In SR (subsisting parental relationship – s117B(6)) Pakistan 2018 UKUT 3345 (IAC), the Upper Tribunal examines the various pieces of law relevant to deciding whether someone who has a child in the UK should be allowed to stay here.

The case is helpful for two reasons:

1. The Home Office’s approach to section 117B(6) in its new guidance, published in February 2018 and discussed on this blog by Nath shortly afterwards, is firmly rejected
2. The tribunal provides a useful summary of the law on evaluating the parent/child relationship

The aim of the different provisions relating to children is abundantly clear: a child whose future clearly lies in the UK should not be separated from one (or both) of their parents. A laudable policy aim. However, this aim has been implemented through a series of slightly different legal provisions, each of which have their own independent application. This requires the tribunal to engage with a myriad of different fact-specific assessments before reaching a conclusion.

First, it is necessary to determine the child’s status. The child must be in the UK and either British, settled, or resident in the UK for a continuous period of seven years.

Next, it is necessary to assess the nature and extent of the appellant’s relationship with their child. The stronger the relationship, the stronger the case.

Playing an active role in the child’s upbringing

If the child is British or settled, consideration will be given to the requirement within the Immigration Rules for the appellant to provide evidence that they are taking, and intend to continue to take, an active role in the child’s upbringing. In addition, one of the following must apply:

1. The appellant has sole parental responsibility for the child
2. The child normally lives with the appellant
3. The appellant has direct access (in person) to the child, as agreed with the parent or carer with whom the child normally lives or as ordered by a court in the UK.

The Upper Tribunal summarises the relevant considerations when deciding whether someone is taking an active role in their child’s upbringing:

all the particular facts will need to be considered in the round, including inter alia: the age, and if appropriate the wishes and feelings of the child; the nature and extent of direct and indirect contact between parent and child; its duration; whether the parent has “parental responsibility” and; the nature and extent of the role played in decision-making for the child and his / her upbringing.

The tribunal emphasises the word “upbringing”. It distinguishes making important decisions about the child and influencing his or her development, on the one hand, from showing an interest in the child’s life and maintaining regular contact which both parent and child enjoy, on the other. Being involved in your child’s life is not the same as taking an active role in his or her upbringing.

For the appellant SR in this case, contact with his daughter for three hours every fortnight was not enough. Her mother was solely responsible for making every important decision in her life. As a result, the appellant was not taking an active role in his daughter’s upbringing for the purposes of the Immigration Rules.

Genuine and subsisting parental relationship

That is not the end of the matter. Paragraph EX.1 of the Immigration Rules and section 117B(6) of the Nationality, Immigration, and Asylum Act 2002 invite the tribunal to consider whether there is a genuine and subsisting parental relationship with the child. This assessment:

… is different in form and substance to whether a parent has taken an ‘active role’ in the child’s ‘upbringing’ for the purposes of R-LTRPT1.1. It is possible to have a genuine and subsisting parental relationship with a child, particularly in cases where contact has only recently resumed on a limited basis, but for that relationship not to include the parent playing an active role in the child’s upbringing.

Biological parentage is insufficient. There must also be some element of direct parental care in order to establish the four discrete elements of the provision:

1. a relationship with the child;
2. which is “parental”, rather than of some other kind;
3. which is “genuine”; and
4. which is “subsisting”.

On the facts of SR’s case the tribunal found that this requirement was met, as:

… it is undeniable that once a fortnight for a period of three hours, SR provides A with direct parental care. The level of parental care is obviously limited, but A is only three years old – the care that she currently requires is much more practical and immediate – and SR provides this on a regular basis, albeit for a limited period time and to a much lesser extent than her mother.

Even if the parental relationship is “limited”, that “does not mean it is not genuine or subsisting”.

Reasonableness of return

A genuine and subsisting parental relationship is not enough on its own. To meet the requirements of paragraph EX.1 and section 117B(6) it is also necessary to demonstrate that it would not be reasonable to expect the child to leave the UK.

As part of this assessment the tribunal must determine what would be in the child’s best interests, and take this into account. But:

… even where the child’s best interests are to stay, for the purposes of section 117B(6) it may still be not unreasonable to expect the child to leave.

In accordance with the Court of Appeal’s decision in MA (Pakistan), countervailing circumstances, such as the public interest in maintaining immigration control, must also be taken into account when considering what is “reasonable”. (The Supreme Court may soon overrule this – judgment is awaited.)

The Home Office’s new guidance indicates that section 117B(6) and paragraph EX.1 only apply where the effect of the decision would be that the child in question is required to leave the UK. In other words, the parent can only remain in the UK if there is no-one else that can care for their child and the child would therefore be forced to leave. If, in practice, the child would not need to leave (perhaps because the other parent is British and can provide care) then the Home Office says there is no need to allow the foreign parent to stay. That approach is firmly rejected as

… an untenable construction of the plain and ordinary meaning of EX.1 and section 117B(6).

The provisions clearly require an answer to the question ‘”would it be reasonable to expect the child to leave the UK?”. The question is contained in primary legislation and:

… cannot be ignored or glossed over. Self-evidently, section 117B(6) is engaged whether the child will or will not in fact or practice leave the UK. It addresses the normative and straightforward question – should the child be ‘expected to leave’ the UK?

In SR’s case the tribunal found that it would not be reasonable for the child to leave the UK, and therefore allowed the appeal.

Method behind the madness

Why does the law require so many different assessments of the parent/child relationship, I hear you ask? It is not as senseless as it first seems. The outcome is different depending on which threshold is met:

1. If it is in your child’s best interests for you to remain in the UK, this is a good starting point but is not determinative and will not necessarily lead to you being granted a visa
2. If you have a genuine and subsisting relationship with your child and it would not be reasonable for him/her to leave the UK, you will be granted a 2.5 year visa on a 10 year route to settlement
3. If you are playing an active role in your child’s upbringing and have direct access or sole responsibility, you will be granted a 2.5 year visa on a 5 year route to settlement.

It stands to reason that those with a stronger and closer relationship with their child should be in a better position than those with a lesser connection.

The system may seem needlessly complicated, but a certain degree of nuance is necessary to account for the various different types of parent/child relationship. The determination in SR provides a helpful summary of the law applicable to each stage of the assessment. It will be a useful point of reference for practitioners trying to navigate the minefield of different considerations and thresholds applicable to cases which involve a parent/child relationship.