Vitalis Madanhi

Vitalis Madanhi is the principal solicitor with Bake & Co Solicitors based in Birmingham, England

UK: contact and residence orders in immigration matters

WITH the current changes in immigration laws in the UK, those who have established ties are keen to hold firmly to justify a clear basis as to why they should not be removed to their homelands.

Invariably, those who have seared children are also doing all they can to ensure that they re-establish contact and effective child care and parenthood. Applications are being made to the Family courts to obtain contact orders, residence orders and various other court proceedings to link themselves appropriately to the child. This has hitherto helped many to settle in the UK.

However, of late, the immigration judges have clarified the position in two almost similar cases. In one such a case referred to as IA, a national of Ghana travelled to the UK and had a daughter born in the United Kingdom on May 18, 2002, to a man called NA whose nationality and immigration status was uncertain. The father of the child was regarded as an EU national during the proceedings.

The mother had a remarkable history of deception relating to her entry to and residence in the United Kingdom from 1998 to 2010. In 1999, she came to the United Kingdom but was subsequently removed. She then returned in 2001 using another name that has been her identity until quite recently. She was given leave to enter as an accountancy student and such leave was extended to 2002. She then remained without leave.

By reason of the use of the false name and the suppression of her adverse immigration history, she was and remains an illegal entrant liable to summary removal. In June 2003, she applied for a residence card as the spouse of a Dutch national. She produced a passport, Ghanaian marriage certificate and employment documents to support that claim. In July 2004, a five year residence card was issued on the basis of this claimed marriage. In November 2008, she procured from Barnet County Court the dissolution of this marriage.

In the above case, the mother sought to remain in the UK by making contact applications and by obtaining a residence order so that one could remain in the UK on that basis. The Upper Tribunal has confirmed that an order of the Family Courts, such as a residence order, which stipulates with whom a child is to live, cannot itself bar the SSHD from taking removal action against a person concerned with such an order.

The Appellant had tried to argue that, because she had a residence order and a prohibited steps order in her favour, the child (and her as a consequence) could not be taken out of the jurisdiction.

The Tribunal held that that is not right because a) the prohibited steps order, forbidding the child to be taken out of the jurisdiction, was directed to the child’s father and not the SSHD, b) similarly, the residence order is not to be treated as directed to the SSHD, who is also not a party to the family proceedings, c) no removal decision had been taken in the Appellant’s case and d) even if the various family orders did have some effect on the actions of the SSHD, the relevant orders could always be varied upon an application to the family court before removal was actually effected.

In a different case of RS (Immigration and family court proceedings) India, RS became an overstayer. He had also submitted an application to regularise his stay on the basis of his relationship to his wife and family life in the UK but before this was decided, he was convicted in June 2009 of possessing a false identity document, which, it was accepted, he had obtained and used in order to gain employment and provide for his wife and child.

The Appellant was sentenced to 12 months’ custody and upon completing that, was detained under immigration powers until he was released in March 2010. The Appellant’s wife struggled to care for their child on her own while he was in prison/detention and the conditions in the home deteriorated as well as her own mental health. This prompted the local authority in February 2010 to issue care proceedings resulting in the child being removed from the mother’s care and placed in the interim care of the local authority with foster carers.

Deportation action followed the Appellant’s conviction and so the matter came before the First-tier Tribunal in March 2010 while the care proceedings were being conducted in parallel. The appeal was then dismissed on the basis that any interference with family life would be diminished if the Appellant’s wife and child could join him in India and that the interference was justified because it pursued the legitimate aim of the prevention of crime.

The Upper Tribunal had also concluded that it could not await the outcome of the care proceedings as otherwise each court would continue to wait for the other. The court had to make a provisional order in the result and outlined guidelines in such circumstances as follows:

Where a claimant appeals against a decision to deport or remove and there are outstanding family proceedings relating to a child of the claimant, the judge of the Immigration and Asylum Chamber should first consider:

# Is the outcome of the contemplated family proceedings likely to be material to the immigration decision?

# Are there compelling public interest reasons to exclude the claimant from the United Kingdom irrespective of the outcome of the family proceedings or the best interest of the child?

# In the case of contact proceedings initiated by an appellant in an immigration appeal, is there any reason to believe that the family proceedings have been instituted to delay or frustrate removal and not to promote the child’s welfare?

In assessing the above questions, the judge will normally want to consider: the degree of the claimant’s previous interest in and contact with the child, the timing of contact proceedings and the commitment with which they have been progressed, when a decision is likely to be reached, what materials (if any) are already available or can be made available to identify pointers to where the child’s welfare lies?

Having considered these matters the judge will then have to decide:

# Does the claimant have at least an Article 8 right to remain until the conclusion of the family proceedings?

# If so, should the appeal be allowed to a limited extent and a discretionary leave be directed as per the decision on MS (Ivory Coast) [2007] EWCA Civ 133?

# Alternatively, is it more appropriate for a short period of an adjournment to be granted to enable the core decision to be made in the family proceedings?

# Is it likely that the family court would be assisted by a view on the present state of knowledge of whether the appellant would be allowed to remain in the event that the outcome of the family proceedings is the maintenance of family contact between him or her and a child resident here?

It is also very important to have as much evidence as possible in respect of the relevant family life in order to avoid the Tribunal pre-judging that any contact or other type of family proceedings are being instigated to frustrate the removal/deportation.

With these developments, the children shall gain in the process as both parents would be alive to their roles as this could eventually become the deciding factor in crucial immigration proceedings.

It is advisable to commence effective contact with the child early so that one’s intentions are not misread by the courts should matters come to the head.

Vitalis Madanhi is the Principal solicitor of Bake and CO Solicitors, a firm

specializing in Immigration and asylum law in Birmingham, UK. He can be contacted at vmadanhi@bakesolicitors.co.uk, Phone 01216165025, mobile

07947866649 www.bakesolicitors.co.uk

Disclaimer: This article only provides general information and guidance. It is not in any way intended to replace or substitute the advice of any solicitor or advisor. Each case depends on its facts. The writer will not accept any liability for any claims or inconvenience as a result of the use of this information