Unusual and Wonderful Family Unit and Family Life

Danielle Cohen
By Danielle Cohen Immigration Law Solicitor Linkedin
Danielle Cohen has over 20 years of experience as a lawyer and a reputation for offering professional, honest and expert advice.
18 May 2021

We acted on behalf of an appellant who is 53 years old from the Philippines.  The application which was submitted by her previous solicitors for leave to remain in the UK outside the Immigration Rules was refused on 13th February 2020.  The Home Office stated that as she had no partner and she did not have any dependent children in the UK her application could not be considered under Appendix FM of the Immigration Rules, her private life was determined not to meet the requirements of paragraph 276ADE and there would not be very significant obstacles to her reintegration in the Philippines if she returned there.  She had two nephews who she claimed to be a second mother to and they were residing with her and the biological mother, her sister.  The Home Office suggested that her presence was not necessary for the children to continue living in the UK as they would not be separated from their parent if she was to return to the Philippines.  We were instructed to appeal the Home Office refusal and we argued that the Home Office decision breached the right to respect for her family and private life under Article 8 of the European Convention of Human Rights. The interference was disproportionate and therefore unlawful under section 6 of the Human Rights Act 1998.  

The matter was listed for a remote hearing via CVP. Despite the fact that the Home Office made submissions which were similar to the ones raised in the reasons for the refusal letter, arguing that the appellant did not have parental responsibility for the children, and that immigration control is in the public interest, we managed to persuade the Court that this is a case based on family life and it concerned unusual factual circumstances where two sisters had shared the care and upbringing of their two sons.  The relationship was akin to a husband and wife with them taking traditional husband and wife roles between them and the reality was that the appellant had closely been involved in the life of the children from a very young age and the sisters were extremely close. They were in fact a family of four and pursuant to the case of Kugathas there were emotional bonds between them which went beyond the norms for sisters and an aunt with nephews.  The Judge observed that the sister was not simply a nanny or an au pair, because she was the children’s sole carer for significant periods of time, she was a blood relative of all of the three people and he accepted the evidence that the appellant is effectively a second mother to these children.  The difference between the appellant and a professional carer is that the arrangements were not akin to employment, and the Judge concluded that the appellant devoted her life to being part of her sister’s family, at the cost of not developing her own and that they have a family unit with each other and even though it is not the traditional notion of a family life and family unit, it is no less a family for these people. 

We won, managing to convince the Court and demonstrating the significant weight that should be attached to the family life that exists between these four individuals and that the appellant is an essential figure in that family. Having balanced the factors in favour of grant of leave against those weighed against the grant of leave such as public interest, the Judge concluded that there were much stronger arguments in favour of  granting leave and therefore the refusal was disproportionate and unlawful pursuant to section 6 of the Human Rights Act 1998. It is our particular joy to be able to share this news as the family unit will continue being a family unit.