Divorce, Brexit and Visa Problems – a New Way to go Contactless?

Heidi Fleming
Family lawyer with
Bretherton Law

For most couples expecting a child, the choice of which hospital to go to is one of the decisions they have to make on the road to parenthood.

In the case of St Albans couple David Kiff and his pregnant Chinese wife Wanwan Qiao this choice was made more complicated by the fact that her spousal visa to remain in the UK was initially denied, and the couple have now been waiting seven months for a decision on her latest application.

With Wanwan due to give birth in September the Home Office granted a four-month extension to her stay, but this runs out in December.

The question for the couple is what to do should the visa not be renewed and Wanwan is deported, presumably taking her new-born child with her.

Whilst not related specifically to EU law, Mr and Mrs Kiff`s dilemma points to the difficulties likely to face many EU families in the aftermath of Brexit.

With Brexit negotiations over the reciprocal arrangements guaranteed to citizens under EU law still to properly begin the ease with which citizens from other parts of the EU will be able to return to their lives in the UK is very much up in the air.

Other stories are emerging every day – the BBC`s Victoria Derbyshire Show reported recently on the case of Estelle Degnan, an Anglo-French student who has lived in the UK with her British mother since she was six.

Because Estelle does not have comprehensive health insurance as a “foreign” student her application for permanent residency in the UK was rejected.

Confusingly, her sister Clara was granted British Citizenship, as she was still at school at the time. The likelihood is that whatever arrangements emerge for current EU citizens wanting to live in the UK there will be corresponding procedures and requirements for UK citizens wishing to reside in other EU countries.

Imagine the complexities where family relationships have broken down, leading to separation or divorce, with situations where one parent decides to return to their home country or move elsewhere with their children. How will these families agree access arrangements? Which courts will decide matters, British courts or EU?

This issue is not only a matter of UK versus EU courts. There are even contradictions within our own legal system, as UK family law and current immigration law do not always follow the same path.

Figures from the Office of National Statistics claim that 27.5% of births in 2015 were to women born outside the UK, and we can assume that a substantial percentage of babies were fathered by men who were born outside Britain. So potentially a quarter of all families in the UK may face these acutely personal problems.

The Government issued a paper in August 2017, setting out its` views on future legal arrangements between Britain and the EU. The opening statement reads: “In leaving the European Union, we will bring about an end to the direct jurisdiction of the Court of Justice of the European Union.”

In interviews this week Teresa May also stated clearly that: “When we leave the European Union we will be leaving the jurisdiction of the European Court of Justice. We will take back control of our laws”.

However, experts in European law have suggested that if the UK wants to remain closely linked to the single market and customs union we will have to adhere closely to European Court of Justice rulings.

Justice Minister Dominic Raab admitted as much in saying that Britain would need to keep “half an eye”  on ECJ jurisdiction.

Sadly none of these proposals will be of much consolation to the thousands of UK and EU citizens, like Estelle Degnan,  currently caught up in the muddle of contradictory rules, regulations and arguments, and as yet there seems to be no clear path to resolving the issues of residency, relocation, access and family relationships.

The sooner things are clarified the better for all of us.

For expert legal advice on issues of foreign jurisdiction and family law please contact Heidi Fleming at Bretherton Law on 01727 869293, or email heidifleming@brethertonlaw.co.uk

 

For further information on the topics raised in this article go to:

http://www.bbc.co.uk/news/uk-england-beds-bucks-herts-41012762

http://www.bbc.co.uk/news/av/uk-41030219/it-s-unfair-i-came-to-the-uk-aged-six

https://www.lawgazette.co.uk/law/practice-points/brexit-and-relocating-with-children-overseas-mind-the-immigration-and-family-law-gaps/5062521.article?utm_source=dispatch&utm_medium=email&utm_campaign=%20GAZ141016

https://www.gov.uk/government/publications/enforcement-and-dispute-resolution-a-future-partnership-paper

ABOUT HEIDI FLEMING

Heidi qualified as a Solicitor in England and Wales in 2009. She initially practised in Yorkshire and then as a Solicitor overseas in Gibraltar. She was subsequently called to the bar in Gibraltar in 2015. Heidi relocated to St Albans in late 2016 to join Bretherton Law‘s Family Department as a Senior Associate.

Heidi specialises in Family Law advising on high net worth Divorce, Nullity, Cohabitation, Financial Remedy, children matters and domestic violence cases.

Heidi also has experience in representing children, parents and other relatives in public law proceedings involving social services.

She is a member of the Law Society’s Children’s Panel and is able to represent Children within Private and Public Law proceedings.

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