49. In relation to
in-country applications, there are immigration rules that provide eligibility to applicants having a genuine and subsisting relationship with a British citizen child. These broadly complement the protection against removal afforded by s.
117B(6) in the context of decisions by courts and tribunals. Paragraph
EX.1, which concerns exceptions to certain eligibility requirements for leave to remain as a partner or parent, is predicated, in the same way as is s.117B(6), on it “not being reasonable to expect the [qualifying] child to leave the UK” (EX.1(a) (ii)). Paragraph
R-LTRPT.1.1, which concerns requirements for limited leave to remain as a parent, includes a relationship requirement that covers a child who is “a British citizen or settled in the UK” (
E-LTRPT.2.2(c), but by E-LTRPT.2.2(b) the child concerned must be “living in the UK”.
50. In relation to
entry clearance applications, Section
E-ECPT includes a route for parents of a child who is either a British citizen or settled in the UK (
E-ECPT.2.2(c)), but (again) the child must be “living in the UK”. The Rules do provide at
GEN.1.3(c) that for the purposes of Appendix FM “references to a British citizen in the UK also include a
British citizen who is coming to the UK with the applicant as their partner
or parent” (emphasis added) but in the case of a British citizen child with an applicant parent the only applicable rules currently are those set out in
GEN. 3.1 – GEN. 3.3. under the heading “
Exceptional circumstances”. As we have seen, EX.1 does not apply when applicants apply from abroad for entry clearance, even though they have British citizen children in the UK.
51. Although there is no path, therefore, for parents of a British citizen child not living in the UK under the main routes to entry clearance set out in Appendix FM, GEN.3.3.2 does require the decision-maker, in considering whether there are exceptional circumstances giving rise to a breach of Article 8 because such a refusal (including refusal of entry clearance) “would result in unjustifiably harsh consequences for the applicant, their partner,
a relevant child or another family member whose Article 8 rights it is evident from that information would be affected by a decision to refuse the application.” (emphasis added). That clearly requires the decision-maker to take into account the impact on any relevant child, although the definition of “relevant child” makes no reference to nationality. We shall come back to this aspect of the Rules later on.
