Key Update! A decision in the Supreme Court leads to updated guidance from the Home Office
The Supreme Court, in October 2018 gave its judgment in the conjoined cases of KO (Nigeria); IT (Jamaica); NS (Sri Lanka) and others; Pereira v Secretary of State for the Home Department [2018] UKSC 53.
The decision clarifies the approach that the First Tier Tribunal should take to the question of whether a child and/or their parents should be removed from the UK in circumstances where it is claimed that this would constitute a disproportionate interference in their rights to private and family life. these types of cases are normally considered under Paragraph 276 ADE of the Immigration Rules, Appendix FM of the Immigration Rules and applications made under Article 8 of the ECHR (Human Rights cases).
Essentially, the Court held that misconduct by the parents — criminal or immigration-related offences — should not form part of the assessment of whether a child should be removed from the UK. As a result, it should also not form part of the assessment of whether Article 8 requires that the parent remain in the UK with the child.
The Home Office earlier this month published Guidance on this particular issue. The Home Office have taken the view that "The starting point is that we would not normally expect a qualifying child to leave the UK" although there is then a problem, that if the parents are expected to leave the United Kingdom, then the child would be expected to leave unless there is evidence that it would not be reasonable.
We would advise any applicant who has previously been refused leave to remain based on their particular family circumstances to urgently seek legal advice.
At Cranbrook Solicitors, our immigration Solicitors have years of experience in dealing with these types of cases. We have successfully represented a number of clients who have established a family life in the UK but the Home Office have been unwilling to grant them leave. Following our representations, the Home Office have withdrawn their original decisions and granted leave to remain.
The decision clarifies the approach that the First Tier Tribunal should take to the question of whether a child and/or their parents should be removed from the UK in circumstances where it is claimed that this would constitute a disproportionate interference in their rights to private and family life. these types of cases are normally considered under Paragraph 276 ADE of the Immigration Rules, Appendix FM of the Immigration Rules and applications made under Article 8 of the ECHR (Human Rights cases).
Essentially, the Court held that misconduct by the parents — criminal or immigration-related offences — should not form part of the assessment of whether a child should be removed from the UK. As a result, it should also not form part of the assessment of whether Article 8 requires that the parent remain in the UK with the child.
The Home Office earlier this month published Guidance on this particular issue. The Home Office have taken the view that "The starting point is that we would not normally expect a qualifying child to leave the UK" although there is then a problem, that if the parents are expected to leave the United Kingdom, then the child would be expected to leave unless there is evidence that it would not be reasonable.
We would advise any applicant who has previously been refused leave to remain based on their particular family circumstances to urgently seek legal advice.
At Cranbrook Solicitors, our immigration Solicitors have years of experience in dealing with these types of cases. We have successfully represented a number of clients who have established a family life in the UK but the Home Office have been unwilling to grant them leave. Following our representations, the Home Office have withdrawn their original decisions and granted leave to remain.
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