Children Route Applications Under the Immigration Rules : Part 8 Of The Rules Largely Preserved

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Persons settled in the UK  may  have come  here under various  categories  of the  immigration rules(or even illegally) and subsequently obtained settled status or  become British citizens.  Prior to their arrival to the UK, they  may have  left children  in their  country of  origin, with such  children resident  abroad  but still under the age of 18years.  Upon the  parent acquiring settled status,   the expected course of action is  to  submit an application  for entry clearance  to enable    the child’s entry to the  UK.

Appendix FM, Appendix FM-SE and paragraph 276ADE(1) of the Rules apply to all applications to which Part 8 or Part 7 of the Rules previously applied before 9 July 2012, except where the ability to apply under specific provisions of Part 7 and 8 has been  preserved and continues to apply.

The requirements  of  the adult dependant  rules in Appendix  FM   as they operate in practice serve to exclude from the UK  a substantial number of potential  applicants under this category  simply because the UK Government has  ensured that the requirements are  not  to be met but by a very  few(whether upon application or at appeal).

The further new   requirements of 2012, in particular the   financial income  threshold  to be met by spouses and fiancés,  having regard to Appendix FM,  are equally  proving   problematic as evidenced by the  troublesome continuing litigation challenge  that has been underway for more than 2years in the higher courts.

The Immigration Rules in Part 8, relating to children  seeking entry to the UK with  view to settlement  were however  left largely untouched and were  not  resurrected   on an even   more onerous basis  as has occurred to other categories in relation to family applications under Appendix Fm.  It can hardly be that the  drafters of Appendix FM found themselves with very little time to    formulate  new requirements relating to children applications  thereby leaving   the  relevant sections  of Part 8 as they are.  The more logical  and evident explanation is that   perhaps  Part  8 children application requirements  are  complex and  stringent enough  as it is thus necessitating   little or no amendments but only  with a contained addition to Appendix FM as regards applications for  children of persons with limited leave as a partner or parent.

The problematic issues  that  usually arise,  whether an applicant  child applies  under Part 8 of the Immigration Rules or Appendix FM, are  the  requirements to show:

  • that the parent   has had or continues to have sole responsibility for the child’s upbringing; or
  • that the parent show that there are serious and compelling family or other considerations which make exclusion of the child undesirable and suitable arrangements have been made for the child’s care;

These requirements  most usually  adversely affect single parents who are  applying  to  enable dependant children to join them in the  UK.

CHILDREN APPLICATIONS IN PART 8 OF THE IMMIGRATION  RULES LARGELY UNAFFECTED BY APPENDIX FM

The Immigration Directorate Instructions  “Family Migration: Chapter 8 Transitional Provisions  Family Members under Part 8 and Appendix FM of the Immigration Rules  August 2015” provide:

“12. Children

12.1. Applications for leave to enter or remain in the UK as a child of a parent, parents or a relative present and settled in the UK, or being admitted to the UK for settlement, remain subject to paragraphs 297 to 300 of Part 8 of the Immigration Rules, regardless of the date of application.

12.2. Applications for leave to enter or remain in the UK as a child of a parent or parents with limited leave to enter or remain in the UK with a view to settlement made before 9 July 2012 remain subject to paragraphs 301 to 303 of Part 8 of the Immigration Rules, regardless of the date of decision.

12.3. In addition, paragraphs 301 to 303F of Part 8 continue to apply if an application is made by a child on or after 9 July 2012 if the parent was granted limited leave to enter or remain in the UK following an application made before 9 July 2012.

12.4. Where an application for leave to enter or remain in the UK as a child of a parent or parents with limited leave to enter or remain in the UK with a view to settlement is made on or after 9 July 2012, Appendix FM will apply.

12.5. Applications for leave to enter or remain as a child who is born in the UK but is not a British Citizen, or for indefinite leave to enter or remain as an adopted child or as a child being admitted for the purpose of adoption, remain subject to paragraphs 304 to 313 of Part 8 of the Immigration Rules, regardless of the date of application.

12.6. Applications for leave to enter or remain as an adopted child or as a child being admitted for the purpose of adoption, will, regardless of the date of the application or decision, remain subject to paragraphs 314 to 316F of Part 8 of the Immigration Rules, unless the application is made on or after 9 July 2012 under:

  • Paragraph 314(i)(a) or 316A(i)(d) or (e); or
  • Paragraph 314(i)(d) and one of the parents or prospective parents does not have right of abode or indefinite leave to enter or remain, or is not settled in the UK or being admitted for settlement on the same occasion as the applicant.

12.7. Where the application is made under those provisions on or after 9 July 2012, the income threshold in paragraph E-ECC.2.1–2.3. or E-LTRC.2.1–2.3. of Appendix FM will apply where a parent who has adopted the child, or is doing so, is subject to the income threshold themselves”.

APPLICATIONS UNDER PART 8 OF THE IMMIGRATION RULES

The various provisions under the Rules whereby children can be considered for entry to the UK either for immediate settlement or with a view to settlement are:

  • Paragraph 297- Indefinite leave to enter the UK as the child of a parent, parents or a relative present and settled or being admitted for settlement in the UK:

 

The requirements to be met by a person seeking indefinite leave to enter the United Kingdom as the child of a parent, parents or a relative present and settled or being admitted for settlement in the United Kingdom are that he:

(i) is seeking leave to enter to accompany or join a parent, parents or a relative in one of the following circumstances:

(a) both parents are present and settled in the United Kingdom; or

(b) both parents are being admitted on the same occasion for settlement; or

(c) one parent is present and settled in the United Kingdom and the other is being admitted on the same occasion for settlement; or

(d) one parent is present and settled in the United Kingdom or being admitted on the same occasion for settlement and the other parent is dead; or

(e) one parent is present and settled in the United Kingdom or being admitted on the same occasion for settlement and has had sole responsibility for the child’s upbringing; or

(f) one parent or a relative is present and settled in the United Kingdom or being admitted on the same occasion for settlement and there are serious and compelling family or other considerations which make exclusion of the child undesirable and suitable arrangements have been made for the child’s care; and

(ii) is under the age of 18; and

(iii) is not leading an independent life, is unmarried and is not a civil partner, and has not formed an independent family unit; and

(iv) can, and will, be accommodated adequately by the parent, parents or relative the child is seeking to join without recourse to public funds in accommodation which the parent, parents or relative the child is seeking to join, own or occupy exclusively; and

(v) can, and will, be maintained adequately by the parent, parents, or relative the child is seeking to join, without recourse to public funds; and

(vi) holds a valid United Kingdom entry clearance for entry in this capacity; and

(vii) does not fall for refusal under the general grounds for refusal.

  • Paragraph 298- Indefinite leave to remain in the United Kingdom as the child of a parent, parents or a relative present and settled or being admitted for settlement in the UK:

The requirements to be met by a person seeking indefinite leave to remain in the United Kingdom as the child of a parent, parents or a relative present and settled in the United Kingdom are that he:

(i) is seeking to remain with a parent, parents or a relative in one of the following circumstances:

(a) both parents are present and settled in the United Kingdom; or

(b) one parent is present and settled in the United Kingdom and the other parent is dead; or

(c) one parent is present and settled in the United Kingdom and has had sole responsibility for the child’s upbringing or the child normally lives with this parent and not their other parent; or

(d) one parent or a relative is present and settled in the United Kingdom and there are serious and compelling family or other considerations which make exclusion of the child undesirable and suitable arrangements have been made for the child’s care; and

(ii) has or has had limited leave to enter or remain in the United Kingdom, and

(a) is under the age of 18; or

(b) was given leave to enter or remain with a view to settlement under paragraph 302 or Appendix FM; or

(c) was admitted into the UK in accordance with paragraph 319R and has completed a period of 2 years limited leave as the child of a refugee or beneficiary of humanitarian protection who is now present and settled in the UK or as the child of a former refugee or beneficiary of humanitarian protection who is now a British Citizen, or

(d) the applicant has limited leave to enter or remain in the United Kingdom in accordance with paragraph 319X, as the child of a relative with limited leave to remain as a refugee or beneficiary of humanitarian protection in the United Kingdom and who is now present and settled here; or

(e) was last given limited leave to remain under paragraph 298A; and

(iii) is not leading an independent life, is unmarried, and has not formed an independent family unit; and

(iv) can, and will, be accommodated adequately by the parent, parents or relative the child was admitted to join, without recourse to public funds in accommodation which the parent, parents or relative the child was admitted to join, own or occupy exclusively; and

(v) can, and will, be maintained adequately by the parent, parents or relative the child was admitted to join, without recourse to public funds; and

(vi) does not fall for refusal under the general grounds for refusal, and

(vii) if aged 18 or over, was admitted to the United Kingdom under paragraph 302, or Appendix FM, or 319R or 319X and has demonstrated sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom in accordance with Appendix KoLL

Paragraph 298A provides in addition that:

If an applicant does not meet the requirements of paragraph 298 only because:

(a) the applicant does not meet the requirement in paragraph 298(vi) by reason of a sentence or disposal of a type mentioned in paragraph 322(1C)(iii) or (iv); or

(b) an applicant aged 18 or over does not meet the requirement in paragraph 298(vii); or

(c) the applicant would otherwise be refused indefinite leave to remain under paragraph 322(1C)(iii) or (iv), the applicant may be granted limited leave to remain for a period not exceeding 30 months and subject to a condition of no recourse to public funds.

  • Paragraph 301 -limited leave to enter or remain in the United Kingdom with a view to settlement as the child of a parent or parents given limited leave to enter or remain in the UK with a view to settlement

The requirements to be met by a person seeking limited leave to enter or remain in the United Kingdom with a view to settlement as the child of a parent or parents given limited leave to enter or remain in the United Kingdom with a view to settlement are that he:

(i) is seeking leave to enter to accompany or join or remain with a parent or parents in one of the following circumstances:

(a) one parent is present and settled in the United Kingdom or being admitted on the same occasion for settlement and the other parent is being or has been given limited leave to enter or remain in the United Kingdom with a view to settlement; or

(b) one parent is being or has been given limited leave to enter or remain in the United Kingdom with a view to settlement and has had sole responsibility for the child’s upbringing; or

(c) one parent is being or has been given limited leave to enter or remain in the United Kingdom with a view to settlement and there are serious and compelling family or other considerations which make exclusion of the child undesirable and suitable arrangements have been made for the child’s care; and

(ii) is under the age of 18; and

(iii) is not leading an independent life, is unmarried and is not a civil partner, and has not formed an independent family unit; and

(iv) can, and will, be accommodated adequately without recourse to public funds, in accommodation which the parent or parents own or occupy exclusively; and

(iva) can, and will, be maintained adequately by the parent or parents without recourse to public funds; and

(ivb) does not qualify for limited leave to enter as a child of a parent or parents given limited leave to enter or remain as a refugee or beneficiary of humanitarian protection under paragraph 319R; and

(v) (where an application is made for limited leave to remain with a view to settlement) has limited leave to enter or remain in the United Kingdom; and

(vi) if seeking leave to enter, holds a valid United Kingdom entry clearance for entry in this capacity.

Where the application us successful  the child may be admitted  or given  limited  leave to remain for a period not exceeding 27 months.

  • Paragraph 303A- Limited leave to enter the UK as the child of a fiance(e) or proposed civil partner

The requirements to be met by a person seeking limited leave to enter the United Kingdom as the child of a fiance(e) or proposed civil partner, are that:

(i) he is seeking to accompany or join a parent who is, on the same occasion that the child seeks admission, being admitted as a fiance(e) or proposed civil partner , or who has been admitted as a fiance(e) or proposed civil partner; and

(ii) he is under the age of 18; and

(iii) he is not leading an independent life, is unmarried and is not a civil partner, and has not formed an independent family unit; and

(iv) he can and will be maintained and accommodated adequately without recourse to public funds with the parent admitted or being admitted as a fiance(e) or proposed civil partner; and

(v) there are serious and compelling family or other considerations which make the child’s exclusion undesirable, that suitable arrangements have been made for his care in the United Kingdom, and there is no other person outside the United Kingdom who could reasonably be expected to care for him; and

(vi) he holds a valid United Kingdom entry clearance for entry in this capacity.

Paragraph 303B provides that a person seeking limited leave to enter the United Kingdom as the child of a fiance(e) or proposed civil partner, may be granted limited leave to enter the United Kingdom for a period not in excess of that granted to the fiance(e) or proposed civil partner. Where the period of limited leave granted to a fiance(e) will expire in more than 6 months, a person seeking limited leave to enter as the child of the fiance(e) or proposed civil partner should be granted leave for a period not exceeding six months.

Paragraph 303D provides the rrequirements for an extension of stay in the United Kingdom as the child of a fiance(e) or proposed civil partner.

  • Paragraphs 304 and 305- Children born in the UK who are not British citizens: leave to enter or remain in the UK as the child of a parent or parents given leave to enter or remain in the UK

Paragraph 304 of the Immigration Rules provides that it  and paragraphs 305-309 apply only to dependent children under 18 years of age who are unmarried and are not civil partners and who were born in the United Kingdom on or after 1 January 1983 (when the British Nationality Act 1981 came into force) but who, because neither of their parents was a British Citizen or settled in the United Kingdom at the time of their birth, are not British Citizens and are therefore subject to immigration control. Such a child requires leave to enter where admission to the United Kingdom is sought, and leave to remain where permission is sought for the child to be allowed to stay in the United Kingdom. If he qualifies for entry clearance, leave to enter or leave to remain under any other part of these Rules, a child who was born in the United Kingdom but is not a British Citizen may be granted entry clearance, leave to enter or leave to remain in accordance with the provisions of that other part.

Paragraph 305 provides that the requirements to be met by a child born in the United Kingdom who is not a British Citizen who seeks leave to enter or remain in the United Kingdom as the child of a parent or parents given leave to enter or remain in the United Kingdom are that he:

(i) (a) is accompanying or seeking to join or remain with a parent or parents who have, or are given, leave to enter or remain in the United Kingdom; or

(b) is accompanying or seeking to join or remain with a parent or parents one of whom is a British Citizen or has the right of abode in the United Kingdom; or

(c) is a child in respect of whom the parental rights and duties are vested solely in a local authority; and

(ii) is under the age of 18; and

(iii) was born in the United Kingdom; and

(iv) is not leading an independent life, is unmarried and is not a civil partner, and has not formed an independent family unit; and

(v) (where an application is made for leave to enter) has not been away from the United Kingdom for more than 2 years.

Paragraph 306 of the Immigration Rules  provides that a  child born in the United Kingdom who is not a British Citizen and who requires leave to enter or remain in the circumstances set out in paragraph 304 may be given leave to enter for the same period as his parent or parents where paragraph 305 (i)(a) applies, provided the Immigration Officer is satisfied that each of the requirements of paragraph 305 (ii)-(v) is met. Where leave to remain is sought, the child may be granted leave to remain for the same period as his parent or parents where paragraph 305 (i)(a) applies, provided the Secretary of State is satisfied that each of the requirements of paragraph 305 (ii)-(iv) is met. Where the parent or parents have or are given periods of leave of different duration, the child may be given leave to whichever period is longer except that if the parents are living apart the child should be given leave for the same period as the parent who has day to day responsibility for him.

Paragraph 307 of the Immigration Rules provides if  a child does not qualify for leave to enter or remain because neither of his parents has a current leave, (and neither of them is a British Citizen or has the right of abode), he will normally be refused leave to enter or remain, even if each of the requirements of paragraph 305 (ii)-(v) has been satisfied. However, he may be granted leave to enter or remain for a period not exceeding 3 months if both of his parents are in the United Kingdom and it appears unlikely that they will be removed in the immediate future, and there is no other person outside the United Kingdom who could reasonably be expected to care for him.

Paragraph 308. Of the Immigration Rules provides that  a  child born in the United Kingdom who is not a British Citizen and who requires leave to enter or remain in the United Kingdom in the circumstances set out in paragraph 304 may be given indefinite leave to enter where paragraph 305 (i)(b) or (i)(c) applies provided the Immigration Officer is satisfied that each of the requirements of paragraph 305 (ii)-(v) is met. Where an application is for leave to remain, such a child may be granted indefinite leave to remain where paragraph 305 (i)(b) or (i)(c) applies, provided the Secretary of State is satisfied that each of the requirements of paragraph 305 (ii)-(iv) is met.

  • Adoptions: A child accompanying   or joining adoptive parents in the UK

There are four different avenues under the Immigration Rules   via  which a child abroad who is stated either to have been adopted abroad, whether de facto, or to be intended to be adopted in the UK  can proceed in order to enter the UK.

  • De facto adoption under paragraph 309A of the Immigration Rules;
  • Adoption in accordance with a decision taken by the competent administrative authority or court in his country of origin or the country in which he is resident, being a country whose adoption orders are recognized by the United Kingdom under paragraph 310 of the Immigration Rules;
  • Adoption in the United Kingdom by prospective parent or parents in accordance with the law relating to adoption in the United Kingdom under paragraph 316A of the Immigration Rules;
  • Adoption in the United Kingdom under the Hague Convention under paragraph 316D of the Immigration Rules

For a more detailed consideration  of the Immigration Rules requirements and relevant caselaw in this area   refer to :

https://ukimmigrationjusticewatch.com/2015/11/06/children-adoptions-and-inter-play-between-the-immigration-rules-and-eu-law-exclusion-of-children-from-the-uk-denial-of-eea-family-permit-where-the-adoption-is-not-recognised-under-uk-law/

Paragraphs   278 and 296- Children of Polygamous Marriages

Paragraph 278 of the Immigration Rules provides that nothing in the Rules shall be construed as allowing a person to be granted entry clearance, leave to enter, leave to remain or variation of leave as the spouse and civil partner of a man or woman (the sponsor) if:

(i) his or her marriage or civil partnership to the sponsor is polygamous; and

(ii) there is another person living who is the husband or wife of the sponsor and who:

(a) is, or at any time since his or her marriage or civil partnership to the sponsor has been, in the United Kingdom; or

(b) has been granted a certificate of entitlement in respect of the right of abode mentioned in Section 2(1)(a) of the Immigration Act 1988 or an entry clearance to enter the United Kingdom as the husband or wife of the sponsor.

For the purpose of this paragraph a marriage or civil partnership may be polygamous although at its inception neither party had any other spouse or civil partner.

Paragraph 296 of the Immigration Rules provides  that  nothing in the Rules shall be construed as permitting a child to be granted entry clearance, leave to enter or remain, or variation of leave where his parent is party to a polygamous marriage or civil partnership and any application by that parent for admission or leave to remain for settlement or with a view to settlement would be refused pursuant to paragraphs 278 or 278A of the  Immigration Rules.

Paragraph 27 -Children over 18years of age before a decision is reached

Although the immigration rules  normally require all applications to be decided in light of the circumstances existing at the time of the decision, an  exception to this is made in paragraph  27 of the immigration rules.

Paragraph 27 of the  immigration rules provides that an  application for entry clearance is to be decided in the light of the circumstances existing at the time of the decision, except that an applicant will not be refused an entry clearance where entry is sought in one of the categories contained in paragraphs 296-316 or paragraph EC-C of Appendix FM solely on account of his attaining the age of 18 years between receipt of his application and the date of the decision on it.

APPLICATIONS UNDER APPENDIX FM

 Family life as a child of a person with limited leave as a partner or parent:

This route is for a child whose parent is applying for entry clearance or leave, or who has limited leave, as a partner or parent.

  • Entry clearance as a child:

To meet the eligibility requirements for entry clearance as a child all of the requirements of paragraphs E-ECC.1.2. to 2.4. must be met.

(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 applicant must be under the age of 18 at the date of application.
  • The applicant must not be married or in a civil partnership.
  • The applicant must not have formed an independent family unit.
  • The applicant must not be leading an independent life.

One of the applicant’s parents must be in the UK with limited leave to enter or remain, or be applying, or have applied, for entry clearance, as a partner or a parent under Appendix FM

(a) the applicant’s parent’s partner under Appendix FM is also a parent of the applicant; or

(b) the applicant’s parent has had and continues to have sole responsibility for the child’s upbringing; or

(c) there are serious and compelling family or other considerations which make exclusion of the child undesirable and suitable arrangements have been made for the child’s care.

Where a parent of the applicant has, or is applying or has applied for, entry clearance or limited leave to enter or remain as a partner under Appendix FM , the applicant must provide specified evidence, from the sources listed in paragraph E-ECC.2.2., of-

(a) a specified gross annual income of at least-

(i) £18,600;

(ii) an additional £3,800 for the first child; and

(iii) an additional £2,400 for each additional child; alone or in combination with

(b) specified savings of

(i) £16,000; and

(ii) additional savings of an amount equivalent to 2.5 times the amount which is the difference between the gross annual income from the sources listed in paragraph E-ECC.2.2.(a)-(f) and the total amount required under paragraph E-ECC.2.1.(a); or

(c) the requirements in paragraph E-ECC.2.3. being met.

“child” means the applicant and any other dependent child of the applicant’s parent who is –

(a) under the age of 18 years, or who was under the age of 18 years when they were first granted entry under this route;

(b) in the UK;

(c) not a British Citizen or settled in the UK; and

(d) not an EEA national with a right to remain in the UK under the Immigration (EEA) Regulations 2006.

When determining whether the financial requirement in paragraph EECC. 2.1. are met only permitted sources of income  may be taken into account.

Where a parent of the applicant has, or is applying or has applied for, entry clearance or limited leave to enter or remain as a parent under Appendix FM , the applicant must provide evidence that that parent is able to maintain and accommodate themselves, the applicant and any other dependants adequately in the UK without recourse to public funds.

The applicant must provide evidence that there will be adequate accommodation, without recourse to public funds,

If the applicant meets the requirements for entry clearance as a child they will be granted entry clearance of a duration which will expire at the same time as the leave granted to the applicant’s parent, and subject to a condition of no recourse to public funds.

If the applicant does not meet the requirements for entry clearance as a child the application will be refused.

  • Requirements for leave to remain as a child:

To qualify for limited leave to remain as a child all of the requirements of paragraphs E-LTRC.1.2. to 2.4. must be met (except where paragraph R-LTRC.1.1.(d)(ii) applies).

The requirements to be met for leave to remain as a child are that-

(a) the applicant must be in the UK;

(b) the applicant must have made a valid application for leave to remain as a child; and either

(c);

(i) the applicant must not fall for refusal under any of the grounds in Section S- LTR: Suitability-leave to remain; and

(ii) the applicant meets all of the requirements of Section E-LTRC: Eligibility for leave to remain as a child; or

(d);

(i) the applicant must not fall for refusal under any of the grounds in Section S- LTR: Suitability-leave to remain; and

(ii) the applicant meets the requirements of paragraphs E-LTRC.1.2.-1.6.; and

(iii) a parent of the applicant has been or is at the same time being granted leave to remain under paragraph D-LTRP.1.2. or D-LTRPT.1.2. or indefinite leave to remain under this Appendix (except as an adult dependent relative).

The applicant must be under the age of 18 at the date of application or when first granted leave as a child under this route.

The applicant must not be married or in a civil partnership.

The applicant must not have formed an independent family unit.

The applicant must not be leading an independent life.

One of the applicant’s parents must be in the UK and have leave to enter or remain or indefinite leave to remain, or is at the same time being granted leave to remain or indefinite leave to remain, under Appendix FM  (except as an adult dependent relative), and

(a) the applicant’s parent’s partner under Appendix FM is also a parent of the applicant; or

(b) the applicant’s parent has had and continues to have sole responsibility for the child’s upbringing or the applicant normally lives with this parent and not their other parent; or

(c) there are serious and compelling family or other considerations which make exclusion of the child undesirable and suitable arrangements have been made for the child’s care.

Where a parent of the applicant has, or is applying or has applied for, limited leave to remain as a partner under  Appendix FM,  the applicant must provide specified evidence, from the sources listed in paragraph E-LTRC.2.2., of –

a specified gross annual income of at least-

(i) £18,600;

(ii) an additional £3,800 for the first child; and

(iii) an additional £2,400 for each additional child; alone or in combination with

(b) specified savings of-

(i) £16,000; and

(ii) additional savings of an amount equivalent to 2.5 times (or if the parent is applying for indefinite leave to remain 1 times) the amount which is the difference between the gross annual income from the sources listed in paragraph E-LTRC.2.2.(a)-(f) and the total amount required under paragraph E-LTRC.2.1.(a); or

“child” means the applicant and any other dependent child of the applicant’s parent who is-

(i) under the age of 18 years, or who was under the age of 18 years when they were first granted entry under this route;

(ii) in the UK;

(iii) not a British Citizen or settled in the UK; and

(iv) not an EEA national with a right to remain in the UK under the Immigration (EEA) Regulations 2006.

When determining whether the financial requirement in paragraph ELTRC. 2.1. is met only the permitted sources of income  may be taken into account-

Where a parent of the applicant has, or is applying or has applied for, limited leave to remain as a parent under Appendix FM, the applicant must provide evidence that that parent is able to maintain and accommodate themselves, the applicant and any other dependants adequately in the UK without recourse to public funds.

The applicant must provide evidence that there will be adequate accommodation in the UK, without recourse to public funds

If the applicant meets the requirements for leave to remain as a child the applicant will be granted leave to remain of a duration which will expire at the same time as the leave granted to the applicant’s parent, and subject to a condition of no recourse to public funds. To qualify for indefinite leave to remain as a child of a person with indefinite leave to remain as a partner or parent, the applicant must meet the requirements of paragraph 298 of the Rules.

If the applicant does not meet the requirements for leave to remain as a child the application will be refused.

Some Relevant Guidance Instructions:

PROBLEMATIC AREAS

Although there might also be additional issues in relation to whether the maintenance   requirements are met on the facts, more problematic, whether an application is being submitted under Part 8 of the Immigration Rules or Appendix FM is where on the facts, the following requirements need to be met in particular in relation to single parents:

  • that the parent   show that they have had or continue to have sole responsibility for the child’s upbringing or
  • that the parent must show that there are serious and compelling family or other considerations which make exclusion of the child undesirable and suitable arrangements have been made for the child’s care;

The above requirements   are set out in paragraphs 297, 298, 301, 303A of the Immigration Rules and Appendix FM of the Immigration Rules as set out above.

Under paragraph 297 of the Immigration Rules, the  child  must be seeking leave to enter to accompany or join a parent, parents or a relative in one of several  circumstances,  and as such it is only where one parent is present and settled in the United Kingdom or being admitted on the same occasion for settlement  that the  above requirements would need to be met. The same applies for paragraph 298 of the Immigration Rules. Children with single  parents  are therefore  most affected by these requirements.

Under paragraph 301 of the immigration rules, several circumstances are also set out, however  where  only one parent is being or has been given limited leave to enter or remain in the United Kingdom with a view to settlement, they must show that  they either meet the sole responsibility requirements  or satisfy the serious and  compelling   considerations applicable.

Under Paragraph 303A, as regards  limited leave to enter the UK as the child of a fiance(e) or proposed civil partner,  it is a must  that it be shown that there are serious and compelling family or other considerations which make the child’s exclusion undesirable.

Under Appendix FM, where the  child’s parent’s partner is also not  the  parent of the  child,  the parent must not only show that they have   had  but  also  continue to have sole responsibility for the child’s upbringing/ or that the applicant normally lives with this parent and not their other parent; alternatively, show that there are serious and compelling family or other considerations which make exclusion of the child undesirable.

The above requirements were already contained with Part 8 of the immigration rules and were subsequently preserved in Appendix FM. On the basis of existing caselaw, the Secretary of State would already have been aware prior to 9 July 2012, that some  applicants and their parents applying under Part 8 were finding it difficult to satisfy these requirements. Therefore, in 2012,  rather than do away altogether with Part 8 in relation to where children applications are concerned, the   stringent and troublesome requirements were preserved,   perhaps with the awareness that applicants already had a somewhat high hurdle to surmount.

RELEVANT CASELAW

Mundeba (s.55 and para 297(i)(f)) [2013] UKUT 00088(IAC) provides:

  1. i) The exercise of the duty by the Entry Clearance Officer to assess an application under the Immigration Rules as to whether there are family or other considerations making the child’s exclusion undesirable inevitably involves an assessment of what the child’s welfare and best interests require.
  2. ii) Where an immigration decision engages Article 8 rights, due regard must be had to the UN Convention on the Rights of the Child. An entry clearance decision for the admission of a child under 18 is “an action concerning children…undertaken by…administrative authorities” and so by Article 3 “the best interests of the child shall be a primary consideration”.

iii) Although the statutory duty under s.55 UK Borders Act 2009 only applies to children within the UK, the broader duty doubtless explains why the Secretary of State’s IDI invites Entry Clearance Officers to consider the statutory guidance issued under s.55.

  1. iv) Family considerations require an evaluation of the child’s welfare including emotional needs. ‘Other considerations’ come in to play where there are other aspects of a child’s life that are serious and compelling for example where an applicant is living in an unacceptable social and economic environment. The focus needs to be on the circumstances of the child in the light of his or her age, social backgrounds and developmental history and will involve inquiry as to whether:-
  • there is evidence of neglect or abuse;
  • there are unmet needs that should be catered for;
  • there are stable arrangements for the child’s physical care;

The assessment involves consideration as to whether the combination of circumstances are sufficiently serious and compelling to require admission.

  1. v) As a starting point the best interests of a child are usually best served by being with both or at least one of their parents. Continuity of residence is another factor; change in the place of residence where a child has grown up for a number of years when socially aware is important: see also SG (child of a polygamous marriage) Nepal [2012] UKUT 265 (IAC) [2012] Imm AR 939 .
  2. In our view, ‘serious’ means that there needs to be more than the parties simply desiring a state of affairs to obtain. ‘Compelling’ in the context of paragraph 297(i)(f) indicates that considerations that are persuasive and powerful. ‘Serious’ read with ‘compelling’ together indicate that the family or other considerations render the exclusion of the child from the United Kingdom undesirable. The analysis is one of degree and kind.  Such an interpretation sets a high threshold that excludes cases where, without more, it is simply the wish of parties to be together however natural that ambition that may be.”

SG (child of polygamous marriage) Nepal [2012] UKUT 00265(IAC) provides:

  1. i)                    Educational advantages and economic betterment, which might be enjoyed by a child, if admitted to the United Kingdom, are not compelling considerations to make that child’s exclusion undesirable, where the biological mother has cared for the child, and will continue to do so, in the country of origin.
  2. ii)                  There is a legitimate aim in excluding from admission to the United Kingdom a woman who is a party to an actually polygamous marriage and that aim justifies the indirect effect of that exclusion on the child of such a marriage, in that it will be more difficult for the child to satisfy the immigration rules relating to sole responsibility and circumstances making exclusion of the child undesirable. iii)                The policies adopted by the Secretary of State to facilitate admission of Ghurkha former soldiers and their dependants were not intended to give more favourable treatment to children born of an actually polygamous marriage.
  3. iv)                Paragraph 296 of HC 395, as presently applied, does not prevent the admission of such children and would probably be contrary to Articles 8 and 14 ECHR if it did.
  4. v)                  In these circumstances it is not unreasonable to expect a sponsor to choose between coming to the United Kingdom with part of his family or remaining in Nepal with all its members, where there has been no previous residence and establishing of family life in the United Kingdom.
  5. vi)                The wishes of the child and both parents are relevant to ascertaining what her best interests are in the context of an application for admission to the United Kingdom but are not decisive of the proportionality balance.
  6. vii)              The proportionality balance in such cases is a fact sensitive one rather than determined by the rules.”

T (s.55 BCIA 2009 – entry clearance) Jamaica [2011] UKUT 00483(IAC) provides:

(i)              Section 55 of the Borders, Citizenship and Immigration Act 2009 does not apply to children who are outside the United Kingdom.

(ii)            Where there are reasons to believe that a child’s welfare may be jeopardised by exclusion from the United Kingdom, the considerations of Article 8 ECHR, the “exclusion undesirable” provisions of the Immigration Rules and the extra statutory guidance to Entry Clearance Officers to apply the spirit of the statutory guidance in certain circumstances should all be taken into account by the ECO at first instance and the judge on appeal.

(iii)          When the interests of the child are under consideration in an entry clearance case, it may be necessary to make investigations, and where appropriate having regard to age, the child herself may need to be interviewed.

(iv)          Where the appeal can be fairly determined on the merits by the judge, it is inappropriate to allow it without substantive consideration simply for a decision to be made in accordance with the law.

(v)            It is difficult to contemplate a scenario where a s. 55 duty is material to an immigration decision and indicates a certain outcome but Article 8 does not.

NM (“leading an independent life”) Zimbabwe [2007] UKAIT 00051 provides:

“Where a child (who may be over 18) is seeking limited leave to remain as the child of a parent with limited leave, in order to establish that he is not “leading an independent life” he must not have formed through choice a separate (and therefore independent) social unit from his parents’ family unit whether alone or with others. A child who, for example, chooses to live away from home may be “leading an independent life” despite some continuing financial and/or emotional dependence upon his parents”.

FO & ors (children: settlement – OM distinguished) Nigeria [2006] UKAIT 00089 provides:

“The Tribunal’s remarks in OM about the Immigration Rules relating to the settlement of children (paragraphs 296 to 316 of HC 395) are obiter, and are not to be taken as an authoritative interpretation of those rules. Thus, there is no requirement that when a child applies for a settlement visa, there must be presented a form of lawful consent from the child’s carer or, failing that, a court order. Nor is there a requirement that a child coming for settlement here must be registered with the Social Services Department of the Local Authority where it is to reside”.

TD (Paragraph 297(i)(e): “sole responsibility”) Yemen [2006] UKAIT 00049 provides:

“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”.

……………….

Summary

  1. Questions of “sole responsibility” under the immigration rules should be approached as follows:
  • Who has “responsibility” for a child’s upbringing and whether that responsibility is “sole” is a factual matter to be decided upon all the evidence.
  • The term “responsibility” in the immigration rules should not to be understood as a theoretical or legal obligation but rather as a practical one which, in each case, looks to who in fact is exercising responsibility for the child. That responsibility may have been for a short duration in that the present arrangements may have begun quite recently.
  • “Responsibility” for a child’s upbringing may be undertaken by individuals other than a child’s parents and may be shared between different individuals: which may particularly arise where the child remains in its own country whilst the only parent involved in its life travels to and lives in the UK.
  • Wherever the parents are, if both parents are involved in the upbringing of the child, it will be exceptional that one of them will have sole responsibility.
  • If it is said that both are not involved in the child’s upbringing, one of the indicators for that will be that the other has abandoned or abdicated his responsibility. In such cases, it may well be justified to find that that parent no longer has responsibility for the child.
  • However, the issue of sole responsibility is not just a matter between the parents. So even if there is only one parent involved in the child’s upbringing, that parent may not have sole responsibility.
  • In the circumstances likely to arise, day-to-day responsibility (or decision-making) for the child’s welfare may necessarily be shared with others (such as relatives or friends) because of the geographical separation between the parent and child.
  • That, however, does not prevent the parent having sole responsibility within the meaning of the Rules.sett
  • The test is, not whether anyone else has day-to-day responsibility, but whether the parent has continuing control and direction of the child’s upbringing including making all the important decisions in the child’s life. If not, responsibility is shared and so not “sole”.

 

CONCLUSION

A settled parent, applying for their  child to join them in the UK, may  therefore have to pass through some  hurdles in order to enable that child’s entry, also  with a  strong possibility  of a  refusal decision along the way.  Where  that refusal decision has however been made with no apparent  reasoning in  sight, at the whim of an entry clearance  officer,  then all other matters being in order as to information and evidential  requirements, it may be some consolation that  affected applicants  usually win at appeal.

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