Article 8 and Exceptional Circumstances in Family Life (part 2 of 5)

Article 8 and Exceptional Circumstances in Family Life (part 2 of 5)

Due to the size and the complexity of the Article 8 area, I’ve divided this article into 5 parts.

Below is the summary of what I’ll cover in each part:

 

Part 1:

What is Article 8

Taxpayer’s Interests

The 5-year and the 10-year Routes

Article 8 for Visitors

What Happens when the Home Office Receives Your Visa Application?

Paragraph EX.1.

 

Part 2:

Parental Relationship with a Child

The Child’s 7 Years of Residence in the UK

Is there a Genuine and Subsisting Parental Relationship?

Is it Reasonable for the Child to Leave the UK?

Strategical Considerations

 

Part 3:

Is there a Genuine and Subsisting Relationship with a Partner

Insurmountable Obstacles

What Does Not Help

What May Help

 

Part 4:

Article 8 Exceptional Circumstances

The Minimum Income Requirement

Other Sources of Income, Financial Support or Funds in Exceptional Circumstances

There are Strings Attached

The Genuineness, Credibility and Reliability

 

Part 5:

The Best Interests of a Child

How the Home Office considers the Best Interests of a Child:

• Generally
• Where the child is resident overseas
• when the child resides in the UK
• Where there are Family Court orders

No Recourse to Public Funds

Coronavirus (COVID-19) Concessions

 

This is part 2.

 

Parental Relationship with a Child

 

The requirements in paragraph EX.1.(a) regarding the child reflect the duty in section 55 of the Borders, Citizenship and Immigration Act 2009 to have regard to the need to safeguard and promote the welfare of children. It is a very powerful section responsible for allowing many visa applications where the interests of the children were involved.

For paragraph EX.1. to apply, the child will need to be:

(a) under 18

(b) in the UK;

(c) a British Citizen or has lived in the UK continuously for at least the 7 years immediately preceding the date of application

and

taking into account the child’s best interests as a primary consideration, it would not be reasonable to expect the child to leave the UK.

Let us consider each element separately.

 

The Child’s 7 Years of Residence in the UK

For the Home Office, it makes no difference whether or not the child resides in the UK lawfully – time spent in the UK without a valid visa will be included when counting years.

The child’s long absences (6 months+) will break the continuity of their residence in the UK. So, effectively, the clock will start again upon their return.

If the child does not have a British citizenship and relies on their 7-year residence in the UK, the Home Office will need to see documents confirming that the child ‘put down roots and integrate into life in the UK.’

Once the UKVI establishes that the child qualifies, they’ll move on to consider:

 

Is there a Genuine and Subsisting Parental Relationship?

Of course, the fact that you are a parent and your name is on the child’s birth certificate will help.  However, the Home Office encourages the decision-makers to look beyond the veil of ‘de jure’ formalities and establish who is actually the parent ‘de facto’.

They do this by checking if the parent and the child live together. If not – the Home Office may decide that there is no genuine and subsisting relationship. This may happen where for example, a parent has the benefit of seeing the child regularly but chooses only unreliably and infrequently to take up contact. In these circumstances, it will be challenging to engage Article 8 and rely on paragraph EX.1.

Also, if the parent supports the child only financially – it will be a weak argument when relying on paragraph EX.1.

The Home Office will consider who is:

• taking an active role in the child’s upbringing and making decisions that directly affect them
• the child’s primary or secondary carer
• willing and able to look after the child
• living with the child
• seeing the child on a regular basis
• making an active contribution to the child’s life

If the decision-maker agrees that the applicant and the child have a genuine and subsisting parental relationship, they’ll switch to the following question:

 

Is it Reasonable for the Child to Leave the UK?

In their guidance, the Home Office says that they ‘we would not normally expect a qualifying child to leave the UK. It is normally in a child’s best interest for the whole family to remain together, which means if the child is not expected to leave, then the parent or parents or primary carer of the child will also not be expected to leave the UK.’

On the other hand, in the case of KO and Others 2018 UKSC53, the judge suggested that the parents’ immigration status was a relevant fact to establish that context. Also, it was held that if a child’s parents are both expected to leave the UK, the child is usually expected to leave with them unless there is evidence that it would not be reasonable.

The UKVI lists several factors which will lower chances for succeeding in the application:

1. the parent or parents, or child, are a citizen of the country and so able to enjoy the full rights of being a citizen in that country
2. there is nothing in any country-specific information, including as contained in relevant country information, which suggests that relocation would be unreasonable
3. the parent or parents or child have existing family, social, or cultural ties with the country and if there are wider family or relationships with friends or community overseas that can provide support. This includes:
   1. the extent to which the child is dependent on or requires support from wider family members in the UK in important areas of their life and how a transition to similar support overseas would affect them
   2. existence of extended family or a network of friends who will support and help (re)integrate in another country
   3. whether the parent or parents or a child who have lived in or visited the country before for periods of more than a few weeks.
   4. help which parent or parents can offer to assist the child in adapting to a new lifestyle
   5. exposure to, and the level of understanding of, the cultural norms of the country. For example, a period of time spent living amongst a diaspora from the country may give a child an awareness of the culture of the country
   6. whether the parents or child can speak, read and write in a language of that country. And if they cannot do this, whether they are likely to achieve this within a reasonable time period. The UKVI says that fluency is not required – and that an ability to communicate competently with sympathetic interlocutors would normally suffice
4. removal would not give rise to a significant risk to the child’s health
5. there are no other specific factors raised by or on behalf of the child

 

In other words, when preparing your case, you need to take steps to prove that none of the above factors applies. It is not enough to just merely show that the child has been residing in the UK for the past 7 years.

 

Strategical Considerations

There may be circumstances where the child was born in the UK and has resided here for more than 7 years but is not a British Citizen yet. In this case, you need to check if the child qualifies to become a British citizen by registration.

The British Nationality Act 1981 allows a person born in the UK (who is not a British citizen) to register as a British citizen at any time after he has attained the age of ten years. It is provided that the child was not away from the UK for more than 90 days in any year during the first 10 years of their life. However, even if they did – the absences rule can be waved in certain circumstances.