Shutdowns and Brexit Omnishambles – how fear of immigration has brought us to a standstill
Sole responsibility is a concept provided for by Part 8 and Appendix FM of the Immigration Rules (the “Rules”). It is something which may need to be shown in order for a UK based parent to bring a non-British child to the UK to live with them. This blog looks at why, in the context of family law and modern day family life, the Rules are outdated and in urgent need of review.
It might be the case, for example, that following a divorce or separation, one parent decides to re-locate to the UK, leaving their child(ren) in the care of their ex-partner in another country. But what happens when circumstances change and the family or a Court decide the child(ren) should move to the UK to live with the UK based parent? The Rules make no real provision for this type of voluntary arrangement between separated parents, where both parents are still involved in the children’s lives. Instead, the Rules require the UK based parent to show they either have ‘sole responsibility’ over the child, or that their circumstances meet the high threshold of demonstrating ‘serious or compelling…considerations’. Applying the sole responsibility test to these types of cases often results in perverse outcomes and is out of step with family law principles. As a result, applications under this provision are being refused, and families are being kept apart.
The Home Office guidance makes specific reference to concerns that children will become a burden on the education system, suggesting that one of the reasons the sole responsibility route was introduced was to deter applicants from using the UK solely to obtain free education and to access the social security system.
Under paragraph 297(i)(e) of the Rules, a child under the age of 18 can seek leave to enter the UK to accompany or join a parent who is “present and settled in the UK…and has had sole responsibility for the child’s upbringing”.. Under immigration law, ‘present and settled’ means someone who has obtained indefinite leave to remain or who has acquired British citizenship.
Sole responsibility is a test which has been invented for and exists solely in the immigration jurisdiction. It can be said to have three main limbs: legal responsibility (for example where the parent has legal custody of the child), financial responsibility and emotional responsibility (i.e. making “important decisions” about the child’s upbringing- see below).
The Home Office guidance provides a list of factors that they will consider when assessing whether a parent has sole responsibility. Some of these factors include:
The concept of ‘sole responsibility’ has also been considered by numerous courts. Below is a summary of some of the main decisions:
Based on the above criteria, proving that a UK-based parent has sole responsibility for a child who is based abroad and living with their other parent is a significant challenge. Even in cases where a foreign court order has been obtained showing that the UK parent has legal custody of the child, the Home Office is still refusing applications. In this way, the Home Office is seeking to usurp decisions of these Courts, including from jurisdictions whose family court orders the UK will generally respect. Unfortunately, legal responsibility is not, therefore, conclusive evidence. In fact, the guidance even states that “sole parental responsibility is not the same as legal custody”.
To meet the strict requirements of sole responsibility, one parent would effectively have to sever ties with their child(ren), something which surely cannot be seen to be in their best interests.
A parent can also argue, at the same time or in the alternative to the ‘sole responsibility’ criteria, that there are “serious and compelling” reasons for permitting the application. However, this threshold is a high one, and doesn’t cover situations where it is more ‘convenient’ or the ‘desire’ of both parents that the children move to the UK to be re-united with their UK-based parent. If for example, it was decided that it was in the child’s best interest to spend time living with their UK based parent, it is unlikely that this would be sufficient to meet this test.
Applications under Part 8 of the Immigration Rules will inevitably engage Article 8 of the European Convention of Human Rights – i.e. the right to a family life. Whilst the Secretary of State has the right to interfere with family life for the purposes of immigration control (because it’s a qualified right), any such interference must be proportionate. However, the Home Office will be the first to remind applicants that family life can be ‘achieved’ elsewhere, and we have seen decisions suggesting that the UK-based parent leaves the UK to live with their children abroad, and even that family life can be effectively maintained through social media and telephone calls.
Today, it is increasingly uncommon for one parent to be ‘solely’ responsible for a child, be it physically, emotionally or financially. With more women remaining in the workforce after having children and the introduction of shared parental leave, it is also more common for financial and caring responsibilities to be shared.
The requirement to prove you have ‘sole responsibility’ for your child goes against the central principle of the Children Act 1989 (the “Children Act”): that the welfare of the child is the paramount consideration. Neither does it sit well with the presumption of continued parental involvement within the Children Act, or the child-centered approach of family law. Instead of focusing on the child’s welfare, the Rules require the Home Office to consider which parent has greater financial, emotional and physical control.
Unless otherwise shown, there is now a presumption within the Children Act that the involvement of both parents in a child’s life will promote that child’s welfare. The presumption of parental involvement was introduced by Section 11 of the Children and Families Act 2014 and came into effect in October 2014. The presumption will only apply if the parent’s involvement in the child’s life will not put the child at risk of suffering harm. In this way, the legislation ensures that the welfare of the child remains paramount. The presumption of parental involvement does not endow either parent with a right to any particular division of a child’s time.
The purpose for the amendment was to reinforce the importance of children having an ongoing relationship with both parents after family separation. The courts and social services, where appropriate, strongly encourage the involvement of both parents. Contrast this to the Home Office guidance, which explicitly states “where both parents are involved in the child’s upbringing, it will be rare for one parent to establish sole parental responsibility”. The legislator of the Immigration Rules has failed to recognise the notion of parental involvement and the paramountcy principle. As a result there is a disparity in the criteria applied to children already in England and non-British children wanting to come into the UK to join a parent based here.
How does the presumption of parental involvement apply when parents live in separate countries? In leave to remove or ‘relocation’ cases, the welfare of the child is still the paramount principle and the presumption of parental involvement remains applicable and relevant. The addition of the presumption for parental involvement solidifies the need to consider the potential impact of any proposed relocation on the child's relationship with the opposing parent. It can be more difficult for a parent seeking a relocation to be granted permission if the child has a significant level of contact with the opposing parent. For example in the case of MK v CK the mother’s relocation application was rejected where the father cared for the children approximately 35% of the time. It seems only natural that the greater the level of contact, the greater the potential damage caused to the children by being separated from that parent if relocation is permitted. Unfortunately, this can sometimes lead to a parent who wishes to move trying to restrict the child’s time with the other parent. Such efforts are ill-founded as the courts will view this negatively, particularly if it is seen to amount to parental alienation. The focus should instead be on providing well-presented evidence to illustrate the benefits of the move for the child and the ability to sustain a strong relationship with the other parent, despite the greater degree of geographical separation. By doing so, the parties recognise the presumption of parental involvement and correctly place the child’s welfare first. The test for sole responsibility would benefit from being amended to reflect this approach.
Family law is child focused and recognises the importance of shared parental responsibility and contact. Conversely, immigration law is focused on the outdated concept of sole responsibility. We must hope that the Government reviews this section of the Rules and brings it in line with family law and modern day family life. Perhaps this is wishful thinking, given that the Home Office is busy dealing with Brexit and Windrush. But if they don’t act soon, the Home Office could find itself having to deal with yet more criticism relating to its hostile environment policy, which is slowly tearing families apart.
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