Immigration and nationality law following surrogacy agreements

A surrogacy arrangement is, broadly speaking, where a woman carries and delivers a child for another couple or person. Under section 2(1) of the Surrogacy Arrangements Act 1985, it is a criminal offence for a person on a commercial basis to initiate or take part in a surrogacy agreement in the UK. Many families in the UK opt for countries where commercial surrogacy is lawful, such as the USA and Ukraine. However, children born out of surrogacy arrangements will not necessarily be born British, even when the commissioning parents are British. This is mainly because of the definition of “father” and “mother” under British nationality law. Questions then arise as to the…

11th October 2017 By Nath Gbikpi

The Theis case: immigration and nationality law for adopted children

The story of Patrick Thies, a US NHS surgeon who had to return to the US to apply for a new visa for his two adopted children while his British wife and biological son remained in the UK, made the news a couple of weeks ago. Immigration and nationality law as it relates to international adoption is undoubtedly complex and a topic with which only a few practitioners are familiar. There are numerically very few international adoption cases, after all. The inevitable cross over with family law does not make it any easier. This blog post provides an overview of the subject. Types of adoption The first thing to note…

21st August 2017 By Nath Gbikpi

Court of Appeal reiterates effect of orders in the family courts on deportation decisions

The Court of Appeal in GD (Ghana) [2017] EWCA Civ 1126 explained once again what effect residence orders granted by a Family Court have on immigration matters, and criticised both representatives in the First-Tier Tribunal for failing to put the relevant law to the Tribunal. The ‘residence order’ regime has now been replaced with ‘child arrangement orders’ by the Children and Families Act 2014, but this does not change the effect of family proceedings on immigration proceedings. Residence orders are made by a Family Court and determine with whom a child subject to the order will live, and will usually last until the child is 16 years of age. A decision-maker…

8th August 2017 By Paul Erdunast

When will a foreign adoption be recognised in common law for immigration purposes?

In W v SSHD [2017] EWHC 1733 (Fam) (07 July 2017) a married couple resident in the UK on a Tier 2 visa attempted to bring their 2-year-old adoptive son, V, to join them from Nigeria. The application they made for him to enter as a Points Based System dependent was rejected after the Secretary of State refused to recognise the currency of the Nigerian adoption document. As the couple were unable to satisfy any of the available statutory routes to demonstrate the adoption in the UK, the only option available was to apply for recognition of the adoption at common law. Such an order would have the same effect…

25th July 2017 By Nick Nason

Home Office inspectors release series of reports: highlights for lawyers

For some reason the Home Office has just released a swathe of inspection reports into a wide range of Home Office operations. In practical terms, this makes it impossible for the press to pick out more than one or two stories from the reports and it therefore very effectively reduces scrutiny. Usually I have nothing better to do than sit and read these reports when they are hot off the press (!) but 10 in two days seems excessive even to me I cannot stir myself to read all of them. It is almost as if there is something to hide somewhere in there. Nevertheless, I am going to confine…

14th July 2017 By Colin Yeo

Can a child stateless by “choice” be registered as a British citizen?

Under the British Nationality Act 1981, a child who is born in the UK and is (and always has been) stateless is entitled to register as a British citizen. See Schedule 2, Paragraph 3: 3 (1) A person born in the United Kingdom or a British overseas territory after commencement shall be entitled, on an application for his registration under this paragraph, to be so registered if the following requirements are satisfied in his case, namely— (a) that he is and always has been stateless; and (b) that on the date of the application he was under the age of twenty-two; and (c) that he was in the United Kingdom…

6th July 2017 By Nick Nason

The Children’s Society: Evidence Needed on The Impacts of LASPO on Separated and Unaccompanied Migrant Children’s Access to Justice

The children’s charity, The Children’s Society, and the University of Bedfordshire, are working together to document the impacts of LASPO (2012) on unaccompanied and separated migrant children. As such, they are looking for legal practitioners – OISC, solicitors, barristers and QC’s – to take part in a survey and or interviews about the impacts of LASPO (2012) on the immigration cases and circumstances of unaccompanied and separated migrant children. They will be using this evidence to feed into the pending review of LASPO but also in a strategic litigation case that the Children’s Society have been pursuing against the Lord Chancellor to bring separated / unaccompanied migrant children back into the scope of legal aid.  The…

12th May 2017 By Colin Yeo

Home Office application to delay Calais Jungle child asylum case refused by tribunal

In an oral decision in the case of R (on the application of AO & AM) v Secretary of State for the Home Department (stay of proceedings – principles) [2017] UKUT 168 (IAC) given on 28 March 2017, the Upper Tribunal refused the Secretary of State’s application to stay the Judicial Review proceedings of AO and AM, two unaccompanied minors previously in the Calais Jungle, and who had been refused their transfer to the UK under the expedited Dublin III process. In the decision Mr Justice McCloskey, President of the Upper Tribunal, offers very useful and interesting guidance on the principles to be followed in applications to stay proceedings pending…

3rd May 2017 By Nath Gbikpi

New case on children seeking entry under the Dublin Regulation

Official headnote: (I) The question of whether the Secretary of State has made a decision on the exercise of the discretionary power in Article 17 of the Dublin Regulation is one of fact which will be determined on the basis of evidence, direct or inferential. (II) Article 17 is an integral part of the Dublin regime. The suggestion that the Article 17 discretion falls to be exercised only where the family reunification criteria in Article 8 are not satisfied is misconceived. (III) Article 17 has a role in circumstances where one of the overarching values of the Dublin Regulation, namely expedition, is not being fulfilled in the procedures and systems…

21st April 2017 By Colin Yeo

When is it reasonable to require British citizen children to leave Britain?

Two interesting and important legal points emerge from the Upper Tribunal’s determination in SF and others (Guidance, post-2014 Act) [2017] UKUT 120 (IAC). The first is on the issue of when, if at all, a British child might be required by immigration policy to leave the UK and the second is how far, if at all, the tribunal might take account of policies of the Secretary of State under the new appeals regime established by the Immigration Act 2014. Reasonableness of requiring a British child to leave UK It turns out that the Secretary of State’s policy is that it is never reasonable to require a British citizen child to…

29th March 2017 By Colin Yeo

Children should be treated as children while their age is properly assessed

In this case an asylum seeker asserted he was a child. The local authority treated him as an adult while his age was assessed, contrary to the Age Assessment Guidance by the Association of Directors of Children’s Services. No cogent reason was given for departing from the guidance and the failure to follow it was held to be unlawful. For background see earlier blog post: Important new age assessment guidance published Source: S, R (on the application of) v London Borough of Croydon & Anor [2017] EWHC 265 (Admin) (24 February 2017)

3rd March 2017 By Colin Yeo

Supreme Court upholds Minimum Income Rule of £18,600 to sponsor foreign spouses in MM case

In linked judgments in the case of MM and others v Secretary of State for the Home Department [2017] UKSC 10, known to many as just “the MM case,” the Supreme Court has this morning upheld in principle the Minimum Income Rule which requires an income of at least £18,600 for British citizens and others to sponsor a foreign spouse. However, the court also held that the rules and policies used by the Home Office to assess such cases would need to be amended to take proper account of the impact on children and other possible sources of income and support. In a further linked judgment, Agyarko v Secretary of State for…

22nd February 2017 By Colin Yeo

New case from President on children’s best interests and the public interest

Important new determination from President McCloskey on the best interests of children in human rights cases where the statutory considerations apply: Kaur (children’s best interests / public interest interface) [2017] UKUT 00014 (IAC). The official headnote: (1) The seventh of the principles in the Zoumbas code does not preclude an outcome whereby the best interests of a child must yield to the public interest. (2) This approach has not been altered by Part 5A of the Nationality, Immigration and Asylum Act 2002. (3) In the proportionality balancing exercise, the best interests of a child must be assessed in isolation from other factors, such as parental misconduct. (4) The best interests…

18th January 2017 By Colin Yeo

Young People and Migration in the UK: An Overview – Migration Observatory

The University of Oxford based Migration Observatory has published a new report on young migrants. It reads a little like the introductory sequence to The Six Million Dollar Man. The key points: Migrants tend to be young when they arrive, typically as young adults coming for work or study, or as children accompanying their parents. Most young people whose first or main language is not English also speak good English. They tend to have lower educational achievement when they start school, but they make faster progress and so the gap is largely eliminated by age 16. Young migrants are more likely to have degree-level qualifications than the UK born. Employment…

24th December 2016 By Colin Yeo

Albino child from Nigeria wins asylum claim

A child can be at risk of persecutory harm contrary to the UN Convention on the Rights of the Child in circumstances where a comparably placed adult would not be at such a risk. Source: JA (child – risk of persecution : Nigeria) [2016] UKUT 560 (IAC) (24 November 2016)

22nd December 2016 By Colin Yeo

Tribunal makes order requiring dental age assessment of young asylum seeker

In a new case on dental age assessments, the tribunal has ordered that a young asylum seeker to undergo a dental x-ray and age assessment. If he refuses, his court case will be struck out. The case also gives general guidance on the correct approach to be followed in similar cases. The new case is ZM and SK, R (on the application of) v The London Borough of Croydon (Dental age assessment) [2016] UKUT 559 (IAC). It follows on from the Court of Appeal judgment in London Borough of Croydon v Y [2016] EWCA Civ 398, covered earlier on Free Movement: Court of Appeal says children can be required to be x-rayed to challenge…

20th December 2016 By Colin Yeo

Tribunal orders urgent admission of two Syrian children to UK

The tribunal has returned to the issue of when might children in the EU seeking entry to the UK under the Dublin Regulation be ordered to be admitted on an urgent basis. The order was made to admit the children in this case and the tribunal sets out guidance on the correct approach. The order was actually made on 11 October 2016 but was only reported last week, I think. The official headnote: (i)            By virtue of the decision of the Court of Appeal in ZAT & Ors the duty to admit a person to the United Kingdom under Article 8 ECHR without adherence to the initial procedural requirements of the Dublin Regulation requires…

15th November 2016 By Colin Yeo

Home Office publishes eligibility criteria for children to be admitted to UK under Dubs amendment

The Home Office has made public its internal guidance for officials on the process and criteria for admitting children to the UK who were living in the Calais camp. The obligation to admit the children comes from section 67 of the recently passed Immigration Act 2016, a section otherwise known as the “Dubs amendment” after Lord Alf Dubs, who proposed it. The basic criteria are: To be eligible a child must meet one of the following criteria: they are aged 12 or under they are referred directly by the French authorities, or by an organisation working on behalf of the French authorities, to the Home Office as being at high risk of…

15th November 2016 By Colin Yeo

What is the impact of a successful asylum claim on a child abduction case?

Can the Family Court ignore a decision by the Home Office to grant asylum to a child by ordering the child’s return to the country where it was found he would be at risk of harm contrary to Article 3 of the ECHR ? This was the central issue in Re H (A Child) (International Abduction: Asylum and Welfare) [2016] EWCA Civ 988, where a father applied for the summary return of his son to Pakistan, whom he claimed had been abducted to this jurisdiction by the mother. The mother’s case was that she and her son had suffered domestic violence at the hands of the father. The mother had…

7th November 2016 By Chris McWatters

Against Borders for Children: boycott of new nationality question in school census

From September 2016 parents, guardians and carers in England will be asked to state if their children are foreign nationals. Families can refuse to answer. The UK Government has required childminders, nurseries, schools and colleges to collect country-of-birth and nationality data for children aged between 2 and 19. This policy is unnecessary, divisive and puts vulnerable children at risk. Families and schools can take action to protect children. JOIN THE NATIONAL BOYCOTT. Source: Against Borders for Children

13th September 2016 By Colin Yeo

Dura Lex, Sed Lex: Refugee children must remain in Calais says Court of Appeal

The UK government, and Europe, has spared no expense to ensure that wherever the people trying to get to Europe end up, it isn’t here. But the courts are seemingly doing their best to help. The Court of Appeal’s judgment in Secretary of State for the Home Department v ZAT & Ors (Syria) [2016] EWCA Civ 810 keeps unaccompanied children in the Jungle. There are more than 10 million child refugees in the world today. Millions of them are unaccompanied. Families make what are to most people unimaginable choices about which child will be sent away from their families to seek safety alone. But the UK government has argued successfully…

7th September 2016 By Jared Ficklin

Seven year rule for children must be satisfied at date of application

This family life case highlights the important point that the ‘7-year rule‘ – that young people under 18 must have lived in the UK for at least 7 years – must be satisfied at the date of application. It is not sufficient that the rule, in Immigration Rules paragraph 276ADE (iv) has been satisfied at the date of the Secretary of State’s decision. This was unfortunate for the family in Koori who fell foul of the rule, despite serious confusion running through the Upper Tribunal case: 21. There appears to have been considerable confusion about the way in which this ground was dealt with in the UT. First, for some reason neither the…

3rd August 2016 By Paul Erdunast

The Let Us Learn Campaign

Imagine being told that everything you thought you knew as truth was an absolute lie. Imagine starting a journey with your peer group and then unexpectedly being ripped away from the same path. Imagine feeling as if no one understands your pain, your frustration, your anger. Imagine feeling like as if you’re alone in a room full of so many people, I mean physically present, but mentally a million miles away with your thoughts running at a thousand miles an hour. A change in the law five years ago meant that thousands of ambitious young people were placed in the situation described above. The legal gap The young people Let…

25th July 2016 By Paul Erdunast

Serial criminal to be deported despite impact on his children

If you attempt to murder someone with a gun, and after release from prison for attempted murder (a sentence of over four years), are caught again with a loaded gun and imprisoned, do not be surprised that only the most exceptional circumstances will save you from deportation. This was all in the context of running a drug-dealing ‘business’. The main point in the Home Office appeal in Secretary of State for the Home Department v CT (Vietnam) [2016] EWCA Civ 488 concerns the Article 8 argument which was rejected. Lady Justice Rafferty stated that the effect on the children of having only one parent subsequently remaining in the UK was not enough to pass…

15th July 2016 By Paul Erdunast

Government launches National Transfer Scheme for asylum seeking children

On 1 July 2016 the Government launched a new National Transfer Scheme for refugee children. It enables one local authority to request transfer of an asylum seeking child to another local authority. The rationale is said to be: to encourage all local authorities to volunteer to support unaccompanied asylum-seeking children (UASC) so there is a more even distribution of caring responsibilities across the country. The scheme is enabled by the coming into force of parts of the Immigration Act 2016. Initially it is voluntary in nature. A local authority can request transfer of a child in certain circumstances but there is no compulsion on any other local authority to accept…

14th July 2016 By Colin Yeo

Two new policies on asylum seeking children published

The Home Office has published two important new policies on asylum seeking children. The first is a rewritten version of the main Asylum Policy Instruction on Processing children’s asylum claims. The second is an entirely new 40 page policy instruction on Tracing family members of unaccompanied asylum seeking children.

12th July 2016 By Colin Yeo

Court of Appeal says when it is “reasonable” to remove a child resident for 7 years or more

The issue of when a child should be expected to relocate to another country because of UK immigration laws is an emotive one. In 2012 a new Immigration Rule was introduced stating that a foreign child would be permitted to remain if the child had lived in the UK for at least 7 years AND it was not reasonable to expect the child to relocate. This was paragraph 276ADE(vi) of the Immigration Rules. It was implied that the parents would also be permitted to stay to look after the child. This rule was discussed in detail earlier on Free Movement: Can children and parents apply to remain after seven years residence?

7th July 2016 By Colin Yeo

Committee on the Rights of the Child reviews the report of the United Kingdom

In the ensuing dialogue, Committee Experts expressed concern about the possible repeal of the 1998 Human Rights Act as it was feared that the new Bill of Rights would weaken the protection of children’s rights.  Experts were very worried about the increase in child poverty, which was up two per cent during the 2008-2012 period, while budget decisions made between 2010 and 2015 had shown that, despite some progressive policies and the apparent commitment of the Government, families with children had lost more as a result of the economic policies than those without children.  The Welfare Reform and Work Act 2016 repealed much of the 2010 Child Poverty Act and…

26th May 2016 By Colin Yeo

Court of Appeal says children can be required to be x-rayed to challenge age assessment in court

Interesting and controversial case on X-rays and age assessment from the Court of Appeal: London Borough of Croydon v Y [2016] EWCA Civ 398 (26 April 2016). Essentially, the Court holds that the claimant would have to agree to an age assessment by means of a dental X-ray in order to continue with his claim against the local authority. The claimant was arguing that he had been incorrectly age assessed as an adult when in fact he was a child. This is not an order that the child must be X-rayed. It does though require him to agree to it as the price of continuing with his attempt to prove…

18th May 2016 By Colin Yeo

Court of Appeal overturns President’s decision to allow deportation appeal

BL (Jamaica) v The Secretary of State for the Home Department [2016] EWCA Civ 357 is essentially an unhelpful judgment for convicted criminals arguing against deportation orders on Article 8 grounds. It overturned a McCloskey J and UTJ Perkins decision in the Upper Tribunal that allowed the appeal from a refusal by the First Tier Tribunal, criticising the UT judges for failing to follow the guidance in of SS (Nigeria) v Secretary of State [2014] 1 WLR 908 and MF (Nigeria) v Secretary of State [2014] 1 WLR 544: The UT did not follow the holdings of this Court, in the two authorities that I have referred to at the…

29th April 2016 By Chris McWatters

Can children and parents apply to remain after seven years residence?

In 2012 the Immigration Rules were changed so that children with 7 years of residence in the UK might potentially qualify for leave to remain. The relevant rule is paragraph 276ADE of the Immigration Rules. No similar provision was made in the Immigration Rules for a child’s parents, though, and a child’s application will only succeed if he or she can show that it would not be “reasonable” for him or her to relocate abroad. The Home Office approach to such cases is to say that where the parents have no separate right to remain in the UK under the Immigration Rules — which is in almost all cases —…

4th April 2016 By Colin Yeo

President gives guidance on linked family cases, 7 year rule and Article 8

The President has issued an important determination on the correct approach to multiple applications and appeals from family members, specifically a parent or parents and a child or children with 7 years of residence. The case is PD and Others (Article 8 : conjoined family claims) Sri Lanka [2016] UKUT 108 (IAC). The official headnote gives us the bare bones: In considering the conjoined Article 8 ECHR claims of multiple family members decision-makers should first apply the Immigration Rules to each individual applicant and, if appropriate, then consider Article 8 outside the Rules. This exercise will typically entail the consideration and determination of all claims jointly, so as to ensure that…

4th April 2016 By Colin Yeo

Statutory human rights considerations apply to child and adult alike

The tribunal has held, inevitably, that the statutory human rights considerations apply to children as well as adults, although other considerations must also be taken into account: (i) In section 117B(1)-(5) of the Nationality, Immigration and Asylum Act 2002 parliament has made no distinction between adult and child immigrants. (ii) The factors set out at section 117B(1)-(5) apply to all, regardless of age. They are not however an exhaustive list, and all other relevant factors must also be weighed in the balance.  These may include age, vulnerability and immaturity. (iii) The juridical status of the relevant Home Office ‘Immigration Directorate Instructions’ must be appreciated. While these are subservient to primary and secondary legislation and…

15th March 2016 By Colin Yeo

EU Charter of Fundamental Rights creates freestanding rights in immigration law says tribunal

Abdul (section 55 – Article 24(3) Charter : Nigeria) [2016] UKUT 106 (IAC) is a case involving a Nigerian national aged 41 who had resided in the UK for 25 years and who had two British daughters aged 11 and 13. He had acquired a permanent right of residence under EU law. He was a serial fraudster with a number of convictions, the most recent resulting in a sentence of imprisonment of 4.5 years. This triggered deportation action, and under EU law the Home Office needed to show that there were “serious grounds of public policy or public security” justifying the deportation. An independent social worker report had been commissioned on…

4th March 2016 By Colin Yeo

Upper Tribunal considers lawfulness of granting Discretionary Leave to a child

The Upper Tribunal considers Home Office policy on what length of leave to grant to a child in the case of R (on the application of Patel) v Secretary of State for the Home Department (duration of leave – policy) IJR [2015] UKUT 561 (IAC). The case descends into an argument around the Edgehill, Singh etc fiasco and which set of rules and policies apply and, unlike in the case of SM, where applications for ILR had been made, the applicant child in this case had applied for and (unsurprisingly) received Discretionary Leave. The headnote: (1) The decision of the High Court in R (SM & Others) v Secretary of State for the…

12th November 2015 By Colin Yeo

Court of Appeal finds Home Office unlawfully detained child refugee

The case of Home Office v VS [2015] EWCA Civ 1142 discloses continued concerns about Home Office treatment of refugee children and sets clear guidelines on limits of power to detain children. The child was represented in the Court of Appeal by Stephanie Harrison QC and Shu Shin Luh of Garden Court Chambers, instructed by Jessica Whitehead at Coram Children’s Legal Centre.

6th November 2015 By Colin Yeo

New Upper Tribunal case on duration of leave for children

In R (on the application of Patel) v Secretary of State for the Home Department (duration of leave – policy) IJR [2015] UKUT 561 (IAC) the tribunal concluded, according to the official headnote: (1) The decision of the High Court in R (SM & Others) v Secretary of State for the Home Department [2013] EWHC 1144 (Admin) relating to the 2009 Discretionary Leave policy and instruction only applies to cases where the decision to grant leave to remain was made prior to 24 June 2013. (2) There is no obligation on the Secretary of State to grant ILR or to consider granting ILR in circumstances where no formal application for…

6th November 2015 By Colin Yeo

Important new age assessment guidance published

New guidance on conducting age assessments has been published by the Association of Directors of Children’s Services. The work has been done in co-operation with the Home Office and the new guidelines will be of critical importance in age assessment disputes. Some background from the ADCS website:

14th October 2015 By Colin Yeo

Successful judicial review of social services age assessment

R (on the application of GB by litigation friend, Francesco Jeff) v Oxfordshire County Council (age dispute- relevance of documents) IJR [2015] UKUT 429 (IAC) is an interesting and successful judicial review challenge to an age assessment. My colleague Shu Shin Luh was Counsel, instructed by Scott-Moncrieff & Associates. The official headnote reads: The duty of the Tribunal in disputed age assessments is to consider the evidence as a whole, including documentary evidence relied upon, even where there are a number of documents produced purporting to verify the claimed age. SA (Kuwait) v SSHD [2009] EWCA Civ 1157 considered.

10th August 2015 By Colin Yeo

Best interests of children in immigration cases

Those working with migrant children have known this all along, but in March we had some official confirmation from a Parliamentary committee: the situation of migrant children in the UK is getting worse, not better:

13th May 2015 By Colin Yeo