Non EEA family members and retained rights of residence : Pitfalls faced by divorced applicants and how to overcome them

What usually proves problematic for non EEA family members seeking to assert their rights following divorce and upon application, is that having regard to the EEA Regulations and current accompanying Home Office Guidance, in addition to other evidence, they will be required to provide documentation relating to the EEA National Sponsors’ identity and nationality as well as evidence that the EEA national was exercising free movement rights at the time that the parties divorced. An affected applicant’s inability to provide the EEA national’s valid passport or nationality identity card or evidence of the EEA national’s employment at the relevant date of divorce might result in a refusal of that application.

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A very modest extension of the protection under Article 3 in medical cases: Court of Appeal rules upon meaning and effect of the guidance in Paposhvili

Despite  the Court of Appeal’s guidance in AM (Zimbabwe) & Anor v The Secretary of State for the Home Department [2018] EWCA Civ 64   as regards the test in paragraph 183 of Paposhvili,  it is obvious that  there is still some unfinished judicial business yet to be resolved.  This is evident as  the  Court in AM  was ultimately at pains to stress that it was, “  highly desirable that the Supreme Court should consider the impact of Paposhvili for the purposes of domestic law at an early stage”.  The Court had been urged by the  appellants  not express any view about the true meaning and effect of the guidance in Paposhvili, and in particular regarding the test in paragraph 183 of the judgment in that case: the contention was that the Court  should not venture to do this, but should simply apply the law as laid down domestically by the House of Lords in N v Secretary of State for the Home Department and dismiss the appeals, with a view to granting permission to apply to the Supreme Court. It was argued that  since  the Court of Appeal was bound to dismiss the appeals, anything  that Court  said about the new test in Paposhvili would  be obiter and would not provide assistance for other courts or tribunals.  The  Court of Appeal ploughed  ahead nonetheless  and made it clear that, “We are providing authoritative guidance on the true interpretation of a legal criterion governing how courts and tribunals in the domestic legal system should make judgments regarding the exercise of their powers to grant stays of removal. That guidance will be formally binding upon courts and tribunals below the level of the Supreme Court, in the usual way”.

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When a deportee makes a fresh claim on family life grounds: Best interest of a British child, the evidence and Paragraph 353 examined by the Admin Court

In an unusual case, concerning a  foreign national criminal, where the effect of deportation was intended  to separate  mother from  British child, in MG, R (On the Application Of) v The Secretary of State for the Home Department [2018] EWHC 31 (Admin) ,   the Administrative Court  concluded that the Secretary of State’s  refusal to treat the Claimant’s submissions in relation to her relationship with her daughter as a fresh claim in light of the evidence submitted was irrational and should be quashed and re-taken.

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What you need to know to submit a successful application for indefinite leave to remain as a victim of domestic violence

Paragraph 289A, Part 6 of Appendix Armed Forces and section DVILR of Appendix FM of 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.

To qualify for indefinite leave to remain as a victim of domestic violence  the applicant must meet the requirements set out in Part 8 of the Immigration Rules or Appendix FM or Appendix Armed Forces to those Rules.

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The UK Government’s single power of immigration bail: Keeping immigrants on a tight leash

On 15 January 2018,  the Immigration Act 2016 (Commencement No. 7 and Transitional Provisions) Regulations 2017 No. 1241,  commenced Sections 61(1) and (2) and 66 of the 2016 Act and the majority of the immigration bail provisions set out in Schedule 10 to the 2016 Act.

 

Schedule 10  replaced the various pre-existing alternatives to detention (temporary admission, temporary release on bail and release on restrictions) by a single power to grant immigration bail.

 

Following commencement of the provisions in Schedule 10, any person at liberty in the community on the basis of one of the previous alternatives to detention provisions is now to be treated as having been granted immigration bail, subject to the same conditions, under the single bail power.  Accompanying the  new provisions is  new Guidance, Immigration bail.

 

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