Author: Zvjezdana Mileta


Parents bad behaviour irrelevant to the best interests of children

On 25 October 2018, the UK Supreme Court has handed down judgment referred to as KO (Nigeria) and Others v Secretary of State for the Home Department [2018] UKSC 53 concerning four linked appeal cases on the best interest of children who themselves or whose parents face removal from the UK.

The judgment considers two inter-connected legal issues. Firstly, the judgement answers when it will be unreasonable to expect a non-British child who has been resident in the UK for seven or more years to leave the UK under the ‘7-year’ rule contained in 276ADE(1)(iv) of the Immigration Rules. The ‘7-year’ rule provides that a child will be permitted to remain where the child “has lived continuously in the UK for at least seven years (discounting any period of imprisonment) and it would not be reasonable to expect the applicant to leave the UK” and, on its face, does not require consideration of parental misconduct. In the judgement, Lord Carnwath provides that it is impossible to read this provision as importing a requirement to the criminality or misconduct of the parent. However, he further finds that the immigration status of the parent/s is indirectly relevant to the consideration of whether it is reasonable for a child to leave the UK. Accordingly, as he further elaborates, the correct approach is not to ask is it reasonable for the child to leave the UK but rather is it reasonable to expect the child to follow the parent with no right to remain to the country of origin. When approaching this question, it is important to note that poor immigration history on the part of the parent/s does not justify removal of a child, but rather that, if the rule is read in conjunction with Section 117B of the Nationality, Immigration and Asylum Act 2002 (introduced by the Immigration Act 2014) as Lord Carnwath holds that the same approach applies to section 117B as to paragraph 276ADE(1)(iv), the status of the parent will follow that of the child. Namely, Section 117B, that is very similar to paragraph 276ADE(1)(iv) of the Immigration Rules apart from being directed to the position of the parent not the child and applying only to tribunals and courts and not officials at the Home Office, may answer what happens where it is not reasonable for a child to leave the UK on what paragraph 276ADE(1)(iv) is silent. Section 117B, as directed to the position of the parent not the child, answers that parent must be allowed to stay with the child.

Secondly, the judgment answers whether a court or tribunal, when considering the public interest in deportation, should take into account parental misconduct when assessing whether the effect of deportation on a child (with whom the foreign criminal has a parental relationship) is ‘unduly harsh‘ under Section 117C(5) of the Nationality Immigration and Asylum Act 2002 and Paragraph 399 of the Immigration Rules. One of the court’s conclusions in this regard is that where a foreign criminal has a genuine and subsisting relationship with a qualifying child and the effect of a foreign criminal’s deportation on the child would be unduly harsh, decision-makers shall not take into account the relative severity of the parent’s offence.

To sum it up, the judgment laid down that where under the scheme of immigration law a discretionary assessment of the impact of removal on a child using a “reasonableness” or “undue harshness” test is to be conducted, the conduct of the parent is irrelevant to an assessment of how harsh removal impacted on the child. That is for the reason that conduct of the parent/s will already have been considered in the prescribed procedure and, importantly, a child is not to be blamed for matters for which he or she is not responsible, such as the misconduct of a parent.

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Statement of changes HC 1534, 11 October 2018

On 11 October 2018, the Home Office has published the Statement of Changes in Immigration Rules (HC 1534) which the Home Secretary laid down before the Parliament for approval. The statement is around 50 pages long and with changes taking effect from 1 November 2018. It can be accessed here.

The Statement of Changes has three main purposes. Firstly, it introduces Changes in Appendix EU and implementation of a second pilot phase of the EU Settlement Scheme for resident EU citizens and their family members to obtain UK immigration status, to run from 1 November to 31 December 2018. This phase will test the full end-to-end online application process, will significantly scale up the testing, including, on a voluntary basis and with the agreement of the Devolved Administrations, staff in the higher education, health and social care sectors across the UK. This phase will also include some vulnerable individuals as them being supported by a small number of local authorities and civil society organisations in order to enable testing of the operation of the scheme for those with support needs.

Secondly, the Statement of Changes further introduces the “Calais leave”, a form of leave to remain for children transferred to the UK as part of the Calais camp clearance to reunite with their family between 17 October 2016 and 13 July 2017 and who do not qualify for international protection (i.e. refugee status or humanitarian protection). As it would not be in interest of those children to separate them from their families but rather to reunite with their families and integrate in the UK, this support from the UK authorities is perceived as a significant positive change to Immigration Rules.

Thirdly, there are changes to the general visa application process, including the requirements to post passports and original documents, in order to support the operation of the new application process in UK Visas and Immigration (UKVI). By amending the Rules on the requirements for a valid application, the majority of those applying in the UK to extend their stay or apply for citizenship will be able to submit key documents and personal information in a more secure way while retaining their passport and supporting evidence which will make an application process more flexible and accessible.

However, there is one controversial major change introduced in the Statement. The immigration health surcharge will double from £200 to £400 in December 2018 for non-EU nationals. This has been explained as a necessary and fair contribution from long-term migrants to long-term sustainability of NHS service. These changes affect neither permanent residency holders nor certain vulnerable groups such as asylum seekers and modern slavery victims.

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Home Office set up New Team to help Commonwealth citizens

The new dedicated team will work across government to help individuals identify and gather evidence to confirm their existing right to be in the UK. The team will include a dedicated contact point and aim to resolve cases within 2 weeks once the evidence has been put together. In addition, no one affected will be charged for the documentation which proves their right to be here.

The package of measures is being introduced to support individuals, who have resided in the UK for an extended period of time, and encourage them to come forward and regularize their stay. It will help guide individuals through the process and use data from across government to help build a picture that will evidence a person’s right to be here.

The new team will work with HM Revenue and Customs, the Department for Work and Pensions, the Department of Health and Social Care, the Department for Education and other relevant bodies to help people evidence their right to be here.The Home Office has also published a new web page which provides information and guidance for former Commonwealth citizens. It gives examples of the type of evidence that can be provided to support applications including exam certificates, employment records, your National Insurance number, birth and marriage certificates or bills and letters.

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Vulnerable EU citizens risk failing to secure right to remain in UK

Vulnerable EU citizens including the elderly, children in care and victims of domestic abuse are particularly at risk of failing to secure the right to remain in the UK after Brexit, academics have warned. As the UK draws closer to departure from the bloc, the government is developing a system to give EU citizens already living in the UK “settled status”. But a “potentially significant” number of people may not be aware that they need to apply, including tens of thousands of children, the Oxford University-based Migration Observatory said, warning that the government will need to ensure that those eligible are well-informed.

The Home Office said it was planning a range of support for vulnerable groups such as the elderly, children and families, victims of domestic violence, and those with English as a second language.EU citizens living in the UK are on average highly educated and should not be expected to have problems, the academics add, but if they have more than one of the vulnerabilities described, it will put them at risk of falling out of the process. There are about 3.4 million non-Irish EU citizens living in the UK, the vast majority of whom should be eligible for settled status.

For latest updates on the status of EU Nationals in the UK, please click here.


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