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At two and three years old respectively, it is considered that x and y are of an age where they would be able to readjust to life without you.

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Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder of the Free Movement immigration law website.


26 Responses

  1. Thats not the only comment thats distressing though, (*Link to refusal letters*: http://pearsall.eu/2013/07/zambrano-and-regulation-9-refusal-notices/ )

    Comment: “It is noted from your application form that you have referenced that you are still breast feeding [son]. However the fact that you are breastfeeding, in itself, does not confer a derivative right. Depriving the child of the ability to be breastfed by you if you are required to leave the UK is not regarded as depriving the child of the benefit of its rights as a union citizen. should this particular aspect of the case wish to be pursued then you may wish to make an Art 8 application as detailed later in this letter.”

    Article 8 rights ARE rights of a union citizen…

  2. It does indeed sound harsh, but can we put it in to context, what criminal offenses had the appellant committed in this deportation case?

    1. Even if it was something worse than arriving with false documents or working while claiming asylum, it is certain that the children will not have committed a crime, but they are going to be the ones to suffer.

    2. A documents offence. But how does that have any relevance to whether two and three year old children ‘would be able to readjust to life’ without a parent? Do tell.

    3. Knowing the refusal wordings of both the Human rights application of my wife, and the recent Zambrano application, I doubt that this would be different for anybody without a criminal offence. My wife has no ‘criminal offence’ … she is technically a Section 10 overstayer, but that is all. she did not enter the country illegally ETC. So lets not make out that this is only sent to people with a criminal history. The same wordings are basically sent to every parent of a british child when another parent is in the UK that can care for them. They make it clear that there is no reason that one parent cannot look after the child and the non EEA parent can leave. This point is made clear to no end of parents applying.

    1. It’s not a question of proportionality, though, which can only be judged on the full facts. What is so objectionable is the assertion that 2 and 3 year old children don’t need both their parents. If the Home Office line were ‘it will have a terrible effect but that’s tough because of your crime’ it would at least be understandable. But to pretend the children can ‘readjust’ is so wrong and ignorant it is impossible to know where to start to explain.

  3. I’d like to also raise the following UN Law:

    And the consolidated clearer version in EU law:
    (Note this is stated very clearly as a right of a union citizen:)


    Article 24. The *rights* of the child
    1. Children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity.

    2. In all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration.

    3. *Every child* shall have the *right* to maintain on a *regular* basis a personal relationship and *direct contact with both his or her parents*, unless that is contrary to his or her interests.

    Weighing this in line with the very clear Zambrano / Article 8 IDI’s:

    It seems VERY VERY clear that The Home Office are issuing some very dodgy refusal notices… and not only that, but failing under their Section 55 Duties (as we will very easily argue once we get our court date). Rob Whiteman wrote a letter to me (well actually, it was the Home Office Legal Team) which clearly states they do not assess Article 8 factors on the Zambrano Derivative RC. This goes against the HRA as in ANY action it must be considered. The MA and SM (Zambrano: EU children outside EU) Iran [2013] UKUT 00380 (IAC): http://www.bailii.org/uk/cases/UKUT/IAC/2013/00380_ukut_iac_2013_ma_sm_iran.html

    Will surely play a big part…

    @Colin… Are you able to share more info on this case / refusal?

  4. Clearly the Home Office feels it is okay to disregard its obligations under HRL, which it is increasingly ‘reinterpreting’ to suit itself. As a mother of two young children, I find the reply inhuman. We cannot, and should not, tolerate this outlook.

  5. Children can, regardless of nationality, be split from parents when the parent is in prison or when the family court prohibits contact to protect the child. If either of those apply to an overstayer, then it’s fair enough to refuse an application based on the child, because they would be split from the child for other reasons anyway.

    But where the desire to reduce immigration (or appear to) goes so far as to split up families just because of the immigration rules, this is unacceptable.

  6. Both sides of the argument would be directly relevant to the question of proportionality, at the end of the day the appellant in question chose both to have a family and to break the criminal law, the full facts would give greater context.

    The impact on others family members has to be given greater weight post Betts, but having childeren is not a blank cheque.

    1. Nevertheless in my opinion it is not ok for the SSHD to say that it is fine for a child to live long term without one parent. In the cases of FN Prisoners being deported any deprivation of one parent is quite likely to be permanent – and is even more likely to be the case when the parent has been seeking asylum. Prisoners in the UK can at least receive visits from their children, hard as that may be. Surely these considerations should also come into the issue of best interests of the child?

  7. Wayne – have you thought about writing to the Queen about your case – she is a mother and meets regularly with the prime minister or so we are told – I am sure if she was aware or how the British Government are treating your 2 British Citizen children (not to mention you) she would be as appalled as we all are (just an idea)- keep in touch & I wish you well

    1. John, i’ve written to lots of ppl. Do you think the queen would really care. We have had a discussion about this on one of the divided families groups. we need the public to realise exactly who these immigration rules effect.

  8. Wayne – I like to think the Queen would care about what happens to her British subjects, particularly you and your children – I dont think the general public will ever be won over except for those who get touched by issues and predicaments that they or their families find themselves in – that’s how and why the “Go Home” advertising vans didnt get much more than a few lines in a couple of newspapers before they became history as most people don’t care unless it effects them – I have been reading a lot of about your fight to enable your wife to live in the UK as part of your family unit including your letter to the BBC in one of your achives, did the BBC ever et back to you, I think your case history would make as compelling a news story than the young American lady that featured in a Surindar Singh article they ran just over a month ago

    1. The BBC didn’t get in touch regards the letter. However, I have wrote to the PM, and MP’s ETC, I’ll write to the Queen RE this and BritCits, but I will certainly not hold my breath. Had some news from the IA – the case is now loaded onto the system, so we just need to wait for them to take payment now, and set a date (that should be fun).

      Should our appeals fail, we are going for the Singh route. and if that happens, we may well relocate to Ireland full time. It would mean that my wife’s parents would be able to come over on an EU Visa (dependants) instead of national visa.

      There are far more deserving cases than mine. I met one of my wife’s friends Husband the other day. (We only just learnt that he lived around the corner from us) He has seen his 18 month old daughter TWICE. and one of those times was when she was born (Indonesia). Due to Indonesian citizenship law, the child automatically gained british citizenship (Blood Law / Fathers side ETC – not sure exacly how/if her citizenship is effected by being born outside of the country though).

    1. Barbara, Thanks for this. This is the first time this case has came to light in my various readings of EU/Chen/Zambrano cases. I read 24 earlier on when the comment popped into my email (I was out and about). But I’ve read the full text and its quite interesting. I’ll definately be adding this information to our bundle. [to be fair, considering the text, im really shocked I haven’t seen this previously?]

      The very wording of [24] as you state is very nice… Although we were going to rely heavily on Art 24.3 and UNCRC Art 3, this caselaw is yet more weight (despite being Chen based and not Zambrano) to weigh in favour of us – (Equal treatment: An EEA child need’s both parents, therefore a British child needs both parents).

  9. Wayne – I am pleased to see people like Barbara are supporting your fight with case law info that would not have made it to your attention without her help – disapointing that the BBC werent interested – I would like to see you win support that would come your way from a TV proramme (BBC or ITV or whoever) or via the National Press – I would also like to see you win with the right to your children being able to live with both their parents under Zambrano for all the families that can’t take the easier Surindar Singh route, And I wish you well with your determined efforts that many people are for sure following /watching – maybe in time lawyers will be quoting the Wayne Pearsall case law – I hope so

    1. It’ll never become “Wayne Pearsall” for two reasons: 1) Its my wifes case. She is the non-EEA National. I am British. 2) The case law will remain as Zambrano. The point is to ensure that the UK / Home Office consider ALL FACTS including human rights of the children. The caselaw is already in place. The Home Office simply read it so restrictively.

  10. I do not see the value in refusing an Zambrano application on the basis that the other parent can care for the children and directing the applicant to an Art 8 and Ex1 application which many applications have been successful after having their Zambrano application refused. Is HO making some money off paid application than Zambrano application? is the collection of biometric data in a paid application of some big interest to them?

    1. The art 8 will have no recourse. Zambrano doesnt have this stamp. The application is paid for. Although free if your destitute. It’s not really too great to have to pay. I know a fair few cases that failed under even article 8 because the father hadnt lived with the mother. And even ones with simular wording to above. Article 8 is still not guarantee. So I say appeal and make the courts consist article 8 as they should.