Your Protected Right to Family Life
As many of you will know, everyone has the Right to Family, and these rights are protected under the EU Convention on Human Rights. However, and to the great discomfort of many couples, as any UK Immigration Lawyer will tell you, Right to family is right is a qualified right, and does not necessarily give the couple the right to choose where they would exercise their right to family.
Ordinarily, a British citizen is allowed by law to sponsor their foreign spouse to come to the UK on a Spouse Visa. This type of application, as many of you have seen on previous blog post here has recently been severely restricted, with strict income requirements for the sponsoring spouse. In effect, this has resulted in thousands of couples being separated, as they do not meet the government requirements.
Many UK Immigration Lawyer and Human Right Solicitor forums have dwelt on the alternative ways that couples can be together, including the EU route (Surinder Singh route ). However, a point that is often overlooked is that, even within the laws governing the Spouse Visa, there is an exception that some couples can rely on in order to sponsor their non EU partner.
A. Within the UK – Paragraph EX.1
Many of us are all too familiar with the grey speckled walls of airports and the sad, long goodbyes we’ve all experienced within them. The hardest to experience or watch are those of couples and parents and children. The separation, for some, leaves you with a constant lump in the throat. However, many people don’t realise that there are laws that can help. There are two situations when British Nationals are able to rely on the Article 8 European Convention on Human Rights (Right to Private and Family Life).
The recent Home Office Immigration Rules, especially paragraph EX.1, contains the part of the European Law that applies in the Immigration Rules. Below is an explanation and discussion of how these rules apply to family members of British citizens. This applies to persons who are already in the UK together e.g. where a spouse has held a visa under a different category that is due to expire, or is here without a visa, and needs to extend or apply for leave but doesn’t meet the income threshold or other requirements for the Spouse Visa.
There are two bases on which Paragraph EX1. can be used:
I. Parental relationship with a child
Essentially, for this clause to apply there are some criteria that must be fulfilled; there must be a genuine parental relationship with a child who is under the age of 18 and is in the UK, and the child must be British or must have lived in the UK for a continuous period of seven years prior to any application. There will be a real focus on the best interests of the child, especially in cases where it would be unreasonable for the child to leave the UK to live with their family member. Examples of what will be considered include how the applicant is related (i.e. biologically, or are they a guardian or adopted?), whether the child and applicant are in regular contact, and the views of the child if relevant.
Caveat: whereas this clause may help a single parent, it doesn’t apply where the applicant is in a subsisting relationship with the other parent of the child e.g. for a married couple. For example, if a relationship has broken down but the non-EU parent still has regular contact with the child, they may be able to rely on this clause to secure leave.
II. Relationship with a partner
For those who are in a genuine relationship with a British citizen or someone who is settled in the UK (holding Indefinite Leave to Remain), one may be able to rely on this section if they are able to illustrate that there would be ‘insurmountable obstacles’ to family life should the partner who is not a British citizen move back to their home country.
One will be glad to note that the meaning of ‘insurmountable obstacles’ is not those which are impossible to overcome, rather those that are impractical. For example if there are children who have regular contact with a previous partner who is settled in the UK, or the British citizen has work, cultural or language barriers that would make it difficult for them to transition to a new country, this may be enough.
What is the effect of EX1?
Once it has been established that the paragraph in the Immigration Rules applies, then your Right of Family Life takes precedence and you will be granted leave to remain, according to what is referred to as the ’10-year family route’. This entitles you to segments of leave of 2 ½ years, which will be extended if you continue to meet the requirements. After a period of 10 years continuous leave, you may be eligible to apply for indefinite leave to remain.
It is important to note that this is a less than straightforward section of the law, and that the granting of leave under this section is purely at the discretion of the Home Office. It is therefore critical that you have as much evidence as possible and consult a qualified UK immigration lawyer or human rights solicitor, who will be able to make legal representations on your behalf.
B. Applicants abroad or not covered by EX.1 – outside the rules and the best interests of the child
Unfortunately, and one of the main reasons that the Home Office do not allow people to come to the UK on a Visitor Visa when they have been refused a Settlement Visa, Paragraph EX1. does not apply to applicants who are abroad, and there are also circumstances where it may not apply, even for applicants who are in the UK, e.g. the married parents of a child who has spent more than seven years in the UK.
However, this does not mean that all hope is lost, as one of the other avenues that a seasoned immigration or human rights lawyer will use, and one that I have used successfully in the past with my clients, is to apply for entry clearance outside the rules, based on compassionate or exceptional circumstances as well as the best interests of the child.
Whereas this is not an avenue that the Home Office will shout about, and still remains under-utilised, one should note that the courts have previously held that the starting point for an immigration entry clearance officer should be whether someone meets the rules (Izuazu, Article 8 – new rules). However, if this is not the case the entry clearance officer should also consider whether denying the applicant leave will breach the applicant or their families human rights, or be contrary to the best interests of a child, especially if that child is a British citizen or has been in the UK for seven years.
When one is making an application outside the rules, one needs to pay close attention to what makes the case ‘exceptional’.
One case a British citizen who had five children with his first wife who is now deceased. After subsequently meeting and marrying a non-EU wife, who later gave birth to another child abroad (also British), he could not sponsor his new wife to join him on a Spouse Visa, due to the demands of looking after five children in the UK by himself. The wife also lived some distance from the only test centre in her country and could therefore not sit the English test.
In this case we were able to successfully argue that there were exceptional circumstances and that it would be a breach of the new British child’s rights if the mother was denied leave to enter the UK, as it was not possible for the father to look after six children by himself. The application was allowed outside the rules and the family have since been reunited in the UK.
In conclusion, even though the immigration rules are fairly restrictive and with the loss of the recent Court of Appeal case against the income threshold, there are still avenues to pursue, and with the right help of a good UK immigration lawyer you may have a chance to make a successful application.
If you have been affected by this issue or any other UK immigration matter, please contact Tito, a UK immigration and human rights solicitor, for a free initial consultation about your legal options. Call 07544 669131 or on Skype: tito.mbariti.