A parent of a child who is British citizens or who is present and settled in the UK may make an application to join them in the UK. However, there are a strict set of requirements which a parent of a British or settled child must meet in order to be granted leave on either the 5-year settlement route or 10-year settlement route, depending on which requirements can be met. The recently heard case of SR (subsisting parental relationship – s117B (6)) Pakistan  UKUT 334 (IAC) (“SR”) deals with the subsisting parental relationship element of the family member as a parent application.
Subsisting Parental Relationship: Background to SR
The Appellant is a Pakistani national who was lawfully resident in the UK as a student from December 2011 to July 2014. He then made an in-time application for further leave to remain as the spouse of a settled person; however, this application was refused on 24 September 2014. The Appellant appealed the Home Office’s decision to the First Tier Tribunal (“FTT”). The subsequent Upper Tribunal (“UT”) Judge found that the FTT decision erred in law, and therefore the case was sent back to the FTT.
The Appellant and his spouse had a British child born in the UK in July 2015; however, the relationship between the Appellant and his spouse broke down in March 2017. The issue of this case was not whether the relationship between the Appellant and his spouse was genuine and subsisting, but whether he had an active role in his child’s upbringing. The Appellant was granted contact with his child pursuant to a court order made in September 2017 and that the child would live primarily with the mother. The Appellant had contact with his child 3 hours every fortnight.
What is a Subsisting Parental Relationship under the Appendix FM – Family Life as a Parent route?
There are two potential settlement routes that parents can apply under depending on their circumstances. The 5-year family member route as a parent is for Applicants who are in a genuine and subsisting relationship with the other parent of their child. The Applicant must meet all of the eligibility and suitability requirements, and also be able to demonstrate that he/she is:
- taking an active role in the child’s upbringing; or
- taking into account the child’s best interests as a primary consideration, if it would be unjustifiably harsh to expect the child and partner to relocate overseas or for the Applicant’s partner to do so without the child.
The 10-year family member route as a parent is for Applicants who are not in a genuine and subsisting relationship with the child’s other parent, as is in the case of the Appellant. Under paragraph EX.1 of the Immigration Rules, the Applicant has a genuine and subsisting parental relationship with a child who:
- is under the age of 18 years at the date of application and is living in the UK;
- is a British citizen, or has lived in the UK continuously for at least the 7 years immediately preceding the date of application (whether or not the child has settled status in the UK); and
- it would not be reasonable to expect the child to leave the UK.
Furthermore, section 117B(6) of the Immigration Act 2014 (“the 2014 Act”) also emphasises whether there is a genuine and subsisting parental relationship with the child, specifically stating:
(6)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.
What was the judgement of SR and what will the impact on Applications based on Parental Relationship?
The UT held that an Applicant being involved in their child’s life is not the same as taking an active role in that child’s upbringing. The Appellant’s limited contact with his child; for 3 hours every fortnight, was not perceived to be sufficient time to argue that the Appellant was taking an active role in his child’s upbringing for the purposes of satisfying the Immigration Rules. However, it was noted in the FTT determination that the reasoning for the Appellant’s limited contact with his child was as a result of the mother’s failure to comply with the court order.
However, consideration was also given to section 117B(6) of the 2014 Act. The Appellant’s parental relationship with his child was perceived to be genuine and subsisting, and therefore the Judge allowed the Appellant’s appeal pursuant to Article 8 of the ECHR.
Parents who have strong ties to their child and key involvement in their lives will find it easier to satisfy the requirements to come to or remain in the UK on the basis of being a parent of a British child or child present and settled in the UK than those who have less involvement. It is important to contact Immigration professionals, such as our team with fully qualified Immigration Solicitors before submitting an application to the Home Office. This is to ensure all of the correct documentation is submitted in order to demonstrate all of the necessary requirements are met, in order to give applications the greatest chance of success.
Access the full judgement here: SR (subsisting parental relationship – s117B(6)) Pakistan  UKUT 334 (IAC) | LEXVISA Immigration Lawyers London
Using Legal Representation to demonstrate Genuine and Subsisting Parental Relationship
Legal representatives, such as our specialist immigration and visa law firm, are qualified to advise you on immigration law and your immigration status. It is possible to instruct an immigration and visa legal representative to submit an application on the basis of a parental relationship.
Caseworkers at the Home Office are trained to reject applications which are improperly prepared, for example by failing to provide the correct supporting evidence. In order to ensure your application succeeds, all necessary documents must be provided.
This can be a significant administrative task and you will need to submit the correct documentary evidence. The UK Immigration Rules are complex and a legal representative can help ensure that your application meets the Immigration Rules.
Successfully demonstrate Genuine and Subsisting Parental Relationship
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