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19 JUL 2012

Stuart Clark on Immigration & Family Law

Stuart ClarkI recently undertook a secondment at Fragomen LLP, one of the world's leading specialist immigration lawyers. It was useful in very many ways; most interestingly bringing together two disciplines which complement each other: international family law and immigration.

They raise two questions: (1) what impact can a party's immigration status have in family proceedings? (2) how do family law considerations impact on a party's immigration status?  I refer to a couple of issues but there are many other ways in which the two areas intertwine.

Jurisdiction & Habitual Residence

I wrote previously about the race to court in divorce jurisdiction disputes. Notwithstanding whether proceedings were issued in England & Wales first in time, the immigration status of the parties can impact on jurisdiction. The assertion that one or both parties are habitually resident and/or domiciled in this jurisdiction for a divorce could be undermined by their immigration status or the details of any original or pending immigration application. A temporary Visa may not be conclusive for establishing one of the jurisdictional grounds but it could be part of the general landscape of attachment or detachment from England & Wales. Representations to the UK Border Agency may support or contradict what a party now says about their connection to England & Wales and is valuable evidentially in a jurisdiction dispute. When in doubt obtain the details of the relevant parties Visa, or even their application documents; and take specialist advice from an immigration lawyer.

A temporary Visa may also impact on habitual residence in child abduction proceedings. In Re H-K [2011] EWCA Civ 1100 a trial move to England was found to have changed a child's habitual residence. Following this decision what would the outcome be if a parent and child enter England & Wales on only a temporary Visa? Would this vitiate the necessary permanence for habitual residence to transfer? It will part of the wider factual matrix and it may, again, be useful to make enquiries of the immigration status of the relevant party.

Spousal Visas

Non-EU spouses may enter England & Wales on spousal Visas. These Visas may be extended up to and until permanent leave to remain is obtained. A condition of a spousal Visa is that the parties "intend to live permanently together as spouses and the marriage is subsisting." A spousal Visa cannot always be renewed following separation and may lapse, meaning the holder has to leave the country. This may impact on leave to remove (relocation) proceedings where the Visa holder seeks to remove a child of the parties to their home jurisdiction. The parties and the Court will have to consider whether the party's Visa can be renewed and whether they will be forcibly deported. A party seeking leave to relocate may aver that they are being forced to leave the country, presenting the Court with a fait accompli. Without wishing to repeat myself, parties should seek specialist advice.

Immigration lawyers may need to turn to family practitioners as well. Within the auspices of spousal Visas - issues may arise on marriage recognition. Whether the spouse is seeking a Visa to enter the UK or another country operating a spousal Visa system, the authorities can, and often will, make enquiries about the validity of the marriage or civil partnership. It may be that the parties married in a country of which other jurisdictions do not automatically recognise the marriage. An opinion from a family lawyer on the recognition of marriage may be useful in support of the spousal Visa. If that is not accepted, a declaration of marital status from the High Court may have to be pursued.

Child Visas

Similarly, in relation to children, family law expertise may be required to assist in showing parental responsibility or the existence of a Residence Order (or the locally applicable threshold) to allow a child to obtain a Visa based on their parent's immigration status. For children of separated parents, the UKBA can request evidence that the accompanying parent is the primary carer. A foreign "custody order" may not be sufficient and specialist domestic family advice may be needed to obtain orders in England & Wales.


Furthermore immigration and family specialists need to work closely on foreign adoption matters. Co-ordinating an adopted child's immigration status with the foreign and domestic adoption processes can, of course, be difficult, and it is beyond the range of this piece. Needless to say the two specialities again need to work hand-in-hand to ensure correct procedures are observed and the dual processes are not jeopardised or undermined, otherwise there can, and have been, real difficulties when attempting to enter the UK with a child adopted abroad.

More information on these issues can be found in the Chapter on Immigration Law in The International Family Law Practice by David Hodson (Jordan Publishing 2012).

Stuart Clark is a senior paralegal with The International Family Law Group LLP. He is an assistant to the other fee earners within the practice and assists in complex financial and children disputes often involving international elements and jurisdiction races. He undertakes advocacy work for the practice and as an agent for other firms. He is a non-practising barrister and will be qualifying as a Solicitor later this year.

Stuart thanks Carmel Brown, trainee at The International Family Law Group LLP for her assistance with this article.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.

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