Dependent Children Born in the UK to a Person on the Private Life Route
In my previous articles, I set out the provisions of Appendix Private Life for limited leave to remain and indefinite leave to remain in the UK. In this article, I will set out the provisions of the new category for dependent children born in the UK to a person on the Private Life route.
These provisions are for children born in the UK, who are not eligible for permission to stay or for settlement on the Private Life route in their own right (for instance, because they have not lived in the UK for at least 7 years), and who apply as dependants of their parents, who themselves are or have last been on the Private Life route. There are provisions for both limited leave to remain (permission to stay) and indefinite leave to remain (settlement) for such children.
Limited Leave to Remain
Validity Requirements
The validity requirements are similar to those on the Private Life route and include using the online specified application form, having paid the application fee and Immigration Health Charge (unless a fee waiver has been granted), having provided any required biometrics and a passport or other document that establishes the applicant’s identity and nationality.
There are additional provisions specific to this category:
- The applicant must have been born in the UK (PL 19.2.(d));
- The applicant must be applying as the child of a person who (PL 19.2.(e)):
- has made a valid application for leave to remain in the UK on the Private Life route that has not been decided, or
- has leave to remain on the Private Life route, or
- is settled or a British citizen, provided that the person had leave to remain on the Private Life route when they settled, and the applicant child was born before they settled;
- The applicant must be in the UK on the date of application (PL 19.2.(f)); and
- The applicant must be aged under 18 at the date of application (PL 19.3.)
The requirements to use the specified form, pay the relevant fees or provide a passport or other document are waived when a claim is made under Article 8 ECHR as part of further submissions or in an appeal.
As these are validity requirements, failing to meet any of them would render the application invalid.
Suitability Requirements
The suitability requirements are the same as those of the Private Life route, namely those set out in S-LTR.1.2. to S-LTR.2.2. and S-LTR.3.1. to S-LTR.4.5. of Appendix FM, and that of paragraph 9.6.1. of Part 9, relating to sham marriages.
Eligibility Requirements
There are two eligibility requirements. The first, in paragraph PL 21.1. simply re-iterates the validity requirement of paragraph PL 19.2.(e). It is unclear why the same requirement is both a validity and eligibility requirement and whether failing to meet it would result in the rejection of the application as invalid, or in its refusal.
The validity requirement of PL 19.2.(e) states that the applicant must be “applying as the child of…” whereas the eligibility requirement of PL 21.1. states that the applicant must “be the child of…”. Potentially, this difference in the wording might suggest that the validity requirement refers to the assertion (therefore unless the applicant asserted something other than the circumstances in PL 19.2.(e), the application would be valid even if the assertion was not accepted as factual), whereas the eligibility requirement refers to the facts (therefore, if any of the circumstances set out in PL 21.1 were not accepted as factual, the application would be refused but not rejected as invalid). Alternatively, it could be a drafting error.
The second eligibility requirement, set out in paragraph PL 21.2. requires the applicant’s other parent to have leave to remain in the UK, other than as a visitor, unless:
- The parent in PL 21.1 is the sole surviving parent; or
- The parent in PL 21.1 has sole responsibility for the child’s upbringing; or
- The parent who does not have permission on the Private Life route is a British citizen or a person who has a right to enter or stay in the UK without restriction and is or will be ordinarily resident in the UK; or
- The decision maker is satisfied there are serious and compelling reasons to grant the child permission to stay with the parent (P) in PL 21.1.
The guidance states that if this is the applicant’s first application for permission to stay, having been born in the UK, they must provide a full birth certificate.
If the birth certificate has been accepted on a previous application, it does not need to be provided again.
Care Requirement
PL 22.1. requires that there be suitable arrangements for the child’s care and accommodation in the UK, which must comply with relevant UK law.
The decision maker must also consider the duty in section 55 of the Borders, Citizenship and Immigration Act 2009 to have regard to the need to safeguard and promote the welfare of children aged under 18.
Decision and Period of Grant
If all suitability and eligibility requirements are met, the applicant will be granted leave to remain, otherwise the application will be refused.
The applicant will be granted leave to remain which ends on the same date as whichever of their parents’ leave ends first unless the other parent is a British citizen or a person who has a right to enter or stay in the UK without restriction and is or will be ordinarily resident in the UK. In such cases, the applicant will be granted leave to remain which ends on the same date as the parent on the Private Life route.
The conditions to which the grant of leave will be subject mirror those for grants of leave on the Private Life route.
Indefinite Leave to Remain
Validity Requirements
The validity requirements mirror those for limited leave to remain as a dependent child of a person on the Private Life route, with some exceptions:
- The applicant must be applying as a child born in the UK if a person on the Private Life route who (PL 26.2.(d)):
- either made a valid application for settlement on the Private Life route that has not been decided,
- or is settled or has become a British citizen, provided the person had permission on the Private Life route when they settled and the applicant was born before they settled;
- There is no validity requirement for the child to be under the age of 18 (but see eligibility age requirement below);
- There is no waiver of any validity requirements for Article 8 ECHR settlement claims.
Suitability Requirements
The suitability requirements mirror those for settlement on the Private Life route, set out in this article.
Eligibility Requirements
As with the provisions for limited leave as a dependent child of a person on the Private Life route, the eligibility requirement for settlement in paragraph PL 28.1. mirrors that of the validity requirement in paragraph PL 26.2.(d), other than the difference in wording that is also present in paragraphs PL 21.1. and PL 19.2.(e).
PL 28.2. requires that the applicant’s other parent be being granted ILR at the same time, or be settled or a British citizen, unless:
- The parent in PL 28.1 is the sole surviving parent; or
- The parent in PL 28.1 has sole responsibility for the applicant’s upbringing; or
- The decision maker is satisfied there are serious and compelling reasons to grant the applicant settlement.
Age Requirement
PL 29.1. provides that the applicant must be under the age of 18 on the date of application, unless they were last granted leave as the dependent child of their parent or parents.
If the applicant is aged 16 or over on the date of application, they must not be leading an independent life, under paragraph PL 29.2.
Care Requirement
PL 30.1. requires that, where the applicant is aged under 18, there be suitable arrangements for the child’s care and accommodation in the UK, which must comply with relevant UK law.
English Language and Knowledge of Life in the UK Requirement
Unless the applicant is aged under 18 or another exemption applies, they need to show that they meet the English language requirement (in speaking and listening of at least level B1 CEFR) as specified in Appendix English Language, and that they meet the Knowledge of Life in the UK requirement, as set out in Appendix KOL UK.
Decision
If the decision maker is satisfied that all the suitability and eligibility requirements for ILR as a dependent child born in the UK of a person on the Private Life route are met, the applicant will be granted indefinite leave to remain.
If the requirements for indefinite leave to remain are not met, but the decision maker believes the applicant is likely to meet all the suitability and eligibility requirements for limited leave as a dependent child born in the UK of a person on the Private Life route, the application will not be refused, but will be varied by the Secretary of State to an application for limited leave to remain as a dependent child born in the UK of a person on the Private Life route. Where this happens:
- no additional application fee for leave to remain will be required and the ILR application fee will not be refunded; and
- the Secretary of State will write to the applicant informing them of this variation and if required will request the applicant pay any Immigration Health Charge.
The application will be rejected as invalid if the IHC is not paid as requested, or if a fee waiver for it is not requested and granted.
Where an applicant is granted limited leave to remain, they will be granted for the same period and will be subject to the same conditions as per the provisions for limited leave to remain as a dependent child born in the UK to a person on the Private Life route, set out above.
If the decision maker is not satisfied that the applicant meets all the suitability and eligibility requirements for ILR or limited leave as a dependent child born in the UK of a person on the Private Life route, the application for ILR will be refused.
Contact our Immigration Barristers
For expert advice and assistance with applications and appeals on the basis of private and family life under Article 8 ECHR, contact our immigration barristers in London on 0203 617 9173 or complete our enquiry form below.
