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Home Office’s Policy on Children Found “Untenable”

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 SR was 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.

Genuine and Subsisting Parental Relationship

Although not relevant to SR, as he did not meet the eligibility requirements, Judge Plimmer’s consideration of section 117B(6) will be highly relevant to the applicability of EX.1(a) as the provisions mirror each other.

Section 117B(6) essentially contains three elements:

  1. the person “is not liable to deportation”;
  2. “the person has a genuine and subsisting parental relationship with a qualifying child”; and
  3. “it would not be reasonable to expect the child to leave the United Kingdom”.

How does the requirement to have a genuine and subsisting parental relationship differ from taking an active role in a child’s upbringing? In SR the tests were considered to be different in “form and substance” [35]. The example is given of a situation in which there is recently resumed contact between parent and child, on a limited basisthere would be a genuine and subsisting parental relationship but no active role in the child’s upbringing.

A failure to make important decisions in a child’s life would not preclude the development of a genuine and subsisting relationship. Although the two tests are not congruent, in deciding whether a parental relationship is genuine and subsisting the most significant factor is likely to be the role the parent plays in caring for and making decisions; so a failure to take an active role would still be relevant to the section 117B(6) assessment (R (RK) v SSHD (s.117B(6); “parental relationship”) IJR [2016] UKUT 31 (IAC) [42]).

Upper Tribunal Judge Plimmer also relies upon the test in SSHD v VC (Sri Lanka) [2017] EWCA 1967 (Civ) in which ‘genuine’ and ‘subsisting’ were each said to denote a separate and essential quality of the relationship, which must be more than merely biological: “the ‘parent’ must have a ‘subsisting’ role in personally providing at least some element of direct parental care to the child” [43].

It was found to be “undeniable” that SR provided his three year old daughter with direct parental care in their three hour sessions of contact, each fortnight. While it was acknowledged that this was a limited level of parental care, much lower than that provided by the child’s mother, and had only been provided for a short period of time, that did not mean that the “limited parental relationship” was not genuine and subsisting. Therefore, the second strand of the test in section 117B(6) was satisfied.

Reasonableness of the Child leaving the UK

As for the third element, the public interest must be weighed against the impact of the child in determining “the normative and straightforward question – should the child be ‘expected to leave’ the UK?” [51]

The determination unequivocally states that this question in “section 117B(6) is engaged whether the child will or will not in fact or practice leave the UK” [51]. It is not a hypothetical question requiring the Secretary of State to guess whether the child would in fact leave the UK with the removable parent.

The Upper Tribunal rejects the argument (often put forward by the Secretary of State in appeals) that section 117B(6) or EX.1 only applies where the effect “would be, or would be likely to be, that the child would have to leave the UK” and would not apply where “in practice, the child will, or is likely to, continue to live in the UK with another parent or primary carer”.  

The Home Office’s Policy, therefore, contains an “untenable construction of the plain and ordinary meaning of EX1 and section 117B(6)” [50]. The impugned policy also irrationally reflects the line of authorities following the European Court of Justice’s case of Ruiz Zambrano (C34/09). The policy purports to narrow the ambit of section 117B(6) and EX.1, which are not confined to EU cases and apply to children who have lived in the UK for 7 years or more, but who are not EU (or British) citizens.

Even if section 117B(6) or EX.1 only applied to British citizens, it would be illogical to apply the principle contained in Zambrano. The policy and the provisions are concerned with respect for family and private life under Article 8, whereas Zambrano ensures that a child with EU citizenship, but non-EU national parents, is not deprived of the genuine enjoyment of their citizenship rights under Article 20 of the Treaty on the Functioning of the European Union, as the child would be if unable to reside in the UK or in another EU state. It is possible that a child could remain in the EU (thereby, not engaging Zambrano), but their separation from a parent would cause a disproportionate interference with family life.

While it is relevant in the proportionality exercise that a child would lose the benefits and advantages of British citizenship if required to relocate outside the UK with a parent, that is only one factor among many relevant factors in assessing best interests and the reasonableness of expecting the child to leave the UK. Other important factors in SR included the fact that the three year old child could not be expected to move to Pakistan without her primary carer, her British citizen mother. Given that the child’s parents were separated (as opposed to a family unit) it would not be reasonable for the child’s British citizen mother to sever her private and family life and move to a country in which she does not wish to reside. The child’s best interests “overwhelmingly” favoured her and her mother remaining in the UK, and “marginally” favoured SR remaining in the UK. As no public interest factors weighed against SR (other than failing to meet E-LTRPT.2.4.), on the balance, it would be unreasonable to expect the child to leave the UK to enjoy family life with her father. The third element of section 117B(6) was therefore met.

If the three elements are satisfied, that will be (and in SR’s case was) determinative of the Article 8 appeal: “The proper application of section 117B(6) when resolved in an individual’s favour is determinative of the issue of proportionality”. Parliament has declared that “the public interest does not require the person’s removal” under section 117B(6); given that sections 117A-117D of the 2002 Act provide a structured approach to and final result compliant with Article 8 (per Rhuppiah), “that is the end of the matter” [55].  

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