As immigration barristers we frequently help clients who seek leave to remain in the UK based on a parental relationship with a child residing in the UK but cannot meet the requirements of the Immigration Rules. Such permission is commonly known as a “seven years child visa” or “parent of a British child visa”, though it technically applies beyond those classes of children.
As a general principle of immigration and human rights law, the Home Office or the Immigration Tribunal is obliged to take account of the best interests of any child when making an immigration decision. The principle was endorsed by the Supreme Court in Zoumbas (Appellant) v Secretary of State for the Home Department (Respondent)  UKSC 74, where Lord Hodge stated at  that it was: “not in doubt that … [t]he best interests of a child are an integral part of the proportionality assessment under article 8 ECHR”. Generally, it will of course be in a child’s best interests for their applying parent to remain in the UK with them; unfortunately, however, this alone will not necessarily suffice to enable the applicant to succeed. To stand a realistic chance of succeeding, an applicant must additionally meet the requirement prescribed in section 117B(6) of the Nationality, Immigration and Asylum Act 2002 that they have a “genuine and subsisting parental relationship with a qualifying child”.
A “qualifying child” is defined as a child who is either British or has resided in the UK continuously for seven years or more. The definition does not extend to EU citizen children (see our article at: https://demstonechambers.co.uk/eea-national-children-qualifying-status/). If the child is a “qualifying child”, the immigration applicant will – unless they have criminal convictions – normally be given leave to remain provided that they have a “genuine and subsisting parental relationship” with the child and it would not be “reasonable to expect’” the child to leave the UK.
The question of whether it is “reasonable to expect” a “qualifying child” to leave the UK has historically generated a significant volume of cases in the courts. Fortunately, the Home Office’s current policy is that it will generally not be reasonable to expect such a child to leave, though the policy is more favourable to British children than “seven years” children.
Whether a person has a “parental relationship” with a child was explained by the Upper Tribunal in R (on the application of RK) v Secretary of State for the Home Department (s.117B(6); “parental relationship”  UKUT 31 at  to be dependent on “the individual circumstances … [including]… what role [the applicant] actually play[s] in caring for and making decisions in relation to the child … [and] …whether that relationship arises because of their legal obligations as a parent or in lieu of a parent under a court order or other legal obligation …”. A “genuine and subsisting parental relationship” is thus a question of fact and degree. In making the assessment, the Home Office (and, in the event of an adverse decision, a Tribunal judge), would look at a range of considerations, including:
- whether the child lives with the immigration applicant
- the degree of input that the immigration applicant has in the child’s life
- whether the Family Court has made a Child Arrangements Order in the immigration applicant’s favour
- any evidence from the child’s other parent or guardian
Where the child is living with the immigration applicant and the latter is their biological parent, proving a “genuine and subsisting parental relationship” will be relatively straightforward. Where, however, the immigrant applicant is not a biological parent, or is a biological parent but is not living with the child, then matters become more complex.
A particularly problematic scenario is where the immigration applicant is involved simultaneously in Family Court proceedings and Immigration Tribunal proceedings. If the immigration applicant does not secure direct contact with the qualifying child, then the Home Office or Tribunal will usually refuse the application or appeal in so far as it relates to the child. The Family Court proceedings therefore need to be handled with care.
Trying to establish contact with children through the Family Court process, whilst simultaneously trying to resolve immigration status, can be incredibly difficult both emotionally and practically. The key to success in such scenarios is to manage the Family Court proceedings in a way that gives the immigration applicant the best chance of succeeding in the Immigration Tribunal. That may mean that – in the short term – compromises have to be made on the nature and frequency of child contact which the applicant would otherwise not consider making.
If your immigration application or immigration appeal concerns contact with a child, our immigration and family law barristers can help you. We are Milton Keynes lawyers with significant experience of helping clients in such cases. We can: make an application to the Family Court for a Child Arrangements Order (child contact order), represent you in the Family Court, make an immigration application to the Home Office, or argue your immigration appeal before a judge at the Immigration Tribunal.