Does A Parent’s Immigration Status Affect Disputes About Children in Family Law proceedings concerning Children? – Sima Najma

Family Law

Disagreements between parents about arrangements for their children raise all kinds of sensitive issues and emotions. But what if the immigration status of one parent is uncertain such as them being an overstayer or an illegal immigrant?

When the Court is asked to make decisions under the Children Act 1989 about where a child should live and how much time he or she should spend with each parent, in such cases is complicated further.

For example, what should happen if a parent seeking an order that a child should live with him or her in the UK is at the same time being scrutinized by the immigration authorities? What would the situation be if that parent were ultimately removed from the jurisdiction? Would it be appropriate for the child to live with the remaining parent?

When There’s A Conflict Between Family And Immigration Law 

In my own legal experience working across the areas of both family and immigration law, I’ve seen a significant uptick in cases where a parent bringing Children Act proceedings needs to consider the possibility that the other parent may not be able to remain in the UK on a long term basis and vice versa.

Clearly there will sometimes be a tension between family law which seeks primarily to protect the welfare of children and their right to a family life on the one hand and the need for the government to control immigration on the other.

Here I’ll look at some of the issues practitioners and individuals representing themselves should be aware of when the sometimes competing principles of family and immigration law collide in proceedings under the Children Act.

Proceedings Under The Children Act

When parents disagree over arrangements for children, Section 8 of the Children Act, 1989 enables courts to make child arrangement orders to decide:

Which parent a child is to live, spend time or otherwise have contact with; and

When a child is to live, spend time with or have contact with a parent (or other person)

Family courts can also make ‘prohibited steps’ orders to stop one parent from doing something and ‘specific issue orders’ to settle a dispute over a child’s education, religion or other issue relating to the care and upbringing of the child. Collectively these orders are known as ‘child arrangement orders’. 

The Welfare Of The Child

In deciding child arrangements, the courts have one priority – the welfare of the child which is the Court’s paramount consideration.

In cases where there is a question mark over a parent’s ability to remain in the UK, the issue of immigration is that the Court’s will take it seriously as this will affect the family law of the child and parent known as the Article 8 Right under the European Convention on Human Rights. So how do the family courts approach this type of case?

Can the Family Court Get Information About an Immigration Case?

In reaching decisions about arrangements for children, it’s important to note that the Family Court doesn’t operate in a vacuum.

If there are relevant, live immigration proceedings concerning one or both parents, the Family Court will want to know about the status of a parents immigration case if it is a live issue in the case. Under the Protocol: Communicating with UK visas and immigration (UKVI) in Family Proceedings, the Court can request information about immigration proceedings and visas to assist in the Family Court proceedings.

The request is made on Form EX660 by the Court. This is becoming very common practice in proceedings where the immigration status of a parent is being raised as an issue. 

Will A Child Arrangements Order Affect an Immigration Decision? 

In general, Immigration Tribunals and the Home Office aren’t obliged to take decisions about child arrangements made by the Family Court into account when deciding on the immigration status of a parent. But under Section 55 of the Borders, Citizenship and Immigration Act, 2009 the Home Office and others making immigration decisions have a duty to safeguard and promote the welfare of children in the UK as they carry out their functions. 

So even though the Family Court’s decision won’t bind the Home Office or immigration decision makers, the Family Court isn’t prevented from making decisions about where and with whom a child should live. This is the case even if a future immigration decision could reduce the possibility that the terms of that decision could be put into effect in practice. 

One stopgap measure for anyone seeking a child arrangements order but who doesn’t have leave to remain in the UK might consider is to request leave to remain pending resolution of the Family Court proceedings. Such a request could be framed with reference to the European Convention on Human Rights protections, including the right to a family life and the right to a fair trial.

Immigration Appeals And Children Act Proceedings

Certain immigration proceedings are subject to additional regulations and conventions. Where there is an immigration appeal for example, the parent who is the subject of the appeal has recourse to the protocol on communications between judges of the Family Court and Immigration and Asylum Chambers of the First Tier Tribunal and Upper Tribunal.

This applies where there is an immigration appeal pending and the welfare of a child in the UK is likely to be affected by the appeal decision.

The protocol makes clear that it’s not the role of either the family judge or the immigration judge to anticipate the decision the other may make.