High Court judge stresses importance of resolving immigration status early in care proceedings

A High Court judge has highlighted the need to ensure that the immigration status of a child in public law proceedings before the Family Court is clarified at the “earliest opportunity”, and that any issues with respect to that child's immigration status are dealt with before final orders are made.

In Y (Failure to Clarify Immigration Status), Re [2024] (01 July 2024), Mr Justice MacDonald concluded: “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 with respect to Y's immigration status at the outset of the previous care proceedings.”

The application before the court concerned the position of Y, born in February 2020. The application was made by Y's Special Guardian, BD, who is Y's maternal aunt.

Y was the subject of care proceedings under Part IV of the Children Act 1989 in 2021. Those care proceedings culminated in a Special Guardianship Order (SGO) being issued on 2 December 2022.

The SGO contained, among other things, the following recital:

"UPON the court noting that the Local Authority will be supporting financially the regularisation of Y's immigration status and including an application for a passport (sic)."

Within that context, the SGO contained the following order with respect to disclosure:

"Permission to the Local Authority and [the applicant] to share a redacted form of this order with immigrations solicitors (sic) and Home Office in order to regularise Y's immigration status and / or passport application."

Mr Justice McDonald said: “It would not appear that the court gave a judgment on 2 December 2022. This court has little detailed information as to what evidence was before the court regarding Y's immigration status and the steps required to regularise her immigration position in this jurisdiction.”

He continued: “In circumstances where the evidence before the court at the IRH on 2 December 2022 demonstrates that it had been confirmed in June 2022 that Y had no immigration status in the United Kingdom and faced difficulties securing immigration status in Turkey, it is not clear from the papers available to this court why steps to regularise Y's immigration position were not taken prior to the court finalising the proceedings or why the court felt able to make a final order when the question of Y's immigration status in this jurisdiction, and indeed in the other jurisdiction with which she had some connection, remained to be established.  

“The court appears to have simply proceeded on the basis that further steps would be taken with respect to regularising Y's immigration status in this country, with the assistance of the applicant local authority, without any clarity as to what those steps were or the chances that they would be successful.”

Discussing the present application, the judge said: “I am satisfied that it is appropriate for this court to permit the applicant to disclose to the Secretary of State for the Home Department and the Passport Office the documents that will be specified in that order.”

“I am not, however, satisfied that it is appropriate for the court to include in that order a recital requesting the Secretary of State for the Home Department grant Y British Citizenship or a recital summarising the intention of the court at the conclusion of the care proceedings in December 2022.”

In his concluding statements, the judge warned that 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”.

He added: “[…] Save for an order permitting disclosure of documents from the care proceedings to the Secretary of State for the Home Department, I am satisfied it would be wholly improper to grant the other relief sought by the applicant.”

Finally, Mr Justice MacDonald noted that Part 12 of the Family Procedure Rules and Practice Direction 12A “make clear” that in care proceedings under Part IV of the Children Act 1989 the court must consider “at the outset of proceedings” issues arising from the subject child being a foreign national or the family having a connection to a foreign jurisdiction.

He said: “This will involve, as a first step, the court making a Standard Direction on Issue and Allocation under the Public Law Outline within a day of issue seeking disclosure from the Home Office via Form EX660 of information on the immigration status of the child and the parents.

“Once that information is available, and pursuant to Stage 2 of the Public Law Outline, the parties must at the Advocate's Meeting, and the court must at the Case Management Hearing, identify any issues arising from the child's immigration status and finalise further directions for securing the evidence or expert opinion required to address those issues at the Issues Resolution Hearing, or at the final hearing if one is required, before a final order is made It is not acceptable for issues regarding immigration status to be left to be investigated at the IRH or final hearing and even less acceptable for them to be left unresolved at the point the court makes a final order.”

Lottie Winson