Brexit – an interference with family life?

Article by Jonathan Bott

With the date for Brexit put off to another unknown date, one might think that the substantive effect of the UK leaving the European Union is yet to be felt. However, following A v A (2019), a recent unreported case where the father was represented by Suzanne Hodgkiss, Jonathan Bott and Emma Weaver, the spectre of Brexit is already raising a number of issues relevant in family matters.

In A v A, the father was a Pakistani national, who was living in the UK as a spouse of the mother, a Polish national. The father had received permission to remain as a result of the mother’s status, however, the mother- having been resident in the UK- had declined to apply for ‘Settled Status’ under the new UK regulations for EU nationals. This led to the mother wishing to return to Poland and arguing that she did not have the right to remain in the UK, which would affect the father’s contact with his child.

The court took the view that it should not attempt to force the mother to remain in the UK, when she did not have the right to do so, albeit she could have applied for Settled Status.

The difficulty this case highlights is where EU citizens have previously had a right to work and live in the UK, but as a result of the UK’s changing status, no longer have such a right and thereafter the effect upon family dynamics including contact with a non-resident parent.

Of course, the right to remain is just one element of post-Brexit uncertainty, there are many other issues in Family Law which will cause the courts to ponder, not least the doctrine of proportionality (which has its roots in EU, not UK law) and the confusion that is likely to reign if the relatively clear position under Brussels IIR about interstate recognition and enforcement of orders is swept aside. We will await further developments!

With a nationally renowned public law team (including Ramby De Mello and ‘Immigration Lawyer of the Year 2019’, Tony Muman) combined with a specialist family law team with experience of international child and family issues, Halcyon Chambers are alive to the many issues facing the courts following the UK leaving the EU and are ready to steer families through the choppy waters of post-Brexit legislation.