Family Flashcards
Sabir (Appendix FM – EX.1 not free standing) [2014] UKUT 00063 (IAC)
“EX.1 is not free-standing but is accessible only to those who have successfully navigated their way through the 2nd of the alternative routes through R-LTRP.” [14] “It is plain from the architecture of the Rules that EX.1 is “parasitic” on a Rule within Appendix FM that otherwise grants leave to remain.” [15]
R (on the application of MM (Lebanon)) v Secretary of State for the Home Department [2017] UKSC 10
The fact that the MIR may cause hardship to many does not render it unlawful [81]. There are restrictions in the Rules on taking into account the prospective earnings of the foreign spouse or partner or guarantees of third party support when deciding whether the MIR has been met. Although harsh, it is not irrational for the Secretary of State to give priority in the Rules to simplicity of operation and ease of verification [98]. Operation of the same restrictive approach outside the Rules is a different matter and inconsistent with the evaluative exercise required by article 8. A tribunal on an appeal can judge for itself the reliability of any alternative sources of finance and it makes little sense for decision-makers at an earlier stage to be forced to take a narrower approach [98]. In this respect aspects of the Instructions require revision to ensure that decisions are taken consistent with the duties under the HRA. It will be a matter for the Secretary of State to decide if it is more efficient to revise the Rules themselves to achieve this [101].
CB (Validity of marriage: proxy marriage) Brazil [2008] UKAIT 00080
There is no exception in immigration cases to the rule of private international law that the validity of a marriage is governed by the lex loci celebrationis and on the authority of Apt v Apt [1948] P 83 there is no reason in public policy to deny recognition to a proxy marriage.
lex loci celebrationis
Lex loci celebrationis is a Latin term for a legal principle in English common law, roughly translated as “the law of the land (lex loci) where the marriage was celebrated”. It refers to the validity of the union, independent of the laws of marriage of the countries involved: where the two individuals have legal nationality or citizenship, or where they live (reside or are domiciled). The assumption under the common law is that such a marriage, when lawfully and validly celebrated under the relevant law of the land, is also lawful and valid.
Goudey (subsisting marriage – evidence) Sudan [2012] UKUT 00041(IAC)
Evidence of telephone cards is capable of being corroborative of the contention of the parties that they communicate by telephone, even if such data cannot confirm the particular number the sponsor was calling in the country in question. It is not a requirement that the parties also write or text each other.
Naz (subsisting marriage – standard of proof) Pakistan [2012] UKUT 00040(IAC)
It is for a claimant to establish that the requirements of the Immigration Rules are met or that an immigration decision would be an interference with established family life. In both cases, the relevant standard for establishing the facts is the balance of probabilities. Post decision visits by a sponsor to his spouse are admissible in evidence in appeals to show that the marriage is subsisting: DR (ECO: post-decision evidence) Morocco * [2005] UKIAT 00038 applied.
Chikwamba [2008]
pointless exercise to require per to leave UK to apply for EC
citation from Black LJ from Re H (A Child) [2016] EWCA Civ 988
“25. In approaching an asylum/humanitarian protection claim, the Home Office looks to see whether the person concerned has a well-founded fear of persecution or is at real risk of serious harm for a non-Convention reason. The approach to risk is not the same as that taken in a family case. In a family case, establishing risk is a two-stage process. First, the court considers what facts are established on the balance of probabilities; then it proceeds to consider whether those facts give rise to a risk of harm, see Re J (Children) [2013] UKSC 9 […] In contrast, in an asylum/humanitarian protection claim, the material presented by the claimant is looked at as a whole with a view to determining whether there is a well-founded fear of persecution or substantial grounds for believing that a person would face a real risk of serious harm, a reasonable degree of likelihood of serious harm being what is required. There is no comparable process of searching for facts which are established on the balance of probabilities.”
Holman J sitting in the family court in A v A (FGMPOs: Immigration Appeals) [2018] EWHC 1754 (Fam),
refused to make an FGMPO ahead of asylum appeal, as no current risk, and might be seen as influencing immigration jurisdiction [ie, don’t make ‘tactical’ FGMPO apps]
Re A (A Child : Female Genital Mutilation : Asylum) (Rev 1) [2019] EWHC 2475 (Fam) (25 September 2019)
Family court has no power to injunct SoS to restrict immigration and asylum powers.
As Lord Scarman, Hoffmann LJ and Sir James Munby separately make clear, the Secretary of State and the family courts are each operating a different and entirely distinct jurisdiction that has separately been entrusted to them by Parliament. Whilst, as Mr McKendrick submitted, the two jurisdictions may be complementary, they are wholly separate with no potential for any structural crossover. Notwithstanding the probable engagement of Art 3, there is simply no jurisdictional space in the structure that has been created by Parliament in which the family court can reach across and directly interfere in the exercise by the Secretary of State’s exclusive powers with respect to the control of immigration and asylum.
