RK, R (on the application of) v The Secretary of State for the Home Department

A person need not hold legal parental responsibility to have a parental relationship for the purposes of Nationality, Immigration and Asylum Act 2002, section 117B(6). The question is fact-sensitive and turns on whether that person has assumed the role normally performed by a parent: in substance, whether they have stepped into a parent’s shoes.

Providing practical care, emotional support, or help with day-to-day routines does not alone establish that relationship. Where biological parents remain involved and function as parents within the family home, it will usually be difficult for a third person to show that they have assumed a parental role. More than two parental relationships are unusual, though possible, particularly in split-family circumstances involving an actual or de facto step-parent.

The applicant, an Indian national, sought judicial review of three decisions refusing her leave to remain outside the Immigration Rules under article 8. She had lived with her son, daughter-in-law and grandchildren for many years and assisted with the children’s care because her daughter-in-law had serious medical conditions.

Permission was granted on the issue whether the Secretary of State had properly considered the children’s best interests under section 55 of the Borders, Citizenship and Immigration Act 2009. The applicant was later permitted to add the contention that she had a genuine and subsisting parental relationship with her grandchildren under section 117B(6) of the Nationality, Immigration and Asylum Act 2002.

The central issue was whether a grandmother who provided substantial care, while both biological parents remained present and responsible, was in a parental relationship with the children.

1. The judicial-review claim was dismissed. The Secretary of State lawfully concluded that the applicant did not have a genuine and subsisting parental relationship with her grandchildren. Section 117B(6) of the Nationality, Immigration and Asylum Act 2002 therefore did not prevent her removal.

2. A parental relationship is not confined to a person with legal parental responsibility. The statutory phrase concerns the role actually undertaken in the child’s life. The essential question is whether the individual has assumed the role usually played by a parent, or stepped into a parent’s shoes.

3. Caregiving alone is insufficient. A professional carer, relative, friend, or other person may provide care and may have a close and dependent relationship with a child without thereby becoming a parent. Relevant circumstances include the person’s role in care and decision-making, any legal obligations, and whether the role is performed in place of a parent.

4. Where both biological parents remain involved as parents and the family continues to function together, it will ordinarily be difficult for a third party to establish a parental relationship. It is unusual, but not impossible, for more than two people to have such a relationship. A different conclusion may arise in a split family where a step-parent or new partner has in fact assumed a parental role; that issue was left for a case in which it properly arises.

5. On the evidence, the applicant had undertaken practical functions which the children’s mother could not fully perform. But both parents remained in the home, retained legal and de facto responsibility, and made the important decisions concerning the children. The applicant’s role was substantial support as a grandmother, not that of a parent.

6. The Secretary of State had also given detailed and lawful consideration to the children’s best interests under section 55 of the Borders, Citizenship and Immigration Act 2009, including evidence concerning one child’s anxiety and self-harm. Her conclusion that removal was proportionate under article 8 was rational.

• Upper Tribunal (Immigration and Asylum Chamber): Judicial-review proceedings challenging refusal decisions dated 14 March, 12 May and 7 October 2015. Permission was granted on the section 55 ground, and later to add the section 117B(6) ground. The claim was dismissed.
• Earlier judicial-review proceedings: A challenge to a 2013 refusal was compromised by a consent order approved by the Upper Tribunal on 23 December 2013, under which the Secretary of State agreed to reconsider the application.