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Contact proceedings when a parent is an illegal immigrant: A Practical Guide

Victoria Quinn, of Thomas More Chambers, uses a recent case to highlight what the family lawyer needs to know about immigration law when acting in contact proceedings involving an illegal immigrant.

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Victoria Quinn, Barrister, Thomas More Chambers

In mid-2005 the Home Office acknowledged that up to 570,000 illegal immigrants were living in the UK. A significant number of these illegal immigrants have been living in this country for many years and have children. This article is aimed at assisting those practitioners who are instructed by an illegal immigrant to secure a contact order in respect of his/her child who is resident in the UK.

To explore the issues that arise when advising an illegal immigrant about contact proceedings I will look at the facts of one fairly typical case in depth.

The Facts
H was a citizen of Bangladesh. In June 2004 he married a British citizen, W. Following the marriage he applied for and was granted a visa to enter the UK as the spouse of a British citizen. On arrival in the UK in October 2004 H was granted 2 years 'Discretionary Leave' (DL), often referred to as the probationary period. All individuals who are granted leave to enter the UK as a spouse are granted 2 years DL.

In November 2005 W gave birth to a baby daughter. In January 2006 H left the matrimonial home. Finally in March 2006 H and W agreed to divorce.

H and W agreed that their daughter should continue to live with W in the UK. H wished to continue to have regular and meaningful contact with his daughter and consequently to remain in the UK. W opposed contact.

What was H's immigration status in the UK?
H was convinced that he had been granted the right to reside in the UK permanently, Indefinite Leave to Remain (ILR). However, a quick look at his passport revealed that in fact he had only been granted 2 years DL. H's leave to remain had expired in October 2006.

H's failure to appreciate the limited rights that he had to remain in the UK is something that is relatively common. Immigration is an area of law that is subject to rapid change and the quality of legal advice extremely variable. If it is not possible to determine a client's immigration status from endorsements in his passport then an application should be made to the Home Office for disclosure of his whole file under the Data Protection Act.

H initially assumed that having completed 2 years DL he could simply apply for ILR. Unfortunately this course was not open to him as his marriage was no longer subsisting. H had no extant leave to remain in the UK and consequently he was an illegal immigrant.

How did H's immigration status impact on his ability to secure a contact order?
H commenced contact proceedings in the County Court. W opposed contact on the basis that H was simply using the proceedings in order to remain in the UK. This allegation was denied by H. A District Judge requested information from the Home Office in respect of H's immigration status and directed CAFCASS to prepare a report.

The District Judge followed the December 2002 protocol for, 'Communicating with the Home Office regarding Immigration Matters in Family Proceedings'. The Home Office provided a short letter setting out H's immigration history. The letter concluded by stating that H's DL had now expired and consequently he had no right to remain in the UK and was an illegal immigrant. The Home Office did not seek to explore any of the possible avenues open to H to seek to regularise his immigration status and secure a grant of leave to remain.

The CAFCASS report was of very little assistance as it focused almost exclusively on H's uncertain immigration status. CAFCASS concluded that no recommendation as to contact with H could be made as it was not clear whether H would continue to reside in the UK. CAFCASS suggested that the issue of contact be revisited once H had been granted ILR.

CAFCASS officers can not be expected to have a detailed knowledge of UK immigration law. The only information before the CAFCASS office in respect of H's immigration status came from the Home Office. In the circumstances, with H's residence in the UK seeming precarious, the CAFCASS officer's recommendation perhaps came as no surprise.

What steps should H have taken to address his immigration status?
H wished to remain in the UK in order to have contact with his daughter. The Immigration Rules where amended in 2001 to allow a parent to be granted leave to enter/remain in order to exercise rights of access to a child resident in the UK. This amendment was made in order to bring the Immigration Rules in line with our obligations under the ECHR.

The vicious circle
As an illegal immigrant H was unable to submit an application for leave to remain in order to exercise rights of access to his daughter whilst resident in the UK. The Immigration Rules required H to return to Bangladesh and submit an application for entry clearance (a visa) at the British Embassy in Dhaka. The application would have had to have been accompanied by evidence that demonstrated H had access rights to his daughter. The evidence required is a contact order or a certificate issued by a district judge confirming intention to maintain contact. Obviously H was unable to satisfy the requirements of the Immigration Rules.

If H returned to Bangladesh, he would be unable to obtain a contact order; it was therefore vital that H remained in the UK for the duration of the contact proceedings. However, H was an illegal immigrant and had no rights to remain.

W had written to the Home Office on a number of occasions pointing out that H was an illegal immigrant and asking them to take steps to remove him from the UK.

The way out
Although there is no provision in the Immigration Rules for an individual to be granted leave to remain to pursue legal proceedings, as a matter of practice the Home Office will normally grant periods of DL where it can be established that an individual could not pursue the proceedings from abroad. Obviously H could not meaningfully engage with CAFCASS, his daughter or the other parties from Bangladesh. I prepared an application for DL on the basis that H's removal to Bangladesh would amount to a breach of Articles 6 and 8 of the ECHR. Although the Home Office initially refused to grant H leave to remain to purse the contact proceedings the decision was overturned on appeal. The Immigration Judge was satisfied that the removal of H to Bangladesh prior to the conclusion of the contact proceedings would breach his rights under article 6 and 8 of the ECHR. The Immigration Judge relied upon the decision of the ECtHR in Ciliz v. The Netherlands. The Home Office then granted H 12 months DL.

Ideally H should have made an application for DL on the basis that his removal to Bangladesh would amount to a breach of Articles 6 and 8 of the ECHR as soon as he commenced the contact proceedings.

How could the issues relating to H's immigration status best be explained to the Court and CAFCASS?
The only information before the Court and CAFCASS in respect of H's immigration status came from the Home Office. The Home Office had provided a letter detailing H's immigration history at the beginning of the proceedings. This letter pre-dated the grant of DL.

H found himself in a very difficult position because the CAFCASS report concluded that the issue of contact should be deferred until after H had been granted ILR. However, it is clear from the Immigration Rules that H would only be able to secure ILR after he had been granted a contact order.

In order to assist the Court and CAFCASS I prepared a skeleton argument detailing H's current immigration status and his plans for the future with reference to the applicable immigration law. H prepared a short witness statement confirming that:

  1. He would continue to apply to the Home Office to renew the DL he had been granted to enable him to pursue the contact proceedings up until the point that he secured a contact order.
  2. Upon securing a contact order he would return to Bangladesh and submit an application for entry clearance in order to exercise the rights granted to him under the contact order.
  3. It was his intention to maintain regular and meaningful with his daughter.

After consideration of the skeleton argument the W's representatives agreed that it accurately addressed all the immigration issues that had a bearing on H's application for contact. The District Judge then directed that the skeleton argument be forwarded to CAFCASS for their comments.

On consideration of the skeleton argument CAFCASS revised their recommendation in respect of contact. In light of the fact that H was going to be able to remain in the UK for the duration of the contact proceedings and if granted a contact order would be able to secure entry clearance to exercise the rights granted under it, CAFCASS recommended that supervised contact commence immediately.

In light of CAFCASS's revised recommendation the Court ordered contact. H is now enjoying regular contact with his daughter.

If agreement can not be reached between parties on all the immigration issues that arise in the family proceedings then it will be necessary to obtain specific advice on any contentious issues from the Home Office. In practice the Home Office will normally instruct Treasury Counsel to prepare a written advice on the contentious issues. Inevitably this often results in some delay in the proceedings.

What does the future hold for H?
Assuming that H secures a final contact order then it will be necessary for him to return to Bangladesh to make an application for entry clearance to exercise the rights of access to his daughter granted under it. In addition to producing the contact order H will also have to produce evidence to demonstrate that he will be able to maintain and accommodate himself in the UK without recourse to public funds. H will be entitled to work.

Conclusion
The Home Office estimate of 570,000 illegal immigrants living in the UK in mid-2005 is considered by many to be very conservative. Immigration issues arise in family proceedings with increasing regularity. It is not possible to represent an illegal immigrant effectively without an appreciation of the immigration issues that arise and how best they can be addressed. A Court, CAFCASS, Social Services etc. can not be expected to have a detailed knowledge of UK immigration law so the party representing the illegal immigrant needs to be able to address all the immigration issues.

If instructed by a client, who is not a British citizen, to secure a contact order in respect of his/her child who is resident in the UK then it will be necessary to take the following steps.

  1. Ascertain the client's immigration status in the UK. This should be done by checking for endorsements in any passport(s), asking for any status letters issued by the Home Office and/or conducting a trawl through his/her Home Office file.
  2. If the client has been granted limited leave to remain i.e. leave that has an expiry date, then consideration should be given to whether it would be possible to submit an application for an extension of that leave. If it is possible to apply for an extension then the application must be submitted prior to the expiry of the leave.
  3. If the client can not apply for an extension of his/her limited leave because circumstances have changes e.g. a marriage has broken down then consideration should be given to submitting an application to the Home Office for leave to remain outside the Immigration Rules to pursue the contact proceedings. Specific reference should be made to Articles 6 and 8 of the ECHR.
  4. If the client's limited leave to remain has already expired or if he/she was never been granted any leave to remain in the UK then again consideration should be given to submitting an application to the Home Office for leave to remain outside the Immigration Rules to pursue the contact proceedings.
  5. If the client is in the UK without any leave to remain it is vital that steps are immediately taken to regularise his/her immigration status. In many, but by no means all cases, the appropriate application will be for leave to remain outside the Immigration rules to pursue contact proceedings.
  6. As soon as steps are taken to address the client's immigration status then they must be brought to the attention of the Respondent, Court, CAFCASS etc. This should be done by way of an agreed note or skeleton argument. If agreement can not be reached between the parties on all the immigration issues then advice on the specific contentious issues will have to be sought from the Home Office. A direction will be required from a District Judge.

Glossary
I have made reference in this article to various types of leave to remain granted by the Home Office to foreign nationals. I appreciate that many family practitioners will not be familiar with the terminology so I have included this brief glossary.

Indefinite Leave to Remain (ILR)
Leave to remain in the UK without any time limit. A person with ILR is often referred to as 'settled'.

Discretionary Leave to Remain (DL)
Leave to remain in the UK for a limited period. In the case of a spouse who arrives in the UK from abroad it will be granted for 2 years. Spouses often refer to the 2 years DL as the 'probationary period'. If an individual is granted leave to remain in the UK on human rights grounds a period of between 6 months and 2 years DL will normally be granted.

Limited Leave to Remain
Any leave to remain that is granted for a limited period, DL is a form of limited leave to remain.

Victoria K. Quinn
Thomas More Chambers