The High Court concluded that family proceedings cannot be used to influence the Home Office in making a decision, even if it is in the best interest of the child. Clarifying a child's immigration status should also be done at the earliest opportunity and should not be postponed, as happened in this case.
Background:
The application concerns the immigration status of Y, born in February 2020 and who became subject to care proceedings under Part IV of the Children Act 1989 in 2021. Those proceedings resulted in a Special Guardian being named, BD, who is also Y's maternal aunt. Y's mother is CK who did not attend the hearing and is not represented. Y's father is UA and his whereabouts are unknown.
In this Special Guardianship Order (SGO), the need for clarification of Y's immigration status was made clear. During those proceedings, the Home Office made clear that there was no mention of Y's in their database and that the mother had been granted a discretionary leave until 8 May 2021 with an outstanding application for leave to remain. It was also clear that Y would face difficulties securing immigration status in Turkey, from where her parents originate.
It seems that no steps were taken to regularise Y's position before the Court finalised its proceedings. Following the SGO, CB applied for a British passport which was refused as her mother was neither a British citizen nor settled in the United Kingdom (UK) at the time of birth. CB applied to the Court to clarify Y's immigration status due to the maternal grandmother becoming ill in Turkey and recommended to the Home Office to grant Y British citizenship.
Decision:
The Family Court made an order permitting the applicant to disclose to the Secretary of State for the Home Department relevant documents from care proceedings identified in an order. Otherwise, the applicant's application was dismissed.
Mr. Justice MacDonald made it clear that the question of immigration status in care proceedings must be considered when proceedings are issued. He noted that "The difficulties that have arisen in this case for the applicant and Y could have been avoided, or at least significantly mitigated, had the parties and the Court engaged with, investigated and sought to resolve the issues concerning Y's immigration status at the outset of the previous care proceedings."
The Judge was not willing to make an order which unduly influenced the Home Office and ruled "It has long been established that the courts should not make orders that impinge upon or prevent the exercise by the Secretary of State for the Home Department of powers lawfully conferred upon him by Parliament in the context of immigration and asylum, or permit the Court's process to be used in a way which impermissibly impacts upon the proper exercise by the Secretary of State of those powers."
Implications:
This decision provides useful guidance concerning the question of the immigration status of either the subject child or parents. The judgement makes it clear that courts are not at liberty to decide as they wish. As noted, "The Family Court is not able to make orders simply because a child is in a difficult situation or simply because it appears that a particular course of action is in a child's best interests." Instead, the powers of the Family Court are constrained by legal, procedural and constitutional boundaries. The influence of family courts on the Home Office is only very limited to the disclosure of documents.
This judgement gives valuable guidance on how to approach the issue and the need to seek disclosure from the Home Office by way of an EX660. It is important to understand the interplay between immigration law and care proceedings orders, even though the Home Office is not obliged to follow any particular decision made within a care proceeding.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.