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More hope for separated parents with British children

More hope for separated parents with British children

This entry is part 9 of 9 in the series Zambrano series

Zambrano cases for admission to the UK finally seem to be filtering through to the Upper Tribunal. In MA and SM (Zambrano: EU children outside EU) Iran [2013] UKUT 00380 (IAC) there are two linked appeals, both involving a child resident in the UK with one parent where the other parent was seeking admission to the UK. Both cases succeed, but on different legal grounds.

United by Love - Divided by Theresa May, JCWI Campaign
United by Love – Divided by Theresa May, JCWI Campaign

Admirably, after the initial appeals were dismissed, an astute Judge of the Upper Tribunal identified that the children were British and therefore that Zambrano principles as well as ZH (Tanzania) best interests of the child issues arose and directed that they be addressed. Without this pro-active case management the appeals would probably have failed.

In the first appeal the sponsor was an Iranian national and a refugee in the UK with Indefinite Leave to Remain. He was married to a Turkish national and they had one child together who was a British citizen. At the relevant date the child was resident in Turkey with the mother and the mother sought entry to accompany her child to the UK. There was strong evidence indicating that the sponsor had mental health difficulties arising from his traumatic past experiences. The application was refused on maintenance and accommodation grounds.

By the time of the appeals the child had actually entered the UK leaving the mother behind. The medical evidence suggested that the sponsor was struggling to fulfil his new role as a single parent.

The case succeeds on Zambrano grounds because of the difficulties that the father was going to have caring for the child. The tribunal’s view is clearly that for a case of this nature to succeed under Zambrano, there needs to be some indication above and beyond the natural order of the family that both parents are needed by the child. The case also succeeds on human rights grounds.

In the second appeal the sponsor was British and married to a Thai national. They had two children together, the younger pre school child living in Thailand with the mother and the older school age child living in the UK with the father. The younger child was approaching school age and the parents wanted him to be able to attend school in the UK and to reunite the family. The mother’s application for entry was refused on maintenance and accommodation grounds. The Entry Clearance Officer considered the human rights of those affected and concluded

While I accept that you may now wish to settle as a family together in one place, you have failed to provide a satisfactory explanation as to why your sponsor cannot reside with you and your children in Thailand.

This is what might be termed the ‘bugger off, it is your fault for marrying a foreigner’ reason for refusal.

The case failed under Zambrano on the basis that there was no suggestion or evidence that the father in the UK could not care for the children. However, the case succeeded on human rights grounds, essentially on the basis of the best interests of the children:

76. The absence of any misconduct by the parties does not diminish the weight we must give to the economic well-being of the UK but its place in the measure of proportionality needs to be carefully evaluated in the face of the impact of continued separation of this family. We put our sympathies on one side. But what we are left with is a compelling need for this family to be reunited in the best interests of the children. The harm that would flow from their continued split is sufficient to tip the scales in favour of the appellant coming to the UK due weight having been given to the competing economic factor of limiting the demands made on the public purse.

Both these cases arose under the old immigration rules in force before the radical changes in July 2012. However, this makes no difference to the basis on which the appeals were allowed and the same principles apply to cases refused under the new Appendix FM.

It seems likely the Home Office will seek leave to appeal. I will post further news if I hear any.

Series Navigation<< Court of Appeal grapples with Zambrano
Colin Yeo
Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder and editor of the Free Movement immigration law website.

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