Yukino Posthuma de Boer from our Business and Skilled Immigration Team has recently succeeded in several cases by arguing for the sole responsibility of mothers who have long wished to reunite with their children in the UK, despite previous refusals. In this article, she explores the key considerations for applications under Appendix Children including the Skilled Worker visa route.
The challenge for single parents
Many single parents whose visas have already been approved may struggle to imagine that their child’s visa application could be refused. Sadly, we frequently receive enquiries from distressed parents whose children have been denied entry clearance to join them in the UK. In most cases, this refusal arises from a specific requirement that is particularly difficult for the child of a single parent to meet.
Under Appendix Children of the Immigration Rules, for a child to obtain a dependant visa to live with the main applicant in the UK, the child’s other parent must either be applying at the same time or must already have permission to be in the UK (other than as a visitor).
The only exceptions are where:
a) The other parent has died
b) One parent has sole responsibility
c) The other parent is a British citizen who lives in the UK or intends to live in the UK
d) There are serious and compelling reasons to grant the child permission to enter or remain in the UK
This may not appear to be a significant obstacle for those who have been granted sole custody. However, this is a common misconception and often leads to a refusal. In fact, the Home Office specifically states that sole responsibility is not the same as sole legal custody.
What is sole responsiblity?
The Home Office explains that “sole responsibility” means:
- “one parent is unknown or has abdicated or abandoned parental responsibility, and the other parent is exercising sole control in setting and providing the day-to-day direction and care for the child’s welfare.”
- “where both parents are involved in the child’s upbringing, it will be rare for one parent to establish sole parental responsibility.”
- “sole parental responsibility can be recent or long-standing.”
For example, even where one parent has sole custody, the other parent may still have rights of contact with the child. This can make it more difficult to establish that the other parent has had no involvement in the child’s upbringing. In practice, the Home Office often treats a “right of contact” as evidence of the other parent’s involvement in the child’s life, unless strong evidence is provided to demonstrate otherwise.
Beyond legal responsiblity, what matters is showing that the sponsoring parent has “continuing sole control and direction of the child’s upbringing, including making all the important decisions in the child’s life.”
What are serious and compelling reasons?
Where there are "serious and compelling reasons" to grant permission, a child may still be granted a dependant visa even if the caseworker is not satisfied that the sponsoring parent has sole responsibility. The caseworker may take the following factors into account:
- the reasons why the other parent is not coming to the UK
- the reasons why the child cannot remain overseas with the other parent
- whether coming to, or remaining in, the UK would be in the best interests of the child
It is possible to rely on both sole responsibility and serious and compelling reasons in a single application to present a stronger case.
It is worth noting that Appendix Children of the Immigration Rules applies to most points-based immigration routes but does not apply to Appendix FM.
How can I prove that I have sole responsiblity?
As we have seen, a successful sole responsibility application requires evidence that the other parent has not been involved in the child’s upbringing for a sustained period.
In recent successful cases, we have argued our clients’ sole responsibility (alongside serious and compelling reasons) by relying on a range of evidence sources. The appropriate evidence will vary from case to case. However, the underlying principle remains the same; sole responsibility is about who has "sole control and direction of the child's upbringing".
Can I challenge a refusal?
If your child’s dependant application is refused, you may have an option to challenge the refusal by administrative review.
We have represented clients in administrative review where the Home Office eventually accepted sole responsibility and overturned its refusal.
How we can help
If you need assistance with an application or checking your child's eligibiltiy, please contact our friendly team for advice and assistance.