Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-001226

First-tier Tribunal No: HU/50395/2023
LH/04826/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 15 September 2025

Before

UPPER TRIBUNAL JUDGE HIRST

Between

XW
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr S Vokes, counsel instructed by Aylish Alexander Solicitors
For the Respondent: Ms R Tariq, Senior Home Office Presenting Officer

Heard at Field House on 2 September 2025

Order Regarding Anonymity

Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the Appellant is granted anonymity. No-one shall publish or reveal any information, including the name or address of the Appellant or members of his family, likely to lead members of the public to identify the Appellant. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS

Introduction
1. The Appellant is a Chinese national. He appeals from the Respondent’s decision dated 10 January 2023 refusing to grant leave to remain in the UK on the basis of his relationship with his children.
2. This hearing was a re-making of the Appellant’s appeal, following my decision dated 18 July 2025 which set aside the decision of the First-tier Tribunal dismissing the appeal.
3. The sole issue for determination at this hearing was whether the Appellant has a “genuine and subsisting parental relationship” with his son DW such that under s117B(6) Nationality, Immigration and Asylum Act 2002 the public interest does not require his removal from the UK.
Background
4. The Appellant is a national of China. The Appellant was married to YZ in 2003 and they have two children, YW born in September 2003 and DW born in September 2008. DW is currently 17 years old.
5. The Appellant entered the UK on 14 May 2012 with leave which was subsequently extended. In 2018 the Appellant visited China; when he returned to the UK in January 2019 he discovered that his wife had left the marital home with the children.
6. On 14 February 2022 the Appellant made an application for leave to remain outside the Immigration Rules on the basis of his private life in the UK and his relationship with his children.
7. In March 2022 the Appellant issued family court proceedings seeking an order for contact with DW. In July 2022 the Appellant and YZ were divorced. On 25 August 2022 the court directed that the Appellant and YZ participate in mediation to agree arrangements for DW. During that mediation, YZ alleged that the Appellant was not DW’s biological father, which allegation was subsequently proven to be false. In February 2023 the Appellant issued further family court proceedings for a child arrangements order.
8. On 13 July 2024 the Appellant had a face-to-face meeting with DW lasting around 3 hours. The Appellant has not had any further face-to-face contact with DW.
9. On 3 September 2024 the family court made a child arrangements order directing that the Appellant should have contact with DW via text message or video call and could spend direct time with DW once a month at DW’s initiative.
10. The Appellant’s application for leave was refused on 10 January 2023. His appeal against that decision was dismissed by the First-tier Tribunal, but following an error of law hearing on 17 July 2025 I made a decision setting aside the First-tier Tribunal decision and directing that the appeal be reheard in the Upper Tribunal. That hearing took place on 2 September 2025.
Evidence
11. I was provided with an electronic bundle of 414 pages and a supplementary bundle of 7 pages. I have considered all of the documentary evidence carefully.
12. At the outset of the hearing, Mr Vokes sought an adjournment of the proceedings to allow the Appellant to obtain more evidence following his next scheduled face-to-face contact with DW, which is due to take place on 24 December 2025. I did not consider that it was in the interests of justice or in accordance with the overriding objective for there to be a three-month delay in the proceedings to obtain evidence about a future event, and refused to grant the adjournment.
13. The Appellant gave oral evidence via an interpreter. He adopted his previous witness statements dated 6 July 2023 and 13 December 2024 and his supplementary statement dated 21 August 2025.
14. In cross-examination, the Appellant confirmed that he had last seen DW in person in July 2024, and previously in November 2018 when the family was still living together. When he met DW in July 2024, they had both cried and he had hugged him for a few minutes; they talked about DW’s studies and his forthcoming exams, went for a meal and then went clothes shopping. After that meeting, the Appellant had sent phone/Whatsapp messages to DW 1-2 times a week but he had not replied. He did not know why DW had not replied, but presumed that his mother had stopped him or put pressure on him not to reply. DW had sent him a message on 20 August 2025 that he had lost his phone, but the Appellant thought his mother was managing or controlling the phone. The Appellant said that following DW’s message he had booked for them to stay at a hotel on 24 December 2025, and that DW had confirmed by phone that he would attend and would send the address at which the Appellant should collect him. The Appellant said that he had wanted to meet DW sooner than Christmas but that DW said he had a lot of pressure from his studies and asked whether it could happen later. Since the 20 August call he had spoken to DW once for about 3 minutes.
15. The Appellant stated that DW was still young and he thought DW was concerned not to make his mother angry. The Appellant’s daughter YW had told the Appellant that although her brother wanted to live with the Appellant, he was under a lot of pressure from their mother and that the Appellant should not add to it by pressuring him further. The Appellant confirmed that he had been on a voluntary basis sending £500 a month to his ex-wife for DW as pocket money, with which DW could buy things he liked such as clothes, stationery or food. He had paid £620,000 to his ex-wife over the years for DW and YW’s schooling.
16. He confirmed that the family proceedings were concluded. When asked why he had not issued further proceedings in the family courts if he felt his ex-wife was obstructing contact with DW, the Appellant said that he had been advised not to as there was insufficient evidence that his ex-wife was preventing contact taking place.
17. I found the Appellant to be a credible witness, who answered questions honestly, directly and without exaggeration.
Submissions
18. For the Respondent, Ms Kerr submitted that the Appellant did not, on the evidence, have a genuine and subsisting parental relationship with DW. The evidence demonstrated that there had been minimal and largely one-sided attempts at contact by the Appellant, with no engagement by DW. S117B(6) did not cover relationships which were effectively non-existent. Whilst she acknowledged that the Appellant had demonstrated a desire to maintain his relationship with DW by making maintenance payments and by pursuing contact in the family courts, the test was child-centred. There was no evidence from DW or YW that indicated that DW regarded his relationship with his father as meaningful or wished contact to continue. The facts of this case were different from those in SR (subsisting parental relationship – s117B(6)) Pakistan [2018] UKUT 3334 (IAC), where the appellant had had fortnightly contact with his daughter. DW was now 17; his age and autonomy were significant, and he had consistently chosen not to maintain contact. The threshold for s117B(6) to apply had not been crossed and the appeal should be dismissed.
19. For the Appellant, Mr Vokes noted that each case must be considered on its individual facts. The nature of parental relationships with children varied enormously, and in this case real problems had occurred as the result of divorce. DW’s mother’s opposition to his relationship with the Appellant was apparent in her false allegation about DW’s paternity, and she had rejected further mediation. The picture was not a positive one: DW was growing up in a one-parent household where his mother was actively opposed to contact with the Appellant or any development of their relationship. The meeting in July 2024 was a good one; there had been Whatsapp contact between the Appellant and DW before that and although contact was sporadic it could not be said that there was no functioning bond between them. Although contact had fallen away after July 2024, that could be because DW had lost his phone or because his mother had controlled his access to his phone. The Appellant’s maintenance payments and his contact with DW’s school showed that he had a consistent interest in DW and an enduring commitment to him. Applying the four-element test in SSHD v VC (Sri Lanka) [2017] EWCA Civ 1967, there was a genuine parental relationship between the Appellant and DW which continued to exist. There was no threshold level of contact which had to be met for the s117B(6) test to be met, as was clear from the very limited contact in SR. Contact between the Appellant and DW should be maintained and the appeal allowed.
Discussion and decision
Legal framework
20. Section 117A Nationality, Immigration and Asylum Act 2002 requires a court or tribunal to apply Part 5A of the Act where it is determining whether an immigration decision breaches a person’s right to respect for private and family life under Article 8 ECHR. When considering whether an interference with a person’s right to respect for private and family life is justified under Article 8(2), the court or tribunal must have regard in all cases to the considerations in s117B of the Act.
21. Section 117B(6) provides:
“In the case of a person who is not liable to deportation, the public interest does not require the person’s removal where –
(a) the person has a genuine and subsisting parental relationship with a qualifying child, and
(b) it would not be reasonable to expect the child to leave the United Kingdom.”
22. The Upper Tribunal in SR emphasised that the question of whether a parent has a ‘genuine and subsisting parental relationship’ with a qualifying child for the purposes of s117B(6) is a different question in form and substance to the question of whether a parent has taken an ‘active role’ in a child’s upbringing for the purposes of R-LTRPT 1.1 of the Immigration Rules, and that it is a question of fact which will depend on all the circumstances in the individual case.
23. The appellant in SR did not have direct contact with his 3-year-old child at the time of the First-tier Tribunal hearing as the result of the mother’s failure to comply with a court order as to contact, but by the time of the Upper Tribunal hearing he had fortnightly contact. The Upper Tribunal found that although SR did not play an active role in any significant decisions about his daughter’s care, he nonetheless had a parental relationship with her which although limited, was genuine and subsisting.
24. In SSHD v VC (Sri Lanka) [2017] EWCA Civ 1967, referred to in SR, the Court of Appeal accepted (in relation to a similar provision under the previous paragraph 399(a) of the Immigration Rules) that a “genuine and subsisting parental relationship” required four elements: (a) a relationship between the child and the appellant; (b) a relationship which was parental, rather than of some other kind, but went beyond simply biological parentage; (c) a relationship which was ‘genuine’; and (d) a relationship which was subsisting, “in the sense that it exists or has a real existence”. The father in VC, who was subject to deportation proceedings, had a maximum of 6 hours’ contact per year with his children; the Court of Appeal described that as “the most limited level of direct contact” which was insufficient to make his relationship with his children ‘genuine and subsisting’.
25. S117B(6) does not require the parent to have a subsisting role in providing direct parental care to the child: SSHD v AB (Jamaica) [2019] EWCA Civ 661 at [94].
Application to the appeal
26. It is common ground that DW is a qualifying child for the purposes of s117B(6)(a) and that it would not be reasonable to expect DW to leave the United Kingdom. Accordingly, the only issue for me to determine is whether the Appellant has a genuine and subsisting parental relationship with DW as at the date of the hearing.
27. Both VC and SR make clear that the question of whether there is a genuine and subsisting parental relationship between the Appellant and DW is one to be assessed on the facts and evidence before me. The question is one of substance, not form, and as the Court of Appeal recognised in AB (Jamaica) at [98] it is highly fact-sensitive.
28. The child arrangements order made in the family proceedings on 3 September 2024 permitted the Appellant to have indirect contact with DW via 2 text messages per week, and direct contact with him once per month, but left it to DW’s initiative to engage in communication or to decide whether to spend time with the Appellant.
29. In the event, contact has been very limited. Since 2018 the Appellant has seen DW face-to-face only on one occasion on 13 July 2024 for a period of three hours; their next scheduled face-to-face contact is 24 December 2025. The appeal and supplementary bundle include the Appellant’s Whatsapp records between March 2024 and April 2025. Those show numerous text messages from the Appellant to DW saying he misses him and asking how he is. DW has not responded to the majority of the messages nor answered the Appellant’s video call. On the infrequent occasions prior to 13 July 2024 where DW responds to the Appellant’s enquiries he does so with brief one or two-line messages. The only occasion on which DW has initiated communication was his, and between 13 July 2024 and 20 August 2025 there was no response at all from DW to the Appellant’s messages. The Appellant’s evidence was that since 20 August 2025 he has had one 3 minute phone conversation with DW and that DW had declined the offer of a meeting before December 2025. The overall picture is, therefore, that since 2018 and despite the child arrangements order of September 2024 and the Appellant’s efforts to initiate communication there has been 1 face-to-face meeting between the Appellant and DW and very limited mutual communication on Whatsapp or via phone.
30. The bundle also includes emails from DW’s school to the Appellant updating him as to DW’s academic progress and occasional late attendance, and an email dated 30 October 2024 from the Appellant requesting an appointment with DW’s form tutor. There do not appear to be any school records or emails post-dating October 2024.
31. I find that there is a relationship between the Appellant and DW which is parental. It is not in dispute that the Appellant is DW’s biological father, and the nature and content of the Appellant’s communications with DW, his concern for and involvement in DW’s schooling, and his actions in pursuing contact through the family courts all indicate that the relationship is parental in nature.
32. I accept that the Appellant loves and is concerned for his son and that he strongly wishes to rebuild his relationship with him after a long period of separation. I accept that he has (with the exception of a short period during the family proceedings) regularly sent money for DW through his ex-wife. I also accept that the Appellant is concerned about DW’s school progress and educational attainment.
33. However, on the facts and evidence before me, I am unable to conclude that the Appellant’s relationship with DW is currently ‘genuine and subsisting’. The Appellant has not lived with DW since 2018. As set out above, face-to-face contact has been limited to one 3-hour meeting in the last 7 years. Whilst a parental relationship could be maintained without face-to-face contact, there is also very limited evidence of contact between the Appellant and DW by other means. The Appellant has made numerous attempts to communicate with DW over Whatsapp; even prior to 13 July 2024 DW did not respond to the majority of the Appellant’s messages or did so with one or two line responses. Since 13 July 2024 there has been one single-line text message from DW and one phone call lasting around 3 minutes. Even allowing for DW’s age and what might perhaps be the more laconic communication style of a teenager, the Whatsapp records do not demonstrate ongoing meaningful mutual communication between DW and his father indicative of a genuine and subsisting parental relationship. On the Appellant’s own evidence, the last time he had a significant conversational exchange with his son was in July 2024. Although each case rests on its facts, the level of contact in this case falls far short of the level of contact found to constitute a genuine and subsisting parental relationship in SR, and short of even the very limited contact in VC where the relationship was not accepted to be genuine and subsisting.
34. On the evidence it is not possible for me to ascertain the reason for the lack of response from DW. It may be, as the Appellant assumes, that DW’s mother is actively obstructing contact or pressuring DW not to respond to the Appellant; at the very least her false allegation as to DW’s paternity during the family mediation suggests that she is opposed to the Appellant building a relationship with DW. It may also be, as Mr Vokes suggested, that DW is in a difficult situation and wishes not to antagonise his mother, who is also his primary care-giver. It may be, as Ms Kerr submitted, that DW (who is now 17 and likely to have greater autonomy over his social contacts) simply does not wish for more contact. I do not have any evidence from DW as to his wishes or his view of his relationship with the Appellant. Nor is there any evidence from the Appellant’s daughter YW, who is now an adult living independently, as to DW’s wishes, her view of the Appellant’s relationship with DW, or their mother’s attitude to the relationship. Other than the orders made by the family court in August 2022 and September 2024, I do not have any of the documents relating to the family proceedings and therefore do not have the benefit of any fact-finding or judicial reasoning which may have taken place in those proceedings.
35. Ultimately, however, it is not necessary for me to determine why contact between the Appellant and DW has been so limited. The question of whether there is a ‘genuine and subsisting parental relationship’ is one of fact. As a question of fact, and despite the Appellant’s efforts to initiate contact, the level of contact and the frequency of meaningful interaction between the Appellant and DW are not sufficient for me to conclude that the relationship is currently genuine and subsisting. Although I have sympathy for the Appellant, who clearly wishes to rebuild an effective and meaningful relationship with his son, at present the relationship does not have any real substance or existence.
36. I therefore find that the threshold in s117B(6) NIAA 2002 is not met and I dismiss the Appellant’s appeal.

Notice of Decision

The Appellant’s appeal is dismissed.

L Hirst

Judge of the Upper Tribunal
Immigration and Asylum Chamber

4 September 2025