On 23 February 2018, the Home Office issued new guidance on dealing with applications for leave to remain on the basis of family life as a partner or parent or on the basis of private life, on a ten-year route to settlement.

Under the heading “changes from last version of this guidance”, it reads

The guidance has been updated to reflect Rules changes, minor corrections and alterations since August 2015.

Despite this, and the fact that the relevant Rules have not actually changed, the new guidance has made a splash. Many immigration lawyers are unhappy about it. It is fair to say that there are different schools of thought about the extent to which the new guidance reflects a change in the Home Office’s position, and the extent to which it will lead to harsher decisions. This post reflects my thoughts on the new guidance, but I would be curious to hear others’ positions, so please feel free to comment below.

What changes have been made to the ten-year route guidance?

The change that sparked the most controversy is on the question of when it would be reasonable for a British child to leave the UK, and I will dwell on that more below.

Other changes I could spot seemed to me to be expanding on points already made in previous guidance rather than modifying its core.

Non-British children with 7+ years of residence

Both the current and the previous guidance say that the longer a child has resided in the UK, the more the balance will begin to shift towards it being unreasonable to expect the child to leave the UK. Strong reasons will be required in order to refuse a case where the outcome will be removal of a child with continuous UK residence of seven years or more.

The new guidance does give examples of when those strong reasons may arise. In particular, strong reasons may arise where the parents have “deliberately sought to circumvent immigration control or abuse the immigration process — for example, by entering or remaining in the UK illegally or by using deception in an application for leave to enter or remain”.

But that is not a conclusive test:

the child’s best interests may outweigh the public interest in maintaining effective immigration control, even where the parents have been guilty of deliberately seeking to circumvent the latter or abuse the immigration process. For example, such a situation may occur when the child has been resident here for seven years or more, and is suffering from a serious medical condition that is being successfully managed in the UK, but could not be so managed in the country of proposed return.

The new guidance, unlike the old, also says that it may be appropriate to refuse to grant leave to a parent or primary carer where their conduct gives rise to public interest considerations of such weight as to justify their removal, and where the child who has been resident here for seven years or more could remain in the UK with another parent or alternative primary carer. In this respect, the guidance is similar to what is said about when it will be reasonable for a British child to leave the UK, in that it insists on the possibility of a child remaining with a different person than the applicant.

The test of “strong reasons” was most recently looked at in the case of R (MA (Pakistan) & Ors) v Upper Tribunal (Immigration and Asylum Chamber) & Anor [2016] EWCA Civ 705, reviewed by Colin in this blog post. The Court of Appeal concluded that seven years’ residence means “as a starting point that leave should be granted unless there are powerful reasons to the contrary” and that “it would be inappropriate to treat the child as having a precarious status merely because that was true of the parents.”

The decision in MA was challenged and I understand it is due to be heard by the Supreme Court on 17-19 April 2018. As always, Free Movement will cover the judgment, which might lead to a further change in the Home Office guidance.

Insurmountable obstacles

The guidance gives a more extensive definition of what amount to “insurmountable obstacles” in the context of partners of British or settled persons who argue that there would be insurmountable obstacles to family life with that partner continuing outside the UK. See paragraph EX.1(b) of the Immigration Rules.

The factors to take into consideration remain the same:

• ability to lawfully enter and stay in another country
• serious cultural barriers
• impact of a mental or physical disability
• serious illness
• absence of governance or security in another country

but the guidance further expands on what they mean. Those applying on that basis would be advised to read the new guidance.

Very significant obstacles

Similarly, the new guidance provides a more detailed explanation of what factors which might amount to “very significant obstacles” in the context of those applying on the basis that there would be very significant obstacles to their integration into the country to which they would have to go if required to leave the UK. Here, see paragraph 276ADE(1)(vi) of the Rules.

Again, those applying on this basis should familiarise themselves with the new guidance. I welcome the addition of “faith, political or sexual orientation or sexual identity” as a factor to consider when deciding whether there would be very significant obstacles to integration.

Is it reasonable for a British child to leave the UK?

This was probably the biggest change from the old to the new guidance.

The law

Under the Immigration Rules, and in particular paragraph EX1(a), an applicant who has a genuine and subsisting parental relationship with a British child may be granted leave if “taking into account their best interests as a primary consideration, it would not be reasonable to expect the child to leave the UK”.

Section 117B(6) of the Nationality, Immigration and Asylum Act 2002 (NIAA 2002), as inserted by section 19 of the Immigration Act 2014, also states that

In the case of a person who is not liable to deportation, the public interest does not require the person’s removal where—

(a) the person has a genuine and subsisting parental relationship with a qualifying child, and

(b) it would not be reasonable to expect the child to leave the United Kingdom.

What did the old guidance say?

The previous guidance ran:

Save in cases involving criminality, the decision maker must not take a decision in relation to the parent or primary carer of a British Citizen child where the effect of that decision would be to force that British child to leave the EU, regardless of the age of that child. This reflects the European Court of Justice Judgment in Zambrano.

…

Where a decision to refuse the application would require a parent or primary carer to return to a country outside the EU, the case must always be assessed on the basis that it would be unreasonable to expect a British Citizen child to leave the EU with that parent or primary carer.

In such cases it will usually be appropriate to grant leave to the parent or primary carer, to enable them to remain in the UK with the child, provided that there is satisfactory evidence of a genuine and subsisting parental relationship.

It may, however, be appropriate to refuse to grant leave where the conduct of the parent or primary carer gives rise to considerations of such weight as to justify separation, if the child could otherwise stay with another parent or alternative primary carer in the UK or in the EU…

The circumstances envisaged could cover amongst others:

• Criminality falling below the thresholds set out in paragraph 398 of the Immigration Rules;
• A very poor immigration history, such as where the person has repeatedly and deliberately breached the Immigration Rules.

The guidance went on to say that, where the case fell to be refused under the Rules, and there were no exceptional circumstances, then the caseworker should refer the case to the European Casework unit to review and determine the case under EU law.

Only last year, Colin posted about the case of SF and others (Guidance, post-2014 Act) [2017] UKUT 120 (IAC), which dealt with the question of when it is reasonable to expect a British child to leave the UK. Seemingly predicting the future, Colin said:

The policy is refreshingly sensible, although one suspects that its days might be numbered.

And here we are…

What has changed?

1. The insertion of a two-part test on reasonableness

The new guidance inserts a two-part test, whereby a caseworker must first determine whether the departure of the non-EEA national parent or carer would result in the child being required to leave the UK. Only if that test is met, the caseworker must go on to consider whether it is reasonable to expect the child to leave the UK.

To determine whether the departure of the non-EEA national parent would result in the child being required to leave the UK, the guidance says that

This will not be the case where, in practice, the child will, or is likely to, continue to live in the UK with another parent or primary carer. This will be likely to be the case where for example:

• the child does not live with the applicant
• the child’s parents are not living together on a permanent basis because the applicant parent has work or other commitments which require them to live apart from their partner and child
• the child’s other parent lives in the UK and the applicant parent has been here as a visitor and therefore undertook to leave the UK at the end of their visit as a condition of their visit visa or leave to enter

Arguably, the fact that the guidance previously said “the decision maker must not take a decision in relation to the parent or primary carer of a British Citizen child where the effect of that decision would be to force that British child to leave the EU” meant that an application could have been refused on the basis that the effect of a refusal was not to force the British child to leave the EU.

In practice, the Home Office went with the second part of the guidance (the two paragraphs beginning “Where a decision to refuse…” in the extract above) with its emphasis on it being unreasonable to expect such children to leave the EU with a parent/carer. That part did not seem to ask whether the refusal of a parent’s application would mean that their British child would leave, but simply whether

1. there was a parental relationship; and
2. the child was British and therefore could not be expected to leave.

At Wesley Gryk we had several grants of leave to parents of British children who did not live with their British child. Arguably, had they been refused, the child would have remained in the UK. These cases might now be harder to win.

That said, the fact that a child would not be forced to leave the UK is not the end of the story. The guidance makes it clear that

where there is a genuine and subsisting parental relationship between the applicant and the child, the removal of the applicant may still disrupt their relationship with that child. For that reason, the decision maker will still need to consider whether, in the round, removal of the applicant is appropriate in light of all the circumstances of the case, taking into account the best interests of the child as a primary consideration and the impact on the child of the applicant’s departure from the UK. If it is considered that refusal would lead to unjustifiably harsh consequences for the applicant, the child or their family, leave will fall to be granted on the basis of exceptional circumstances.

So not all is lost. But in cases where the British child already lives or could live with another parent or primary carer, applicants will need to stress the reasons why, even if the child were not to leave the UK, the removal would lead to unjustifiably harsh consequences.

2. No reference to Zambrano in new Home Office guidance

The guidance used to say that, where the case fell to be refused under the Rules, and there were no exceptional circumstances, then the caseworker should have referred the case to European Casework for a determination under EU law. European Casework had to review whether an applicant’s removal from the UK would require the British citizen to leave the UK and the EEA. If so, then the applicant would have a right to reside in the UK under EEA law, following the case of Zambrano. The new version omits this.

Some practitioners argue that the Home Office has removed the reference to Zambrano in advance of Brexit, and as an indication that Zambrano carers will no longer have a right to reside in the UK after Brexit. Others say that it is simply the removal of a reference that was never meant to be there, as it confused domestic immigration law and EEA law.

Whatever the reasoning behind this change, I do not see it as making a big difference in practice, unlike the introduction of the two-part test.

First, while the EEA Regulations 2016 remain in force in the UK, the primary carers of British citizens continue to have an automatic right to reside in the UK if their removal from the UK would compel the British citizen to leave the European Union. Those who think they have an EU right to reside will, however, need to make an application to the European Casework unit directly if they want a document confirming that right. That does not seem too controversial to me. After all, there is no other guidance where Home Office caseworkers are instructed to check with European Casework whether the applicant has a right to reside under EU law.

Second, removing the reference to Zambrano does not generally make it harder for parents of British nationals to have an application approved, except for the very few cases where the only reason to refuse is that the applicant falls foul of the “suitability requirements”. As I mentioned in a previous blog post, the Zambrano “compulsion test” is hard to meet where there is an alternative carer for a British child. In addition, unlike British Immigration Rules, where a caseworker must go on to look at exceptional circumstances, a Zambrano carer who cannot show that their removal would compel the British citizen to leave the EU will not derive any rights under EU law and will simply see their application refused.

In conclusion, the effect the new guidance will have on future applications for leave to remain on the basis of family and private life in the UK on the ten-year route to settlement remains to be seen. I think it is unlikely the Home Office will refuse parents of British children who live with them simply on the basis that they could move in with another parent or carer (and I hope I won’t be proved wrong!). That said, parents who do not live with their British children may be well advised to make arguments and submit evidence explaining why it would be in the children’s best interests for them to remain in the UK, and the consequences their removal from the UK would have for those children.