Under the new Immigration Rules introduced on 9 July 2012, a parent can make a claim for leave on the basis of their family life with a child in the UK in two different ways.
First, the parent can make an application for leave to enter/remain as the parent of a UK citizen/settled child where they meet certain specified requirements. If the child has British citizenship or is settled (i.e. has indefinite leave to remain), the parent can make an application where they can show, with evidence, either that they have sole responsibility for the child or that they have ‘access rights to the child’. If they are applying on the basis that they have access rights to the child (contact or residence), they can only come under this rule if the other parent/carer is not their partner and if the other parent/carer is a British citizen or settled in the UK (i.e. has indefinite leave to remain).
The applicant parent is required to provide evidence showing that they are taking, and intend to continue to take, an active role in the child’s upbringing. The applicant must show that they will have no recourse to public funds, there will be adequate accommodation, and they meet the English language requirements. They must also meet certain general suitability criteria, such as not being subject to a deportation order and not being considered to be someone whose presence is ‘not conducive to the public good’, criteria which are particularly relevant where they have committed a criminal offence. If applying for leave to enter from
abroad, they will be granted leave for 33 months without recourse to public funds.
If applying for leave to remain from within the UK (which they are not able to do if they are in the UK in breach of immigration laws, on a visitor’s visa, or in certain other categories), they will be granted leave for 30 months with no recourse to public funds. After making further leave applications, if they continue to meet the requirements of the rules, they can apply for settlement (i.e. indefinite leave to remain) after five years.
Second, where the parent does not meet the requirements set out above, they may be able to make a claim under the so-called ‘exception’ contained in the new rules. This exception can apply where the parent has no regular status in the UK. The provision will apply where the parent ‘has a genuine and subsisting parental relationship’ with a child who is under 18, the child is in the UK and is a UK citizen or has lived in the UK continuously for at least seven years immediately preceding the application and ‘it would not be reasonable to expect the child to leave the UK’. The parent must meet the general suitability criteria mentioned above relating to criminal offences and other considerations.
They will be granted leave for 30 months without recourse to public funds. After making further leave applications, they can apply for settlement (i.e. indefinite leave to remain) after ten years.
Where a person asserts that they have family life with children, the decision maker must ensure that the person can satisfy all of the factors listed at (a) to (e) below:
(a) They have a genuine and subsisting parental relationship with a child who is under 18.
(b) The child is in the UK.
(c) The child either 1. is British; or 2. has lived in the UK for at least 7 years preceding the date of the immigration decision.
(d) It would not be reasonable to expect the child to leave the UK.
(e) There is no other family member who is able to care for the child in the UK.
If you believe your case can benefit from this policy, then please speak to Novells Legal Practice on 0207 392 7672.