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Overstayers: what about my partner’s children?

Those who have overstayed and want to regularise their stay on the basis of their relationship with a partner in the UK have to show that there would be ‘insurmountable obstacles’ to their family life continuing outside of the UK in order to succeed in an application for leave to remain. For those with children, though, the test is different.

If an applicant has a child in the UK who is either British or has been in the UK for at least seven years, the applicant will then not need to show insurmountable obstacles, but rather that it would not be reasonable to expect the child to leave the UK. This is a lower threshold for applicants to meet. But what if you don’t have a child, but your partner does? Such a child would obviously be affected by you leaving the UK, either with or without their parent. How do the immigration rules approach these family situations?

Further guidance is set out in the Immigration Directorate Instructions. This confirms that when an Immigration Officer is deciding whether or not an applicant has a ‘genuine and subsisting parental relationship’ for the purposes of paragraph EX.1.(a), it goes further than the strict legal definition of a parent. This means that even if you are not married to the child’s parent or have not formally adopted the child, your parental relationship with that child could still provide the basis for your application to be considered under the ‘reasonableness test’ rather than ‘insurmountable obstacles’.

There are a number of factors that the immigration officer will have to take into account when considering whether you have do in fact have a genuine and subsisting parental relationship with a child.

The first thing will be the role of the child’s biological parents. If you and your partner live with the child and the other biological parent plays no role in the child’s life or has limited contact with the child, then this will provide a good starting point. However, if the other parent plays a large role in the child’s life and maintains a close relationship with the child, it will be harder to show that you have a genuine parental relationship with the child.

Next they will consider your relationship with the child. Do you live together with the child or see her/him regularly? Are you willing to and capable of looking after the child? What contribution are you making to the child’s life? The immigration officer would expect to see emotional support, rather than solely a financial contribution. If the child is old enough to express a view, this will also be considered.

Applications will be considered carefully. Immigration Officers will look at how regular your contact with the child is, and how recently it began. It is therefore important that if you do have a child in the UK, with whom you have a parental or de facto parental relationship, that significant evidence of this is included with any application that you make to the Home Office.

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