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More hope for separated parents with British children


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Zambrano cases for admission to the UK finally seem to be filtering through to the Upper Tribunal. In MA and SM (Zambrano: EU children outside EU) Iran [2013] UKUT 00380 (IAC) there are two linked appeals, both involving a child resident in the UK with one parent where the other parent was seeking admission to the UK. Both cases succeed, but on different legal grounds.

United by Love - Divided by Theresa May, JCWI Campaign
United by Love – Divided by Theresa May, JCWI Campaign

Admirably, after the initial appeals were dismissed, an astute Judge of the Upper Tribunal identified that the children were British and therefore that Zambrano principles as well as ZH (Tanzania) best interests of the child issues arose and directed that they be addressed. Without this pro-active case management the appeals would probably have failed.

In the first appeal the sponsor was an Iranian national and a refugee in the UK with Indefinite Leave to Remain. He was married to a Turkish national and they had one child together who was a British citizen. At the relevant date the child was resident in Turkey with the mother and the mother sought entry to accompany her child to the UK. There was strong evidence indicating that the sponsor had mental health difficulties arising from his traumatic past experiences. The application was refused on maintenance and accommodation grounds.

By the time of the appeals the child had actually entered the UK leaving the mother behind. The medical evidence suggested that the sponsor was struggling to fulfil his new role as a single parent.

The case succeeds on Zambrano grounds because of the difficulties that the father was going to have caring for the child. The tribunal’s view is clearly that for a case of this nature to succeed under Zambrano, there needs to be some indication above and beyond the natural order of the family that both parents are needed by the child. The case also succeeds on human rights grounds.

In the second appeal the sponsor was British and married to a Thai national. They had two children together, the younger pre school child living in Thailand with the mother and the older school age child living in the UK with the father. The younger child was approaching school age and the parents wanted him to be able to attend school in the UK and to reunite the family. The mother’s application for entry was refused on maintenance and accommodation grounds. The Entry Clearance Officer considered the human rights of those affected and concluded

While I accept that you may now wish to settle as a family together in one place, you have failed to provide a satisfactory explanation as to why your sponsor cannot reside with you and your children in Thailand.

This is what might be termed the ‘bugger off, it is your fault for marrying a foreigner’ reason for refusal.

The case failed under Zambrano on the basis that there was no suggestion or evidence that the father in the UK could not care for the children. However, the case succeeded on human rights grounds, essentially on the basis of the best interests of the children:

76. The absence of any misconduct by the parties does not diminish the weight we must give to the economic well-being of the UK but its place in the measure of proportionality needs to be carefully evaluated in the face of the impact of continued separation of this family. We put our sympathies on one side. But what we are left with is a compelling need for this family to be reunited in the best interests of the children. The harm that would flow from their continued split is sufficient to tip the scales in favour of the appellant coming to the UK due weight having been given to the competing economic factor of limiting the demands made on the public purse.

Both these cases arose under the old immigration rules in force before the radical changes in July 2012. However, this makes no difference to the basis on which the appeals were allowed and the same principles apply to cases refused under the new Appendix FM.

It seems likely the Home Office will seek leave to appeal. I will post further news if I hear any.

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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.


One Response

  1. Can I ask for assistance in a “not dissimilar” case ? To put my cards on the table, I am an “advisor” ( not in UK, not OISC registered). The applicant was in a relationship, now finished, with a British citizen. Their child is a British citizen, and lives with the father in the UK. The applicant wishes to apply for a “Child Access” visa, which is a settlement visa and which will be considered under the new rules – Appendix FM.

    The applicant still has a relationship with the child ( contact is regular by Skype), but there is no relationship with the child’s father. All of the requirements of the rules are met, except that the applicant has no means of support or accommodation in the UK that would allow her to show “adequate maintenance and support”. UKV&I have confirmed that she cannot use evidence of a job to go to in the UK, nor can she provide evidence of third party support. I have put it to UKV&I that, in view of these recent determinations, and Mr Justice Blake’s recent judgement, the applicant would seem to possibly have rights under EU law to settle in the UK. UKV&I have replied to me :

    ” Further to your enquiry about applications under the Family life as a parent route and meeting the maintenance and accommodation requirement, I would again apologise for the delay in providing you with a substantive reply.

    You asked us the question: ‘Can the applicant provide evidence of a job to go to in the UK as evidence that she can maintain herself – I request a yes or no answer?’

    In light of your question we sought further clarification from our colleagues in the UK, including the Operational Policy Team. We have been informed that the Rules and guidance on meeting the adequate maintenance requirement, as published, apply in all cases, including those applying under the Family life as a parent route.

    Therefore an applicant under this route who is not in the UK with permission to work may not rely on a job offer or on their prospects of employment to meet the maintenance requirement. Nor may they rely on third party support.

    It remains however that we are able to consider if there are any exceptionally compassionate circumstances that would justify a grant of leave to enter outside the rules.

    If such circumstances are claimed in your prospective applicant’s case, you may choose to submit with the application full details of the circumstances, along with any relevant documents to support the claim. As you may be aware, all applications seeking grant of leave to enter outside the Rules are assessed by colleagues in the UK and not by entry clearance officers. Therefore the processing time for such an application may be longer than usual.”

    Do you think that the UKV&I are actually trying to tell me something, maybe that she will qualify for the visa but they can’t say so ? They have ignored ( or at least, not answered) all of my questions on the possible breaches of Article 8 and Section 55. Would the fact that she is being separated from her child by the current rules be considered to be “exceptionally compassionate circumstances” ?

    I would be grateful for any advice that might help the applicant.