Child Visa Applications: How To Prove ‘Sole Responsibility’ 

By Miranda Rafferty - Legal Associate

15 Jan 2025

In This Article

1. Understanding Sole Responsibility in UK Child Visa Applications
2. Child Visa Applications Involving the ‘Sole Responsibility’ Requirement
3. Clarifying the Concept of Sole Responsibility in Child Visa Applications
4. Proving Sole Responsibility
5. Prioritising the Best Interests of the Child in Child Visa Applications
6. Contact Our Immigration Barristers
7. Frequently Asked Questions
8. Glossary

1. Understanding Sole Responsibility in UK Child Visa Applications

Navigating the complexities of UK immigration law can be challenging, especially when it involves the sensitive issue of bringing a child into the country and child visa applications. Where a single parent or guardian is seeking to bring a non-British child into the UK for settlement under Appendix FM, Paragraph 297 or alternative provisions of the Immigration Rules they may be required to prove they have ‘sole responsibility’ for said child.

Understanding what sole responsibility means and how it is assessed by the Home Office is vital for anyone involved in such immigration cases. The Home Office will not rely simply on a parent’s legal custody over their child, but will delve into the specific facts of the child’s upbringing and current care arrangements. 

This article aims to demystify the concept of sole responsibility. We will explore which child visa applications for settlement it applies to, its legal definition, what evidence can be used to prove it, and recent developments. 

2. Child Visa Applications Involving the ‘Sole Responsibility’ Requirement 

Where both parents of a child are alive and only one parent is resident in or moving to the UK, the UK Immigration Rules effectively presume the child should remain outside the UK with the other parent. One of the exceptions to this rule is where the relevant parent can demonstrate they have ‘sole responsibility’ for the child.

Child of a Partner or Parent Visa under Appendix FM 

The child visa application under a Child of a Partner or Parent Visa is for a non-British child who wishes to enter or remain in the UK in circumstances where a parent has already been granted, or is at the same time being granted, a Partner or Parent Visa under Appendix FM of the Immigration Rules.  

The general requirements for a Child of a Partner or Parent Visa under Appendix FM have been explained on our webpage Child of a Partner or Parent Visa. In addition to these requirements, one of the child’s parents (Parent A) must either be in the UK with a Partner or Parent Visa or be overseas and being granted, or already granted, a Partner or Parent Visa. 

The other parent of the child (Parent B) may be the partner of Parent A and therefore the sponsor of Parent A’s application under Appendix FM. 

If this is not the case, and Parent B is living overseas, Parent A must be able to prove one of the following exceptions applies: 

• Parent A has had and continues to have sole responsibility for the child’s upbringing; or
• 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 threshold for ‘exclusion undesirable’  test is very difficult to meet, and the parent simply wanting the child to be with them in the UK is insufficient. In the case of Mundeba (s.55 and para 297(i)(f)) [2013] UKUT 00088 , the Tribunal held that an assessment of these considerations will focus on  the specific ‘circumstances of the child in the light of his or her age, social background and developmental history’. The assessment will involve inquiry as to whether there is evidence of neglect or abuse and whether there are stable arrangements for the child’s physical care. 

In the alternative, where Parent B will remain overseas, Parent A will need to prove they have had and continue to have ‘sole responsibility’ for the child’s upbringing in order to meet the requirements for a Child of a Partner or Parent Visa. What the ‘sole responsibility’ requirement means in practice is addressed below . 

Paragraph 297 

Where the parent, parents or relative of a child are not entering or already in the UK under Appendix FM but are present and settled/ being admitted for settlement in the UK under a different route, their child may be able to make an application to join them under Paragraph 297 of the Immigration Rules. 

The child must be seeking to leave to enter to accompany or join a parent, parents or relative in one of the following circumstances: 

• both parents are present and settled in the UK;
• both parents are being admitted on the same occasion for settlement; or
•  one parent is present and settled in the United Kingdom and the other is being admitted on the same occasion for settlement; or
• 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.

If none of these circumstances apply, it must be proven that: 

• 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
• 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.

As above, case law implies that the legal threshold for the ‘exclusion undesirable’ test is very high. Therefore, where only one parent is present and settled in the UK or being admitted on the same occasion for settlement, they may wish to prove they have ‘sole responsibility’ for the relevant child. 

 Appendix Children 

Appendix Children is not a separate immigration route, but it includes common requirements for children applying on certain routes as dependents of lead applicants. A full list of the routes covered by Appendix Children is set out in our article Appendix Children: Requirements for Dependent Child Immigration Routes

In addition to the requirements of specific routes, for a child’s application for settlement, their parents must each be either applying at the same time as the applicant or have permission to be in the UK (other than as a Visitor) unless:

• the parent applying for or with entry clearance or permission to stay is the sole surviving parent or has sole responsibility for the child’s upbringing; or
• the parent who does not have permission:
  • is a British citizen or a person who has a right to enter or stay in the UK without restriction; and
  • lives, or intends to live, in the UK; or
• the decision maker is satisfied that there are serious and compelling reasons to grant the applicant entry clearance or permission to stay with the parent who is applying for or has entry clearance or permission to stay or who is a British citizen or a person who has a right to enter or stay in the UK without restriction and lives, or intends to live, in the UK. 

The October 2024 Appendix Children Guidance suggests that this ‘serious and compelling reasons’ test may be slightly wider than the ‘exclusion undesirable’ test set out above in Appendix FM and Paragraph 297. Since Appendix Children functions as a summary of the existing rules rather than as a new route, it remains to be seen what impact this may have on Dependent Child applications on routes covered by the Appendix. This will be discussed further under the recent developments section of this article. 

Where the serious and compelling reasons test is not met, the single parent with whom the child is applying, or who the child is applying to join in the UK, must prove they have and continue to have ‘sole responsibility’ for the child’s upbringing. 

3. Clarifying the Concept of Sole Responsibility in Child Visa Applications

Home Office Guidance 

‘Sole responsibility’ is not the same as ‘legal custody’ or control. The Home Office caseworkers will look at a child’s circumstances as a whole to determine who is actually responsible, overall, for their upbringing.

The Home Office Family Policy Guidance defines sole parental responsibility as the scenario in which one parent is exercising ‘sole control in setting and providing the day-to-day direction and care for the child’s welfare’. It is clear from the wording of the Guidance that, where both parents are involved in the child’s upbringing, it will be rare for one parent to be able to establish sole parental responsibility. 

The focus of the ‘sole responsibility’ definition is on the parent’s control over the direction of the child’s upbringing. The Family Policy Guidance does accept that the child is likely to have contact with other adults, and that these adults may well provide some elements of the child’s day-to-day care. This might include taking the child to school, or providing after school childcare. 

Case Law 

The Home Office’s definition of sole responsibility in their Family Policy Guidance is derived from the leading case of TD (Paragraph 297 (i) (e): “sole responsibility”) Yemen [2006] UKAIT 00049. In this case, it was held that the test for sole responsibility was ‘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’. 

At §52, the Tribunal outlined the approach to questions of sole responsibility. Some of the key factors included: 

“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

….

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.”

To emphasise, the Home Office will not simply be concerned with who the child lives with or who has legal custody of the child, but will look more holistically at whether the parent has sole control over their upbringing. This approach can work in an applicant’s favour; the case of TD(Yemen) also made clear that sole responsibility does not require a parent to be physically present with the child at all times. Therefore, a parent who has been living in the UK whilst their child was overseas may still have ‘sole responsibility’ for the child. 

The concept of sole responsibility is designed to prevent the function of the Immigration Rules from splitting up families. The tribunal in TD(Yemen) held that it would ‘usually run counter to the policy of family unity to admit a child for settlement where the parent abroad is caring for the child and involved in its upbringing’.

4. Proving Sole Responsibility 

The burden of proof is on the applicant to provide sufficient evidence that a parent has sole responsibility in the context of a  Child of a Partner or Parent Visa and other UK Child Visa applications. Therefore, it is important to be aware of the factors that the Home Office will consider when assessing sole responsibility, and the best ways to evidence these factors. 

How Sole Responsibility is Assessed

As outlined above, the Home Office will take a holistic view of the circumstances of a child’s upbringing when considering whether a parent has sole responsibility. This Family Policy Guidance states that this is likely to include considerations of several key factors: 

1. Decision-Making Authority: The parent must demonstrate that they are the primary decision-maker in the child’s life. This may include who is responsible for deciding:
   1. What faith the child is raised in, and how they practise this faith; 
   2. Where the child lives; 
   3. What recreational activities the child is involved in;
   4. Whether the child undergoes certain medical procedures;
   5. How the child’s health is generally looked after; 
   6. Where and with whom the child goes on holiday; 
   7. The child’s legal representation;
   8. The child’s property.
2. Financial Responsibility: While financial support is not the sole determinant of responsibility, it is an important factor. The relevant parent making significant or even sole financial provision for a child may contribute positively to the assessment, and any absence of financial provision may be telling.
3. Welfare: The Home Office will want to see evidence proving the relevant parent is responsible for protecting the child and providing them with appropriate direction and guidance. Responsibility for the child’s welfare will also include evidence to show involvement in the child’s daily care, even if they do not live together. 
4. Absence of Other Parent: In cases where the other parent is alive and involved, the applicant must show that they do not have any responsibility for the child’s welfare and for what happens to them in key areas of the child’s life to support the assertion that this parent has abdicated or abandoned parental responsibility. If the other parent is deceased or uncontactable, evidence must be provided to support this.

The Home Office does not require the relevant parent to demonstrate that they have had sole responsibility for any particular length of time. The sole responsibility dynamic can be as a result of a recent change in circumstances. However, where the arrangements have changed recently, applicants should be aware that they may be subject to additional scrutiny to ensure that such a change is genuine. In these situations, it will therefore be wise to ensure the reasons for the change are explained in detail, with sufficient supporting evidence.

What Evidence to Include 

What evidence it is necessary to include to demonstrate sole responsibility will of course largely be dependent on the particular facts of the applicant’s case. Examples include:

• Court documents showing sole custody of the child;
• Medical Records;
• School Reports;
• Bank statements showing financial responsibility for the child;
• Letters of Support from friends and family;
• Records of communications with the child or with anyone responsible for looking after the child, such as a grandparent or babysitter;
• Photographs of time spent with the child.

5. Prioritising the Best Interests of the Child in Child Visa Applications

The ‘sole responsibility’ test must be considered in light of Section 55 Borders, Citizenship and Immigration Act 2009, which requires the Home Office to have regard to the need to safeguard and promote the welfare of children in the UK.  The Appendix Children Guidance  states that a child’s best interests is a primary, but not the only consideration in considering child visa applications from children.

Though Section 55 only applies to children in the UK, the statutory guidance, Every Child Matters – Change for Children, provides guidance that the spirit of the Section 55 duty applies to out-of-country applications. In practice, this means that the Home Office should make enquiries if they suspect there is safeguarding or welfare risk and should consider all the information provided to ascertain how a child will be affected by a decision.

However, on the basis of the case law outlined below, the ‘best interests of the child’ consideration seems to be given more weight when considering the ‘exclusion undesirable’ test in comparison to the ‘sole responsibility test’.

In the case of Mundeba (s.55 and para 297(i)(f)) Democratic Republic of Congo [2013] UKUT 88 (IAC)  it was held that the ‘exclusion undesirable’ test ‘inevitably involves an assessment of what the child’s welfare and best interests require…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.’ This case built on  SG (child of a polygamous marriage) Nepal [2012] UKUT 265 (IAC); [2012] Imm AR 939, which states at §53  that the Secretary of State’s direction that the spirit of S 55 should be applied in entry clearance cases and the exclusion undesirable test were relevant when considering whether to separate a child from one of their natural parents. 

The Appendix Children Guidance, updated in October 2024, rephrases the rules as ‘there are serious and compelling reasons to grant the applicant entry clearance or permission to stay’. As outlined above, Appendix Children is not a route in itself but aims to summarise the key requirements for Child Dependent applications on the routes listed. The Appendix Children Guidance states that, where one parent is coming to the UK and the other is remaining overseas, the decision maker should consider whether:

• there are good reasons why the other parent is not coming to the UK;
• there are good reasons for the child not to stay overseas with the other parent;
• coming to the UK or staying in the UK would be in the best interests of the child.

A full analysis of what would be defined as a ‘good reason’ is beyond the scope of this article, but the factors include where the overseas parent is looking after a relative overseas who requires care, such as an elderly parent, or is no longer in a relationship with the parent coming to the UK, and unwilling to move to the UK, and the child currently lives with the parent coming to the UK. 

This Guidance may suggest a lower threshold may be applied to these routes than that set by case law on the ‘exclusion undesirable’ test. It therefore simultaneously raises questions as to the relevance of the sole responsibility test in cases to which Appendix Children applies, and the extent to which key factors of the sole responsibility test truly take into account the wishes and needs of the relevant child. 

6. Contact Our Immigration Barristers

For expert advice and assistance on Child of a Partner or Parent Visa under Appendix FM, Paragraph 297 or alternative immigration routes, please contact our immigration barristers on 0203 617 9173 or complete our enquiry form below.