Sole Responsibility: Children joining one parent in the UK

June 19, 2007

If you are a parent living in the UK or entering the UK with a view to

settlement (Indefinite Leave to Remain, ILR), you may wish for your child to
join you in the UK, possibly also for settlement. However, if the child’s other
parent continues to live in another country, then you will have to satisfy the
Home Office that you 'have had sole responsibility' for that child.

The 'sole responsibility' rule causes such applications to be very complex, as

the meaning of the term cannot be precise. Every family’s situation is
unique. For example, sole responsibility is not the same as legal custody,
even though the question of who has legal custody will be a relevant
consideration in deciding whether a parent has sole responsibility. How is the
term understood by the Border and Immigration Agency (BIA) of the Home
Office, and by courts and tribunals in the UK?

The parent based in the UK is known as the ‘sponsor’ of the application and
will be the motivating force behind it. The child overseas is known as the
‘applicant’.

To meet the sole responsibility requirement, it is necessary to satisfy the

Home Office that the sponsoring parent has, usually for a substantial period
of time, been the chief person exercising parental responsibility for the child.
This means that the sponsoring parent 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 it
requires. The sponsoring parent must show that he or she has had, and
continues to have, care and control of the child.

It has been accepted by the courts that many parents would find it
impossible to establish literal or absolute 'sole responsibility', since in the
majority of situations the other parent has at least some responsibility for
their child’s upbringing. Moreover, there will be many situations in which the
parents are separated and the sponsoring parent has left their child in the
care of other relatives and gone to the UK without the child. The Home
Office instructions to BIA caseworkers, in the form of internal guidance,
states that they expect that where the child is being looked after by
relatives, they should be the relatives of the sponsor rather than of the
child’s other parent. In such a case the, sponsoring parent must still show
that she or he has retained the ultimate responsibility for the child’s
upbringing and provides the majority of the emotional and financial support
needed.
The guidance to BIA caseworkers suggests that an application should
normally be refused where, for example, the child is being cared for by the
father’s relatives but it is the mother who has applied for the child to join her
in the UK. However, it may be that the mother could show that she had a
sufficiently close relationship to the father’s family to allow her to
demonstrate sole responsibility for the child. The guidance should not deter
people in such a situation.

The Home Office internal guidance goes on to consider the less clear
situations in which neither parent can demonstrate sole responsibility. Such
a situation can arise where the sponsoring parent is based in the UK and has
transferred the care of the child to another person (as in the examples
above), but  has not maintained a close involvement in the child’s
upbringing. The internal Home Office guidance sets out factors that can be
taken into account when deciding whether a parent has satisfied the ‘sole
responsibility’ requirement, to the exclusion of the other parent or those who
have been looking after the child. The guidance says that these ‘may’
include:

    •    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 here;
    
    •    Who provides, and in what proportion, the financial support for the
child’s care and upbringing;
    
    •    Who takes the important decisions concerning 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 that parent’s relatives.

In addition to this list, the comments made by the courts in this kind of case
identify some other factors. The time spent by the sponsoring parent with
the child is a relevant but not conclusive factor. That the sponsoring parent
has legal custody is a relevant consideration, but, again, not conclusive.

If the child’s other parent has had involvement in the child’s upbringing, this
may disprove the sponsoring parent’s claim to have sole responsibility if the
other parent’s involvement amounted to an independent exercise of
responsibility. One example of this is where the everyday carer of the child
outside the UK is the other parent. In such a situation, the Asylum and
Immigration Tribunal (AIT) has commented that it will only be in exceptional
cases that the UK based parent will be considered to have sole responsibility
for that child [“TD (Paragraph 297(i)(e): "sole responsibility") Yemen [2006]
UKAIT 00049]. The court said that it would only be in cases where the
parent outside the UK has almost completely abdicated his or her
responsibility for the child that the sponsoring parent could be deemed to
have sole responsibility. However, responsibility exercised by the other
parent in the distant past should not be enough to disprove sole
responsibility on the part of the sponsoring parent.

The outcome of any sole responsibility application will depend heavily on its
own particular facts and circumstances, and the ability of the sponsoring
parent to provide evidence. Therefore, this is a kind of application where
good quality and experienced legal representation will be extremely
important. 
 
If a child fails to qualify under the sole responsibility rule, he or she may
qualify for entry to the UK on the grounds that there are serious and
compelling family or other reasons that make his exclusion from the UK
undesirable and arrangements have been made for his care. Under this rule,
such a child can join a parent, a more distant relative by blood or marriage,
or a legal guardian. However, the requirement of ‘serious and compelling
family or other reasons’ may be difficult to satisfy: it would not suffice
simply to compare the harsh and poor conditions in the child’s country with
better conditions in the UK. The death of a carer in the home country or the
incapacity of a parent in the home country to care for the child may give rise
to such compelling circumstances. However, these are complex cases whose
success depends heavily on their facts and supporting evidence, and in
which  legal representation will again be extremely important.

A sponsoring parent (see SET7.2) must be able to show that he/she has
been solely responsible for exercising parental care over the child for a
substantial period.
 
If the sponsoring parent and child are separated, the child will normally be
expected to have been in the care of the sponsoring parent's relatives rather
than the relatives of the other parent. An application should normally be
refused if the child has been in the care of the other parent's relatives and
the other parent lives nearby and takes an active interest in the child's
welfare.

The following factors should be considered in assessing sole responsibility:

 Are the parents married / in a civil partnership?

 If the parents' marriage / civil partnership is dissolved, which parent
was  awarded legal custody, which includes assumption of
responsibility for the child?
 Where there is a custody order the ECO should take care to ensure
that the issue of a settlement entry clearance to the child will not
contravene the terms of the custody order. Annex 1 contains a list of
those countries whose custody orders can be recognised as valid in
UK.
 Does the marriage / civil partnership subsist, but the parents do not
live together?
 If the sponsoring parent migrated to the UK, how long has the
sponsoring parent been separated from the child? 
 If the sponsoring parent migrated to the UK, what were the
arrangements for the care of the child before and after the sponsoring
parent migrated?
 If the sponsoring parent migrated to the UK, what has been/what is
the sponsoring parent's relationship with the child?
 Has the sponsoring parent consistently supported the child, either by:
direct personal care ; or by regular and substantial financial
remittances?
 By whom, and in what proportions, is the cost of the child's
maintenance borne?
 Who takes the important decisions about the child's upbringing, for
example where the child lives, the choice of school, religious practice
etc?

The ECO should consider all the evidence as a whole, deciding each
application on its merits:

 Are the circumstances surrounding the child exceptional in relation to

those of other children living in that same country?
 Are there emotional and/or physical factors relating to the sponsoring
parent in the UK?
 Are there mental and/or physical factors relating to the non-
sponsoring parent?  Where the physical / mental incapability of the
 non-sponsoring parent has been established, an entry clearance
should normally be granted.

But not considered acceptable as a 'serious and compelling' reason under

this provision:

 that the UK offers a higher standard of living than in the child's own
country.

 New Zimbabwe – MANY of the so called “legacy cases” are being

resolved by the United Kingdom Border Agency. Figures published this
week show that the UKBA is dealing with approximately 5,000 cases
per month.

 Not all of the cases are resulting in the granting of leave to remain,
but the vast majority are being granted Indefinite Leave to Remain in
the UK. (Please see previous posts on legacy cases).

 With the granting of ILR comes a set of new challenges for many
migrants living in the UK. Many people left Zimbabwe for political and
economic reasons. It was difficult to travel as a family due to financial
constraints or the uncertainty of life in the UK. As a result, many
families were separated by the move to the diaspora in the early
2000’s.

 The separation between parents and children has been heartbreaking

for both parents and children. The purpose of this post is to highlight
the difficulties that can be encountered in making an application for
children to join their parents in the UK. It is not a straightforward
issue.

 The immigration rules in summary require that the applicant (child)

meet the following criteria:

 They must be under 18 years of age, and show that they cannot
support themselves financially, are not married or in a civil partnership
and are not living independently away from your parents.

 A child cannot normally go to live in the UK if one parent is living

abroad, unless the parent in the UK has sole responsibility for the
child, or if there are special reasons why the child should be allowed to
join the parent in the UK

 Parents must live in the UK legally, with no time limit on their stay.
 One parent is living and settled in the UK or is applying for settlement
at the same time as applicant, and has had sole responsibility for
looking after the applicant

 Parents can support applicant without help from public funds

 Parents have enough accommodation, which they own or live in,

where you can live without help from public funds, and

 The applicant is the child of those seeking to come to the UK.

 The difficulties that may be faced by many parents will be that they
may find it difficult to show that they can support their children
without recourse to public funds. Many have been out of work for
many years waiting for their cases to be resolved.

 It is also difficult to obtain employment during this recession. It may,

therefore, take several months for parents that have been granted
Indefinite Leave to Remain to be reunited with their children.

 The “sole responsibility” rule causes such applications to be very

complex, as the meaning of the term cannot be precise. Every family’s
situation is unique. For example, sole responsibility is not the same as
legal custody, even though the question of who has legal custody will
be a relevant consideration in deciding whether a parent has sole
responsibility.

 How is the term understood by the Border and Immigration Agency

(BIA) of the Home Office, and by courts and tribunals in the UK?

 The parent based in the UK is known as the “sponsor” of the

application and will be the motivating force behind it. The child
overseas is known as the “applicant”.

 To meet the sole responsibility requirement, it is necessary to satisfy

the Home Office that the sponsoring parent has, usually for a
substantial period of time, been the chief person exercising parental
responsibility for the child. This means that the sponsoring parent 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 it requires.

 The sponsoring parent must show that he or she has had, and
continues to have, care and control of the child.
 It has been accepted by the courts that many parents would find it
impossible to establish literal or absolute “sole responsibility”, since in
the majority of situations the other parent has at least some
responsibility for their child’s upbringing. Moreover, there will be many
situations in which the parents are separated and the sponsoring
parent has left their child in the care of other relatives and gone to the
UK without the child.

 The Home Office instructions to BIA caseworkers, in the form of

internal guidance, states that they expect that where the child is being
looked after by relatives, they should be the relatives of the sponsor
rather than of the child’s other parent. In such a case, the sponsoring
parent must still show that she or he has retained the ultimate
responsibility for the child’s upbringing and provides the majority of
the emotional and financial support needed.

 The guidance to BIA caseworkers suggests that an application should

normally be refused where, for example, the child is being cared for by
the father’s relatives but it is the mother who has applied for the child
to join her in the UK.
 New case on children 'not leading an independent life'
 July 09, 2007
 In NM (“leading an independent life”) Zimbabwe [2007] UKAIT 00051,
the Asylum and Immigration Tribunal (AIT) considered the meaning of
‘leading an independent life’, within the provisions of paragraph 197 of
the UK Immigration Rules.  This rule sets out the circumstances in
which dependent relatives of people who are not settled (i.e. do not
indefinite leave to remain, ILR) in the UK, for example the dependent
relatives of work permit holders or people in the UK under the Highly
Skilled Migrants Programme (HSMP) are permitted to remain with their
relatives in the UK. 
The issue before the AIT was the meaning to be given to the phrase
‘not leading an independent life’.  The rule requires an applicant to
show that they are:

"… unmarried and is not a civil partner, has not formed an independent
family unit and is not leading an independent life............"

Surprisingly, and given the frequency with which applications under

these particular provisions in the Immigration Rules are made, the AIT
were unable to identify any previous case law that gave guidance as to
the meaning of the term ‘leading an independent life’.

Following their analysis of the issue, the AIT allowed the appeal.  The
AIT summarise their principal conclusion as:

‘Where a child (who may be over 18) is seeking limited leave to

remain as the child of a parent with limited leave, in order to establish
that he is not "leading an independent life" he must not have formed
through choice a separate (and therefore independent) social unit from
his parents' family unit whether alone or with others. A child who, for
example, chooses to live away from home may be "leading an
independent life" despite some continuing financial and/or emotional
dependence upon his parents.’

Their reasoning, as they make clear, applies equally to other

immigration rules containing this requirement. The underlying purpose
of the rules is to maintain family life between parents and their
children. When the parents come to the United Kingdom, in the words
of the AIT, the rules allow ‘children to remain part of the family unit in
which they lived abroad with their parents (or sole surviving parent or
one with sole responsibility).’ The rule is ‘properly seen as a rule
providing for the continuation of "family unity"’.

At least at the time of application (and probably decision) the child

applying has to be under the age of 18 (paragraph 197(ii) of the
Immigration Rules). The difficulty posed by the facts of the case before
the AIT arose because the application was made after entry by a child
who was now an adult but to whom the rule could still apply if she
were unmarried, had not formed an independent family unit and was
not leading an independent life. The AIT held that the underlying
purpose of the rule was the same in these circumstances: ‘the
continuation and maintenance of the "family unit" with the parents’.

With this purposive interpretation of preserving family unity in mind,

the AIT gave further guidance on the requirements of the rule:

‘The child must be "unmarried", have not formed an independent

family unit" or … "not [be] leading an independent life". Clearly, these
are three distinct possibilities but, in our view, they have a common
feature. A child who has married or formed his own independent family
has separated from the family unit of his parents. He has formed his
own social unit with others. It seems to us that the third possibility
also requires the same element of "separation"; the formation of a
separate (and therefore independent) social unit from his parents'
whether alone or with others, for example a girlfriend or boyfriend.
The rule does not require that the child must be independent of
everyone; just that he must be independent of his parents. At that
point, the underlying purpose of para 197 of maintaining the family
unit with the parents is no longer engaged. Further leave to remain
should now be a matter of the child satisfying the Immigration Rules
on his own right rather than as a component of the social unit of which
he is no longer part.’

‘It is not enough that the child does make choices about his life, for
example to take up employment. This, like other choices made by the
child, may be factors to be taken into account but the crucial issue is
always to ask whether the child has, through choice, separated
from his parents' family to form his own social unit, whether
alone, by marrying or as part of his own independent social unit.
Consequently, a child who leaves his parents' home and sets up home
alone can properly be said to be "leading an independent life". This is
not the same as saying he must no longer be dependent upon his
parents or is no longer part of their family. He clearly is the latter even
if living alone and "independently" of them. The family ties remain
even if the family unit headed by the parents has now split up.
Likewise, even if living his own independent life he may be financially
dependent (at least in part) on his parents, for example they may help
him set up his separate home and, perhaps, even help him with his
rent or mortgage for a period until he has found his feet financially.
But, in our view such a person may still be seen as "leading an
independent life". Financial or emotional dependence is not, in this
context, the antithesis of "independence". Again, these are relevant
factors to be taken into account but no more.’

‘In order to satisfy the requirement … it will usually be the case that
the child makes his home with the parents. That is likely to be the
starting point and expectation for a child who is said to be part of the
parents' family unit … Nevertheless, where the child lives is no more
than a factor (albeit a potentially significant one) to be taken into
account in assessing whether a child is "leading an independent life".
We can readily foresee situations where the child may live away from
that home whilst still remaining part of the parents' social unit, for
example whilst temporarily away studying at college. On the other
hand, although no doubt not frequently, a child may be living
independently yet still be resident in its parents' home but, in effect,
be no more than a lodger paying to live there.’