Immigration Rules – children – sole responsibility

The UK Immigration Rules generally cater quite well for close dependants, ie partners and children. If the main applicant (in, for example, working, investment or study visa categories) meets all the various visa application requirements their close dependants can – unless there are any strongly adverse factors – successfully apply for dependant visas.

If the main applicant’s application is unsuccessful then of course the dependants’ applications are refused as well – a dependant’s application stands or falls with that of the main applicant. This seems reasonable: it would not make any sense for a dependant to succeed without the main applicant, and the effect of this principle is that the family stays together.

But sometimes the family situation is complicated: sometimes there is a family consisting of a single parent and child or children and sometimes the relationship between the parents breaks down and there is separation or divorce.

The rules in this kind of situation are very prescriptive and they can impact strongly on a child’s immigration situation. This does not only apply to working/investment/study visas; it also applies to family visas.

Take, for example, a visa applicant who is a single parent and who applies to come to the UK with their child from outside the UK. A typical scenario might be that of a single mother, and the father of the child is not “in the picture” and has never been involved in the child’s upbringing.

The main applicant has to show that she “has and has had sole responsibility” for the child’s upbringing or (rather vaguer) that “there are serious or compelling family or other considerations which would make it desirable not to refuse the application” – ie the child’s application.

In this kind of situation the “sole responsibility” might be fairly easy to prove because the reality of the situation is likely to be that good evidence will be available. The child will in most cases be living with the mother and the mother will have been financially supporting them and generally looking after them in regard to schooling, health etc.

As long as the main applicant (or their lawyer) takes the trouble to assemble good evidence of sole responsibility then if the main applicant’s application is successful then the child’s application is also likely to be successful.

But sometimes the situation is different. The two parents and child/children may come to the UK but the relationship between the parents may turn sour to the extent of separation or divorce. If the family want to apply to extend their visas or apply for settlement matters become relatively complicated for the children.

Generally, the partner of the main applicant is likely to lose their immigration status if this happens. Their dependant visa is based on the fact of the relationship, and if the relationship has died then they will not be able to acquire further immigration leave as the main applicant’s dependant. There is a certain logic to this.

But the situation of the children is different. From a moral perspective the children can hardly be blamed for the parents’ problems and from a legal perspective the Home Office has a responsibility to try and write the rules and make decisions in such a way as to safeguard the best interests of children. This of course is difficult because – as has often been observed in this area – the wishes of the children are not always expressed or represented.

The relevant rules in this situation are in the same style as that of the out-of-country visa rules described above: ie regarding “sole responsibility” or “serious and compelling… considerations”. But of course here the task is rather more difficult because the main applicant has to demonstrate the change of circumstances: that they now have sole responsibility, and have had for some historical period of time (but which does not have to be a period of any defined length), and that their partner is now effectively out of the picture or at least substantially out of the picture. This is necessarily going to be more difficult and, again, they must assemble the best possible evidence they can.

In this potentially more fraught kind of situation the “serious and compelling… considerations” element may become relatively important because it gives Home Office decision-makers a clearly-stated discretion. Indeed, in this area decision-makers have to balance several difficult factors. As explained above, they have to have regard to the best interests of children. And, separately, they also have to have regard to Article 8 of the European Convention on Human Rights, which is designed to protect family rights and family integrity. But of course in a situation where the family is splitting up of its own volition the decision-making can be difficult.

There is at least the possibility that a main applicant and child or children could apply for further leave or settlement without the main applicant’s partner and the main applicant could be successful but the children could be unsuccessful because they were not deemed to meet either the sole responsibility or serious or compelling considerations tests.

This would, for obvious reasons, be a very undesirable and confusing outcome. If you are in this kind of situation or are likely to find yourself in this situation you are well advised to instruct a good lawyer.

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