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Family life as a parent: the new rules

Continuing with our efforts to decipher and digest the new Immigration Rules, this post examines the changes made to the categories relevant to parents of children who are here in the UK.

As is common to most if not all categories under the new Rules, this section is also subject to the “Suitability” criteria, which, for some reason, can only be found under ‘Family Life as a Partner’.  These suitability criteria essentially provide for general grounds for refusal which were previously found under Paragraph 320 for example i.e. being subject to a deportation order, presence in the UK is not conducive to the public good, being in breach of the immigration laws, making false representations and so on.

Back to family life as a parent though, there are two main strands to this category:  1) if the child is British/settled with ILR in the UK and 2) if the child is not.  Both strands hold fairly uncontroversial requirements including the child being under the age of 18 years at the time of the application and living in the UK.

If the child is British or settled with ILR in the UK

Under this strand, the parent needs to hold (and show evidence of holding) either, sole responsibility for the child or, what is termed as, ‘access rights to the child’ i.e. contact with or presumably a shared residence arrangement in respect of the child.  ‘Contact’ and ‘Residence’ being the terms used in the family courts.  In the ‘access rights’ scenario, the other parent/carer with whom the child lives also needs to be a British citizen or settled in the UK.

The requirements of British citizenship or ILR are in direct contrast with the previous rules contained in Paragraph 246-248A, where the child only needed to be ‘resident’ and the other parent with whom the child lived also only needed to be ‘resident’.

As mentioned above, evidence is required to satisfy either the sole responsibility or the relevant ‘access rights’ and the applicant parent also needs to provide evidence that they are taking, and intend to continue to take, an active role in the child’s upbringing.  The case of TD (Paragraph 297(i)(e): “sole responsibility”) Yemen [2006] UKAIT 00049, which contains a useful round-up on the relevant case-law, provides guidance as to what is required to show sole responsibility and as much evidence of the situation on the ground is advisable.  This can include any family court orders (after seeking advice with regards to the disclosure of the same), reports/letters from the child’s school/nursery, doctor, and any other significant persons such as other family members, family friends etc…

The generic conditions relating to finances, accommodation and English language also apply.  In applying for leave to remain from the UK, the applicant must not be in breach of immigration laws (disregarding any period of overstaying for a period of 28 days or less) or in the UK as a visitor, with leave granted for a period of 6 months or less or on temporary admission.  The switching possibilities are actually an improvement from the previous rules as, in that, an applicant could only apply in-country if already here with valid leave as a spouse/civil partner/unmarried partner [Para 248A].

If granted as entry clearance, the applicant will be granted an initial period not exceeding 33 months and if granted as leave to remain, the period will not exceed 30 months.  An applicant will then qualify for ILR after holding such leave for a period of 60 months – a whopping increase to 5 years from the previous qualifying period of 1 year as contained in the previous rules [Para 248D].

Importantly though, if an applicant does not meet one of the conditions summarised above, e.g. lawful leave, there is an important exception which an applicant may apply under instead.  This is cited below – Paragraph EX. 1 from the new rules – and essentially would allow an applicant leave to remain in the UK providing the child is British and in the UK and it is deemed unreasonable to expect the child to leave the UK.

If the child is not British or settled in the UK

Similarly, if the applicant does not meet all of the ‘eligibility’ requirements summarised above, i.e. child’s British/settled status and/or the financial, accommodation, English language and lawful leave in the UK conditions, and the child is not British, then a person can still obtain leave under this category if they meet the relevant exception contained in Para EX.1.

This paragraph is, for some reason (again), set out as separate heading in Appendix FM and stipulates the following:

EX.1. This paragraph applies if

(a) (i) the applicant has a genuine and subsisting parental relationship with a child who-

(aa) is under the age of 18 years;

(bb) is in the UK;

(cc) is a British Citizen or has lived in the UK continuously for at least the 7 years immediately preceding the date of application; and

(ii) it would not be reasonable to expect the child to leave the UK; or

(b) (…)

This may sound familiar…  Yes, it is the reincarnate child 7-year policy officially known as DP5/96, which was withdrawn in December 2008 in favour of incorporating its rationale under Article 8.  The test under the new Rules is not as favourable as the more presumptuous test of children who had completed 7 years, which was that they should not be removed from the UK in absence of countervailing factors such as poor criminal or other conduct from the child’s parent(s).  However, we can certainly work with a ‘reasonableness’ test and of course, s.55 and the best interests of the child would also come into it, which a forthcoming post will look into in more detail soon.  Under this strand of EX. 1 however, the parent will only qualify for ILR after having held leave to remain for a period of 10 years.

Sarah Pinder
Sarah Pinder Sarah is a specialist immigration barrister at Mansfield Chambers in London. She also practices in family law and has a particular interest in cross-over issues within the two areas of law. Prior to joining the Bar, Sarah worked for 6 years in the not-for-profit sector as a specialist immigration caseworker.

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