Family life

8.12 Children

See the interesting Free Movement blog on the Home Office profit on the fees charged to children exercising their right to British citizenship ( "Home Office makes almost £100m profit from children registering as British citizens over five years" (Independent, drawing on Free Movement analysis of official data). The Guardian reports that the Project for Registration of Children as British Citizens has launched a judicial review.

8.12.4 Adoption

In TY (Overseas Adoptions – Certificates of Eligibility) Jamaica [2018] UKUT 197 (IAC) the Upper Tribunal noted the important distinction between adoptions abroad and adoptions in the UK.

In this case, TY’s mother had died, and the only person looking after him was his grandmother, who was partially paralysed by a stroke.

His aunt, a British citizen in the UK, had been supporting him financially and had stayed in touch. She had started proceedings to adopt him, but when the previous adoption recognition regulations were replaced by Adoption (Recognition of Overseas Adoption) Order 2013 (SI 2013 No. 1801), adoptions in Jamaica were not included in the list of those recognised.

However, the UK adoption authorities had issued a certificate of eligibility to his aunt, confirming that she was eligible to adopt him in the UK. Accordingly he was eligible to enter the UK for adoption, using rule 316A.

8.13: New guidance for leave to remain based on family life as a partner or parent or on the basis of private life on a ten-year route to settlement.

On 23 February 2018, the Home Office issued new guidance in this area.

Non-British children with 7+ years of residence

The guidance says that the longer a child has resided in the UK, the more the balance will shift towards it being unreasonable to expect the child to leave the UK. Strong reasons will be required to refuse a case where the outcome will be removal of a child with continuous UK residence of seven years or more. The new guidance gives examples of when those strong reasons may arise. Strong reasons may arise where the parents have “deliberately sought to circumvent immigration control or abuse the immigration process — for example, by entering or remaining in the UK illegally or by using deception in an application for leave to enter or remain”.However, the child’s best interests may outweigh the public interest in maintaining effective immigration control, even where the parents have been guilty of deliberately seeking to circumvent the latter or abuse the immigration process. For example, such a situation may occur when the child has been resident here for seven years or more, and is suffering from a serious medical condition that is being successfully managed in the UK, but could not be so managed in the country of proposed return.

The new guidance also says that it may be appropriate to refuse to grant leave to a parent or primary carer where their conduct gives rise to public interest considerations of such weight as to justify their removal, and where the child who has been resident here for seven years or more could remain in the UK with another parent or alternative primary carer. In this respect, the guidance is like what is said about when it will be reasonable for a British child to leave the UK, in that it insists on the possibility of a child remaining with a different person than the applicant.

The test of “strong reasons” was recently considered in the case of R (MA (Pakistan) & Ors) v Upper Tribunal (Immigration and Asylum Chamber) & Anor [2016] EWCA Civ 705. The Court of Appeal concluded that seven years’ residence means “as a starting point that leave should be granted unless there are powerful reasons to the contrary” and that “it would be inappropriate to treat the child as having a precarious status merely because that was true of the parents.” This decision has been appealed to the Supreme Court.

Insurmountable obstacles

The guidance gives a more extensive definition of what amount to “insurmountable obstacles” in the context of partners of British or settled persons who argue that there would be insurmountable obstacles to family life with that partner continuing outside the UK (paragraph EX.1(b) of the Immigration Rules).

The factors to take into consideration remain the same but the guidance expands on what they mean.

Very significant obstacles

Similarly, the new guidance provides a more detailed explanation of what factors which might amount to “very significant obstacles” in the context of those applying on the basis that there would be very significant obstacles to their integration into the country to which they would have to go if required to leave the UK (paragraph 276ADE(1)(vi) of the Rules.)

Is it reasonable for a British child to leave the UK?

This is the biggest change from the old to the new guidance. Under paragraph EX1(a), an applicant who has a genuine and subsisting parental relationship with a British child may be granted leave if “taking into account their best interests as a primary consideration, it would not be reasonable to expect the child to leave the UK”. Section 117B(6) of the Nationality, Immigration and Asylum Act 2002 (NIAA 2002), as inserted by section 19 of the Immigration Act 2014, also states that

In the case of a person who is not liable to deportation, the public interest does not require the person’s removal where—

(a) the person has a genuine and subsisting parental relationship with a qualifying child, and

(b) it would not be reasonable to expect the child to leave the United Kingdom.

The new guidance inserts a two-part test, whereby a caseworker must first determine whether the departure of the non-EEA national parent or carer would result in the child being required to leave the UK. Only if that test is met, the caseworker must go on to consider whether it is reasonable to expect the child to leave the UK. To determine whether the departure of the non-EEA national parent would result in the child being required to leave the UK, the guidance says that this will not be the case where, in practice, the child will, or is likely to, continue to live in the UK with another parent or primary carer. This will be likely to be the case where for example:

  • the child does not live with the applicant
  • the child’s parents are not living together on a permanent basis because the applicant parent has work or other commitments which require them to live apart from their partner and child
  • the child’s other parent lives in the UK and the applicant parent has been here as a visitor and therefore undertook to leave the UK at the end of their visit as a condition of their visit visa or leave to enter

The fact that a child would not be forced to leave the UK is not the end of the story. The guidance makes it clear that where there is a genuine and subsisting parental relationship between the applicant and the child, the removal of the applicant may still disrupt their relationship with that child. For that reason, the decision maker will still need to consider whether, in the round, removal of the applicant is appropriate considering all the circumstances of the case, considering the best interests of the child as a primary consideration and the impact on the child of the applicant’s departure from the UK. If it is considered that refusal would lead to unjustifiably harsh consequences for the applicant, the child or their family, leave will fall to be granted based on exceptional circumstances.