Family court proceedings involving children – Children Act proceedings – are complex enough, but where a parent’s immigration status depends on maintaining a relationship with a child, a distinct problem arises at the intersection of family and immigration law.
Family courts are not always equipped to assess the consequences of the immigration legal process, while the immigration tribunal can lack the knowledge of family court nuances to evaluate parental relationships. The jurisdictions are thus disconnected. This results in outcomes that are unfair to foreign parents and detrimental to children’s welfare.
A common scenario is a foreign parent entering the UK as the spouse of a British citizen or settled person. The relationship later breaks down and the foreign parent’s immigration status is subsequently revoked. Where there is a British child, the foreign parent’s primary route to remaining in the UK will usually depend on demonstrating a relationship with the child.
Section 117B(6) of the Nationality, Immigration and Asylum Act 2002 (and equivalent provisions in the UK Immigration Rules) permit a foreign parent to remain in the UK if they can show a ‘genuine and subsisting parental relationship’ with a British child. In Secretary of State for the Home Department v AB (Jamaica) and Anor [2019] EWCA Civ 661, the Court of Appeal held that the existence of such a relationship would ‘depend on an assessment by the relevant court or tribunal of the facts of the particular case before it’. The exercise, in the court’s view, was ‘a highly fact-sensitive one’. Under this flexible approach, a parental relationship may be found to exist despite very limited or even no direct contact. However, this approach is not always applied.
The Home Office approach is very ‘black and white’. The latest Home Office Family Policy guidance states that ‘the applicant must prove they have direct access in person to the child’. This approach often steers tribunal judges towards a more binary assessment, turning entirely on ‘direct contact or no contact’.
In the family court, the starting point is section 1 of the Children Act 1989. This provides that the child’s welfare is the paramount consideration. Any application for contact must be determined through this lens. Applying the principle is not straightforward. Section 1(3) contains what is often called a ‘statutory checklist’ of matters that the court must consider, such as the child’s wishes and feelings; their needs; and any harm they could suffer. These checklist factors do not always fit with the immigration law requirement to evidence a ‘genuine and subsisting parental relationship’. As a result, foreign parents face distinct problems.
Foreign parents often face allegations that they are only seeking contact with the child to gain immigration status. Such allegations oversimplify the legal reality: the parent has no choice but to seek contact if they wish to remain in the UK, and no choice but to remain in the UK if they wish to have contact. Family courts often readily accept that the contact application is driven by the foreign parent’s immigration status.
Children Act proceedings do not always produce finality. A foreign parent might be refused contact in a particular set of proceedings; however, they can often reapply successfully in the future. This might be because they need to complete a domestic abuse awareness course to mitigate the risk of harm to the child before contact can progress. Alternatively, the court might deem that a child does not wish to have contact at that particular time, but acknowledge that the child might be open to future contact. In such scenarios, the ‘end’ of the Children Act proceedings is not really the end of the parental relationship. Despite this, the immigration tribunal tends to take a narrow view and treat the absence of a contact order as determinative. This collapses an evolving parental relationship into a single procedural outcome, from which further problems flow.
An unsuccessful appeal often creates financial pressures and thus impedes access to legal representation. Initially, a foreign parent holding a spouse visa has the right to work. Provided that they submit any appeal against an adverse Home Office decision in time, a foreign parent in an appeal process usually holds leave to remain extended by statute (section 3C of the Immigration Act 1971). The end of the appeal process often means that the parent loses the extended status and thus also the right to work. This inevitably leads to financial distress and means that the foreign parent is unable to pay for legal assistance in any subsequent application in the family court or immigration tribunal. The parent must also conduct any future proceedings, fearful that they might be removed from the UK during the proceedings.
If the foreign parent is removed from the UK, then it becomes extremely difficult, if not practically impossible, for them to re-enter the UK to participate in proceedings.
Furthermore, the foreign parent’s removal from the UK is likely to result in a complete loss of contact for the remainder of the child’s minority. One might expect that the family court would grapple directly with this possibility when assessing the child’s welfare. However, the court’s response is usually that the foreign parent’s immigration status falls outside its remit. This approach ignores the real-world consequences for the child’s long-term relationship with the parent.
These problems arise frequently in family and immigration proceedings. They create a particular disadvantage for children whose applying parent is subject to immigration control because the opportunity to rebuild relationships through future proceedings is impeded.
Family practitioners representing foreign parents must be careful to ensure that immigration consequences, including the impact of complete loss of contact following removal, are set out clearly to the court. Similarly, immigration practitioners should highlight to the immigration tribunal that procedural outcomes in family proceedings are not necessarily final determinations of parental relationships. Judges in both jurisdictions would benefit from targeted cross-disciplinary training. Greater alignment between the two jurisdictions would lead to fairer treatment of foreign parents, more realistic assessments of parental relationships and, ultimately, better outcomes for children.
Billal Malik is a family law barrister at Demstone Chambers, London
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