Can you rely on the parent route of Appendix FM if you are in a genuine and subsisting relationship with your partner?

There are two routes that are most commonly used when applying for leave to remain in the UK under Appendix FM of the Immigration Rules: the partner route and the parent route. It is generally thought that the Rules have created a clear division between the two routes. The Home Office’s position on this is clear. Page 18 of the Home Office Guidance “Family Migration: Appendix FM Section 1.0b Family Life (as a Partner or Parent) and Private Life: 10-Year Routes” (Version 1.0, published on 22 February 2018) states:

“The parent route is not for couples with a child together who are in a genuine and subsisting partner relationship together. Applicants in this position must apply under the partner route where or once they are eligible to do so, or under the private life route. An applicant cannot apply under the parent route if they are or will be eligible to apply under the partner route, including where the applicant is in a partner relationship but the couple have not yet been living together for two years.”

This position arguably creates an arbitrary division within a family unit – applicants can only rely on their relationship to the partner or child, rather than the partner and child. It also works against applicants, because the test under paragraph EX.1 for partners is ‘insurmountable obstacles’ to family life continuing outside of the UK, whereas the test for parents is whether it is ‘reasonable’ to expect the child to relocate. The former is much harder to satisfy than the latter.

So, is the Home Office guidance correct? Arguably, no. The Home Office guidance cannot be more restrictive than the Rules (see §43 of Pokhriyal v The Secretary of State for the Home Department [2013] EWCA Civ 1568). This means that it is important to review the way in which the Rules have been drafted to see whether the Rules prevent applicants from relying on the parent route when they are in a genuine and subsisting relationship with a partner. In so doing, it would be helpful to have a practical scenario in mind first.

Scenario

James is a South African national who has no leave to remain in the UK. He is an overstayer and wants to regularise his status in the UK. He is married to Jennie, who is British, and they have a British child together, Dora. They all live together under the same roof. Based on Home Office guidance, James is forced to make an application under the partner route which he is unlikely to satisfy because of the very elevated threshold of ‘insurmountable obstacles’. On the other hand, under the parent route, James would be able to show with some ease that it would be ‘unreasonable’ to expect Dora to leave the UK since she is British.

Can James rely on his relationship to Dora under paragraph EX.1 of the Rules? The Home Office guidance says no, but we say arguably yes.

What do the  Immigration Rules say?

Contrary to the Home Office guidance, the Rules are actually not too clear about there being a division between the partner and the parent route. There is nothing within the Rules that prevent applicants from relying on the easier limb of paragraph EX.1 under the parent route even if they are in a genuine and subsisting relationship.

Paragraph R-LTRP.1.1 of Appendix FM to the Rules governs the requirements for leave to remain as a partner. It states the following:

“R-LTRP.1.1. The requirements to be met for limited leave to remain as a partner are-

(a) the applicant and their partner must be in the UK;

(b) the applicant must have made a valid application for limited or indefinite leave to remain as a partner; and either

(c) ….; or

(d) 

(i) the applicant must not fall for refusal under Section S-LTR: Suitability leave to remain; and

(ii) the applicant meets the requirements of paragraphs E-LTRP.1.2-1.12. [the relationship requirement] and E-LTRP.2.1-2.2. [the immigration status requirement]; and

(iii) paragraph EX.1. applies.” (emphasis added)

Paragraph EX.1 states:

“EX.1. 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, or was under the age of 18 years when the applicant was first granted leave on the basis that this paragraph applied;

(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) taking into account their best interests as a primary consideration, it would not be reasonable to expect the child to leave the UK; or

(b) the applicant has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen, settled in the UK or in the UK with refugee leave or humanitarian protection, and there are insurmountable obstacles to family life with that partner continuing outside the UK….” (emphasis added)

As it can be seen, if applicants can satisfy the suitability requirement, the relationship requirement (paragraphs E-LTRP.1.2. – 1.12), and the immigration status requirement (paragraphs E-LTRP.2.1 – 2.2), applicants are able to rely on EX.1 – and that means both EX.1(a) and EX.1(b). Paragraph R-LTRP.1.1(d)(iii) does not limit the consideration under paragraph EX.1 to subparagraph (b) only (which relates to partners). It is also clear that the application of either EX.1(a) or (b) is not limited by how applicants arrived to EX.1. As long as applicants satisfy paragraphs R-LTRP.1.1(d)(i) and (ii), EX.1 is applicable in its entirety. Applicants can therefore rely on their parental relationship with their children through the partner route, notwithstanding the fact that they may not have ‘sole responsibility’ over their child.

This approach to the Rules is consistent with the way in which s.117B(6) of the Nationality, Immigration and Asylum Act 2002 (‘the 2002 Act’) applies to appellants. The public interest considerations under the 2002 Act does not limit its consideration only to those who have sole responsibility over a qualifying child. s.117B(6) of the 2002 Act applies to everyone who enjoys a genuine and subsisting parental relationship with a qualifying child. Insofar as possible, the consideration of appellants’ human rights under the Rules and statute ought to be in harmony, and the approach to the Rules (as set out above) achieves that. The contrary would result in unpredictability and inconsistency.

Conclusion

Although the interpretation of the Rules above is arguably correct in law, practitioners and applicants should be mindful that the Home Office guidance argues the opposite. There is therefore a risk that an application that seeks to rely on the parent route when in a genuine and subsisting relationship would not yield success. That being said, it is more likely to succeed in an appeal before a First-tier Tribunal Judge when arguing that the appellant satisfies the requirements of Appendix FM of the Rules, such that the appeal should be allowed pursuant to §34 of TZ (Pakistan) v The Secretary of State for the Home Department [2018] EWCA Civ 1109.

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