Article by Keerum Akhtar, LL.B ( Hons)
Solicitor / Office Manager
12th May 2017
As a practitioner who deals with both family and immigration law, one of the most perplexing areas that the cross over between two areas of law brings is that of child contact, where one parent does not have a valid visa or a permanent status in the United Kingdom.
This is difficult for the parents who are already in most cases tired with the frustration of a separation, but the impact upon the child is the most important focus.
The family unit is disrupted when parents separate. The outcome of the separation, can be amicable, or unfortunately, it can be tainted with animosity. We hope that it is not the latter for the sake of our client and to re-build the communication so that the children can benefit from the presence of both parents in their lives, provided it is safe for this to happen, of course.
However, what in most cases, where both parents are already British or settled persons, is usually a child focused and fair assessment of the issues that the parties experienced during their time together, this becomes somewhat clouded when the issue of a non- UK resident’s parent’s visa is raised.
More often, the suspicion is raised that a father’s or mother’s motivation for bringing such a case is purely so that they can secure some status in the United Kingdom. In many instances, this has become the central focus on the case. The difficulty practitioners face, is this, the Immigration Rules, will usually only allow a visa in that particular instance, to be extended if contact with the child can be demonstrated to the Home Office. Usually, the acceptable evidence is demonstrated by way of a Family Court Order. However, the Immigration Courts, will in instances, delay in making decisions, until the conclusion of Family Proceedings, and the Family Court are reluctant to make decisions, until the non -resident parent’s status is secured.
This overlap, is rising time and time again, and always leaves me with one question, what is the non-resident parent expected to do? To not make an application will leave them in breach of the Immigration Rules and diminish any prospect of them having contact to the child. It is unlikely that non-amicable parents will make the child available to the parent who is not living in the United Kingdom. There is simply no other option. A person cannot be in breach of the Immigration Rules, but then risk being accused of using the child contact in the Family Court as motivation for the proceedings.
Of course, not all cases are so clear cut, but where parents are not amicable, the only option is to pursue contact through court. If a visa is granted to the non -resident parent it would be on the 5 or 10 year route to settlement and their commitment to their child will be tested throughout that period.
In an ideal world, it would be nice to think that no one would use their child to bolster their immigration position, but the law has already been put in place, to deal with this overlap issue in practise it needs to be implemented with greater effect.
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