The Secretary of State for the Home Department v SR Anonymity Direction Made
| Jurisdiction | UK Non-devolved |
| Judge | Plimmer |
| Judgment Date | 14 August 2018 |
| Neutral Citation | [2018] UKUT 334 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 14 August 2018 |
[2018] UKUT 334 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
UPPER TRIBUNAL JUDGE Plimmer
For the appellant: Mrs Petterson, Senior Home Office Presenting Officer
For the respondent: Mr Caswell, Counsel
SR (subsisting parental relationship — s117B(6)) Pakistan
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?
Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI2008/269) an Anonymity Order is made. Unless the Upper Tribunal or Court orders otherwise, no report of any proceedings or any form of publication thereof shall directly or indirectly identify the original Appellant. This prohibition applies to, amongst others, all parties.
The appellant (‘the SSHD’) has appealed against the decision of the First-tier Tribunal (‘FTT’) to allow the respondent's (‘SR’) Article 8 appeal, the FTT having found that he played an active role in his child's upbringing such that he met the relevant requirements of the Immigration Rules.
I have anonymised SR's name because this decision refers to his child, in particular family proceedings relating to that child.
SR is a citizen of Pakistan. He entered the United Kingdom (‘UK’) in December 2011 with a student visa valid until May 2013. An in-time application to extend that leave was granted to 18 July 2014. SR then made an in-time application to remain as a spouse of a settled person, but this was refused in a decision dated 24 September 2014. This decision was appealed to the FTT. It is unnecessary to refer to the FTT's decision dated 7 April 2015 in any detail because in a decision dated 30 March 2016, the Upper Tribunal found that it contained an error of law and remitted the matter to the FTT.
SR now has a British citizen child born in the UK in July 2015 (‘A’). He accepts that his relationship with A's mother, with whom A resides, broke down in March 2017. The main issue before the second FTT was therefore whether SR played an active role in A's upbringing and not whether SR's relationship with her mother was genuine and subsisting. The FTT found in SR's favour and the SSHD has appealed against that decision with permission having been granted by FTT Judge Andrew on 16 March 2018.
At [10] the FTT considered the main issue in dispute to be whether SR is “ taking and intending to continue to take, an active role in the child's upbringing”. Having heard oral evidence from SR, the FTT made the following relevant findings at [11] to [14]:
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(i) SR has been granted contact with A pursuant to a court order made in September 2017 – this prescribed: one hour supervised contact at a xcontact centre in month one i.e. September 2017; two hours supervised contact at a contact centre in month two i.e. October 2017; three hours unsupervised contact with a handover by family members in month three i.e. November 2017 and; any other contact to be agreed between the parties. The court also formalised that A shall live with her mother.
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(ii) As at the date of the FTT hearing on 30 January 2018 SR had not had any direct contact with A pursuant to the court order.
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(iii) SR did little to challenge the mother's failure to facilitate contact in November or December 2017, after she returned from holiday in October 2017. However, he was in regular contact with the mother and asked about A.
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(iv) The difficulties in contact taking place are as a result of the mother's failure to comply with the court order.
The FTT judge found at [14] that “ overall” she was “ just about satisfied on the balance of probabilities [SR] had done all he can do to demonstrate he is taking and intends to continue to play an active role in the child's upbringing”. The FTT therefore concluded that the requirements of the Immigration Rules were met and the appeal was allowed on the basis of Article 8.
There was no dispute as to the applicable Immigration Rules. These were set out in a skeleton argument prepared for the FTT on behalf of SR. The relevant provisions are to be found at Appendix FM. Paragraph R-LTRPT1.1 provides:
“R-LTRPT.1.1. The requirements to be met for limited or indefinite leave to remain as a parent or partner are—
(a) the applicant and the child must be in the UK;
(b) the applicant must have made a valid application for limited or indefinite leave to remain as a parent or partner; and either
(c) (i) the applicant must not fall for refusal under Section S-LTR: Suitability leave to remain; and (ii) the applicant meets all of the requirements of Section ELTRPT: Eligibility for leave to remain as a parent, or
(d) (i) the applicant must not fall for refusal under S-LTR: Suitability leave to remain; and (ii) the applicant meets the requirements of paragraphs E-LTRPT.2.2–2.4. and E-LTRPT.3.1.; and (iii) paragraph EX.1. applies.”
E-LTRPT.2.1. to 2.4. provide as follows:
“ Relationship requirements
E-ECPT.2.1. The applicant must be aged 18 years or over.
E-ECPT.2.2. The child of the applicant must be—
(a) under the age of 18 years at the date of application;
(b) living in the UK; and
(c) a British Citizen or settled in the UK.
E-ECPT.2.3. Either —
(a) the applicant must have sole parental responsibility for the child; 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; and
(iii) the applicant must not be eligible to apply for entry clearance as a partner under this Appendix.
E-ECPT.2.4. (a) The applicant must provide evidence that they have either—(i) sole parental responsibility for the child, or that the child normally lives with them; or
(ii) access rights to the child; and
(b) The applicant must provide evidence that they are taking, and intend to continue to, take an active role in the child's upbringing.”
Paragraph EX.1 states:
“This paragraph applies if
(a) (i) the applicant has a genuine and subsisting parental relationship with a child who—
(aa) is under the age of 18 years;
(bb) is in the UK
(cc) is a British Citizen or has lived in the UK continuously for at least the 7 years immediately preceding the date of application;
and
(ii) it would not be reasonable to expect the child to leave the UK…”
The Immigration Directorate Instruction on Family Migration: Appendix FM Section 1.0b, Family Life (as a Partner or Parent) and Private Life: 10-year Routes, dated 22 February 2018 (‘the 2018 IDI’) sets out the applicable guidance on what the SSHD considers to amount to genuine and subsisting parental relationship for the purposes of Appendix FM of the Immigration Rules, in particular paragraph EX.1 as follows:
“Is there a genuine and subsisting parental relationship?
Where the application is being considered under paragraph EX.1.(a) in respect of the 10-year partner or parent routes, the decision maker must first decide whether the applicant has a “genuine and subsisting parental relationship” with the child.
The phrase ‘parental relationship’ goes beyond the strict definition of parent
set out in paragraph 6 of the Immigration Rules, to encompass situations in
which the applicant is playing a genuinely parental role in a child's
life, whether that is recognised as a matter of law or not.
The applicant must have a subsisting role in personally providing at least some element of direct parental care to the child. This will be particularly relevant where the child is the child of the applicant's partner or where the parent is not living with the child. This means that an applicant living with a child of their partner and taking a step-parent role in the child's life could have a “genuine and subsisting parental relationship” with them, even if they had not formally adopted the child and if the other biological parent played some part in the child's life.
In considering whether the applicant has a “genuine and subsisting parental relationship” the following factors are likely to be relevant:
Does the applicant have a parental relationship with the child
• what is the relationship – biological, adopted, step child, legal guardian? Are they the child's primary carer?
• is the applicant willing and able to look after the child?
• are they physically able to care for the child?
Is it a genuine and subsisting relationship?
• does the child live with the person?
• if not, where does the applicant live in relation to the child?
• how regularly do they see one another?
• are there any relevant court orders governing access to the child?
• is there any evidence provided within the application as to the views of the child, other family members or social workers or other relevant professionals?
• to what extent is the applicant making an active contribution to the child's life?
Factors which might prompt closer scrutiny include:
• the person has little or no contact with the child or contact is irregular
• any contact is only recent in nature
•...
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