or out of country. They will be alert to the fact that out of country appeals are a new departure in deportation cases, and they will be aware of the particular seriousness of deportation for an appellant and his family. All this can be taken into account in the conduct of an appeal. If particular procedures are needed in order to enable an appellant to present his case properly or for his credibility to be properly assessed, there is sufficient flexibility within the system to ensure that those procedures are put in place. That applies most obviously to the provision of facilities for video conferencing or other forms of two-way electronic communication or, if truly necessary, the issue of a witness summons so as to put pressure on the Secretary of State to allow the appellant’s attendance to give oral evidence in person.

66.There are difficulties for any appellant, particularly an unrepresented defendant, in preparing evidence for an appeal and presenting it to the tribunal, but I do not accept that those difficulties will be so much greater where the appeal is brought out of country as to amount to a denial of effective participation in the decision-making process or to render the procedure unfair. In these days of electronic communications, an out of country appellant does not face serious obstacles to the preparation or submission of witness statements or the obtaining of relevant documents for the purposes of an appeal. He can instruct a lawyer in the United Kingdom if he has the funds to do so. If he does not have the funds to instruct a lawyer but the case is so complex that an appeal cannot properly be presented without the assistance of a lawyer, he will be entitled to legal aid under the exceptional funding provisions considered in R (Gudanaviciene) v Director of Legal Aid Casework (paragraphs 47-51 above). It was accepted by Mr Drabble that such entitlement would not be affected by the fact that the appellant has to bring the appeal from outside the United Kingdom.

67.It is said in evidence on behalf of Mr Kiarie that it would be necessary for him to obtain a report of a forensic psychiatrist in relation to risk of reoffending and that psychiatric assessments made with the use of video conferencing technology should be viewed with caution. I do not accept that it is necessary in the generality of cases to obtain an expert psychiatric report for the purpose: the risk of reoffending can generally be assessed on the basis of the sentencing remarks and the reports that were before the sentencing judge. But if a further report is required, the evidence does not in my view establish either that it has to be obtained in the United Kingdom or that, if a UK expert has to be instructed, an appropriate assessment cannot be made on the basis of video conferencing or other form of electronic communication, in addition to the relevant written material

Substantive Aspects:

As to the substantive aspect, both appellants pointed to the fact that the Secretary of State, whilst refusing their human rights claims, had accepted that the claims are arguable and should carry a right of appeal. The Court noted that although one is concerned here with the position only during the interim period before an appeal can be determined, both appellants contended that their removal from the United Kingdom for that period would be an interference with their substantive rights under Article 8.

The Court of Appeal observed  that as to Mr Kiarie’s substantive rights under Article 8, he did not have any children; he was not in any relationship; his claim was based essentially on private life rather than family life; despite his lengthy stay in the UK, his offending was said to be indicative of  lack of integration; it was not accepted that there would be very significant obstacles to his reintegration into Kenya, where English was a national or official language and where there was some evidence that he might have remaining relatives. He had no apparent health issues. His education and experiences in the  UK might well assist him in establishing a career for himself in Kenya.  The Court of  Appeal stated that  these matters were taken into account in reaching the conclusion that the public interest in deporting him outweighed his right to private and family life. It was noted that aspects of that analysis were then carried across into the reasoning set out in support of the certification under section 94B.

The Court stated that if the certification decision had focused on the wider question of breach of Article 8, rather on the question of serious irreversible harm, its conclusion would have been the same. Removal to Kenya pending determination of an appeal involved only a short-term interference with Mr Kaire’s private life in the United Kingdom. The difficulties of integration in Kenya for that limited period did not appear to the Court to be serious obstacles to removal and did  not therefore have great weight in the balance. The Court stated that by contrast, the public interest in removal of a person with Mr Kiarie’s offending record carried  substantial weight even in relation to removal pending an appeal. Taking everything into account, the balance appeared to the Court  to come down firmly in favour of the proportionality of removal for that interim period.

As regard the second Appellant, Mr Byndloss, it was noted that he claimed to have family life in the UK with eight children by different women. In dealing with his claim,  the Court noted that the  Secretary  of State had  examined  in considerable detail, by reference to the relevant provisions of the Immigration Rules, the evidence relating to each group of children and had concluded among other matters that whilst Mr Byndloss  was the biological father of at least seven children,  he had  no relationship with any of them whereby  he provided a consistent or parental presence in their daily lives. There is nothing to demonstrate that  he  made  any meaningful contribution in terms of practical, financial or emotional support and nothing to show that  he played  any part in taking decisions about the children’s daily lives. The children’s day to day needs  would continue to be provided by their respective mothers. The decision showed that the section 55 duty had  been taken into account and that the best interests of the children had been a primary consideration in making the decision.

The Court observed  that the decision went on to consider the question of family life with a partner, in relation to which it was accepted that Mr Byndloss was  still married but it was  not accepted that the relationship was  genuine and subsisting. It also considered  the question of private life, before reaching the conclusion that the public interest in deportation outweighed  his right to private and family life.  In the Court’s view, the various points considered in the context of the substantive claim under Article 8 could  be seen to feed in to the reasoning in support of the decision to certify under section 94B. The Court’s judgement was that on the face of it, the conclusion reached in the decision letter, that Mr Byndloss’s removal pending appeal would not be in breach of his Article 8 rights or those of his wife, his former partners or his children,  was well reasoned and compelling.  The Court further stated  that it runs contrary to authority in seeking to elevate children’s best interests beyond a primary consideration in decision-making and to turn them into the paramount or determinative factor.

CONSIDERATIONS AND CONCLUSION

Success in Section 94B challenges have been set at a very high threshold  and even where  there is a possibility that   the  Secretary of State ‘s decision might  contain  errors of law, so long as the errors cannot be considered material,  the challenge is unlikely to succeed having regard to the   considerations in the appeals at hand.

The Court did find that the decision in Mr Kiarie’s human rights claim under section 94B, was flawed by reason of two legal errors: Firstly, he was not informed in advance that consideration was being given to the certification of his claim under section 94B and he was not given a fair opportunity to make representations on the subject. The course adopted was procedurally unfair; Secondly, the decision to certify, in line with the Guidance, focused erroneously on the question of serious irreversible harm and failed to address the statutory question whether removal pending determination of an appeal would be in breach of section 6 of the Human Rights Act and, in particular, whether it would be in breach of Mr Kiarie’s procedural or substantive rights under Article 8. Thus, the decision was based on a legal misdirection. The Court of Appeal however  concluded that neither of those errors were  material. It was noted that procedural failings have to be viewed with caution and  that they will often invalidate a decision,   however the Court had no doubt that the decision would have been the same if the correct approach to section 94B had been adopted and account had been taken of the relevant material put forward on the appellant’s behalf in these proceedings. The Secretary of State was therefore found to have been entitled to conclude that it was compatible with the procedural guarantees provided by Article 8 to require Mr Kiarie to bring an appeal against the deportation decision from outside the United Kingdom.

As regards Mr Byndloss’s original decision 14 to certify  his human rights claim under section 94B, in the Court ‘s  judgment, that decision too  was flawed by reason of the same two legal errors as affected the original decision in respect of Mr Kiaire, namely (i) procedural unfairness in failing to give an opportunity to make representations on the subject of certification, and (ii) an erroneous focus on the question of serious irreversible harm and a failure to address the statutory question whether removal pending determination of an appeal would be in breach of section 6 of the Human Rights Act and, in particular, whether it would be in breach of Mr Byndloss’s procedural or substantive rights under Article 8.  The Court noted however that in Mr Byndloss’s case,  there was  also a  supplementary decision letter by which time Mr Byndloss  had had ample opportunity to put forward such further material as he wished to rely on to resist certification under section 94B.  The supplementary decision letter  took due account of the further material and provided detailed reasons for deciding to maintain the certification. The focus of attention  was   now  to be on the supplementary letter. The section in the supplementary decision letter on certification was stated to apply  the correct legal approach towards section 94B, focusing on the question whether removal pending an appeal would be unlawful under section 6 of the Human Rights Act and, in particular, whether it would be in breach of Article 8. On that point, therefore, the error in the original decision letter was  corrected.   The Court  concluded   in relation to Mr Byndloss, that although there were errors in the original decision, they  were  not material because the original decision was superseded by a supplementary decision that did  not suffer from those errors and that set out a lawful basis for the maintenance of the certification under section 94B.  The Court of  Appeal therefore adopted  the same approach in the case as in relation to Mr Kiarie, by granting permission to apply for judicial review but reserving the substantive claim to the Court and dismissing it.

It is however to be hoped that the challenge in these appeals can proceed to the Supreme  Court with a view  to  overturning the Court  of Appeal  decision because as matters currently  are, there is nothing to stand  in the way of the Secretary of State seeking to extend the  “deport first, appeal later” policy to  non- deportation appeals.