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Home Office’s Policy on Children Found “Untenable”

16th Oct, 2018 / Legal & Law Firm, News

In this post, I will unpack the recently promulgated case of SR (subsisting parental relationship – s117B(6)) Pakistan [2018] UKUT 00334 (IAC) (5 September 2018), which distills two important principles for appeals and applications involving a relationship between a parent and a child who is either a British citizen or has lived in the UK for 7 continuous years:

“1. If a parent (‘P’) is unable to demonstrate he / she has been taking an active role in a child’s upbringing for the purposes of E-LTRPT.2.4 of the Immigration Rules, P may still be able to demonstrate a genuine and subsisting parental relationship with a qualifying child for the purposes of section 117B(6) of the Nationality Immigration and Asylum Act 2002 (‘the 2002 Act’). The determination of both matters turns on the particular facts of the case.

2. The question of whether it would not be reasonable to expect a child to leave the United Kingdom (‘UK’) in section 117B(6) of the 2002 Act does not necessarily require a consideration of whether the child will in fact or practice leave the UK. Rather, it poses a straightforward question: would it be reasonable “to expect” the child to leave the UK?”

Active Role in the Child’s Upbringing  

In SR, the parent in question had a British citizen child and the child resided with her mother. In order to satisfy the eligibility requirement under Appendix FM for limited leave to remain as a parent of a child, a parent has to show that they meet E-LTRPT.2.4.

A parent must firstly show that they have sole parental responsibility for the child, or that the child normally lives with them, or that they have direct access (in person) to the child by court order or agreement with the parent with whom the child normally lives. Secondly, the parent has to provide evidence that they are taking, and intend to continue to take, an active role in the child’s upbringing”. It is this latter requirement which caused SR difficulty.

In JA (meaning of “access rights”) India [2015] UKUT 225 (IAC), relied upon in SR, it was concluded that the second requirement is not dependent on a parent and a child having regular face-to-face access, particularly as “direct access” (in person) for entry clearance cases is likely to be sporadic. Indirect contact does not exclude the possibility of the absent parent taking an active role in upbringing, but it would be difficult to prove if the parent was not involved in either day to day care or in making important decisions in the child’s life.

In assessing whether a parent has an active role in such upbringing, the particular facts of the case must be considered in the round including:

  • “the child’s age;
  • 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.”  [25]

There was insufficient evidence to support a conclusion that SRwas taking an “active role in the child’s upbringing”, other than seeing his daughter for three hours fortnightly: text messages showed regular enquiries but no decisions made about his daughter’s life; his witness statement lacked particularity stating only that he was “involved in her life and well-being”; there was no independent evidence from a social worker and the CAFCASS reports did not comment on the role he played in his child’s upbringing.

Applicants or appellants in a similar situation should be careful to “provide evidence” that they are taking, and intend to continue to take, an active role in bringing up the relevant child… READ FULL ARTICLE

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