The Secretary of State for the Home Department v SR

A parent’s entitlement to contact with a child, even under a court order, does not by itself establish that the parent is taking an active role in the child’s upbringing under Appendix FM. The assessment is fact-sensitive and includes the nature, extent and duration of contact, parental responsibility, and participation in important decisions about the child’s care and development.

A genuine and subsisting parental relationship for Nationality, Immigration and Asylum Act 2002 section 117B(6) is a distinct and less demanding inquiry. Limited but regular direct parental care may suffice. Section 117B(6)(b) asks whether it is reasonable to expect the qualifying child to leave the United Kingdom. It applies whether or not the child would in practice leave.

The Secretary of State appealed against a First-tier Tribunal decision allowing SR’s human-rights appeal under Article 8. The First-tier Tribunal had found that SR, a Pakistani national, was taking an active role in the upbringing of his British citizen daughter, A, notwithstanding difficulties in exercising contact.

The Upper Tribunal held that this finding was irrational and inadequately reasoned. It set aside the decision and remade it on updated evidence. SR had since begun regular unsupervised contact with A, for three hours every fortnight, but was not involved in her day-to-day care or important decisions.

The central questions were whether SR met the parent route in Appendix FM and, if not, whether he had a genuine and subsisting parental relationship with A and whether it was reasonable to expect her to leave the United Kingdom for the purposes of section 117B(6).

1. The Secretary of State’s appeal succeeded to the extent that the First-tier Tribunal’s decision was set aside for error of law. A contact order and an intention to play a parental role did not establish that SR was taking an active role in A’s upbringing. At the First-tier Tribunal hearing there was no meaningful relationship or evidence that SR participated in significant decisions concerning A’s care and development.

2. On remaking, SR did not satisfy Appendix FM. His three-hour fortnightly contact sessions were recent and limited. He played no role in A’s day-to-day care or important decision-making. The ordinary meaning of upbringing required a material role in how the child is cared for and taught to behave.

3. However, the Tribunal held that the test under section 117B(6) of the Nationality, Immigration and Asylum Act 2002 differs in form and substance. SR’s regular unsupervised contact involved direct parental care of his three-year-old daughter. Although limited, the relationship was genuine and subsisting.

4. The Tribunal rejected the relevant aspect of the 2018 Immigration Directorate Instruction. Section 117B(6)(b) poses a normative statutory question: whether it would be reasonable to expect the qualifying child to leave the United Kingdom. It is engaged even if the child would in practice remain here with another parent.

5. Applying the reasonableness assessment, A’s British citizenship, best interests, residence with her British citizen mother, and the absence of adverse public-interest factors meant that it would not be reasonable to expect her to leave. Section 117B(6) therefore made the Article 8 interference disproportionate. SR’s appeal was allowed on Article 8 grounds.

• Upper Tribunal (Immigration and Asylum Chamber): The Secretary of State’s appeal against the First-tier Tribunal decision was allowed for error of law. The decision was set aside and remade by allowing SR’s appeal under Article 8.

• First-tier Tribunal: Allowed SR’s Article 8 appeal on the basis that he was taking, and intended to continue to take, an active role in his child’s upbringing.

• Earlier Upper Tribunal proceedings: An earlier First-tier Tribunal decision of 7 April 2015 was found to contain an error of law on 30 March 2016 and the matter was remitted to the First-tier Tribunal.