Whilst it was significant to note that the Court of Appeal has granted permission to appeal against the current Country Guidance case known as EM and Others (Returnees) Zimbabwe, the case still stands as good law.

The UKBA are relying on this case law and appear to have increased removals to Zimbabwe. It appears from our experience that the notice period for flights has been reduced to five days in line with other nationalities.

The UKBA have categorically stated in correspondence that they will continue to apply EM as good law and will continue to return failed asylum seekers to Zimbabwe.

The UKBA have stated as follows in a recent letter to RBM Solicitors: “In October 2010, the UK government announced its intention to end the suspension of failed asylum seekers to Zimbabwe once the Immigration and Asylum Chamber delivered its determination in the country guidance case. This determination was received in March 2011. The IAC found that there was significantly less politically motivated violence in Zimbabwe compared with the situation as assessed by the Tribunal in the last country guidance case. The UK Border Agency has now resumed enforced returns to Zimbabwe.”

The evidence on the ground shows that removals are taking place on a regular basis. We have noted that those individuals who do not have the benefit of legal advice and support from organisations such as the Zim Vigil and the MDC have been removed without any media attention, creating an impression that removals are not happening at the pace we are seeing.

I have previously written an article giving failed asylum seekers advice on what to do if detained. I would also advise Zimbabweans who are in detention to contact the Zimbabwe Association to enable them to update their records and keep up to date statistics of returns to Zimbabwe. The Zimbabwe Association can be contacted on telephone: 020 7739 8226 and e-mail: info@zimbabweassociation.org.uk.

Asylum seekers facing removal can also follow this link which provides useful information. Further assistance can be obtained from the National Coalition of Anti-Deportation Campaigns.

It is important to note that leaving it to the end is very dangerous. Once in detention, the route to legal justice becomes so obviously blocked. Advice on legal aid is limited when in detention and it is worth noting that cases with very strong prospects for success will be taken by the firms who give free advice in detention.

Private solicitors tend to charge thousands of pounds when a person is in detention due to the nature of the work. It is very complex and has to be dealt with on an urgent basis.

It is also important to note that even with the best solicitors, a case can fail, so people need to be prepared for that. It is vital to be well-prepared and to prepare any further submissions before it is too late. It is also important to assess one’s own circumstances with regard to the risk on return.

At times, it is better to return to Zimbabwe with dignity before an enforced process is commenced. The removal process is an extremely stressful thing to go through. I recently spoke to a person who had been removed to Zimbabwe and they confirmed that they had left the UK with a small bag carrying 10kg of luggage and had been escorted by three security guards to Harare. On arrival, they had been given money for onward travel from the airport to their home area. They did not have friends or family in the UK to forward their belongings to Zimbabwe. It is a sad way to end ten or more years of toil in the UK.

It appears that many returnees may face destitution on return to Zimbabwe. I would, therefore, advise people to seek advice and make concrete plans before it is too late. A useful website giving advice and assistance on returning to one’s country of origin is http://www.iomuk.org/.

RBM Solicitors have successfully challenged some removals to Zimbabwe lodging Judicial Review Applications at the last minute. The latest case that we have successfully challenged is that of a Zimbabwean national who was due for removal on February 7, 2012.

I am aware that there are rumours that circulate the immigrant communities and one of these rumours is that if you have children, you cannot be removed from the United Kingdom. This is a rumour which is certainly not true. The UKBA have a process commenced in March 2011 dealing with family returns. Once a family has exhausted all their appeal rights, they would have been made aware that if they fail to attend for the self check in flights, the UK Border Agency may seek to “ensure” their return to their country of origin which could involve:

# Escorted check-in – without further notice

# Escorted check-in – with full further notice

# Escorted check-in – with limited notice

# Removal via open accommodation

# Removal via pre-departure accommodation

Further information on this is available HERE.

If you think you could be affected by the removals or know anyone who is in a vulnerable position, then please seek legal advice urgently. Forewarned is forearmed.

Rumbidzai Bvunzawabaya is a Solicitor at RBM Solicitors based in Coventry. Visit website: http://www.rbmsolicitors.co.uk, e-mail info@rbmsolicitors.co.uk or call 07772790291

Disclaimer: This article only provides general information and guidance on immigration law. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. The writer will not accept any liability for any claims or inconvenience as a result of the use of this information

The appellant, a citizen of Zimbabwe, entered the United Kingdom lawfully about 13 years ago. She overstayed. She sought asylum in 2009, based on the risk of persecution as a lesbian. The Home Office refused the claim, holding that even if the appellant did face ostracism from her family and social discrimination, that would not constitute persecution; that there is a homosexual scene in Zimbabwe, especially in urban areas, from which she could derive support; and that if necessary she could relocate within Harare, or elsewhere in Zimbabwe.

The key points made by Upper Tribunal Judge Macleman and Deputy Upper Tribunal Judge Holmes are as follows:

# There has been much public expression of extreme homophobia at the highest levels in recent years.

# Male homosexual behaviour is criminalised, but prosecutions are very rare. Lesbianism is not criminalised.

# Some homosexuals suffer discrimination, harassment and blackmail from the general public and the police. Attempted extortion, false complaints and unjustified detentions are not so prevalent as to pose a general risk. There are no records of any murders with a homophobic element. “Corrective rape” is rare, and does not represent a general risk.

# There is a “gay scene” within limitations.

# Lesbians, living on their own or together, may face greater difficulties than gay men.

# GALZ (Gays and Lesbians of Zimbabwe) takes a realistic view: Zimbabwe is “not the worst place in the world to be gay or lesbian even though the President, government officials and church leaders have whipped up a climate of hysterical homophobia.

In Uganda, the death penalty could soon be introduced for being gay. A judge in Malawi last year imposed a maximum sentence of 14 years in prison with hard labour on a gay couple convicted of gross indecency and unnatural acts. In South Africa, Noxolo Nogwaza was killed in April last year after what appeared to be a so-called “corrective rape”, an increasingly common crime in which men rape lesbians to “turn” them straight or “cure” them of their sexual orientation.

# Applying HJ & HT [2010] UKSC 31, [2010] Imm AR 729, there is no general risk to gays or lesbians. Personal circumstances place some gays and lesbians at risk.  Although not decisive on its own, being openly gay may increase risk. A positive HIV/AIDS diagnosis may be a risk factor. Connections with the elite do not increase risk.

# The police and other state agents do not provide protection.

# A homosexual at risk in his or her community can move elsewhere, either in the same city or to another part of the country. He or she might choose to relocate to where there is greater tolerance, such as Bulawayo, but the choice of a new area is not restricted. The option is excluded only if personal circumstances present risk throughout the country.

The Court of Appeal’s decision in LZ means that it is possible for a homosexual or lesbian person to be granted refugee status on the particular facts of their case. The following factors are factors that enhance the risk for gays and lesbians:

# Personal circumstances place some gays and lesbians at risk. Although not decisive on its own, being openly gay may increase risk. A positive HIV/AIDS diagnosis may be a risk factor.

The appeal in this case was successful on the basis of the particular facts on the case.

There are many positive findings in this case that may assist gays and lesbians who are unable to return to Zimbabwe due to fear of persecution. Gays and Lesbians who have previously been refused protection can submit further submissions if their particular circumstances present risk throughout the country.

Rumbidzai Bvunzawabaya is a Solicitor at RBM Solicitors based in Coventry. Visit website: http://www.rbmsolicitors.co.uk, e-mail info@rbmsolicitors.co.uk or call 02476520999 or 07956949500 or 07772790291

Disclaimer: This article only provides general information and guidance on immigration law. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. The writer will not accept any liability for any claims or inconvenience as a result of the use of this information

This post gives a few tips and advice on how to cope with some of the after-effects of the festivities.

I have read from an article on the “No Deportations” newsletter that from now through to the end of the first week of 2012 there will be extra police checks on cars. People should therefore note the following:

– We should therefore remember that if police stop a vehicle they are more than likely (though they are supposed not to) to check the details of all the occupants of the car not just the driver. Police will run the names through their national database; the database contains details of persons that the UK Border Agency (UKBA) has an interest in.

Again we should overdo the New Year’s Eve as to attract the attention of the police.

If a name comes up as of being of interest to UKBA, that person may well be detained and taken to the nearest police station. UKBA will be informed that the person has been detained and UKBA will then make a decision as to whether to instruct the police to release the person back into the community or hold the person pending transfer to a Immigration Removal Centre.

–  Warning:  Solicitors and advocacy groups will be very thin on the ground over the festive season; many will shut up shop on Friday 23rd December through to Tuesday 3rd January 2012.

If you do have a solicitor, make sure you have their emergency number, as well as the emergency number for your MP.

If you do not have Leave to Remain, make sure that you have copies of all your paper work held by your solicitor/case worker (in particular, your Immigration Factual Summary, Home Office ‘Letter of Refusal’ also called the ‘determination’, this is the document refusing asylum) at home and a copy with friends, in case you are detained.

Failed asylum seekers from Zimbabwe have been in a position where they were not forcibly removed from the UK to Zimbabwe for a period of almost 6 years. Removals of failed asylum seekers recommenced in April 2011.

The Zimbabwe Association Removals Update dates 6 December 2011 states that since April to December there have been 10 Removals to Zimbabwe. 8 people were Zimbabwean Nationals and 2 were Malawian Nationals.

A total of 21 Zimbabweans known to the Zimbabwe Association were detained in the period between April to December 2011. These figures are only of those people who are known to the Association which means more could have been affected.

Zimbabweans who have irregular immigration status in the UK should therefore remain vigilant and remember that they are not safeguarded from detention and removal. The advice given by the “No Deportations” team therefore applies to most nationals.

In my experience I have noticed that many people have drink-driving offences and also driving without insurance convictions. I have previously written about the effects of criminal offences on applications for Indefinite Leave to Remain. See previous post http://www.newzimbabwe.com/blog/index.php/2011/04/rbvunzawabaya/criminal-conviction-barrier-to-uk-settlement/

As such it is important to stay safe this festive season and remember to not to drink and drive.

On a personal note I would like to take this opportunity to wish readers of this blog a Blessed Christmas and a Happy New Year.

This case clarifies the rights of children born in the European Union, specifically the UK in this instance, in relation to their parent/s who are foreign nationals and otherwise have no right of residence.

As a result of this case, it has been established that, where a British or EU child is living in the UK and needs a foreign national parent to live with them so they can stay in the country,  the parent or parents have the right under EU law to reside in the UK.

The parent or parents also have the right to work as they need to be able to support their child or children.

It is possible that, as a result of this ruling, similar rights could be extended to other family members of British and other EU citizens, such as spouses, children and siblings.

The UK Border Agency has been considering the effect of this judgment and whether any changes are required to its policy, or the law as a result.

Until now, they have not accepted applications received on this basis as there is currently no provision within the Immigration (European Economic Area) Regulations 2006 (the regulations) to issue documentation on this basis.

The UKBA will amend the regulations in due course to enable a person to be issued with a document confirming that they have a right to live in the UK as a result of the Ruiz Zambrano judgement.

However, in the meantime, they will issue a certificate of application to those who are able to show:

# evidence that the dependent national is a British citizen;

# evidence of the relationship between the applicant and the British citizen; and

# adequate evidence of dependency between the applicant and the British citizen.

This certificate will enable a person to work in the UK while their application is outstanding. Once changes to the regulations are made, the application will be given full consideration and documentation will be issued under the regulations to those who meet the final agreed policy.

At the heart of the UKBA’s interpretation of Zambrano is the notion of dependency. The judgment applies only to cases in which the dependent European Union citizen is within their state of nationality. For the United Kingdom, this means that the judgment applies only to cases involving dependent British citizens.

Secondly, it has been agreed the judgment does not apply in cases where dependency is simply financial.

The restriction to British citizens is uncontroversial. Dependency under EU free movement law has always been approached differently than under UK immigration law. Whereas under the UK’s Immigration Rules dependency must be of necessity and not of choice, under EU law dependency is a matter of fact.

While the UKBA has sought to take a restrictive approach with its exclusion of dependency which is simply financial, it has explicitly, if only partially, opened up the prospect of dependency by a British adult on a third country national adult, resulting in that third country adult obtaining a right of residence and work as long as the dependency in question is not simply financial.

This suggests, for example, that if a British husband were dependent on his non-European Economic Area spouse in a way which went beyond simple financial dependence, the non-EEA spouse would acquire a right of residence.

The UKBA’s position recognises that the principles established in Zambrano in respect of EU citizen children also apply to EU citizen adults (as the Court of Justice’s decision in Shirley McCarthy made clear, even though it dismissed that appeal on other grounds).

The UKBA’s policy, therefore, does not shut the door on adult family members of EU citizens asserting a right of residence and a right to work. Rather it opens up an opportunity for such family members.

The extension to adult dependants is one that will certainly open up a way for dependants of British citizens to remain in the UK.

If you think you will be affected by the changes to the law please contact RBM Solicitors on 02476520999 or 07956949500 or 07772790291

In March 2011, the Court of Justice of the European Union delivered its judgment in the case of Zambrano v Office National de l’emploi (Belgium). This was a landmark decision which has had a positive effect so far in applications made by non EU National parents who have British children.

The Zambrano couple were Colombian nationals living in Belgium. Their applications for asylum were rejected and they were ordered to return to Colombia, but the order contained a non-refoulement clause. This stated that they should not actually be sent back to Colombia because of the civil war.

As the couple had no settled status, the couple sought to regularise their stay. But the applications were unsuccessful. Ruiz Zambrano had previously worked, but his employment contract was subsequently terminated – he was told he had no entitlement to work as he had no work permit. He was also subsequently refused unemployment benefit because of his irregular status.

The Zambrano couple had two children who were both born in Belgium, and had, therefore, become Belgian by birth. Ruiz Zambrano sought to rely on a derived right of residence as the parent of minor children who are nationals of a Member State according to the Zhu and Chen case.

The refusal to give a right of residence to a third country national with dependent minor children in the Member State where those children are nationals, together with the refusal to grant work permits to enable the parents to work to support the children, has the effect of depriving citizens of the Union genuine enjoyment of their citizenship rights under Article 20 of the Treaty on the Functioning of the European Union (TFEU).

The rights of Zambrano children who are EU citizens comes directly from Article 20 of the TEFU. Those rights include:

• The right to live in Belgium (para 40 and 41).

• The right of residence for their third country parents (both of them it would seem) to live in Belgium with them as this is necessary for the children who are EU citizens to enjoy their rights as citizens of the Union (para 42 and 43).

• The right to a work permit for the third country national parents to support the children (as otherwise they might all have to leave the state on grounds of penury (para 44).

A recent case that RBM Solicitors have dealt with involved a Zimbabwean national who was a failed asylum seeker who had exhausted all appeal rights and made three fresh claims that were refused.

Since the refusal of the further submissions, she had a child with a Nigerian national who has Indefinite Leave to Remain. The couple were not married or living together. RBM Solicitors made further submissions on the basis of the case of Zambrano and ZH Tanzania. Our client was granted discretionary leave to remain in the UK.

In a similar case, an overstayer from Malawi had two children with a British woman. He had contact with the children but was not living with the children. RBM Solicitors were able to successfully apply for discretionary leave to remain in the UK on behalf of the applicant.

It is worth noting that a child who was born in the UK can attain British citizenship when their parent or parents have been granted Indefinite Leave to Remain in the UK. A child who is born in the UK and is aged 10 years or over can be registered as a British citizen. It is not within the scope of this post to discuss the various ways of naturalising as a British citizen. More information on this issue is available on the UK Border Agency’s website.

The decision in Zambrano is a positive one and the positive effects are being seen in some decisions that the Secretary of State is making. However, there may arise a situation where both the UK government and other European governments may well respond – particularly in the current economic climate – by tightening requirements for settlement and citizenship in order to minimise the potential effects of the judgment.

If you think you will be affected by the changes to the law please contact RBM Solicitors on 02476520999 or 07956949500 or 07772790291

The UKBA is preparing to wind down the so-called “Legacy Case Resolution Programme”, only leaving a small case assurance and audit unit (CAAU) which will handle all residual work on cases they have been unable to trace or cases that have been reviewed but not fully concluded.

If you believe that your case is being handled by CAAU, you should write to them at:

Case Assurance and Audit Unit
Department 87
PO Box 306
Liverpool
L2 0QN

In July 2006, the Home Secretary announced that there was an asylum “legacy” of around 450,000 cases, and the Home Office would clear this case load within five years.

To deal with these legacy cases, the Home Office established a separate directorate – the legacy directorate.

A legacy case is any case where all of the following apply:

• there was a claim for asylum before March 5, 2007.
• the Home Office records indicate that the case has not been concluded
• the case is not being dealt with by the New Asylum Model (NAM)

A claim for asylum will include a claim for humanitarian protection or discretionary leave, whether or not a claim for asylum under the Refugee Convention was made.

It appears that there are many legacy cases that have not been dealt with and it is important for anyone affected by this announcement to contact their legal representatives or to contact the UKBA directly.

Any refusals can be challenged by way of Judicial Review. The UK Border Agency made changes to their Enforcement Guidance and Instructions which should benefit people caught within the legacy backlog.

The amended guidelines provide for consideration to be given to ‘residence accrued’ as a result of UKBA delays. The guideline states that where a delay is particularly significant, it can be considered as a contributory factor to grant leave (see case of Court of Appeal judgment in HB (Ethiopia) & others v SSHD [2006] EWCA Civ 1713).

Applicants who have made in-time applications and who have been subject to a delay of three to five years as a result of the UKBA can expect Home Office case owners to place significant weight on this fact in reaching a decision on granting asylum.

Where families have resided in the UK for a considerable period as a result of UKBA delays, Home Office case owners are expected to place significant weight on this when considering the application. A three-year delay period may be considered significant. Case owners are especially expected to consider dependent children under the age of 18 who have been residing in the UK with their families and who have been subject to a delay of between four to six years.

Regard will be had to the personal conduct of applicants including their character, conduct and employment records along with the usual considerations as follows:

·         Age

·         Length of residence in the UK

·         Strength of connections to the UK

·         Personal history, character, conduct, employment records

·         Previous criminal records/nature of convictions if any (as above)

·         Compassionate circumstances

·         Any representations received on the applicants behalf

The relevant changes can be found in full HERE

RBM Solicitors have dealt with many cases under the Case Resolution Exercise with successful outcomes. We have also challenged cases that have been refused under the Case Resolution Exercise. Applicants who feel that they may fall within the new changes should contact us for a case specific evaluation. Contact us on info@rbmsolicitors.co.uk , 02476520999

At present, any migrant who is already in the UK and is subject to immigration control must apply for a certificate of approval before they can get married or register a civil partnership in this country (unless they are getting married within the Anglican Church).

The government is now seeking to remedy the declaration by the UK courts that the scheme is incompatible with Article 14 of the European Convention on Human Rights (read with Article 12). Additionally, changes made following rulings from the courts have weakened the scheme, and it is no longer an effective method of preventing sham marriage.

Entering into a sham marriage does not entitle migrants to any right to remain in the UK. The UK Border Agency will continue to investigate suspected abuse and, where possible, disrupt marriages before they take place.

Do you still need to apply for a certificate of approval if you want to get married or register a civil partnership?

The certificate of approval scheme remains in operation until the Remedial Order comes into force on May 9. Migrants who are subject to immigration control must follow the current application process until further notice.

When will the scheme be abolished?

The scheme will end on May 9, 2011.

I want to marry in summer 2011. Will I still need a certificate of approval?

No. Now that parliament has approved the Remedial Order, the government will end the scheme on May 9. There will be no legal requirement to obtain a certificate of approval after that date.

When will the UKBA stop processing certificate of approval applications?

They will continue to process applications until the scheme legally ends.

I want to get married in a civil ceremony and I am subject to immigration control. When the scheme is abolished, will I still need to give notice of my marriage or civil partnership in a designated register office?

Yes. The requirement to give notice in a designated register office is not affected by the abolition of the certificate of approval scheme. The requirement will remain in force when the scheme is abolished.

Following marriage in the UK to a British citizen, the question that many readers will ask is how this affects their immigration status. In this post, I will give three examples of cases that our firm has dealt with recently. Please note that all these examples are of people that are in a genuine and subsisting relationship.

A Zimbabwean woman with refugee status got married to a Nigerian national who was a student. They made an application for an extension of the husband’s visa for leave to remain as a spouse. This application was refused by the UKBA. RBM Solicitors successfully argued that the decision to refuse the applicants case was incorrect and not in accordance with the immigration rules.

A similar case that we have dealt with is that of a failed asylum seeker from Gambia who was married to a person with Indefinite Leave to Remain. We were able to successfully present further submissions to the UKBA. Our client was granted three years discretionary leave to remain.

The third example is that of a South African national married to a British citizen. He initially arrived in the UK on a working holiday visa. He met and fell in love with a British citizen. They lived together for five years but he failed to regularise his immigration status. We successfully prepared an application for submission at the British High Commission in South Africa. Our client was able to return to the UK within a matter of three weeks.

In a similar scenario, RBM Solicitors advised a Zimbabwean failed asylum seeker who was married to a Zimbabwean national with Indefinite Leave to Remain in the UK. We encouraged him to return voluntarily to Zimbabwe and submit an application for entry clearance as a spouse. The application was checked and thoroughly prepared in the UK before the applicant returned to Zimbabwe. He was granted leave to enter the UK in a record time of five days.

These are merely examples of cases that we have dealt with at RBM Solicitors and should not be seen as replacements for legal advice. Each situation is different and it is therefore important to obtain legal advice in relation to your case.

If you think you will be affected please contact RBM Solicitors on 02476520999 or 07956949500 or 07772790291

The following requirement has been inserted into all the settlement rules:

(v) the applicant does not have one or more unspent convictions within the meaning of the rehabilitation of offenders act 1974.

This unwelcome addition to the rules closes an escape route from domestic violence for any woman with any level of criminal conviction. Meanwhile, a woman with a criminal conviction still in an abusive relationship might succeed on human rights grounds and therefore has an incentive to remain in that abusive relationship.

The catch-all nature of the criminal convictions exclusion from settlement for all or most categories of settlement, including family settlement, is an extreme step by the current government. In a spouse case, it means that a criminal conviction of any kind, no matter how relatively trivial, will either terminate the relationship by forcing the migrant spouse to depart these shores, or will force the British or settled spouse to leave their own country to continue the relationship. The exclusion also ignores the effect on any children of the relationship.

Cases on human rights grounds are likely to succeed. It is very rare for human rights cases to be allowed by the UK Border Agency but those with the ability to take the cases further and who can employ a good solicitor might well win on appeal or an application for judicial review. This appears to be another way that the current government is marginalising those without access to the legal process, at a time when proposals are being made to stop granting legal aid in cases such as these.

What is a spent conviction?

If you have been convicted of a criminal offence, you must declare your unspent convictions but do not need to declare ones that are spent. A conviction becomes spent after a certain period of time has passed (we call this the rehabilitation period).

The length of time it takes for a conviction to become spent will depend on your sentence. It starts from the date on which you are convicted. The period may be shorter if you were aged under 18 at the time of your conviction.

If you have been sentenced to more than 30 months in prison for a single offence, this can never become spent. Your application for citizenship or settlement is, therefore, unlikely to be successful.

If you have been convicted of a criminal offence but the rehabilitation period has passed by the time you make your application, you do not need to provide details of the conviction on your application form. If you were convicted of a further offence during the rehabilitation period of your original conviction, the rehabilitation period for your original conviction may be extended.

If you have been convicted of a criminal offence and the spent period has not passed, you must include details of the conviction on your application form. If the conviction is unspent at the time of your application, it is unlikely that your application will be successful.

Criminal convictions include driving offences such as drink driving and driving without insurance.

CLICK HERE to see a table of criminal convictions and length of habilitation.

RBM Solicitor has been well placed to assist many individuals who have criminal convictions. Our proven track record in dealing with human rights cases will be invaluable in times when the immigration rules are being tightened.

RBM Solicitors assisted a Zimbabwean couple who had been convicted of deception and sentenced to 12 months imprisonment each. RBM Solicitors successfully argued that the rights of the minor children would be infringed if the family was deported to Zimbabwe. We succeeded in obtaining discretionary leave for the family.

If you think you will be affected by the changes to the law please contact RBM Solicitors on 02476520999 or 07956949500 or 07772790291

However, with readers settling in their adopted countries, there are other issues which now require legal assistance. One of the most common areas is that of family law.

I am going to do some posts relating to issues that affect children and parents and spouses. Issues relating to finance always seem to take a prominent position in people’s lives and I will therefore start with a post on maintenance for minor children. This post will refer to UK law.

Since the early 1990s, the Child Support Agency (CSA) (now called the Child Maintenance and Enforcement Commission (CMEC) www.childmaintenance.org, has dealt with financial support for children. This means that in the majority of cases, the court cannot decide how much child support is payable.

Where one parent lives outside England or Wales, different rules apply and you may need to take specialist advice in these circumstances.

If both parents live in England or Wales, CMEC is the only way to deal with maintenance unless:

• Parents agree a payment between them (it is often best to ask a Court to make a Court Order by agreement to reflect this arrangement).
• There are extras such as private school fees to pay (Courts can deal with this).
• The child(ren) for whom maintenance is sought have special needs and additional costs for example arising out of disability.

CMEC can only deal with an application for child maintenance when both parents and the child live in the UK.

The question that springs to mind is: if there is some non-UK residence, how do I get maintenance for our child?

If one of the parents lives abroad and does not fall into one of the categories above, then the parent with care can apply to the courts for child maintenance. If the parent with care needs help in collecting the money awarded under the court order for maintenance, they can contact the Reciprocal Enforcement of Maintenance Orders section at the office of the Official Solicitor and Public Trustee.

Reciprocal Enforcement of Maintenance Orders – or REMO – is the process by which maintenance orders made by UK courts on behalf of UK residents can be registered and enforced by the courts or other authorities in other countries. This is a reciprocal arrangement governed by international conventions, which means that foreign maintenance orders in favour of individuals abroad can likewise be registered and enforced by UK courts against UK residents.

This is a reciprocal arrangement which means that foreign maintenance orders in favour of individuals abroad can be registered and enforced by UK courts against UK residents.

If the non-resident parent lives in Australia and the parent with care lives in the UK then the Australian Child Support Agency may be able to accept an application to assess maintenance.

Zimbabwe is one of the countries on the list where the Reciprocal arrangements will apply. The economy in Zimbabwe is starting to improve and there are many people living in Zimbabwe who can afford to support children living in the UK. The easiest way to demonstrate this agreement is to give an example.

Chipo and Norman met in Zimbabwe. They had a child named Perseverance. Norman came to the UK in 2002 promising that Chipo and Perseverance would follow him.

Once Norman was in the UK, he started enjoying the good life. He forgot his family back home. He is now a qualified nurse, married with two other children.

Can Chipo claim maintenance for Perseverance? The simple answer is ‘yes!’ In these circumstances, she can apply to the courts in Zimbabwe. This is a case where the REMO agreement will apply. Chipo can then make an application in the UK for the order to be enforced in this country.

Reciprocal Enforcement of Maintenance Orders – or REMO – is the process by which maintenance orders made by UK courts, on behalf of UK residents, can be registered and enforced by courts or other authorities in other countries against people resident there, or a claim for recovery of maintenance by a UK resident against a person resident in another country can be established in that country.

For more information on the process visit: www.officialsolicitor.gov.uk

The judgment stated that the Maintenance (Funds) assessment must be made in line with the Immigration Rules. The Immigration Rules in place prior to July 23 only specified that the applicant must hold the required level of funds (specific to the Tier, or sub-Tier which the application was made under) at the date of the application.

The particular criterion which was the subject matter of the appeals before the Court of Appeal was the requirement that applicants had to have the amount of money stipulated in the Immigration Rules to show that they could support themselves (and any family members) in the UK for a certain amount of time immediately before they made their applications. This meant that any application which had been refused because the applicant had not had the necessary funds for the length of time set out in the policy guidance had been wrongly refused.

In late July 2010, after initially announcing its intention to apply to the Supreme Court for permission to appeal against the Court of Appeal’s judgment, the UK Border Agency said it would now not apply to the Supreme Court.

Then on July 22, a new statement of Changes of the Immigration Rules (HC 382) was laid before Parliament, in which among other things the length of time that applicants must have the necessary funds was included in the Immigration Rules themselves for the first time. This change came into force the next day, July 23, 2010.

The UKBA published a policy on its website entitled “Points based system – maintenance (funds) policy document”. Under this policy, the UKBA undertook to reconsider the decisions it had made up to and including July 22, 2010, to refuse applications because the applicant hadn’t shown that he or she had the funds for the period fixed by the policy guidance.

However, the policy stipulated that anyone applying for reconsideration had to be “lawfully in the UK” when they did so. It said:

“16. Migrants must be lawfully in the United Kingdom in order to take advantage of this reconsideration process

“17. A request by a migrant for a previously refused application to be reconsidered under this policy will be treated as an application to switch from the migrant’s current leave to the leave granted as a consequence of the previously refused application.”

On Monday, November 22, 2010, the UKBA published revised policy guidance for applicants under the points-based system whose applications were refused solely because they did not meet the maintenance (funds) requirement.

The policy document covers applicants who:

* Applied for leave to remain under Tiers 1, 2, 4 and 5 of the Points Based System (PBS), including dependants; and

* Applied up to and including July 22, 2010; and

* Were refused on Maintenance (Funds) only; or

* Applied for entry clearance under Tiers 1, 2, 4 and 5 of PBS, including dependants; and

*Applied between 23 June and 22 July 2010 (inclusive); and

*Were refused on Maintenance (Funds) only.

The instruction does not apply to applicants who applied for either entry clearance, or leave to remain on, or after July 23, 2010. Those applications will be considered under the new rules laid before parliament on July 22 (which became law on 23 July 2010) and any future changes made to the Rules, as approved by Parliament.

The requirement for applicants for reconsideration to be “lawfully in the UK” disqualified the majority of people who had been wrongly refused.

Most of them would have applied for further leave to remain shortly before their leave to remain was due to expire, and they would therefore no longer be “lawfully in the UK”. Furthermore, if they had appealed unsuccessfully against the refusal of their applications they would not have leave to remain in the UK and so could not claim to be here “lawfully”.

Indeed, unsurprisingly, many people left the UK following the refusal of their applications for leave to remain simply because not doing so would have led to their being “overstayers”.

A typical example is as follows. “A applied for leave to remain as a Tier 1 on May 12, 2010. Her application was refused on the basis that her bank account fell below the required £800 balance for a period of two days. She appealed and her decision was refused. All her appeal rights were exhausted.

A has not returned to her country of origin and is still trying to make alternative applications for leave to remain in the UK. She applied under the existing policy and was refused as she was not lawfully resident in the UK. A has now overstayed.”

The current position is that A can apply for the initial decision to be reviewed under the current guidance.

The updated policy guidance is generous and assists genuine applicants who were placed in a difficult position by the stringent application of the points based system.

RBM Solicitors provide assistance in immigration matters and would be well placed to assist people who are eligible to benefit under the revised policy.

Rumbidzai Bvunzawabaya is a Solicitor at RBM Solicitors based in Coventry. Visit website:http://www.rbmsolicitors.co.uk, e-mail info@rbmsolicitors.co.uk or call 02476520999

Disclaimer: This article only provides general information and guidance on immigration law. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. The writer will not accept any liability for any claims or inconvenience as a result of the use of this information