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Family Law Specialist Duncan Ranton on the right to Family Life for Non-EU Nationals

Hand-in-hand with the increasing globalisation of Family life come questions about freedom of movement. Just how readily can a non-EU national who has a child living in the UK get permission to enter and remain here?  There have been a number of recent decisions from the European Court of Justice about the right to family life of non-EU nationals, and their freedom to enter and remain in the EU to maintain a relationship with their Child.

On the back of those decisions, the UK Secretary of State for the Home Department introduced a number of changes to the Immigration Rules in July 2012. It’s easiest to describe how the rules in this area operate by using an example. Meet Maggie. Maggie is 10. She lives in Cambridge with her father, Joe, who is a British citizen. Maggie’s mother is Sirikit, a Filipino national. Joe and Sirikit never married, and their Relationship Breakdown occured shortly after Maggie was born. Maggie has lived with Joe in the UK ever since.How easily can Sirikit get entry clearance to enter or remain in the UK to spend time with her daughter? The answer to this question depends on the child’s immigration status. If Maggie is an EU national, or else has Indefinite Leave to Remain (ILR), Sirikit may be eligible for a form of entry clearance entitling her to travel to the UK and remain here to play a role in family life.

To be eligible for entry clearance, amongst other matters: 

• Sirikit must show she can maintain herself without relying on public funds;
• she must show she has adequate accommodation, and
• she must meet the specified English language requirement.

Crucially, Sirikit must be able to prove she is taking, and intends to continue to take, part in Maggie’s life. This participation can be through Maggie living with her (residence), or spending time with her (contact). As evidence of Sirikit’s role in Maggie’s life, the immigration authorities will probably ask for a court order. At the very least, they will require a document countersigned by Joe that sets out the residence and contact agreed. If Maggie were not a British national, or did not have ILR, Sirikit might still get entry clearance under the new Immigration Rules. She would need to show that Maggie had lived in the UK for at least 7 years. Sirikit might be ineligible to apply under the new Rules if she or her family had a particularly poor immigration history. If she qualified, Sirikit would be given entry clearance for 30 months in the first instance. The key message to take away is this: careful planning when settling Residence and Contact arrangements now might yield dividends in the future where a parent is a non-EU national. In these situations, advice from a Children specialist in parallel with an immigration one may prove essential to a positive outcome. This parallel approach to the issue need not be expensive, and the investment of the time and money sooner often avoids trying to put an unhappy situation right later.

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