The Home Office have amended their policy document ‘Appendix FM 1.0b: family life (as a partner or parent) and private life: 10-year routes’ publishing a new version on 19th December 2018. The updated guidance includes a revision to the section entitled ‘Would it be reasonable to expect the child to leave the UK?’ (Pages 68-70) which has been amended following the decision of the Supreme Court in KO (Nigeria) & Ors v Secretary of State for the Home Department (Respondent) [2018] UKSC 53 (24 October 2018).
Helpfully the guidance starts with the following concession ‘The starting point is that we would not normally expect a qualifying child to leave the UK’ although there is then a tension, which arises from KO, that if the parents are expected to leave then the child would be expected to leave unless there is evidence that it would not be reasonable.
Below is the new section in full:
Would it be reasonable to expect the child to leave the UK?
If the effect of refusal of the application would be, or is likely to be, that the child would have to leave the UK, the decision maker must consider whether it would be reasonable to expect the child to leave the UK.
Where there is a qualifying child
A child is a qualifying child if they are a British child who has an automatic right of abode in the UK, to live here without any immigration restrictions as a result of their citizenship, or a non-British citizen child, who has lived in the UK for a continuous period of at least the seven years immediately preceding the date of application, which recognises that over time children start to put down roots and to integrate into life in the UK. The starting point is that 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.
In the caselaw of KO and Others 2018 UKSC53, with particular reference to the case of NS (Sri Lanka), the Supreme Court found that “reasonableness” is to be considered in the real-world context in which the child finds themselves. The parents’ immigration status is a relevant fact to establish that context. The determination sets out that if a child’s parents are both expected to leave the UK, the child is normally expected to leave with them, unless there is evidence that that it would not be reasonable.
There may be some specific circumstances where it would be reasonable to either expect the qualifying child to leave the UK with the parent(s) or primary carer or for the parent(s) or primary carer to leave the UK and for the child to stay. In deciding such cases, the decision maker must consider the best interests of the child and the facts relating to the family as a whole. The decision maker should also consider any specific issues raised by the family or by, or on behalf of the child (or other children in the family).
It may be reasonable for a qualifying child to leave the UK with the parent or primary carer where for example:
- 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
- there is nothing in any country specific information, including as contained in relevant country information which suggests that relocation would be unreasonable
- 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:
o the decision maker must consider the extent to which the child is dependent
on or requires support from wider family members in the UK in important areas of his or her life and how a transition to similar support overseas would affect them
o a person who has extended family or a network of friends in the country should be able to rely on them for support to help (re)integrate there
o parent or parents or a child who have lived in or visited the country before for periods of more than a few weeks. should be better able to adapt, or the parent or parents would be able to support the child in adapting, to life in the country
o the decision maker must consider any evidence of exposure to, and the level of understanding of, the cultural norms of the country
o 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
o the parents or child can speak, read and write in a language of that country, or are likely to achieve this within a reasonable time period
o fluency is not required – an ability to communicate competently with sympathetic interlocutors would normally suffice
• removal would not give rise to a significant risk to the child’s health
• there are no other specific factors raised by or on behalf of the child
For guidance on how to consider a child’s best interests, see the Exceptional Circumstances section of the Family Migration: Appendix FM Section 1.0a Family Life (as a Partner or Parent) 5-Year Routes and exceptional circumstances guidance, which can be found here:
https://www.gov.uk/government/publications/chapter-8-appendix-fm-family-members
Where the decision maker believes that, based on the specific circumstances raised, refusal would not breach their Article 8 rights, they should refer to the following section on compassionate compelling factors, to consider whether a short period of leave outside the Immigration Rules is appropriate: compassionate factors.