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Family life as a parent: the new rules


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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.

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Sarah Pinder

Sarah is a specialist immigration barrister at Goldsmith 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.


11 Responses

  1. The blog is slightly confusing as paragraph ex1 appears to apply in cases if British/settled children and in the case of children in uk 7 years. In both cases the parents can be an overstayer??? Please confirm.

    1. Thank you for this. Yes I had not made that clear. If as you say a parent is an overstayer but their child is British (through an ex-partner/spouse for example) then they can also apply for their leave to be regularised (regardless of how long the child has resided in the UK) if they can show that it would be unreasonable to expect the child to leave. Have now edited the post and hopefully succeeded in un-confusing it!

  2. This government seems to only care about the numbers and not how they reach those numbers. They don’t take into consideration the “human element” .

    Just slamming the door shut on immigration does not fix the problem. All it will do is help the government look like the reached the “golden number” but at what cost?

    They are ripping real families apart, making British born nationals loose faith in their country, making Britian look un-friendly to the world, making Britian look un-attractive to foreign investors…. in the long run these unlawful rules will only hurt Britian and it’s people.

    We need to find some people in the government that have a heart, that have morals and a soul….. someone that has a voice to speak for all these families and reverse the financial requirements for real, honest, hard working families.

  3. (aa) is under the age of 18 years;
    (cc) ….. has lived in the UK continuously for at least the 7 years immediately preceding the date of application.
    “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.”

    For a parent of 1 non-british child, are the rules effectively saying there is a one year window, when the child is 7, to start this route?

    What is the difference between “sole responsibility” and “parental responsibility” in practice?

    1. yes i thought of that. what will happen when there are 2 parents? i know someone that is currently on dlr till 2014 They have a minor child who has been here for 7 years this year. their child will be 15 i 2014 and with dlr extension now so difficult, i wonder what they can do?

    2. “For a parent of 1 non-british child, are the rules effectively saying there is a one year window, when the child is 7, to start this route?” Am sorry, I don’t follow this point but happy to comment if you can clarify for me.

      Otherwise re ‘sole responsibility’ and ‘parental responsibility’: I’d refer to the TD Yemen case for further guidance on sole responsibility. With regards to parental responsibility (PR), in family law both parents can have parental responsibility for a child but might not exercise this in the same/equal way. The Children Act 1989 defines PR as meaning “all rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property” – section 3(1). But several scenarios may arise whereby a parent holds more/sole responsibility for a child over the other parent or simply, a parent may chose not to exercise their PR, which would lead to a difference between both terms.

    3. Sarah, I’m happy to clarify.
      The application for ILR can only occur 7+10=17 years minimum age of child, but has to be made when child is under 18 per (aa), hence 1 year window.

  4. Re Fediben Gals’ comment, from my reading of the EX1 provision, it does not exclude both parents from benefiting from the 7-year provision as the exception only kicks in if an applicant does not meet all of the ‘eligibility’ criteria – Section R-LTRPT.1.1 (d) (ii). It is in the eligibility criteria that the sole responsibility/access scenarios are set out (E-ECPT.2.3 and 2.4) so it would seem that applicant(s) who seek to apply under the 7-year provision of EX1 can do so without having to show that they come under one of the two more restrictive scenarios of sole responsibility or access arrangements.

    But what is crystal clear is that these new rules are anything but!

  5. Yes I see the 1-year window now – and that is without any lea-way for the time that the UKBA will no doubt take to consider each extension application. By that time, the child will probably be closer to 40 than 17 years old…

  6. Does anyone know anything more about when the Zambrano amendment to the EEA Regs is due? Or perhaps it has been quietly forgotten with the hope that these rules cover it. I think the courts will further define the isuse at some stage, possibly including the ECJ.

    Aside from all that, with reference to the current and historical meaning of citizenship it’s easy to argue that if a child is a British citizen that makes it unreasonable, possibly a fundamental violation of their rights, to even suggest that they leave the UK. An interesting one for the courts, also with reference to the ICRC and UNO universal declaration on human rights re right to a nationality and to entry and residence there.