Although an applicant who submits a claim to the Home office has the hope that the outcome will be positive, that claim may however be refused with the Home office subjecting it to the certification procedure. The certification procedure operated by the Home Office in relation to human rights and asylum claims has the effect of either an outright denial of a right of appeal or a requirement that such an appeal right be pursued after the person has left the UK.
Category Archives: Children
The Deportation and Exclusion Regime for EEA And Non- EEA Foreign National Criminals: Of Deportation Orders, Exclusion Decisions and Exclusion Orders
The UK Government has over the years (more so since July 2012) sought to introduce measures intent upon ensuring that foreign national criminals are deported or excluded from the UK. Where deportation appeals are won, the Home Office’s now predictable reaction is an onward appeal, challenging allowed Tribunal decisions and sometimes with success. Those subject to deportation therefore cannot afford to proceed upon an assumption that once a deportation appeal is won, the Secretary of State will not seek to appeal such a decision.
Children Route Applications Under the Immigration Rules : Part 8 Of The Rules Largely Preserved
Persons settled in the UK may have come here under various categories of the immigration rules(or even illegally) and subsequently obtained settled status or become British citizens. Prior to their arrival to the UK, they may have left children in their country of origin, with such children resident abroad but still under the age of 18years. Upon the parent acquiring settled status, the expected course of action is to submit an application for entry clearance to enable the child’s entry to the UK.
Children Adoptions and Inter Play Between The Immigration Rules and EU law: Exclusion of Children From The UK, Denial of EEA Family Permit Where The Adoption Is Not Recognised Under UK Law
If an adoption order is not recognised as valid in the United Kingdom, on the basis of current caselaw, obtaining an adoption order outside the UK with a view for a settled or EEA national sponsor to apply for entry clearance for the adopted child under either the Immigration Rules or EEA law means that the defect will be fatal to the application. Where such an application fails, it also seems simply not enough to argue family life arguments or the bests of the child in the alternative.
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. |
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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:
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:
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. |
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- 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
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