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A Harsher Approach? Four changes in the revised Guidance on Family and Private Life applications

The Home Office issued new Family and Private Life Guidance on 23 February 2018 for applications for leave to remain on the basis of family life as a partner or parent, or on the basis of private life, on a 10 year route to settlement.

Although the corresponding Rules have not changed, the guidance has nonetheless raised some concerns that harsher decisions could now be made, especially given the case law in recent years stressing the importance of the Home Office to serve to relevant policy guidance before courts.

Here are 4 changes to watch out for:

1. Two-part test on reasonableness

A caseworker will first need to determine whether the departure of the parent or carer would cause the child to leave the UK. Only if this test is met, will the caseworker then be able to decide whether it is reasonable to expect the child to leave the UK.

2. Zambrano reference has been taken out

The previous guidance allowed for cases, (where they fell to be refused under the Rules and where there were no exceptional circumstances) to be referred to European Casework for a determination under EU law. However, this consideration has been omitted in the new guidance.

3. ‘Very Significant Obstacles’ assessment expanded

Notable points include faith, political or sexual orientation or sexual identity as a factor to consider when deciding whether there would be any significant obstacles to integration. It requires the decision maker to consider the relevant country information when considering whether an applicant would face very significant obstacles integrating or re-integrating into the country of return as a result of their faith, political or sexual orientation or sexual identity.

4. ‘Insurmountable obstacles’  definition expanded

The factors to take into consideration, such as serious cultural barriers, serious illness, impact of a mental or physical disability, absence of governance or security in another country, or ability to lawfully enter and stay in another country have been further expanded in the guidance. It requires that relevant country of origin information is taken into account, and that the specific claim made is considered in the context of the relevant national laws, attitudes and situation in the relevant country.

While expansion of the very significant obstacles assessment and the insurmountable obstacles definition is welcomed, the two-part test on reasonableness raises the burden on applicants to evidence why, even if the child were not to leave the UK, the removal would result in unjustifiable consequences. For instance, parents who may not live with their British children may need to submit substantial evidence to show that it would be in their children’s best interests for them to remain in the UK. Although the Zambrano test has been omitted, in practice it is unlikely to make a difference. In any case, where a Zambrano carer cannot show that their removal would compel their British child to leave the EU, he or she will not derive any rights under EU law.

Contact our Immigration Barristers

For expert advice in relation to challenging a decision to refuse an application for leave to remain on the basis of family life as a partner or parent, or on the basis of private life contact our Immigration Barristers in London on 0203 617 9173 or complete our enquiry form.


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