Understanding Sole Responsibility in Immigration Law

The concept of ‘sole responsibility’ is found in Appendix FM and Part 8 of the Immigration Rules. Careful analysis of the circumstances of a child’s upbringing is essential to work out whether this can be demonstrated.

When is ‘sole responsibility’ required?

You must demonstrate that you have ‘sole responsibility’ where you want to bring a non-British child to the UK to live with you and:

• You are applying for, or already have, limited leave as a partner under Appendix FM;
• You have been granted limited leave to enter or remain under another route;
• You are present and settled in the UK.

If you want to join a child who is in the UK and is a British or Irish citizen, settled in the UK or in the UK with pre-settled status or has been settled in the UK for at least 7 years, and you would not be eligible under the Appendix FM partner route, you may also rely on having ‘sole responsibility’ when applying on the Parent of a Child route.

The burden of proof rests on the applicant. This is unlikely to be an issue where both parents will be living together in the UK, or where only one parent is alive. However, in parenting arrangements where parents may have divorced or choose to live in different countries such as for work reasons, demonstrating sole parental responsibility for the purposes of the Immigration Rules is often very difficult – even where both parents support the child’s move.

How is ‘sole responsibility’ defined?

‘Sole responsibility’ is not necessarily the same as who may have legal custody or access to a child. Under the Immigration Rules, it is a factual matter to be assessed taking all the evidence into account.

TD (Paragraph 297 (i) (e): “sole responsibility”) Yemen [2006] UKAIT 00049 is the leading case on which factors should be considered. The court acknowledges at paragraph 52(iii) and 52(iv) that other adults, including relatives, may have a responsibility towards the child’s daily care, such as getting them to school or even living with them. However, ‘sole responsibility’ only arises when a person has exclusivity over “the continuing control and direction … in respect of the “important decisions” about the child’s upbringing”.

The Home Office guidance provides examples of such decisions. This includes:

• Their education;
• The faith they are raised in;
• Whether they undergo certain medical procedures;
• What recreational activities they take part in;
• What to do with the child’s property.

Whilst there is no minimum time period for which ‘sole responsibility’ must have been held, the Home Office guidance states that “any recent change of arrangements should be scrutinised to make sure this is genuine and not an attempt to circumvent immigration control”.

The fact that a child may not live with or be geographically close to a parent does not exclude that parent from having parental responsibility. Technology makes it much easier to consult and decide on a child’s future, and have an active connection to the child.

Does supporting the child financially count?

The Home Office guidance states that financial contributions to the child’s upbringing are a factor to be considered but are not sufficient in themselves to show ‘sole parental responsibility’. This is true even where the contributions are significant (such as for school fees or housing), or the other parent is not providing anything.

What is the starting point for determining who has ‘sole parental responsibility’?

Where a child’s parents are both involved in their life,  the starting point is that both parents share responsibility for their child’s upbringing. The suggested approach to deciding ‘sole responsibility’ in TD Yemen [2006] is clear that irrespective of their physical locations, “if both parents are involved in the upbringing of the child, it will be exceptional that one of them will have sole responsibility”.

If one parent is not in their child’s life at all, the starting point is that only the remaining parent has sole responsibility.

Since the assessment is a factual one of who practically makes the important decisions which may include for example, another relative, it may also be the case that neither parent has sole responsibility.

What if you can’t meet the definition?

You may still be able to bring your child to the UK if you can demonstrate 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’. This is a very high threshold to meet.

Mundeba (s.55 and para 297(i)(f)) [2013] UKUT 00088 at paragraph 37 provides that this assessment must focus on the specific “circumstances of the child in the light of his or her age, social background and developmental history”. The case also sets out examples of what may be serious and compelling, such as where there is a history of neglect or abuse, or unmet needs that should be catered for. Simply wanting the child to be in the UK with you will be insufficient.

Contact our Immigration Barristers

For advice and assistance regarding an application or appeal involving a child immigration matter, contact our immigration barristers and lawyers in London on 0203 617 9173 or via our enquiry form below.