Family Immigration

The Court of Appeal has held that the Asylum and Immigration Tribunal (AIT) was correct to decide that the finding of an adjudicator, that a Sri Lankan woman was not living alone in the most exceptional and compassionate circumstances, was an error of law (EK v Secretary of State for the Home Department [2006] All ER (D) 31 (Jun)).

The Court of Appeal has ruled, in Zackaria Muhidin Ali v Secretary of State for the Home Department [2006] EWCA Civ 484, that EEA children do not have an unfettered or unrestricted right to receive education in an EEA country (the European Union as well as Norway, Switzerland, Iceland and Liechtenstein) other than their own. As a consequence the child?s father had no right to reside in the UK with his child.

It was argued that the child, a Dutch national, has an unrestricted right to receive education in the UK (under Art 18 of the Maastricht Treaty which gives rights of residence to EU nationals in other EU states) and that the child?s father, a Somali national, was entitled to accompany him as he is providing care for the child.

Under new regulations to be introduced on 30th April 2006, couples who are not married or have not committed to a civil partnership, may be regarded as family members under EEA law.

Under EEA or European law, an EEA citizen is entitled to bring with him to another EEA country certain specified family members, when exercising his right to work; undertake business; or study in another EEA member state. Until the new regulations, he could not bring his unmarried partner as his family member (to the UK).

The new regulations now allow an EEA citizen in the UK to include as a family member a person who is not his spouse (husband or wife) or his civil partner, but with which he is in a durable relationship and only if the Home Office deem it appropriate. The word durable is not defined, but the couple will likely be required to show that they are in a committed relationship and one that will last for the foreseeable future.

New regulations concerning EEA citizens and their family members will be introduced on 30th April 2006, and will for the first time include civil partners as a family member.

When EEA citizens move to another EEA country to work; set up business; study; or if they are self-sufficient; they have the right to bring certain family members with them, even if the family member(s) is not an EEA citizen.

A family member has in the past been defined not to include couples that are not married. This therefore excluded same-sex couples from countries where they cannot marry.

On 30th April 2006, new regulations will be introduced which will change the way persons from the EEA and their family members get permanent residence in the UK (The Immigration (European Economic Area) Regulations 2006). The new regulations are as a result of a Directive from the European Union in 2004.

From the 30th April 2006, a citizen from the EEA and his family members will acquire permanent residence in the UK when they have lived here for 5 years (other conditions apply). There are two main differences to the old regulations.

Under the old regulations an EEA citizen and his family members could get permanent residence (Indefinite Leave to Remain (ILR)) after only 4 years. However, the good news is that the person acquires permanent residence without having to make an application to the Home Office. Once the person has been here for 5 hears or more, and the other conditions are met, then they become automatically entitled to permanent residence. It is no longer granted by the Home Office. However the person will still have to prove his entitlement if he wants official confirmation that he is a permanent resident

On 23 January 2006, the Statement of Changes in Immigration Rules HC395 was amended to provide for specific rules for children visitors to the United Kingdom. Under the new rules a child is considered to be a person under 18 years of age who can demonstrate that suitable arrangements have been made for his or her travel to the United Kingdom and that reception and care in the United Kingdom will be provided.

What are the requirements?

In order to enter the United Kingdom in this capacity he or she will need to demonstrate the following:

1. That he or she is under the age of 18.

The introduction of the Civil Partnership Act 2004, which came into force on 5 December 2005, has created some changes to the British Nationality Act 1981. Civil partners will now enjoy the same rights as married couples when applying for naturalisation as a British citizen.

Primarily, the changes enable the civil partner of a British citizen to apply for British citizenship following three years? residence in the United Kingdom, under section 6(2) of the British Nationality Act 1981. The civil partner must have indefinite leave to remain in the United Kingdom at the time of making the application, while satisfying various other requirements.

Case Law Update: YZ and LX (China) [2005]

The above appeal was heard by the Asylum & Immigration Tribunal on 1 November 2005. The appellant were two citizens of the People?s Republic of China who were refused Leave to Remain in the United Kingdom as the dependant parents of a person present and settled in the United Kingdom under the provisions of paragraph 317 of the Immigration Rules.

Paragraph 317 states as follows:

\"317. The requirements to be met by a person seeking indefinite leave to enter or remain in the United Kingdom as the parent, grandparent or other dependent relative of a person present and settled in the United Kingdom are that the person:

The Civil Partnerships Act 2004 will come into force on 5 December 2005 and from Monday 14 November 2005 the Home Office will begin accepting visa applications for visits to the UK to register civil partnerships and proposed civil partners. This will allow time for those who wish to give notice of a civil partnership to the Registrar on 5 December 2005. Entry clearance is mandatory for anyone who is not British, settled in the UK, or an EEA or Swiss national.

On the 18th of November 2004 the Civil Partnership Act 2004 received royal assent. The act provides for same sex couples who register their partnership under the approved procedures to be treated in a similar way to married couples. This relates to a number of issues, one of which is immigration.

The effects of the Civil Partnership Act 2004 on the immigration rules will be allow couples who have registered their partnership to apply for leave on that basis, thereby removing the two year cohabitation requirement for those couples who have registered their civil partnership under the Civil Partnership Act. It is envisaged that the immigration rules will be amended to reflect the current rules relating to foreign nationals married to either a British citizen or someone settled in the UK.