Switching: a tale of two applicants

A post to describe the very different experiences of two recent applicants for leave to remain in the UK.

The applicants have a lot in common. They are women, and mothers of British citizen children. They were both previously in relationships with British citizens, who are the fathers of those children. At the time they made their applications, they were living in the UK, caring for their children alone, with varying levels of support from the children’s fathers.

One applicant had her application approved within 4 months. Many readers will remark that this is quick by Home Office standards.

The other waited 10 months, after which her application was refused.

What’s going on?

The Immigration Rules appear to provide for the parents of British citizen children to apply to stay in the UK if they are caring for the child alone, or if the child lives with their other parent and there is a contact arrangement. The requirements are set out at section R-LTRPT of Appendix FM (do not get me started on the numbering scheme now used for the Immigration Rules. I eagerly await Appendix FFS).

The crucial difference between the applicants described above, is found at paragraphs E-LTRPT.3.1. and E-LTRPT.3.2:

E-LTRPT.3.1. The applicant must not be in the UK-

  1. (a) as a visitor; or
  2. (b) with valid leave granted for a period of 6 months or less, unless that leave was granted pending the outcome of family court or divorce proceedings;

E-LTRPT.3.2. The applicant must not be in the UK –

  1. (a) on immigration bail, unless:
    1. (i) the Secretary of State is satisfied that the applicant arrived in the UK more than 6 months prior to the date of application; and
    2. (ii) paragraph EX.1. applies; or
  2. (b) in breach of immigration laws (except that, where paragraph 39E of these Rules applies, any current period of overstaying will be disregarded), unless paragraph EX.1. applies.

One applicant was indeed in the UK “in breach of immigration laws”: she was in fact an illegal entrant. However, as paragraph EX.1. applied to her (essentially, she was the parent of a British citizen child and it would not have been reasonable to expect that child to leave the UK), she met the requirements of the Immigration Rules for leave to remain as a parent.

The other applicant was in the UK lawfully: she had entered with a visa and made her application before her leave expired. However, she had entered the UK as a visitor, and that meant that even though she also met the criteria set out in EX.1., she could not benefit from that paragraph. The bar on “switching” from visitor status trumps pretty much everything.

Decision-makers are now meant also to consider paragraphs GEN.3.2. and GEN.3.3. of Appendix FM, introduced to make the Rules appear to be a “complete code” to cover all Article 8 rights. GEN.3.2. says that if an applicant does not meet all the requirements for leave under Appendix FM, then the decision-maker must assess whether there are “exceptional circumstances” which might make refusal of leave a breach of Article 8 rights because it would have “unjustifiably harsh” consequences for a family member, including a British citizen child. GEN.3.3. reminds decision-makers that the best interests of such children are a primary consideration.

In the end, in the decision-maker’s opinion, there would be no problem in the second applicant leaving the UK to make a new visa application, because her children could go and live full time with their father. This brief summary was said to discharge the duty under GEN.3.2. and 3.3., despite the fact that the father had previously abandoned his children abroad, and that the applicant herself was having great difficulty persuading him to maintain regular contact with them.

The bar on switching continues to cast its shadow over applicants who came to the UK with visitor status. In cases where the Home Office is supposed to be looking at the best interests of children as a primary consideration, a parent’s immigration history can still be used to determine a case in the most illogical way possible.

6 July 2018

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