Home Office appeal against Upper Tribunal decision to quash parental visa application refused by English Court of Appeal

Dr Waleed Khattak, the respondent, was originally given limited leave to remain based on the assessment of the Secretary of State that he did not meet the requirements under the partner route, which he was assessed under due to being in a relationship with one of the children’s parents.

The appeal was heard by Lady Justice Macur, Lady Justice Carr, and Lord Justice Davis. Zane Malik QC appeared for the appellant and Billal Malik for the respondent.

Eligible to apply

In June 2019, the respondent had applied for leave to remain as the parent of children that were British citizens. He had originally entered the UK on a spousal visa in January 2015, however the marriage ended in divorce in August 2016. His child by his ex-wife, a girl, was born in October 2015, and following the divorce he was granted fresh leave to remain under the parental route until 30 June 2019.

The respondent started a new relationship with another British citizen in May 2017 and had a daughter with her in November 2018. Thus, when he applied again for leave to remain under the parental route in June 2019, he did so based on both his daughter from his marriage and his daughter from his current relationship. In a letter explaining her decision to reject this application, the SSHD said that because the appellant had a partner, his application was considered under the partner route rather than the parental route. 

In proceedings before the Upper Tribunal, the respondent argued that because he had not been living with his current partner for two years at the application date, he was not eligible to apply under the partner route and thus should have been given leave to remain as a parent. The UT judge rejected a contention from the SSHD that eligibility to apply and meeting the requirement were not the same thing and quashed the decision.

On appeal to the court, counsel for the Home Secretary submitted that a person was eligible to apply under the partner route regardless of the length of their relationship, and to allow otherwise would permit a person with a less robust relationship to apply under the parent route, which had lower financial requirements. The approach of the UT judge was inconsistent with the Immigration Rules when read as a whole.

Counsel for the respondent submitted that the SSHD had failed to recognise the importance of the parental relationship. Further, any apparent policy objective of the Home Office was met by the requirement that a person in a relationship which had subsisted for over two years was ineligible to apply under the parental route.

Maintained parental relationship

In his judgment, with which the other two judges agreed, Lord Justice Davis said of eligibility in general: “[The UT judge] drew a distinction between a person ‘eligible to apply for leave’ and a person who was ‘eligible for leave’ although the distinction did not affect his ultimate conclusion. I am unpersuaded that any distinction there may be is of any consequence.”

He explained further: “The words ‘to apply’ appear because an important function of Appendix FM is to explain to potential applicants what requirements they must satisfy. When they apply for leave to remain, they will consider which requirements they satisfy. By reference to those requirements they will decide whether they are eligible to apply for leave to remain by a particular route. This is illustrated by the application form completed by the respondent. He stated that he was applying for leave to remain as a parent. In answer to the pre-printed question ‘Have you lived with your partner continuously for 2 years?’ he answered no.”

Addressing the argument that the parent route and partner route contained an exploitable mismatch, Davis LJ noted: “If there is a mismatch, it is the consequence of how the Rules are drafted. In fact, the fact that the financial requirements in relation to the parent route potentially are less stringent is a principled reflection of the desirability of maintained parental relationships in order to best serve the interests of the child.”

He concluded: “This submission does not sit well with the application made by the respondent in this case. He provided great detail about his previous marriage, his [new] partnership, and the nature and extent of his relationship with his children. There is no hint of any abuse of the system by the respondent. However, assuming that it is appropriate to consider the SSHD’s argument in relation to possible abuse at all, I am sure that it is without merit.”

The appeal was therefore dismissed.