The Home Office has updated its main guidance on family visas under Appendix FM of the Immigration Rules. The good news is now we have one consolidated guidance document dealing with both the five and ten-year routes for partners, parents and private life applicants. The new guidance runs to 93 pages whereas the previous guidance for ten-year route applications was 104 pages alone. 

The other big clear-up is around the section dealing with applications under EX.1(a) of Appendix FM, which is about whether it is reasonable to expect a child to leave the UK with parents who have no right to remain here. This has always been quite a thorny issue and previous guidance has gone both ways. Versions before the Supreme Court’s decision in KO (Nigeria) [2018] UKSC 53 said that leave to remain should normally be given to parents of qualifying children, whereas post-KO (Nigeria) versions have had a more nuanced approach and still refer to the conduct of parents and their immigration status as being indirectly relevant. The new guidance is still a little confused in this respect and prefers the latter approach. 

However, gone are the parts of the guidance which said that if a child is not expected to leave the UK, then paragraph EX.1(a) does not apply. The new guidance makes clear that:

In accordance with the findings in the case of AB Jamaica (Secretary of State for the Home Department v AB (Jamaica) & Anor [2019] EWCA Civ 661), consideration of whether it is reasonable to expect a child to leave the UK must be undertaken regardless of whether the child is actually expected to leave the UK. 

If this is starting to make your brain hurt, Iain has a piece going over all this in more detail: see Important new judgments on KO (Nigeria) case and removing migrants with children in the UK.

I still find that even where a parent’s immigration status is pretty poor, the Home Office seems to be granting leave to remain to qualifying children under the ten-year route, as used to be the case before KO (Nigeria) muddied the waters. I wonder if this change in policy is likely to encourage caseworkers to be bolder and to refuse these types of application more often. 

Whilst the guidance has incorporated this change, it has overlooked or confused some of the other conclusions from AB (Jamaica). The document still has a noticeable bias against applicants who don’t have direct contact with their children. In these cases, the guidance says that it is “likely… that a relationship will not be sufficient to engage Article 8”.

On the contrary, what the Court of Appeal actually said was:

… it is by no means inevitable that a tribunal will conclude that a parent has no “genuine and substantial parental relationship” absent direct contact.

The way the Home Office has worded this is likely to infect decision-makers’ reasoning and steer them more towards refusing such an application.