Family Immigration

The Border and Immigration Agency (BIA) of the UK Home Office has amended the way it deals with applications for Certificates of Approval (COA) for marriage or civil partnership, following the decision of the UK Court of Appeal in the case of Baiai [2007] EWCA Civ 478 on 23 May 2007, in which the Certificate of Approval regime was declared unlawful.

The UK immigration rules provide for relatives other than spouses, civil partners and minor children to join a person present and settled in the UK. In particular they make provision for parents and grandparents over 65 to join children or grandchildren present and settled in the UK and to be given Indefinite Leave to Remain (ILR or 'settlement') in the UK. 

On 19 June 2007, Ukvisas, the joint Foreign and Commonwealth Office (FCO) and Home Office department dealing with applications for entry clearance (visas) at British posts abroad, published the 14th Report of Ms Linda Costelloe Baker, the Independent Monitor for entry clearance applications without right of appeal except on grounds of human rights and race discrimination.

If you are a parent living in the UK or entering the UK with a view to settlement (Indefinite Leave to Remain, ILR), you may wish for your child to join you in the UK, possibly also for settlement. However, if the child’s other parent continues to live in another country, then you will have to satisfy the Home Office that you 'have had sole responsibility' for that child.

This short article discusses the Home Office’s interpretation that there is a requirement for unmarried and same-sex partners to demonstrate that they live in a relationship akin to marriage, normally by demonstrating that they have co-habited as a couple for a two year period, in order to be granted leave to enter, remain or receive entry clearance.

The Immigration Rules provide a means for those who are truly financially independent to establish a permanent home in the UK.  The primary requirements are that: the retiree must be 60 years or over; have a minimum annual disposable income of £25,000 under their control in the UK; be willing and able to maintain themselves and any dependants indefinitely in the UK solely using their own resources; be able to demonstrate a close connection with the UK; intend to make the UK their main home and hold a valid entry clearance (a visa) in this capacity.

In Jia v Migrationsverket [2007] EUECJ C-1/05, the European Court of Justice (ECJ) gave judgment in a case with direct relevance to the rights of dependent relatives seeking to join European Economic Area (EEA) nationals exercising free movement rights within the United Kingdom. While the case is clearly significant it is likely, as discussed below, to leave important issues for future clarification or decision by the ECJ.

Despite the apparent clarity of the House of Lords’ judgment in Huang; Kashmiri v SSHD [2007] UKHL11, the UK courts appear to be seeking to re-impose the ‘exceptionality’ test in respect of Article 8 of the European Convention on Human Rights (ECHR) claims.

Article 8 of the ECHR concerns the right to respect to family and private life. It is often relied upon by applicants whose claims to remain in the UK cannot succeed under the UK Immigration Rules but have established a family or private life in the UK (e.g. by marrying, forming a civil partnership or having children), often during periods of delay by the Home Office in considering their initial applications under the UK Immigration Rules.

Prior to the House of Lords’ judgment in Huang in March 2007, the test applied in such cases was that in order to succeed under Article 8, ECHR it would have to be shown that the individual case was “truly exceptional”. However, the House of Lords specifically rejected that test. They stated that it was based upon a misunderstanding of Lord Bingham’s words in the earlier case of Razgar. The UK House of Lords said in Huang:

"In an article 8 case…the ultimate question for the appellate immigration authority is whether the refusal of leave to enter or remain, in circumstances where the life of the family cannot be reasonably expected to be enjoyed elsewhere, taking full account of all considerations weighing in favour of the refusal, prejudices the family life of the applicant in a manner sufficiently serious to amount to a breach of the fundamental right protected by article 8.  If the answer to this question is affirmative, the refusal is unlawful and the authority must so decide.  It is not necessary that the appellate immigration authority...need ask in addition whether the case meets a test of exceptionality.  The suggestion that it should is based on an observation of Lord Bingham in Razgar… He was there expressing an expectation…that the number of claimants not covered by the Rules and supplementary directions but entitled to succeed under article 8 would be a very small minority.  That is still his expectation. But he was not purporting to lay down a legal test.”

There have now been a number of cases in which less senior courts have sought to interpret this decision.

In KL (Article 8-Lekstaka-delay-near-misses) Serbia & Montenegro [2007] UKAIT 00044, the Asylum and Immigration Tribunal (AIT), considered previous guidance set out by the UK Court of Appeal for considering the significance of delay in deciding Article 8 cases. They examined the judgment of the UK Court of Appeal in HB (Ethiopia) [2006] EWCA Civ 1713 in the light of the House of Lords’ judgment in Huang. The Court of Appeal had said in HB that:

What is the policy?

One of the less well publicised policies of the Secretary of State for the Home Department is that benefiting children with over seven years residence in the United Kingdom. Although there is some uncertainty as to the exact wording of the policy, the courts have expressed the view that it is likely to be based on two statements. The first is:

Stop press: see subsequent Certificate of Approval articles in the 'Family Immigration'  section of Gherson and Co. articles for details of further information issued by the Home Office.