HJT training - Families

Question 1

Following types of appeals deemed not reasonably practicable to start using reform online procedure

Answer 1

EUSS appeals; appellant outside UK; appellant in detention; appellant LiP; appeal linked to another appeal

Question 2

All appeals must be started using the reform online procedure accessed throough MyHMCTs (unless not reasonably practicable) from…

Answer 2

22 June 2020

Question 3

Coronavirus (COVID-19): advice for UK visa applicants and temporary UK residents

Fiancés, fiancées or proposed civil partners

Answer 3

If you’re here with 6 months’ leave as a fiancé, fiancée or proposed civil partner and your wedding or civil ceremony has been delayed due to coronavirus, you can either request an extension until 31 July 2020 by updating your records with the Coronavirus Immigration Team, or apply to extend your stay for a further 6 months to allow the ceremony to take place.

Question 4

Coronavirus guidance

Changes to the minimum income and adequate maintenance requirement

Answer 4

If you’ve experienced a loss of income due to coronavirus, we will consider employment income for the period immediately before the loss of income due to coronavirus, provided the requirement was met for at least 6 months up to March 2020.

If your salary has reduced because you’re furloughed, we will take account of your income as though you’re earning 100% of your salary.

If you’re self-employed, a loss of annual income due to coronavirus between 1 March 2020 and 31 July 2020 will generally be disregarded, along with the impact on employment income from the same period for future applications.

Question 5

Coronavirus guidance

If you’re unable to provide specified documents

Answer 5

In some cases, we will be able to decide your application without seeing certain specified documents if you cannot get them due to coronavirus. Otherwise, you may be asked to submit the specified documents after the date of application.

Question 6

Coronavirus guidance

Changes to the English language requirement

Answer 6

If you’re asked to take an English language test as part of your application, you can apply for an exemption if the test centre was closed or you couldn’t travel to it due to coronavirus when you applied.

Question 7

If you’re in the UK and your leave expired between 24 January 2020 and 31 July 2020

Answer 7

could request extension to 31 July

Grace period to 31 Aug (don’t need to request). Same conditions.

If can’t leave by 31 Aug, can request exceptional assurance (/indemnity) by contacting CIT. Does not grant leave - but short-term protection against adverse consequences

Question 8

Coronavirus guidance

If your leave expires after 1 September 2020

Answer 8

You can submit an application form from within the UK where you would usually need to apply for a visa from your home country.

You’ll need to show your application is urgent, for example if you need to start a new job or course of study.

You’ll need to pay the fees and meet all requirements of your visa as normal, except the need to submit the application in your home country.

This is being kept under review.

Question 9

Coronavirus guidance

If you have overstayed your leave

Answer 9

If your visa or leave expired between 24 January 2020 and 31 August 2020 there will be no future adverse immigration consequences if you didn’t make an application to regularise your stay during this period. However, you must now do so by 31 August 2020 or make arrangements to leave the UK.

Question 10

If your 30 day visa to work, study or join family has expired

Answer 10

If your 30 day visa to travel to the UK for work, study or to join family has expired, or is about to expire, you can request a replacement visa with revised validity dates free of charge until the end of this year. This does not apply to other types of visas.

This process will be in place until the end of 2020.

To request a replacement visa you can either:

contact the Coronavirus Immigration Help Centre
arrange to return your passport to your VAC if it has re-opened
Contacting the Coronavirus Immigration Help Centre:

You’ll need to include your name, nationality, date of birth and your GWF reference number with ‘REPLACEMENT 30 DAY VISA’ in the subject line. If you’ve already contacted us about this, please let us know in your email.

We are dealing with a high number of requests and will reply as soon as we can. Please do not contact us again unless you need to tell us about a change in your circumstances.
…
You’ll be contacted when our VACs reopen to arrange for a replacement visa to be endorsed in your passport. Your replacement visa will be valid for 90 days.

Question 11

If you’re applying to enter the UK or remain on the basis of family or private life

Answer 11

There are temporary concessions in place if you’re unable to meet the requirements of the family Immigration Rules to enter or remain in the UK due to coronavirus. Up to 31 July 2020 applicants in the UK as a visitor or with leave of up to 6 months can switch into a family or private life route provided the requirements of the Immigration Rules are otherwise met.

If you’re unable to travel back to the UK due to coronavirus travel restrictions and your leave has expired, a short break in continuous residence will be overlooked. You are expected to make your next application as soon as possible.

Question 12

EX.1.(b)

Answer 12

genuine and subsisting relationship with a partner in the UK (British, settled, or refugee/HP leave) and insurmountable obstacles to family life with that partner continuing outside the UK

Question 13

EX.2.

Answer 13

“insurmountable obstacles” means the very significant difficulties which would be faced by the applicant or their partner in continuing their family life together outside the UK and which could not be overcome or would entail very serious hardship for the applicant or their partner.

Question 14

Lal [2019] EWCA 1925

Answer 14

Re EX.1.(b) - re insurmountable obstacles

(1) are there very significant difficulties?
(2) can they be reasonably mitigated/avoided? [36] and [37]

In this case, age, sensitivity to heat in India, and children and grandchildren in UK COULD be insurmountable obstacles

NB GM (Sri Lanka) - Green LJ summarised approach generally. While insurmountable obstacles in the test re EX.1.(b), it is not the test for the proportionality test [48]

Question 15

Lal [2019] EWCA 1925 [36] and [37]

Answer 15

Re EX.1.(b) insurmountable obstacles test:

36. In applying this test, a logical approach is first of all to decide whether the alleged obstacle to continuing family life outside the UK amounts to a very significant difficulty. If it meets this threshold requirement, the next question is whether the difficulty is one which would make it impossible for the applicant and their partner to continue family life together outside the UK. If not, the decision-maker needs finally to consider whether, taking account of any steps which could reasonably be taken to avoid or mitigate the difficulty, it would nevertheless entail very serious hardship for the applicant or their partner (or both).
37. To apply the test in what Lord Reed in the Agyarko case at para 43 called “a practical and realistic sense”, it is relevant and necessary in addressing these questions to have regard to the particular characteristics and circumstances of the individual(s) concerned. Thus, in the present case where it was established by evidence to the satisfaction of the tribunal that the applicant’s partner is particularly sensitive to heat, it was relevant for the tribunal to take this fact into account in assessing the level of difficulty which Mr Wilmshurst would face and the degree of hardship that would be entailed if he were required to move to India to continue his relationship. We do not accept, however, that an obstacle to the applicant’s partner moving to India is shown to be insurmountable – in either of the ways contemplated by paragraph EX.2. – just by establishing that the individual concerned would perceive the difficulty as insurmountable and would in fact be deterred by it from relocating to India. The test cannot, in our view, reasonably be understood as subjective in that sense. To treat it as such would substantially dilute the intended stringency of the test and give an unfair and perverse advantage to an applicant whose partner is less resolute or committed to their relationship over one whose partner is ready to endure greater hardship to enable them to stay together.

Question 16

Agyarko on insurmountable obstacles [42] onwards

Answer 16

[43] It appears that the European court intends the words “insurmountable obstacles” to be understood in a practical and realistic sense, rather than as referring
solely to obstacles which make it literally impossible for the family to live together in the country of origin of the non-national concerned.

Question 17

Jeunesse

Answer 17

In Jeunesse, the Grand Chamber identified, consistently with earlier judgments of the court, a number of factors to be taken into account in assessing the proportionality under article 8 of the removal of non-settled migrants from a contracting state in which they have family members. Relevant factors were said to include the extent to which family life would effectively be ruptured, the extent of the ties in the contracting state, whether there were “insurmountable obstacles” in the way of the family living in the country of origin of the non-national concerned, and whether there were factors of immigration control (for example, a history of breaches of immigration law) or considerations of public order weighing in favour of exclusion (para 107).

Question 18

How to get over “insurmountable obstacles” threshold

Answer 18

Just a husband-wife relationship of a few year, plus some family ties in the UK will not be enough.

Possible ways:

• super-strong family ties in UK
• difficulties working abroad (eg British citizen woman facing much worse employment opportunities)

Inventiveness + evidence

Question 19

Duty of decision makers in cases involving children

Answer 19

Key test from Jeunesse cited in MM Lebanon:

“National decision making bodies should, in principle, advert to and assess evidence in respect of the practicality, feasibility and proportionality of any removal of a non-national parent in order to give effective protection and sufficient weight to the best interests of any children directly affected”

May be necessary to call for further evidence using case management powers - MA (Pakistan)

Question 20

Procedural duties on Home Office

Answer 20

Investigative duties, eg

• To look into mental health in detention cases
• re children’s best interests?

Question 21

MA (Pakistan) and KO (Nigeria) - re best interests of child

Answer 21

MA (Pakistan) is high point - are there powerful reasons to justify child’s departure?

KO (Nigeria) more diffident (HO would probably say this is the leading case)

Question 22

AB (Jamaica)

Answer 22

EX.1.(a) is a hypothetical question. Question is not whether child will depart in reality, but would it be reasonable to expect them to do so?

Question 23

Statutory guidance on s.55 - Every Child Matters

Answer 23

Safeguarding and promoting the welfare of
children is defined in the guidance to section
11 of the 2004 Act (section 28 in Wales) and
in Working Together to Safeguard Children4
as:

protecting children from maltreatment;

preventing impairment of children’s
health or development (where health
means ‘physical or mental health’ and
development means ‘physical, intellectual,
emotional, social or behavioural
development’);

ensuring that children are growing up
in circumstances consistent with the
provision of safe and effective care; and
undertaking that role so as to enable those
children to have optimum life chances and
to enter adulthood successfully.

Question 24

ZH(Tanzania)

Answer 24

British citizen child has special protection - right of access to NHS etc

Question 25

Patel [28]

Answer 25

Reverse all thinking of Zambrano -
“Nor does Chavez-Vilchez in fact have any impact on the Shah appeal. The outcome of that appeal depends on the findings of fact by the FTT and on whether the Court of Appeal correctly identified the relevant findings for the purposes of the test of compulsion. The FTT found as a fact that Mr Shah was the primary carer of his infant son and that he, rather than the mother, had by far the greater role in his son’s life (para 15). Accordingly, the child had the relevant relationship of dependency with Mr Shah. The FTT was entitled to make this finding on the facts,
because the mother’s evidence that Mr Shah was the primary carer of her child and that she could not assume full responsibility for him because she worked full time
was not challenged. The mother’s evidence that if Mr Shah was not allowed to stay in this country they would move as a family was also unchallenged. The FTT went
on to reach what it called “an inescapable conclusion” that the son would have to leave with his parents and that accordingly the requirement for compulsion was met”

Question 26

Zambrano principle

Answer 26

the Court of Justice of the European Union (“the CJEU”) held that a third-country (ie nonmember state) national parent (“TCN” parent), of a Union citizen child resident in
Union territory, was entitled to a right of residence to avoid the child being deprived of the genuine enjoyment of the substance of their Union citizenship rights on
removal of the TCN parent. The principle extends to dependents who are not children, and has been applied even where the Union citizen has not exercised their
right of free movement. The right of residence is a “derivative right”, that is, one derived from the dependent Union citizen. A key to this derivative right is the deprivation of the benefits of the Union citizenship as a result of the Union citizen being compelled, by the TCN’s departure, to leave Union territory.

Question 27

Patel [2019] UKSC

Answer 27

Case about the nature and intensity of “compulsion” required in Zambrano cases for a derivative RoR to arise.

Question 28

Chavez-Vilchez

Answer 28

That case concerned several TCN mothers, whose children were Dutch and who claimed a derivative right to reside in The Netherlands. The Dutch Government rejected these claims on the basis that the fathers of the children were also Dutch. Some of the fathers had a
degree of involvement in their child’s upbringing but they lived apart from the child’s mother and were not the primary carer. The CJEU held that it was not a sufficient answer to the mother’s claim for residence that the father could in theory become the child’s carer. The Dutch court had to assess whether the child would be compelled to leave the Union, and in making that decision the national court had to take into account all the circumstances, including the best interests of the child.

[71] “…the fact that the other parent, a Union citizen, is actually able and willing to assume sole responsibility for the primary day-to-day care of the child is a relevant factor, but it is not in itself a sufficient ground for a conclusion that there is not, between the thirdcountry national parent and the child, such a relationship of
dependency that the child would be compelled to leave the territory of the European Union if a right of residence were refused to that third-country national.”

Question 29

Lamichhane v SSHD [2012] EWCA Civ 260

Answer 29

In Lamichhane v SSHD [2012] EWCA Civ 260, the Court of Appeal held that the service of a section 120 notice is at the discretion of the Secretary of State. This was followed in TY (Sri Lanka) v SSHD [2015] EWCA Civ 1233 (para 28). It follows that it is not open to a person to submit s.120 statements of their own volition.