Section EX. Exceptions to certain eligibility requirements for leave to remain as a partner or parent.
For those applicants already in the UK who wish to make a family-based further leave to remain application but do not meet the requirements, they may still apply and have their application considered under Paragraph EX.1. Being granted leave in this way does entail a ‘cost’ albeit one that must be considered in relation to the alternative prospect of living outside of the rules and within a hostile environment.
Parents or partners under this paragraph are still asked to meet the suitability, relationship and part of immigration requirements i.e. it is possible to apply and have your application considered favourably, if you are an over-stayer or an illegal entrant; they will however, not have to meet the financial or language requirements. Those granted leave under EX.1. instead of being granted a further 30 months of leave en route to settlement after 5 years, will be given 30 months on a 10 year route. Any applicant granted leave in this way may be able to switch back in to the five year route later, but given that no leave granted under EX.1. can be used to meet the five year requirement it is important to consider carefully if doing this has any significant benefit.
EX.1. applies if the applicant is able to prove that they have a ‘genuine and subsisting parental relationship’, one that would be capable of engaging Article 8 of the European Convention on Human Rights, with a child who is a either a British citizen or who has lived for at least 7 years immediately preceding the application. Additionally, taking into account the child’s best interests as a primary consideration, it would not be ‘reasonable’ to expect the child to leave the UK.
The term ‘parent’ incorporates those who may have parental responsibility for the child but are not in possession of any legally recognised documentation or birth certificate. Therefore, it is recognised that someone who cares for and makes the important decisions with regard to a child’s upbringing may be that child’s ‘parent’, even if they do not have the corroborative backing of biological facts or legal pronouncements.
The phrase ‘reasonable for child to leave UK’ incorporates the belief that normally, the best interests involve the child remaining with whole family. So, if the child is not expected to leave it may be unlikely that the parent(s) would be and vice versa. Conversely, where the parents were to both be expected to leave the UK, it would not be unreasonable to expect the child to leave as well, unless proven otherwise.
With regard to partners – it is stated that the applicant must be in a ‘genuine and subsisting relationship’, in the UK, with a British Citizen, a settled person or a person with refugee leave or humanitarian protection. Furthermore, there needs to be ‘insurmountable obstacles’ to family life with that partner continuing outside the UK, or would entail ‘very serious hardship’ for the applicant or their partner.
‘Insurmountable obstacles’ could be where neither party were able to enter the third country in question; ‘very serious hardship’ would cover, non-exhaustively, cultural or religious persecution based upon personal beliefs and lifestyle or serious threat of endangerment due to a general lack of security and/or governance within that country; the onus, as is usually the case, is placed upon the applicant.
It may be noted from the above that through the use of language i.e. ‘insurmountable’ as opposed to ‘reasonable’, that the margin of appreciation afforded by courts is significantly narrower for partners than it is for children.