Grandpa’s love wins the day

Danielle Cohen
By Danielle Cohen Immigration Law Solicitor Linkedin
Danielle Cohen has over 20 years of experience as a lawyer and a reputation for offering professional, honest and expert advice.
23 May 2017

We represented a mother and two children who were the appellants in an appeal against the refusal of the Home Office. The application to remain in the UK was based on the Human Rights Act. The mother was a national of Jordan and the two children were her dependents. When they were represented by another firm of solicitors they made an asylum application which was refused on 8th April 2011 and their appeal on the asylum basis was dismissed. The solicitors then made another application in support of her human rights on the basis that her removal from the UK would be contrary to Article 8 of the Human Rights Act. This application was refused on 20th August 2015 and we were instructed to appeal.

The Home Office argued that the medical evidence provided with regard to the mother did not demonstrate that she was in the late stage of terminal illness and did not reach Article 3 threshold. It was argued that Jordan has established a healthcare system, including specialist centres and mental health services. Given that she was to be returning to Jordan with her children as a family unit it was not accepted that her return would result in significantly adverse consequences in terms of physical and moral integrity. In respect of the issue of whether the former husband would take the children away from her, it was found that he would not be aware of her return to Jordan and could not present a risk to her currently family life involving the children. In respect of the claim for the children that they have family ties with their grandmother and step grandfather it was argued by the Home Office that there is no provision in the Immigration Rules for leave to remain to be granted on the ground of family life involving the grandparents of a child where the grandparents do not have parental responsibility.

It was acknowledged that the children had additional family ties in the UK with the grandparents but removal would not amount to a disproportionate interference with their family life because family life with the grandparents could be maintained from overseas. We did not agree with the Home Office findings and we argued that the Home Office guidance set out in IDI Appendix FM 1.0 Family Life as a parent and private life, provides that where the application is being considered under paragraph Ex.1 in respect of a 10 year partner or parent route the decision maker must decide whether the applicant has a genuine and subsisting parental relationship with the child. The phrase goes beyond the strict legal definition of a parent reflected in the definition of a parent in paragraph 6 of the Immigration Rules, encompassing situations in which the applicant is playing a genuinely parental role in the child’s life whether that is recognised as a matter of law or not.

This means that an applicant living with a child of their partner and taking a stable parental role in the child’s life could have a genuine and subsisting parental relationship with them even if they have not formally adopted the child but only if the other biological parent played no part in the child’s life or there was extremely limited contact between the child and the other biological parent. Therefore the step grandfather and the role he played in the childrens’ lives should be taken into account. We submitted that the appellant mother was a Jordanian only on account of her marriage and that she had lived in that country for just under five years. She does not have any other family members in Jordan on whom she can rely on support and it would place difficulty on her integration. It was accepted that she underwent extensive surgery for cancer and that she has to be monitored on a regular basis. It was also accepted that the grandchild suffers from medical conditions that require constant monitoring and high quality medical care. The Judge considered her claim under Article 8 outside the Immigration Rules and accepted that she has established a family life with her children in the UK and that the children had established a parent child relationship with their step grandfather which implicates Article 8 values.

The removal of the appellant from the United Kingdom with her children would therefore constitute interference with their Article 8 right to family life and such an interference would be in accordance with the law because she remained in the UK without leave since the dismissal of her asylum claim several years ago. Taking the best interests of the minor children into account is a primary consideration and we provided expert evidence from a psychologist who said in very emphatic terms that both children had developed a genuine attachment to their step grandfather who they regarded as a father. The step grandfather gave evidence stating that he doesn’t have any biological children of his own and that this accounted to an extent of his devotion and commitment to the children who he regards as his own. The circumstances of the grandson are central to the inquiry on the best interests of the children as there was medical evidence showing his medical condition and required monitoring and occasion when he had to be rushed to hospital as an emergency. Both children are being educated and they will experience extremely serious disruption to their education if they were compelled at that stage to leave the UK.

On consideration of the totality of the evidence the Immigration Judge found that the circumstances of the appellant’s son and the real harm that would be occasioned to him dictates that the best interests of the children particularly that child are that the family unit should remain in the UK where the children can continue to enjoy the protection, love and comfort of their step grandfather and their grandmother. The appeal was dismissed under the Immigration Rules but allowed under the human rights grounds.