Family Life As A Parent Of A Child

Family Life As A Parent Of A Child

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APPLICATION AS A PARENT OF A CHILD WHO HAS LIVED IN THE UK FOR SEVEN YEARS CONTINUOUSLY

With effect from 9 July 2012, the Immigration Rules were changed to introduce a new category to apply for leave to remain in the UK on grounds of family life as a parent of child who has lived in the UK continuously for seven years.

The New Rules do not mean that the old seven years child concession policy has been re-instated. Seven years child concession policy was a concessionary policy and was not part of the Immigration Rules.

The new category to apply for leave to remain in the UK on grounds of family life as a parent of child who has lived in the UK continuously for seven years is part of the Immigration Rules.

Unlike the old seven years child concession policy, the Home Office will not grant indefinite leave to remain (ILR) on an application for leave to remain made on grounds of family life as a parent of child who has lived in the UK continuously for seven years.

According to the Immigration Rules, the Home Office will grant initial leave to remain for a period of 30 months and upon completion of ten years residence in the UK under this category a person can apply for indefinite leave to remain (ILR) unless he is eligible to apply for indefinite leave to remain (ILR) earlier on the basis of ten years long continuous and lawful residence.

In order to qualify for initial leave to remain for 30 months as a parent of a child who has lived in the UK continuously for seven years it is essential that you do not have any unspent criminal convictions and you have not caused deception in any previous applications made to the Home Office.

The Immigration Rules require seven years continuous residence of the child and not that of the parent. At the time of the application, the parent must have been enjoying family life, as envisaged under Article 8 of the European Convention on Human Rights (ECHR), with the child who has lived in the UK continuously for seven years.

It is pertinent to note that for the application to succeed as a parent of child who has lived in the UK for 7 years continuously, the Immigration Rules require that:

E-LTRPT.2.3. Either-

(a) the applicant must have sole parental responsibility for the child or the child normally lives with the applicant and not their other parent (who is a British Citizen or settled in the UK);or
(b) the parent or carer with whom the child normally lives must be-  
(i) a British Citizen in the UK or settled in the UK;
(ii) not the partner of the applicant (which here includes a person who has been in a relationship with the applicant for less than two years prior to the date of application); and
(iii) the applicant must not be eligible to apply for leave to remain as a partner under this Appendix.  

E-LTRPT.2.4. (a) The applicant must provide evidence that they have either-

(i) sole parental responsibility for the child; or
(ii) access rights to the child”

 

The above cited Rule shows that single parents with sole responsibility for the child can succeed in such applications.

Alternatively, an applicant who is not a partner of the other parent of the child and where the other parent of the child is a settled person with Indefinite leave to Remain (ILR) or is a British Citizen can succeed in such applications.

If both parents are living with the child and they are partners to each other and neither of them is settled in the UK then the Home Office is likely to refuse the application under the Immigration Rules.

It  should however be noted that the Home Office does not consider Article 8 of the ECHR in the same manner as the Courts and therefore in such cases where the Home Office have refused an application, one may have good chances of success on appeal.

Relevant Case law

In case of Azimi-Moayed and others (decisions affecting children; onward appeals) [2013] UKUT 00197 (IAC), the Upper Tribunal found that:

“(1) The case law of the Upper Tribunal has identified the following principles to assist in the determination of appeals where children are affected by the appealed decisions:

  1. i) As a starting point it is in the best interests of children to be with both their parents and if both parents are being removed from the United Kingdom then the starting point suggests that so should dependent children who form part of their household unless there are reasons to the contrary.
  2. ii) It is generally in the interests of children to have both stability and continuity of social and educational provision and the benefit of growing up in the cultural norms of the society to which they belong.

iii) Lengthy residence in a country other than the state of origin can lead to development of social cultural and educational ties that it would be inappropriate to disrupt, in the absence of compelling reason to the contrary. What amounts to lengthy residence is not clear cut but past and present policies have identified seven years as a relevant period.

  1. iv) Apart from the terms of published policies and rules, the Tribunal notes that seven years from age four is likely to be more significant to a child that the first seven years of life. Very young children are focussed on their parents rather than their peers and are adaptable.
  2. v) Short periods of residence, particularly ones without leave or the reasonable expectation of leave to enter or remain, while claims are promptly considered, are unlikely to give rise to private life deserving of respect in the absence of exceptional factors. In any event, protection of the economic well-being of society amply justifies removal in such cases.”

The above case however does not clarify as to what would happen to the parents of children.

PD and Others (Article 8 : conjoined family claims) Sri Lanka [2016] UKUT 108 (IAC).

The Upper Tribunal gave an important decision in this regard on the correct approach to applications and appeals from family members, specifically a parent or parents and a child or children with 7 years of residence. This matter was heard by and decision given by The Hon. Mr Justice McCloskey, President of Upper Tribunal and Upper Tribunal Judge Bruce.

The brief facts of this case were that the parents entered the UK as a student and student dependent in 2005. Their child, then aged 3, had come with them. They had all remained here lawfully until 2010. They became overstayers in 2010. The child was now aged 14 and had lived for 11 years in the UK. The application for leave to remain on the basis of seven years continuous residence of the child was refused by the Home Office and the appeal was dismissed by the First-tier Tribunal.

The Upper Tribunal stated at the headnote that:

“In considering the conjoined Article 8 ECHR claims of multiple family members decision-makers should first apply the Immigration Rules to each individual applicant and, if appropriate, then consider Article 8 outside the Rules. This exercise will typically entail the consideration and determination of all claims jointly, so as to ensure that all material facts and considerations are taken into account in each case.”

The Upper Tribunal held that it would be “artificial”, “unrealistic”, “a fiction”, “imaginary”, “surreal”, “in breach of public law”, “in breach of the section 55 duty to have regard to the welfare of children” and “in breach of Article 8” itself to treat the cases of the family members entirely separately from one another:

The Upper Tribunal stated at paragraph 21 of their decision that:

“It is the very essence of Article 8 ECHR claims based on the family life dimension of this Convention provision that there are relationships, bonds and ties joining together the members of the family unit in question. In circumstances where the claims of several family members coincide, it would be artificial and unrealistic to determine them on their individual merits, in a rigid sequence and in insulated packages, without reference to the other claims.”

At paragraph 26 the Upper Tribunal then considered three potential outcomes to the appeals:

  1. All appeals dismissed and the family leaves the UK together
  2. Child’s appeal allowed but appeals of parents dismissed, child remains in UK without parents
  3. All appeals allowed and family remains in UK together

The second option was dismissed as totally unrealistic. The Upper Tribunal then considered the other two possibilities and concluded in favour of all the appeals being allowed. The Upper Tribunal’s reasoning in essence is that the best interests of the child are clearly that he should remain in the UK with his parents, that this is a very weighty consideration  and that by virtue of section 117B(6) there is no public interest in removal of the parents.

Very importantly, the Upper Tribunal stated at paragraph 39 on the interpretation of the word “reasonable” that:

We remind ourselves that the test to be applied is that of reasonableness. Other legal tests which have gained much currency in this sphere during recent years – insurmountable obstacles, exceptional circumstances, very compelling factors – have no application in the exercise we are performing. Self-evidently, the test of reasonableness poses a less exacting and demanding threshold than that posed by the other tests mentioned.

It is clear from the above passage that the Upper Tribunal did not apply any “exceptionality” tests which apply outside the Immigration Rules.

The decision also arguably recognises that the incorporation of the seven year period into the Immigration Rules is significant because it normalises that period and turns it into an ordinary immigration category just like all the other immigration categories.

Accordingly, the word “reasonable” in paragraphs 276ADE and EX.1. and s.117B(6) is subject to the normal rules of statutory interpretation and is to be given its normal meaning. It is a term or test like many others in the Immigration Rules, such as ‘adequate’, ‘sole responsibility’, ‘genuine and subsisting’ and so on. Importantly, it does not import any sort of ‘exceptionality’ threshold or similar because it is a normal application that is made under the Immigration Rules.

The Upper Tribunal at paragraph 40 reminds that all the relevant considerations have to be taken into account in such cases:

“We consider that the application of the reasonableness test involves a balance of all material facts and considerations. The application of this test will invariably be intensely fact sensitive, see EB (Kosovo) v Secretary of State for the Home Department [2008] UKHL 41, at [7] – [12], per Lord Bingham. Ultimately, the factors to which we give determinative weight are the length of the third Appellant’s residence in the United Kingdom (some 11 years), which has spanned three quarters of his life; his deep immersion in all aspects of life in this country; the critical stage of his personal and educational development which has been reached; his minimal connections with his country of origin; and the likelihood that he will make a useful contribution to United Kingdom society.”

Te last sentence “and the likelihood that he will make a useful contribution to United Kingdom society” arguably shows the weight being given to the public interest in favour of allowing a child to settle in the UK.

The Upper Tribunal gave weight to the unlawful overstay of the parents but observed that “a child’s best interests should not be compromised on account of the misdemeanours of its parents”.

SUMMARY

Where a family with a child or children who have lived in the UK for 7 years or more apply for leave to remain on the basis of paragraph 276ADE(1)(iv), there is a strong argument that the applications should normally be granted if the period of residence is satisfied and there is no bad behaviour by the applicants, they are well settled and integrated and therefore it would not be reasonable for the child or children to have to start over with their life again in another country. The longer the child has lived in the UK, the stronger the case will be. Other factors working in an applicant’s favour would be lawful presence by the parents and residence as an older child.

WHICH APPLICATION FORM

An application for leave to remain in the UK on grounds of family life as a parent of child who has lived in the UK continuously for seven years is made to the Home Office on application form FLR (O).

PERIOD OF LEAVE GRANTED

If the application is successful then the parent as well as the child who has lived in the UK continuously for seven years will be granted leave to remain for 30 months.

APPLYING FOR EXTENSION OR FURTHER LEAVE

28 days before the expiry of this initial 30 months leave, you will need to make an application for extension of stay under the same category.

Time spent with leave to remain as a parent of a child with seven years continuous residence will be counted towards ten years lawful continuous residence for the purposes of making an application for indefinite leave to remain (ILR) on the basis of ten years long residence.

It will also be possible to switch from this category to certain other categories from inside the UK e.g. Spouse visaUnmarried Partner VisaCivil Partner VisaSame Sex Partner visa, etc.

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