It’s not that often that I see things happening around the world related to immigration matters which cause me to reflect that the UK has just about got it right but two news stories have recently. First the abhorrent but thankfully short lived new policy in the US of separating children (including some under the age of five) from their parents and detaining them alone after immigrant families have crossed the border together from Mexico into the US. The considerable domestic and international outrage expressed when this came to light caused Donald Trump to reverse the policy by executive order. There are still some children yet to be reunited with their families but hopefully this horrific process will soon be a thing of the past. It is nothing short of barbaric.
In the UK families can only be held (together) immediately prior to their removal from the UK, in special detention facilities given a new name of “pre-departure accommodation”. Families with children can normally only be detained in this way for 72 hours although this can be extended to seven days in exceptional circumstances and subject to Ministerial authority. The Immigration Act 2014 brought a ban on the detention of unaccompanied children for more than a 24-hour period at any one time and they can only be detained at “short-term holding facilities”. Home Office guidance states that unaccompanied children (that is persons under the age of 18) must not be detained other than in very exceptional circumstances and if they are detained only for the shortest possible time, with appropriate care (Enforcement Instructions and Guidance, Chapter 55). The Court of Appeal has recently confirmed in R (Abdul Muttelab Awed Ali v SSHD  EWCA 138 that is against the law to detain a child under 18 for more than 24 hours, even if the Secretary of State believes the child to be older.
Then comes another story from Australia about a mother being required to leave Australia and return to her native Philippines after living In Australia for over a decade and being forced to leave her eight year old son behind (who currently lives with her pursuant to a family court order) due to the shared custody arrangements with her son’s father which mean the boy must remain in Australia. The boy apparently had been crying himself to sleep at night and suffering from nightmares due to fear of the separation. According to the Guardian article the case was comprehensively assessed by the authorities but child custody matters were “beyond the scope” of the Australian home affairs department. I am relieved to see that the mother has been given a last minute reprieve but it should surely never have come to that. Have we all lost sight of something here? How can it be right that children end up being punished in circumstances such as these? They have done nothing wrong and yet decisions are being made that quite clearly are not in their best interests and certainly do nothing to protect their family life. Even when the decisions are later reversed it is likely that the damage has been done.
The UK has immigration rules which specifically cover the immigration status of parents of British and settled children (settled means that the child has indefinite leave, so no time limit attached to their stay) when their relationships break down. Appendix FM contains a category called parent of a child which will help most parents (there will always be the odd exception, such as cases where the parent concerned has committed serious criminal offences) with a limited right to remain in the UK to continue to live in the UK if their children are staying here. Applications are subject to meeting various suitability requirements (relating in the main to criminal convictions), an English language requirement and a financial requirement where the parent must show they can maintain and accommodate themselves without recourse to public funds. Normally leave to remain will be granted where a parent has sole responsibility for a British citizen or settled child, or that child normally lives with them and not their other parent (who is a British citizen or has indefinite leave) or alternatively where the child lives with their other parent but has regular contact with the parent with limited leave. It is necessary to provide evidence that they are taking and intend to continue to take an active role in the child’s upbringing.
This recognises that it is generally in a child’s best interests to continue to have a meaningful relationship with both their parents if the parents’ relationship breaks down. This part of Appendix FM can also apply where the parent has an irregular immigration status if their child is a British citizen or has lived in the UK for at least seven years preceding the application and, taking into account the child’s best interests as a primary consideration, it would not be reasonable to expect the child to leave the UK. If the child has contact with their other parent in the UK it is likely that it would not be reasonable for the child to leave the UK. In those circumstances the financial and English language requirements fall away but it takes longer to qualify for indefinite leave to remain. There is also scope for parents abroad to make visa applications under these rules where they have sole parental responsibility for a British or settled child or where they have contact with the child who lives with their other (British or settled) parent.
Appendix FM has been in existence since July 2012 and was enacted specifically to bring article 8 of the European Convention of Human Rights which protects the right to family and private life into the Immigration Rules. Even where it is not possible to meet the requirements of the Immigration Rules in this category it may be possible to make a successful application for leave to remain outside the Immigration Rules. When a relationship breaks down, there are children involved who see both their parents and one of the parents is subject to immigration control there are likely to be arguments to make for that parent and it is worth getting specialist immigration law advice (as well as family law advice).