UK leave to remain for children, spouses

UK leave to remain for children, spouses

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By Taffy Nyawanza

I RECEIVED an enquiry from Khami (name changed). She wanted to know what immigration options are available to her as the jilted and estranged spouse of a UK Highly Skilled Migrant Programme visa holder.

She has a young child with her husband. She and her daughter recently joined the husband in the UK after a wedding in Zimbabwe. Unfortunately, the marriage hit turbulence, the husband having clapped his eyes on another woman.

Previously on this column, we discussed a somewhat related issue dealing with the options available to an abused spouse of a person settled in the UK. The present case is distinguishable because the spouse is not abused, but unwanted nevertheless. In appropriate cases, Rule 248A of the Immigration Rules can be used to remain in order to exercise the right of access to a child.

A little background:

Rule 246 (with the accompanying 247 and 248) was introduced following a report by the European Commission of Human Rights that in the case of Hanna Yousef Abdulla, a Kuwaiti citizen, the United Kingdom had breached Article 13 of the European Convention of Human Rights. Article 13 of the ECHR says:

"Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity."

Mr Abdulla was refused a visa to enter the United Kingdom following the collapse of his marriage and, as a result, was unable to exercise rights of access to his child resident in the United Kingdom. There was no provision in the Rules at that time for the admission of divorced or legally separated parents to exercise access rights to their children. Mr Abdulla therefore had no effective legal redress or right of appeal against this anomaly and the UK were found to be in breach of Article 13 of the Convention. The United Kingdom was obliged to take measures and satisfy the Committee of Ministers that there would be no similar future breaches of Article 13 of the Convention.

The right of admission of divorced or legally separated parents to exercise rights of access to their children was therefore introduced into the Rules subject to a visa requirement. Further, there is also now a right of appeal against a negative decision by an Entry Clearance Officer which constitutes an "effective remedy before a national authority".

Having created a Rule for parents to obtain a visa to exercise rights of access to a child resident in the United Kingdom, it became logical to also make provisions (effective from 2 October 2000) to allow parents already in the UK "leave to remain" in order to exercise rights of access and "indefinite leave to remain" on the basis of continuing rights of access.

Perhaps more importantly, these rights were also extended to apply to all parents, not just those who are divorced or legally separated. This consequently covers those parents who never married and who were living as a co-habiting couple prior to the relationship breakdown.

Prior to these changes, any applications for “further leave to remain" and "indefinite leave to remain" were considered on an exceptional basis outside the Immigration Rules. No provisions existed within the Rules for indefinite leave to remain on the basis of a parent exercising rights of access to a child. Henceforth, a parent will be allowed to preserve and continue family life with a child, provided that the requirements of the Rules have been fulfilled. This was considered to be consistent with Article 8 of the same Convention which guarantees the right to the respect of a private and family life without unjustified interference by a public authority.

So what are the requirements to be met by a parent applying for leave to remain? Notice that Khami is in the UK already and the requirements are slightly different from those at entry. Khami must show that;

* she is the parent of the child resident in the UK and intend to enter in order to exercise rights of access; and

* the parent or carer with whom the child permanently resides must be resident in the UK (the husband in this case);

* the child must be under 18;

* she must have evidence that a UK court has granted rights of access to the child, or a certificate issued by a district judge confirming the applicant's intention to maintain contact with the child; or a statement from the child's father (or, if contact is supervised, from the supervisor) that the applicant is maintaining contact with the child; that she takes and intends to continue to take an active role in the child's upbringing; and the child visits or stays with the applicant on a frequent and regular basis and the applicant intends this to continue; and

* she has limited leave to remain in the United Kingdom as the spouse, civil partner, unmarried partner or same-sex partner of a person present and settled in the United Kingdom who is the other parent of the child.

These are self-explanatory. Note however, that the last of these requirements requires the other parent to have indefinite leave to remain in the UK. Khami’s husband holds an HSMP and its not clear from the facts whether this has as yet been converted to ILR to bring him within the contemplation of this provision. There is no such requirement at entry.

Note also that to qualify for leave to remain under this provision, the applicant in the UK must have existing leave to enter or remain as a spouse or unmarried partner.

The Applicant must also show that she has not breached the immigration rules and/or has not been in the UK illegally prior to the application. In exceptional circumstances and because this is an area involving children, there may be leeway room to negotiate for discretion to be exercised by the Secretary of State for the Home Department. Its is imperative in such cases to seek specialist legal advice prior to making any applications, particularly for those who have overstayed their leave or who are unlawfully in the United Kingdom.

The usual requirements to demonstrate ability for self-maintenance and accommodation without recourse to public funds apply for the ILR application.

Residence orders, contact orders granted by UK Courts or certificates issued by district judges confirming the applicant's intention to maintain contact with the child are all taken as suitable evidence of rights of access. This would confirm the commitment of the parent and prevent applicants from attempting to enter or remain in the United Kingdom under false pretences.

For persons outside the UK wishing to come under this rule, the hurdle is often that the courts in the United Kingdom may refuse to recognise foreign custody arrangements. Such a decision is not made lightly but may be taken where it is not in the best interests of the child to allow entry.

In such situations, there is a whole issue of complex interpretation of which court has jurisdiction, what laws apply depending on which international conventions the relevant states are signatory to, and the recognition and enforcement of foreign judgements (commonly referred to as Conflict of laws issues).

Suffice to say, it is less hassle to get the relevant documents granted by a UK Court, or alternatively to get to ask the court to recognise the foreign custody order.

Finally, the applicant may, at the end of a probationary 12 month period, apply for Indefinite Leave to Remain, providing that they are taking and continue to take an active role in the child’s upbringing, that the child stays with them on a frequent and regular basis and that this is intended to continue. The applicant must also provide evidence that they are able to maintain and accommodate themselves within the United Kingdom without recourse to public funds.

Taffy Nyawanza is accredited by the OISC and writes in his personal capacity. He can be contacted at profettaffy@yahoo.co.uk

Disclaimer: This article only provides general information and guidance on immigration law. It is not intended to replace the advice or services of a solicitor. 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
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