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Home Office policy on children firmly rejected by Upper Tribunal

18 October 2018 Immigration Iain Halliday

In the recent case SR (subsisting parental relationship – s117B(6)) Pakistan 2018 UKUT 3345 (IAC) the Upper Tribunal examines the requirement to consider whether it would be reasonable for a child who is British or who has lived here for 7 years to leave the UK. The requirement is imposed by  section 117B(6) of the Nationality, Immigration, and Asylum Act 2002 which states:

 “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 Home Office, in their  guidance, had interpreted this quite restrictively: suggesting that the consideration of reasonableness only needs to be undertaken when the child would, in fact, be required to leave the UK. If there was someone else (for instance another parent who is British) who could care for the child in the UK after the foreign parent leaves, then there is no need to consider whether it would be reasonable for the child to leave.

The Upper Tribunal firmly rejected this interpretation suggesting that it was:

                “...an untenable construction of the plain and ordinary meaning of EX.1 and section 117B(6).”

The provision clearly requires an answer to the question ‘”would it be reasonable to expect the child to leave the UK?”. The question is contained in primary legislation and:

“… cannot be ignored or glossed over. Self-evidently, section 117B(6) is engaged whether the child will or will not in fact or practice leave the UK. It addresses the normative and straightforward question – should the child be ‘expected to leave’ the UK?”

This is a welcome clarification and will be very helpful for anyone whose case involves a parental relationship with a British or long  term resident child. I have had recent experience of the First-tier Tribunal in Glasgow endorsing the Home Office’s restrictive approach despite my protestation. Now there is clear authority from the Upper Tribunal confirming that the Home Office’s approach is wrong.

For a more detailed discussion of the decision in SR see my recent post,Upper Tribunal tackles the law on the parent/child relationship, on the Free Movement blog.

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