Paragraph EX 1 acts as an exception to rules relating to family members of British Citizens which are found in Appendix FM of the Immigration Rules. EX 1 can be relied upon in applications for leave to remain in the UK where a person has a genuine and subsisting parental relationship with a child who:
- Is under 18 years old or was under 18 years old at the date of the application;
- Is in the UK;
- Is a British Citizen and has lived in the UK continuously for at least the 7 years immediately preceding the date of application;
- It would be unreasonable to expect the child to leave the UK or;
- The applicant has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen, is settled in the UK with refugee leave or humanitarian protection, and there are insurmountable obstacles to family life with that partner continuing outside the UK.
In the recent decision of AA/00815/2013 & ors there were three appellants: a mother and her two children. The first appellant (the mother) was a national of the Ivory Coast and had entered the UK illegally in 2004 then made an asylum claim in 2008. Her claim was refused in January 2013 and she appealed against the decision on the grounds that by the time her claim was refused her child had been living in the UK for a continuous period of 7 years. The appeal was heard in February 2013 but was refused as it was held that EX 1 did not apply.
In the second appeal to the Upper Tribunal, it was held that the EX 1 provision is not a free-standing exception and that other factors must be taken into account before an applicant can be granted leave to remain in accordance with Appendix FM of the Immigration Rules. It was also stated that EX 1 should be considered alongside the provision R-LTRPT.1.1. This provision lists four requirements which must be satisfied in order to apply for limited Leave to Remain as a parent;
- The applicant and the child must be in the UK.
- The applicant must have made a valid application for limited leave to remain as a parent. However, this requirement does not apply to Article 8 proceedings.
- All eligibility requirements outlined in section E-LTRPT must be fulfilled. These include factors such as relating to the age of the child, if the child is a British citizen of deemed to be settled, how long they have been in the UK and that the parent plays an active role in the life of the child.
- Where the applicant cannot meet the third requirement, the suitability tests in section S-LTR must be met. These tests ask whether the applicant has been subject to a deportation order or has any criminal convictions or has supplied false information in relation to the application. The main appellant in AA/00815/2013 & ors passed the suitability test despite having entered the UK using a false passport.
The Judge held that the first and second appellant has passed the tests under R-LTRPT.1.1 and EX 1 applied, thus there appeals were allowed. The third appellant, a two year old boy, had his appeal allowed as it would be disproportionate to remove the baby from the mother and sister on the basis of Article 8.
To summarise, EX.1 should not be viewed in isolation to other immigration rules and the courts will examine a wide range of factors when deciding whether to EX1 applies to a case. It is noted that the tests are not that restrictive especially with regards to cases with invoke Article 8 of the ECHR.
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