Family migration and private life Flashcards
(22 cards)
For an adult dependent relative, what are the relationship requirements?
The applicant must be the sponsor’s:
- Grandparent (any age)
- Parent (age 18+)
- Brother or sister (aged 18+)
- Son or daughter (aged 18+)
For adult dependent relatives, what are the “care requirements”?
The applicant must need “long-term personal care to perform everyday tasks”
(Everyday tasks are defined by the Home Office as dressing, cooking and washing, though the Tribunal has said it is not limited to this)
What is the “Catch-22” in adult dependent relative applications?
You must be able to show that you can support and accommodate your relative in the UK.
But then, they will argue that you can pay for their care abroad.
Which section of which Act (inserted by which Act) sets things courts must consider in Article 8 cases?
Nationality, Immigration and Asylum Act 2002 s117A-D
(Created by Immigration Act 2014)
Under s117B NIIA 2002, what factors must courts consider when weighing Article 8 in all cases?
- Not speaking English counts against you
- Not being financially independent counts against you
- Little weight for family or private life formed when you have unlawful status
- Little weight for private life (only) formed when you have precarious status
What does s117B NIAA 2002 say about removal of parents of qualifying children?
Except for deportation cases, the public interest doesn’t require a person’s removal where:
a. They have a genuine, subsisting parental relationship with a child who is British or who has lived here for seven years
b. It would not be reasonable to expect the child to leave the UK
Which case defined the meaning of “precarious” immigration status for the purposes of s117B NIAA 2002, and what did it say?
Rhuppiah v SSHD [2018]
“Precarious” means anything short of ILR
(This bright-line approach is, UKSC says, adopted from ECtHR jurisprudence)
Which is the only provision of s117A-D NIAA 2002 which favours migrants?
s117B(6) - the public interest does not favour removal if a person has a genuine, subsisting parental relationship with a child who is British or who has lived in the UK for seven years (only for non-deportation cases)
Razgar v SSHD (2004) holds that:
- Article 8 can in principle be engaged for reasons beyond family life, such as medical treatment, though it would take extremely exceptional circumstances to outweigh the interest in immigration control
- SSHD was wrong to certify Mr Razgar’s claim as manifestly unfounded
- A 5-part test is set out for dealing with human rights in immigration cases
What are the residency requirements for LTR on the basis of private life under Appendix Private Life?
- If you’re over 25, you must have lived in the UK for 20 years, OR there are very serious obstacles to integration into a receiving country
- If you’re 18-25, you must have lived in the UK for half your life
- If you’re under 18, you must have lived in the UK for seven years AND it would not be reasonable to expect you to leave
For those over 25, how long must their continuous residence in the UK be to qualify for leave under Appendix Private Life?
20 years
When will someone granted leave under Appendix Private Life be eligible for settlement?
- For those granted leave as an applicant over 25: after 10 years
- For those granted leave as an application under 25: after 5 years
What are the suitability requirements for leave under Appendix Private Life in terms of criminal convictions?
- No custodial sentence of 1yr+
- If a custodial sentence of less than a year, then it must not be in the last 10 years
What are the requirements for LTR as a partner under paragraph EX.1?
You must have a genuine and subsisting relationship, and there must be insurmountable obstacles to living together abroad
(Or, there may be “exceptional circumstances” which would lead to “unjustifiably harsh consequences”)
How are “insurmountable obstacles” defined in Paragraph EX.1 of Appendix FM?
Very significant difficulties which would be faced by the applicant or their partner in continuing their family life together outside the UK, which:
* could not be overcome, or
* would entail very serious hardship for the applicant or their partner
What are the requirements for LTR as a parent under paragraph EX.1?
You have a genuine and subsisting parental relationship with a child in the UK who:
- Is a British citizen, or who has lived here for 7 years, and
- Taking into account the child’s best interests as a primary consideration, it would not be reasonable to expect the child to leave the UK
If a person is not able to meet the specified evidence requirements in Appendix FM-SE for the financial rules in Appendix FM, when might there be a reprieve for them?
If there are “exceptional circumstances” such that it could result in “unjustifiably harsh consequences” for the applicant or a family member because of this, then the decision-maker can take into account other evidence outside that in Appendix FM-SE, such as credible offers of third-party support, credible prospective earnings or another credible source
Note: if it “would” result in unjustifiably harsh consequences, then leave should be granted anyway under Paragraph EX.1
R (Agyarko) v SSHD (2017)
- The Immigration Rules’ requirement for there to be “insurmountable obstacles” to family life continuing abroad did not in itself breach Article 8
- This was so because there was the ability to consider “exceptional circumstances” outside this
- However, individual decisions can still be challenged as breaching Article 8
- The Immigration Rules are not a summary of Strasbourg case law, but a statement of the SSHD’s policy
What are some examples of things that count as “insurmountable obstacles”, according to the Home Office caseworker guidance?
- Inability to enter that country
- Serious cultural barriers (e.g., a risk of persecution)
- The impact of a disability
- Absence of governance or security in that country
What are some examples of things that do not count as “insurmountable obstacles”, according to the Home Office caseworker guidance?
- The partner having lived all their life in Britain
- The partner not speaking the language
- The partner being separated from extended family members like parents or siblings
- A material change in life, such as income or accommodation
- Having a child in the UK from a former relationship (although this one is questionable…)
With regard to the phrase “unjustifiably harsh consequences”, what is it that justifies harsh consequences in the first place, according to the Home Office caseworker guidance?
The public interest in:
* Maintaining effective immigration control
* Preventing a burden on the taxpayer
* Protecting the public
* The rights and freedoms of others
This list is from HO caseworker guidance - but there could be others
Hesham Ali v SSHD (2016)
Q: What is the relationship between the Immigration Rules and courts’ decision-making under Article 8?
A: The Rules, and the SSHD’s assessment of the weight of the public interest, are not fully determinative, but courts must nonetheless give significant weight to them, because there is some democratic legitimacy to the Immigration Rules and SSHD’s policies expressed therein
