New Guidance on family and private life applications
On the 23rd 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 the ten-year route to settlement. The Home Office did not make a lot of noise about the changes but the impact is huge for individuals.
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. However 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.
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. It insists on the possibility of a child remaining with a different person than the applicant.
The guidance gives a more extensive definition of what amounts 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.
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
absence of governance or security in another country
but the guidance further expands on what they mean.
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.
Is it reasonable for a British child to leave the UK?
This was probably the biggest change from the old to the new guidance.
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”.
What did the old guidance say?
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.
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.
What has changed?
The new guidance inserts a two-part test, whereby a decision maker 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 decision maker 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 is 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
This change will inevitable make it harder for a parent who, may not live with their child but has regular contact and likely overnight stay with the child more difficult to prove their case, where the applicant’s departure would not force the child to have to leave the UK. Clearly if the British child is forced to leave the UK then the decision maker would need to, in theory, grant the applicant leave to remain.
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.
The changes may not seem significant, however having experience of dealing with these cases; the Home Office has just raised the bar on the evidential requirements for these types of applications. Time will tell what impact this will have on the outcome of cases lodged after these changes were brought in. I have a few cases outstanding myself.