What does it mean to be a father?
By Danielle Cohen Immigration Law Solicitor LinkedinDanielle Cohen has over 20 years of experience as a lawyer and a reputation for offering professional, honest and expert advice.
We won an appeal of a citizen of Albania who came to the UK as a visitor and over stayed. In April 2020 he applied for leave to remain as a partner of a British citizen and as a step father of her two children. When the application was refused he approached us to represent him at the appeal. The application was refused because, according to the Respondent, he did not provide evidence that he had been living with the partner for two years prior to making the application and therefore he was not considered to be her unmarried partner. He did not provide evidence that he had a parental relationship with her children. The Respondent concluded that there were no insurmountable obstacles to the family life with his partner continuing in Albania and there were no significant difficulties if the family life were to continue outside the UK. It was also argued that there would be no significant obstacles to the appellant’s integration into Albanian society.
It was clear to us from the outset that the only way to win this case was to obtain a country expert report in relation to the ability for the appellant and his family to return and integrate into Albanian, and also to obtain an independent social worker report about the co-dependency of the family members, the integration of the children in the UK and the best interests of the children. We have managed to establish through statements from the appellant and his partner that he thinks of himself as the children’s father, and they think of themselves as his children. He shares the responsibility for their upbringing and he does everything that a father should do. We have demonstrated that he has lived with his partner, as an unmarried partner, for over two years and that they intend to get married.
The partner confirmed that the appellant has transformed her life, and that of her children, and that they are in a loving committed relationship. Neither she nor her children speak Albanian and she feared that she would not be accepted in Albania, being a foreigner, and her children want to remain in Britain enjoying their rights as British citizens. She explained that her children are at a critical point of their development at school and any change in the status quo would be detrimental to them.
The country expert report which was prepared by Mr Vebi Kosumi, set out in detail the continuing unstable political situation in Albania and addressed the issues of the appellant’s ability to reintegrate into Albanian society, having been absent since the age of 15. It concluded that the appellant would have difficulty adapting to the Albanian lifestyle and culture and that he will face challenges such as inadequate financial resources and income, would not receive any benefits and would find it difficult to get employment. In relation to the ability of the British partner and the children to integrate into Albanian society the expert concluded that she would struggle and that there would be barriers of language and the Albanian language is tough to learn and they are all unlikely to be able to communicate at all. Furthermore, the partner would be stigmatised because mixed marriages or mixed relationships are frowned upon and not accepted in Albanian society. The children will suffer bullying, especially as they do not speak Albanian and the report referred to a report commissioned by the Council of Europe “Fighting bullying and extremism in the education system in Albania” which shows that the second reason mostly associated with bullying among students is related to language and speaking difficulties.
The independent social worker, Jane Bartlett, prepared a report, and visited the home of the appellant and his family. The report outlined the harm she believed would be caused to the family if the appellant was unable to continue living with the children and providing them with emotional stability and security. She confirmed how the partner has invested in her relationship with the appellant and how she sees his commitment to her children. The Judge found her report to be thorough, compelling and persuasive and on the day the Home Office representative did not challenge that report and the Judge accepted her evidence in its entirety. The Judge then found that the test of parental relationship depends on individual circumstances and these circumstances will include what role the person actually plays in the caring for and making of decisions in relation to a child. Jane Bartlett’s report confirmed the role that the appellant played as a father and the cumulative effect of all the evidence convinced the Immigration Judge to find that the appellant takes an active role in the children’s upbringing and therefore had a parental role in their lives.
Turning to Appendix FM of the Immigration Rules the Immigration Judge found that there was a genuine and subsisting relationship with the children as per Appendix FM para Ex.1(a) and (b) and that he had a genuine and subsisting relationship with a partner who is in the UK and is a British citizen. Referring to case law, the Judge applied the case of ZH (Tanzania) and concluded that it is not reasonable to expect the children to live in another country and that it is in the best interests of the children for the family to live together. In relation to the test of insurmountable obstacles, he found that refusal of the application would result in unjustifiably harsh consequences for the individuals and the expert report of Mr Kusimi set out the insurmountable obstacles that the appellant and his partner would face and that was accepted. Again, the Home Office representative did not challenge the expert’s evidence and therefore the Judge was satisfied that there were very significant difficulties for this family in Albania.