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Effect on family members

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The related House of Lords decisions of June 2008 (Beoku-Betts, Chikwamba and EB (Kosovo)) should have brought about a sea change in the approach of the Home Office and the immigration tribunal to human rights issues. While there have been improvements in the respect given to fundamental human rights, there is still a long way to go.

It took the Court of Appeal case of VW (Uganda) to persuade the immigration tribunal that it is not appropriate for the test for whether a British based family member can relocate abroad is whether there are insurmountable obstacles. Think about it: what obstacle is actually an insurmountable one? This obviously places the test too high and was an inhumane and legally flawed approach right from the start.

Still, though, the Home Office persist in disregarding the rights of British citizens to live with members of their family. The case of R (on the application of HM (Malawi)) v Secretary of State for the Home Department [2010] EWHC 1407 (Admin) is one of those where it is difficult to see why they were trying to defend their decision, and the previous determination of the tribunal was very poor. The judge singles out the snide remark that it was ‘surprising’ that the criminal courts had been so lenient previously. These sorts of Daily Mail-esque comments do crop up from time to time in determinations, sadly, even though it is clearly inappropriate. See also a similar recent decision in R (on the application of Daley-Murdock) v Secretary of State for the Home Department [2010] EWHC 1488 (Admin) involving two children and a partner.

The tribunal’s record is less than exemplary. The case of SS (India) v Secretary of State for the Home Department [2010] EWCA Civ 388 was pretty damning (see previous post).

The law is that proper consideration has to be given to the effect on family members. If it is to be applied effectively by decision-makers, though, lawyers have to prepare and present appropriate evidence addressing the issue.

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The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.
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Comments

3 Responses

  1. They UKBA really dont care about what effects their rules have on family life. I have been married for nearly 2 years and i am only 19 so will have to wait another 2 years before i cant live with my husband in my own country. Even thought the foreign and common wealth office advise against all but essential travel to ain defla in Algeria where my husband lives they expect me to risk life and limb to go live with him there. We have applied for a family visit visa for him to come here and visit me but it was refused for no reason!! We are at the moment awaiting the appeal on the 19th August. Its time the UKBA read article 8 and adhered to it!!

    1. I’m with you and sorry to hear that your going through this as well. They honestly don’t seem to care about the effects their rules have on the family life of others. It’s really sad to see so many people affected by the silly age law and how many are forced to go through the same pain as myself. My husband and I will have been married for a year in November and we’re also being forced to wait two years to be together, I just turned 20 and he’s 19. But that’s just a bit ridiculous that they basically expect one of their own citizens to just go off to a dangerous country to live and risk death. My husband is British and I’m American. Him coming here is also not an option, but for less serious reasons than a risk of death. To obtain an American spousal visa, it can take nine months to a year to process. He also has a decent job that he doesn’t want to lose because we want to make sure we’re not struggling financially by the time I’m able to obtain a marriage visa. I applied for a family visit visa back in March and was also refused. The only reason they could really give was that because he lives in the UK, I would stay and not leave the country, even though I was let in this past Christmas to see him and his family and left before the date they gave me to be out of the country by. We just received an appeal date of October 21st but will probably just try our luck and try for another visa instead to try and be together on our first anniversary. But I definitely agree that its time they actually read and adhered to Article 8.