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Children
Children Visitors:
Rule 46A of the Immigration Rules specifically applies to child visitors. There is a requirement that such a child should have a parent or guardian in his home country and that suitable arrangements have been made for the child’s care for the duration of his stay in the UK .
Children joining their settled in the UK parents:
Rule 6 of HC395 defines a parent including a step parent of a child whose father or mother are dead, father or mother of an illegitimate child (providing he can prove paternity), an adoptive parent where the child was adopted in accordance with a decision taken by the competent court or administrative authority in a country whose adoption orders are recognised in the UK.
Children under 18 (and unmarried) can join their parents or a parent in the UK if the following conditions are satisfied:
Children of fiancé/es:
Children of a fiancé/e can join his or her parent if the child is under 18, unmarried, dependant and can be maintained and accommodated without recourse to public funds.
Adopted children
Immigration Rule 309A of HC395 applies to formal and, since the 1st of April 2003, de facto adoptions.
Both categories must demonstrate the following:
De facto adoption: These allow the admission of adopted children from countries where no legal adoption procedure exists, or where the system operating is not recognised by the UK . A de facto adoption will be regarded as having taken placed where the adoptive parent(s) can show that:
It is a requirement that the child looking to join their settled parent must be dependant or must not lead an independent life. In MI (Paragraph 298 (iii): “independent life”) Pakistan the Appellant was living at home with his parents but earning a salary sufficient for his own needs. At first instance the Immigration Judge found that on the facts he was living an independent life. On reconsideration the Tribunal said that it was easier to recognise leading an independent life than to describe it; the requirement has to be looked at in the round and that:
“On that basis, this appellant was only 20½: he had always while in this country lived in the family home, and, though he worked full-time, the judge accepted that he still handed over half or more of his wages to his father for safe-keeping. He may have acted as the man of the house, in terms of escorting his mother, while his father was away; but that cannot be regarded as making the life he led there, with her, independent. There may well be cases of older people who live with their parents simply as a matter of convenience, but that is not so here: this appellant was still living on the basis on which he had been admitted for settlement, except that he was now going out to work. On what I consider the right approach to the “independent life” provision, I regard the only reasonable answer in this case as a negative one.” The appeal was allowed.
In NM (“leading an independent life”) Zimbabwe [2007] UKAIT 00051 a Tribunal considered the same issue in more detail. In this case the Appellant had been working and had been living outside of the family home temporarily. The Tribunal decided that financial dependence is not a central issue in deciding whether the Appellant is leading an independent life and that the Tribunal must consider whether the Appellant is actually leading an independent life rather than whether he is capable of leading an independent life.
“…where the child lives is no more than a factor (albeit a potentially significant one) to be taken into account in assessing whether a child is “leading an independent life”. We can readily foresee situations where the child may live away from that home whilst still remaining part of the parents’ social unit, for example whilst temporarily away studying at college. On the other hand, although no doubt not frequently, a child may be living independently yet still be resident in its paren
ts’ home but, in effect, be no more than a lodger paying to live there.” The appeal was allowed.
Parents and Grandparents
Parents and grandparents over 65 years can join children or grandchildren settled in the UK if they can meet the following criteria:
Children over 18 and other Relatives
Similarly, children over 18 and other relatives seeking to join their settled in the UK relative must show evidence of living alone in the most exceptionate compassionate circumstances as well as proofs of financial dependence on that relative and evidence that they can be adequately financially supported and accommodated in the UK without recourse to public funds.
These criteria apply only to children over the age of 18, and to the sisters, brothers, uncles and aunts of people settled in the UK who generally qualify only when they are over 65.
Rule 46A of the Immigration Rules specifically applies to child visitors. There is a requirement that such a child should have a parent or guardian in his home country and that suitable arrangements have been made for the child’s care for the duration of his stay in the UK .
Children joining their settled in the UK parents:
Rule 6 of HC395 defines a parent including a step parent of a child whose father or mother are dead, father or mother of an illegitimate child (providing he can prove paternity), an adoptive parent where the child was adopted in accordance with a decision taken by the competent court or administrative authority in a country whose adoption orders are recognised in the UK.
Children under 18 (and unmarried) can join their parents or a parent in the UK if the following conditions are satisfied:
- Both parents are settled in the UK .
- There is adequate support and accommodation for the child without recourse to public funds.
- The child obtains a visa from the UK Embassy of High Commission in his home country prior travelling to the UK .
- Sole Responsibility: That the parent the child is joining has had sole responsibility for the child’s upbringing. The term ‘sole responsibility’ is interpreted broadly, acknowledging that some delegation of responsibility must have occurred as a result of physical separation. Factors such protracted financial support, regular contact and genuine interest and affection, as well as regular consultation between the settled parent and the overseas carer and an ultimate control as to matters of schooling and upbringing are taken into account. The IDIs state that sole responsibility must be exercised for a protracted period of time. The Court of Appeal, however, in the case of Nmaju v ECO (2000) decided that sole responsibility could be exercised for a short period but factors such as the quality of control involved and the period of time over which this quality of control have been exercised should be taken into account.
- That there are serious and compelling reasons for making the child’s exclusion from the UK undesirable. This criteria and strict and in discharging the burden factors such as evidence of the incapacity or unwillingness of the carer overseas to continue to look after the child, the child’s living conditions, the particular vulnerability of younger children and the importance of maintaining family unity are taken into consideration: Hardward v SSHD (2000).
- The child is under 18.
- He has a limited leave to remain.
- He came to the UK with a view to settlement.
Children of fiancé/es:
Children of a fiancé/e can join his or her parent if the child is under 18, unmarried, dependant and can be maintained and accommodated without recourse to public funds.
Adopted children
Immigration Rule 309A of HC395 applies to formal and, since the 1st of April 2003, de facto adoptions.
Both categories must demonstrate the following:
- The adoption took place because the natural parents were unable to care for the child.
- The child has lost or broken ties with the natural family.
- That the reason for the adoption was not simply to bring the child to the UK .
- That the child can be adequately maintained and accommodated without recourse to public funds.
De facto adoption: These allow the admission of adopted children from countries where no legal adoption procedure exists, or where the system operating is not recognised by the UK . A de facto adoption will be regarded as having taken placed where the adoptive parent(s) can show that:
- They have lived together abroad for a period of 18 months.
- They have cared for the child for the twelve months immediately before the application for entry; and
- They have assumed the role of the child’s parents and there has been a genuine transfer of parental responsibility.
It is a requirement that the child looking to join their settled parent must be dependant or must not lead an independent life. In MI (Paragraph 298 (iii): “independent life”) Pakistan the Appellant was living at home with his parents but earning a salary sufficient for his own needs. At first instance the Immigration Judge found that on the facts he was living an independent life. On reconsideration the Tribunal said that it was easier to recognise leading an independent life than to describe it; the requirement has to be looked at in the round and that:
“On that basis, this appellant was only 20½: he had always while in this country lived in the family home, and, though he worked full-time, the judge accepted that he still handed over half or more of his wages to his father for safe-keeping. He may have acted as the man of the house, in terms of escorting his mother, while his father was away; but that cannot be regarded as making the life he led there, with her, independent. There may well be cases of older people who live with their parents simply as a matter of convenience, but that is not so here: this appellant was still living on the basis on which he had been admitted for settlement, except that he was now going out to work. On what I consider the right approach to the “independent life” provision, I regard the only reasonable answer in this case as a negative one.” The appeal was allowed.
In NM (“leading an independent life”) Zimbabwe [2007] UKAIT 00051 a Tribunal considered the same issue in more detail. In this case the Appellant had been working and had been living outside of the family home temporarily. The Tribunal decided that financial dependence is not a central issue in deciding whether the Appellant is leading an independent life and that the Tribunal must consider whether the Appellant is actually leading an independent life rather than whether he is capable of leading an independent life.
“…where the child lives is no more than a factor (albeit a potentially significant one) to be taken into account in assessing whether a child is “leading an independent life”. We can readily foresee situations where the child may live away from that home whilst still remaining part of the parents’ social unit, for example whilst temporarily away studying at college. On the other hand, although no doubt not frequently, a child may be living independently yet still be resident in its paren
ts’ home but, in effect, be no more than a lodger paying to live there.” The appeal was allowed.
Parents and Grandparents
Parents and grandparents over 65 years can join children or grandchildren settled in the UK if they can meet the following criteria:
- They are a widow or widower, or
- They have remarried but cannot look to the spouse or children from second marriage for financial support; and
- They are wholly or mainly financially dependent on children in the UK .
- There are no other close relatives in the country of origin to turn to for care and support.
- They and their spouse can be supported and accommodated by their children in the UK without reliance on public funds.
Children over 18 and other Relatives
Similarly, children over 18 and other relatives seeking to join their settled in the UK relative must show evidence of living alone in the most exceptionate compassionate circumstances as well as proofs of financial dependence on that relative and evidence that they can be adequately financially supported and accommodated in the UK without recourse to public funds.
These criteria apply only to children over the age of 18, and to the sisters, brothers, uncles and aunts of people settled in the UK who generally qualify only when they are over 65.
