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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.
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