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Children applying to join parents in the UK do not normally face difficulties, the requirements for entry to the UK are explained in detail under the Immigration Rules Appendix FM: family members, in simple terms children born to parents seeking entry, can apply to register their child as British where one parent at the time of birth is British as explained in detail under – Children born abroad to British parents – Section 3(2) or section 3(5) application by acquiring British Nationality under Section 3 of the British Nationality Act 1981, how to apply for child registration for a British Passport will be covered in another blog, this one will look into applying entry for children not of the same family, where only one parent is seeking entry to settle in the UK, to start a new life with a new partner.
Is Child Defined Under The Sole Responsibility Rules?
Yes, under “child” is defined as being under the age of 18, at the point of applying for entry, as a dependant of the parent, or the parent’s partner and is not a British Citizen or settled in the UK, the applicant’s child must not be an EEA National with the right to reside in the UK under the Immigration (European Economic Area) Regulations 2016.
What is Child Responsibility?
Child Entry to settle as a new family member does require careful consideration of the Immigration Rules under Appendix FM Family Members requirements, under “Family life as a child of a person with limited leave as a partner or parent” which further outlines Entry Clearance as a Child Rules;
EC-C.1.1. The requirements to be met for entry clearance as a child are that-
- (a) the applicant must be outside the UK;
- (b) the applicant must have made a valid application for entry clearance as a child;
- (c) the applicant must not fall for refusal under any of the grounds in Section S-EC: Suitability for entry clearance; and
- (d) the applicant must meet all of the requirements of Section E-ECC: Eligibility for entry clearance as a child.
The Relationship Requirements of the same rules clarify key elements of Child responsibility under EC-ECC.1.2. to E-ECC.1.6, which are supportive towards a Child Dependant Application, these include the child or child must be under 18 years old, must not be married or in a civil partnership, must not have formed an independent family unit or independent life, what is quite important is as part of the child’s entry application is that at least one parent must be in the UK with limited leave to enter or remain, or be being granted, or have been granted, entry clearance, as a partner or a parent, who must show that he or she has had continues and sole responsibility of that child applicant’s upbringing. Further clarification to Sole Responsibility was offered in the recent case of [2006] UKAIT 49, the Tribunal Decision by judges Mr C M G Ockelton, Deputy President, Senior Immigration Judge Grubb, Immigration Judge Baker was based on Paragraph 297(i)(e): sole responsibility, the judges made references …..
“Sole responsibility” is a factual matter to be decided upon all the evidence. Where one parent is not involved in the child’s upbringing because he (or she) had abandoned or abdicated responsibility, the issue may arise between the remaining parent and others who have day-to-day care of the child abroad. The test is whether the parent has continuing control and direction over the child’s upbringing, including making all the important decisions in the child’s life. However, where both parents are involved in a child’s upbringing, it will be exceptional that one of them will have “sole responsibility”.
“The decision in every case will depend on its own particular facts, and this will involve consideration, inter alia, of the source and degree of financial support of the child and whether there is cogent evidence of genuine interest in and affection for the child by the sponsoring parent in the United Kingdom.”
“Direction and control of the upbringing are also factors which are part of the total fact pattern … . Another matter was of course the extent of contact that the mother had had with the child since the mother went to the United Kingdom and the reasons why the contact had not been more …”
“the importance of the parent with responsibility, albeit at a distance, having what can be identified as direction over or control of important decisions in the child’s life…..”
For further provision on a child seeking to enter or remain in the UK for the purpose of their family life see Part 8 of these Rules, consider the judges’ views above carefully to best supply supporting evidence that can be relied upon.
Why is Child Responsibility So Important In Child Dependant Visa Applications?
There is no flexibility within the immigration rules where child applications are assessed, the decision maker must be satisfied that there are serious and compelling family or other considerations which make the exclusion of the child undesirable and that suitable arrangements have been made for the child’s care. A further point to note would be the supply of evidence of why the child cannot be left behind, normally this would mean that the child has had no contact with the second parent, and no financial support, so when was the last date of contact? Offering detailed background history of the child’s upbringing will demonstrate whether the burned of responsibility does in fact fall upon the applicant’s parent, seeking entry.
What Are The Reasons For Refusing A Child Dependant Visa Application?
Paragraph 297 is clear: it is designed to maintain or affect family unity. Under sub-paragraphs (a) to (d) of paragraph 297(i), the child is accompanying his parents or a parent to live in the UK or the child is seeking to join parents when they are already settled in the UK. The conclusion is that parents and children live together in the UK; only if one parent is dead will the other be able to be in the UK alone with the child. By contrast, paragraph 297(i)(e) is concerned with a settlement where one parent is in the UK and the other is abroad and will remain abroad. Paragraph 297(i)(e) has the potential to split up a family and separate a child from one of its parents abroad who is involved in its life. Therefore the law is designed in a manner to place a test, this being the requirement of “sole responsibility” which acts as a control mechanism. The policy of family unity to admit a child for settlement where the other parent abroad is caring for the child and involved in its upbringing, unless the requirements of paragraph 297(i)(f) are met. This must be borne in mind when interpreting, and applying, the test of “sole responsibility”. The requirements of that latter sub-paragraph are onerous requiring “serious and compelling family or other considerations which make exclusion of the child undesirable”.
Hence, the family will be split up only because the parent abroad has no involvement in the child’s upbringing (para 297(i)(e) applies) or, where there is involvement, because all the circumstances (including the child’s interests) require such a result (para 297(i)(f) applies), will result in a refusal.
