UK: Not All Plain Sailing: Helping Private Clients To Navigate The UK's Immigration Rules

Alastair Collett and Tim Hayes use a case study to illustrate some of the perils to be avoided at the intersection of the private client and immigration worlds, perils that were increased by complex, new and more stringent rules introduced in 2012.

For many, private client work is fascinating because of the endless variety of the human situations to which practitioners apply laws and tax rules which, in themselves, can sometime be rather dry. That very variety brings with it, however, its own rocks and shoals. One of these is the danger of the practitioner failing to appreciate that, although they can help the client with the problems within their own field, the client also needs advice on other legal problems outside the practitioner's immediate skill set. Those problems may sometimes be ones which, if they are not tackled, can mean that the practitioner's beautifully crafted advice is almost irrelevant.

If Mehjoo v Harben Barker (2013) has taught practitioners one thing, it is the importance of realising when advice is needed outside their own specialism. The immigration status of a client who has come for the practitioner for tax advice can be just such an instance.

With international individuals – and the world as "global village" means that increasing numbers of clients have some international aspect in their life – it is treacherously easy for a private client practitioner not to spot problems relating to immigration and rights of residence. Private client practitioners cannot all be experts in the area of immigration – it is a field of work in its own right and not just an adjunct - but they do need have 'antennae' that warn them of a possible problem lurking that may need further investigation by an adviser who does have the right expertise.

See the box for the facts of an imaginary, but not necessarily unusual, case study.

The adviser may groan at the idea of yet another client who thinks they can carry out their tax planning in the last few weeks before their return to the UK, and will know that he may have an uphill task ahead of him to explain to the client that residence is no longer (if it ever was) simply about day counting. What's more, some detailed work will be needed on exactly what Mr Smith means when he says "most of his time will be spent" in Germany, and what the precise working arrangements are. But this is all familiar stuff for an adviser who works in this field. The client may only have raised the question of tax residence, but the practitioner immediately recognises that there may also be domicile issues the client has not thought of, and questions to be raised about the implications of the fact that this may be a mixed domicile marriage. Maybe there will be (or would have been, had there been time) some scope to carry out tax planning based on the wife's non-UK domicile, assuming she is currently non-UK domiciled. The client may be rather late in seeking advice, but as someone who practises in the international area of private client work, the practitioner feels pretty confident of his ability to handle all this.

These are the instinctive reactions of a private client practitioner to these incomplete facts. Unfortunately, the practitioner may find that by merely giving excellent advice on the tax and related issues, he is doing his client a disservice. The instinctive reactions of an immigration practitioner to these incomplete facts would have been very different - and equally relevant.

Suppose that, as well as being slow off the mark to seek tax advice, the client is also rather late thinking about what will happen when the family lands at Heathrow. He regards himself as simply an Englishman arriving with his family, but will the UK Border Agency see matters in the same light? For an immigration adviser, the fact that Mrs Smith is Singaporean, and yet Mr Smith is planning to spend much of his time in Germany, would raise an immediate question about whether members of Mr Smith's family (who may only be able to live in Britain by virtue of Mr Smith's own residence rights) would in fact be able to stay in the UK if he departed again for Germany.

In addition, if the practitioner asks the right questions at their meeting, he will discover that one of the children, Charlie, is a child of the marriage; another, Bertie, is a child of Mr and Mrs Smith's who was born before the marriage; and the third, Amy, is the child of Mrs Smith's previous marriage. To Mr Smith they are just "our children", but the immigration status of the three children may be very different. And the nanny's status will be different from the family's. Has Mr Smith already taken advice on this and prepared in good time?

This article is for private client practitioners, not for immigration advisers: it merely aims to enable those in the private client world to be just a bit more aware of the kinds of factual circumstances that should set them wondering - and raising with their clients - whether they have in fact also sorted out their immigration status / rights of residence. It certainly does not put them in a position to advise on these matters.

So what are some of the first questions that would occur to an immigration practitioner if they, instead of the private client practitioner, had taken Mr Smith's call?

Mrs Smith

It is to be hoped that Mr and Mrs Smith understand that she will need to make a formal application at the British High Commission in Singapore for entry clearance as a spouse. The Immigration Rules governing entry for spouses were made far more stringent and complex in 2012 with the introduction of specific appendices governing exactly what evidence is required to show, for example, that the family unit will have sufficient funds to support themselves in the UK. Whilst it may well be the case that this particular family is highly solvent, it is of paramount importance that the evidence is presented to an entry clearance officer in the prescribed format. For example, Mrs Smith will probably need to include with her application evidence as described in the Rules of a bank balance showing a certain amount of money held for a certain amount of time at a particular financial institution. This evidential test is far more onerous and prescriptive than was previously the case and requires careful planning, which will need to take place well in advance of an entry clearance application.

They will also need to show the entry clearance officer appropriate evidence to substantiate their relationship. Not only will they need to provide marriage documents (with translations if they are not in English), but they will also need to show that they have been in a relationship, although this should not present too much difficulty in this case where the couple evidently have children in common. Mrs Smith will also need to show that she has the requisite English language ability.

Perhaps of more concern on the facts of this case is the arrangement once entry clearance is granted and the family has moved to the UK. One of the entry clearance requirements is that Mrs Smith must intend to live permanently with Mr Smith in the UK. It seems that this will not be the case, as it appears that Mr Smith will return from the Germany only for sporadic visits. After her initial grant of leave in the UK, Mrs Smith will need to apply to extend her leave to remain as a partner. Her extension application must be made on the basis that Mr Smith is present in the UK, which, according to the Immigration Rules, means that he should be physically present here. As a result, the Home Office may doubt the intention of the parties to live together permanently in the UK, and may refuse an extension of her visa on that basis. In a very worst-case scenario, they might even conclude that it was never their intention to live together when Mrs Smith first entered. If they did decide to refuse an extension on such a basis, this could have rather serious ramifications for Mrs Smith's entitlement to enter the UK in future.

Assuming that at least one of the children has a British passport, this might provide an avenue for Mrs Smith to gain entry clearance to the UK. The best interests of children should be at the forefront of an entry clearance officer's mind when deciding upon entry clearance applications. The Smiths would need to show why it is in the children's best interests to go to live in the UK, when it seems to be the case that they have not done so previously, and that their mother should join them there.

One last avenue to be explored is the possibility of a 'Surinder Singh' route to the UK. This particular route took its name, unsurprisingly, from the case which established its legality. Essentially, it sets out that British citizens can be treated as if they were nationals of other EEA member states for the purposes of exercising Treaty rights in the UK (and bringing their family members with them), provided that they have exercised those rights in another EEA country before returning to the UK. Taking advantage of this arrangement would mean the entire family going to Germany for a short period before moving here. Of course, how viable this would be in the Smiths' case is debatable given the competing demands of Mr Smith's work and the children's schooling. However, it is a further possibility which the private client lawyer needs to be alive to. Indeed, European law frequently comes to the aid of otherwise seemingly doomed immigration cases and it is a source of rights not to be forgotten about.

Amy

Amy, aged 8, is Mrs Smith's child by a previous marriage. Obviously, the first query to resolve is what nationality Amy holds. If she only holds Singaporean nationality, then this leads to a dilemma with regard to her entry clearance to live in the UK, given that her mother is unable to transmit to her any entitlement to come to the UK by dint of her marriage to Mr Smith. Her situation is therefore much different from that of her half siblings.

Immigration law definitions of family members differ from those used in family law in a number of ways. For example, a step-parent will only be recognised as a 'parent' under the Immigration Rules if the biological parent being replaced is dead. It is one example of the restrictive nature of the approach to family life inherent in the Immigration Rules.

It is difficult to fit Amy neatly within the Immigration Rules for children. Indeed, it is likely in this case that an application may need to be made on the basis that there are compelling family considerations making Amy's exclusion from the UK 'undesirable'. Evidence that she had formed an integral part of the Smiths' family unit would need to be provided to the entry clearance officer, as would some form of evidence showing that her biological father had had little or no involvement in her life. It may also be possible to obtain some form of custody order in favour of Mr Smith from the Singaporean courts, although it is likely that this solution will not be swift and will ultimately depend on the status of Amy's relationship with her biological father. Depending on Singaporean law, it may also be possible to argue that there had been a de facto adoption of Amy by Mr Smith and that entry clearance should be granted on that basis, provided that the relevant immigration rules are met. There is most definitely a nexus here between family law and immigration law and private client lawyers would do well to consult the expertise of lawyers in both fields in such a situation.

Assuming for a moment that Amy, albeit in an unlikely scenario, were to remain with other family in Singapore and join the Smiths at a later date (and assuming also that Mrs Smith had successfully entered and settled in the UK), an application could be made for Amy to join the family in the UK provided that Mrs Smith had had 'sole responsibility' for her upbringing. There is a great deal of case law on the concept of sole responsibility, but at the very least Mrs Smith would need to show that she had taken all of the important decisions regarding Amy's life and that her biological father (if still living) had practically abdicated all responsibility for her. If possible Amy's father should be asked to provide his written consent that Amy can be taken to the UK on such a basis. However, this solution would be of no use where the entire family wished to travel at the same time.

Imagine, however, that the circumstances were slightly different and that Amy were 18 years old, or even older but still very much dependent on the Smith family unit – she might be in her last year at school, or in her early years at university. In such a case, she would need to qualify for entry and settlement in her own right and the Immigration Rules become very much more restrictive. Essentially, she would need to show, amongst other things, that there were 'the most exceptional compassionate circumstances' compelling a decision to be taken in her favour. This is a notoriously high hurdle to get over.

Even in cases where offspring are under 18, care needs to be taken with, for example, any employment which they might have, as it might suggest to an entry clearance officer that they have emancipated, no longer truly form part of the family unit, and should therefore apply for entry clearance independently.

Bertie and Charlie

Bertie, aged 5, is the child of Mr and Mrs Smith, but born before they were married. Charlie, aged 3, is Mr and Mrs Smith's child born after they were married. Despite the fact that for private client lawyers illegitimacy can be problematic in historic cases, it is not so in the sphere of immigration. In fact, one of the first questions a practitioner might ask is whether Bertie and Charlie already have British passports. If they do not, they will either need to come within the requirements of the rules for family members without a British passport, or else to register as British citizens in order to be entitled to come to the UK.

If they were born outside the UK, which is likely in this case, they will be classed as British citizens by descent and will be unable to transmit their British citizenship to future generations. This is an issue which will no doubt be of interest to Mr and Mrs Smith, and eventually to Bertie and Charlie. Although not a pressing matter impacting on their imminent travels, it needs to be communicated to them nonetheless.

The nanny

Has Mr Smith taken the necessary steps to be sure that the nanny will be able to enter, and work in, the UK? The Immigration Rules for domestic workers were also tightened considerably in 2012.

It is now only possible for such a category of migrant employee, which includes nannies and cleaners, to enter the UK to work for their employer for up to six months, and they must leave the UK before the expiry of that term. Furthermore, the nanny must have been employed by Mr and Mrs Smith and been living in the same house as them (or one that they use regularly) for at least a year preceding the application. However, what seems clearly fatal to the family's intention to bring their nanny is that Mr and Mrs Smith must be 'normally resident' outside the UK and coming here for under 6 months, which is plainly not the case here.

In any event, even if a domestic worker application were viable, there would be a host of evidential requirements which would have to be addressed in order for an application for entry clearance as a domestic worker to be successful. For example, there must be a written statement of the terms of employment governing the arrangement, including a statement that the employer will comply with UK minimum wage legislation.

Change the facts a bit and things could be different. Had the nanny been, for example, an Australian national, and providing that she was aged under 31 at the time of application, she might have been able to enter the UK on a Tier 5 visa through the Youth Mobility category, permitting her to work in the UK for up to two years.

Some final thoughts

In short, immigration law, like private client work, often requires practitioners to be innovative in finding solutions, and involves tenacity in asking clients the right questions in order to extract key information which might lead to the most appropriate solution. And just as individuals tend to leave tax planning until the last minute, immigration is an area where all too many clients fail to plan ahead in order to ensure compliance with the UK's ever more restrictive and labyrinthine Immigration Rules.

This article was originally published in the Trusts and Estates Law & Tax Journal.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.