Applying to join a parent who is settled in the UK
This article explains how your child or children who were born outside the UK can join you in the UK
if you are a British citizen, or if you have obtained Indefinite Leave to Remain in the UK. This category remains under Part 8 of the Immigration Rules, and is unaffected by the provisions of Appendix FM to the Immigration Rules.
The Appendix FM route is for a child or children whose parent is applying for entry clearance or leave, or who has limited leave, as a partner or parent under Appendix FM.
Children born in the UK to a parent who is a British citizen or has obtained Indefinite Leave to Remain in the UK may, in certain circumstances, have an entitlement to British Citizenship.
Position of parents
Children who were born outside the UK cannot normally come to settle in the UK unless both parents are settled here or have been given permission to settle here. The only exceptions are:
- One parent is present and settled in the UK and the other is being admitted for settlement; or
- One parent is present and settled in the UK or being admitted on the same occasion for settlement and the other parent is dead; or
- One parent is present and settled or being admitted for settlement and can show that they have had ‘sole responsibility’ for the child’s upbringing; or
- A parent or another relative is present and settled in the UK or being admitted for settlement where there are serious and compelling family or other considerations which make the exclusion of the child undesirable and where there are suitable arrangements in place for the child’s care.
Position of the child
The child must be able to demonstrate that they are:
- Aged under 18;
- Not leading an independent life;
- Not married or in a civil partnership; and
- Have not formed an independent family unit.
Maintenance and accommodation
The child also needs to demonstrate that they can, and will, be maintained and accommodated adequately by the parent(s) or relative the child is seeking to join, without recourse to public funds.
In TD (Paragraph 297(i)(e): “sole responsibility”) Yemen  UKAIT 00049, the Tribunal held:
“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”.
According to the Immigration Directorate Instructions (Chapter 8, section 5A Annex M):
A parent claiming to have had ‘sole responsibility’ for a child must satisfactorily demonstrate that he has, usually for a substantial period of time, been the chief person exercising parental responsibility.
For such an assertion to be accepted, it must be shown that he has had, and still has, the ultimate responsibility for the major decisions relating to the child’s upbringing, and provides the child with the majority of the financial and emotional support he requires.
In order to show that the sponsoring parent in the UK has sole responsibility for the child, notwithstanding that they live in different countries, he or she will need to show that they have been, so far as is possible for a substantial period of time, exercising the normal role played by a caring parent. It is acceptable that the child’s day to day care is delegated to another in the child’s own country, but evidence that ultimate control rests with the sponsoring parent will be required.
The IDIs (Chapter 8, Section 5A Annex M) elaborate upon the factors which should be taken into account when deciding whether the sponsoring parent has had the sole responsibility:
- The period for which the parent in the UK has been separated from the child;
- What the arrangements were for the care of the child before that parent migrated to the UK;
- Who has been entrusted with day to day care and control of the child since the sponsoring parent migrated to the UK;
- Who provides, and in what proportion, the financial support for the child’s care and upbringing;
- Who takes the important decision about the child’s upbringing, such as where and with whom the child lives, the choice of school, religious practice, etc.;
- The degree of contact that has been maintained between the child and the parent claiming ‘sole responsibility’;
- What part in the child’s care and upbringing is played by the parent not in the UK and his relatives.
The guidance also states that:
It is expected that where the child is being looked after by relatives, they should be the relatives of the parent claiming ‘sole responsibility’ rather than those of the other parents. … If it is established that the child is being cared for by the relatives of the father but it is the mother who has applied for the child to join her in this country (or vice versa), the application should normally refused.
Although this guidance is not determinative, it does indicate that for those children who are living with the other parent or the other parent’s relatives in their home country, it will be much more difficult to demonstrate the sponsoring parent’s sole responsibility since the other parent will, to some extent, still be involved in the child’s upbringing.
Serious and compelling circumstances making exclusion undesirable
There is no particular definition of what may constitute serious and compelling circumstances. Both Article 8 and the best interests of the child must be considered in relation to a person’s own individual circumstances and the particular facts of the case.
In Mundeba (s. 55 and para 297 (i)(f)) Democratic Republic of Congo  UKUT 88 (IAC) the Upper Tribunal adopted a potentially more inclusive approach to the ‘exclusive undesirable’ test. The Tribunal held:
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. … 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: -a there is evidence of neglect or abuse; b. there are unmet needs that should be catered for; c. 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.
If you would like further advice or assistance in relation to an application or appeal involving a child of a settled parent, contact our immigration barristers and lawyers in London on 0203 617 9173 or complete our online enquiry form.