If you are a British citizen and you are currently living abroad and would like to bring your child with you to the UK, or you are already in the UK with limited or indefinite leave to remain and wish for your children to join you, there are provisions in the UK Immigration Rules to enable you to do so on the basis of their relationship to you as a ‘dependant child’.

UK Entry Clearance

The rules are different depending on whether you, as a parent, have been granted limited leave, or indefinite leave to remain in the UK.

If you, as a parent, have or are applying for limited leave to remain in the UK, the entry clearance requirements for your child are as follows:

  • The child must be under the age of 18 at the date of application;
  • The child must not be married or in a civil partnership;
  • The child must not have formed an independent family unit;
  • The child must not be leading an independent life; and
  • Either your current partner is the child’s other parent, or you have had and continue to have sole responsibility for the child’s upbringing.

Part 8 of the Immigration Rules

If you have been granted Indefinite Leave to Remain in the UK, or you are British and you would like to apply for your child to join you in the UK, a different part of the Immigration Rules will apply to you – Part 8.

Sole Responsibility

One of the requirements for entrance to the UK as a child of a parent, is that the applicant must show that the parent inviting the child has sole responsibility for the child’s upbringing.

This is a factual matter to prove and will be decided based upon all the evidence we provide with the application. The term responsibility in the Immigration Rules should not be understood as referring to theoretical or legal obligations but rather as a practical one. In other words, in each case we need to look at the facts of the case and see who is exercising responsibility for the child.

The responsibility may have been exercised for a short or long duration. Responsibility for the child’s upbringing may be undertaken by individuals other than the child’s parents and may be shared between different individuals. The issue of sole responsibility is not just a matter between parents. This means that even if only one parent is involved in a child’s upbringing, that parent may not have sole responsibility.

It is understandable that when a parent lives in another country the day to day responsibility or decision making for the child’s welfare may necessarily be shared with others such as relatives or friends because of the geographical separation. However, this does not prevent a parent having sole responsibility within the meaning of the Rules. The test is not whether anyone else has day to day responsibility in the child’s life, but whether the parent has continuing control and direction of the child’s upbringing. In other words, the key question is does the parent in the UK make all the important decisions in the child’s life.

Evidential Burden

In order to succeed in an application, the entry clearance officers must be provided with all the evidence that goes to show that the requirements of the Immigration Rules are satisfied. The Applicant needs to demonstrate financial and emotional support, ongoing communications, the delegation of duties and if there are serious and compelling reasons, why the exclusion of the child is undesirable.

Applying for Indefinite Leave to Remain for a Child

An application for Indefinite Leave To Remain as a child is covered by Immigration Rule 298.  The application is to be made by a child of a parent or parents, or a relative who is present and settled in the UK and who is seeking to remain with them in the UK in one of the following circumstances:

  1. Both parents are present and settled in the UK; or
  2. One parent is present and settled in the UK and the other parent is dead; or
  3. One parent is present and settled in the UK and has sole responsibility for the child’s upbringing or the child normally lives with this parent and not the other parent; or
  4. One parent or relative is present and settled in the UK and there are serious and compelling family or other considerations which make the exclusion of the child undesirable and suitable arrangements have been made for the child’s care and he or she had limited leave to remain in the UK and is still under the age of 18 and was given leave to enter with a view to settlement.

The leading case with regard to best interest is ZH (Tanzania) v SSHD [2011] where the Supreme Court concluded that any decision which is taken, without having regard to the need to safeguard and promote the welfare of any children involved, would not be in accordance with the law (in other words would not be lawful).  The term “best interests” broadly describes the well-being of the child but it doesn’t offer a precise definition. Therefore, the best interests of a child- must be determined on a case by case basis.

There are a wide range of situations in which adopted and ‘kefalah’ children are moved to and from the UK.  Many of these children and their adopters approach Local Authorities for advice and some have to approach family solicitors who specialise in dealings with the Family Courts. 

Adoption

The term “adoption” is defined by ACAS66 to constitute the following:

*        Adoptions orders made by a Court in the UK and islands

*        Certified Hague Convention adoption orders  – The Article 23 certification confirms such adoption order was made in compliance with the requirements set out in  the Hague Convention on Protection of Children and Co-operation in respect of Intercountry Adoption 1993 (1993 Hague Convention).The adoption is effected in English law when it is certified, not when the order is made.

*       ‘Overseas adoptions’, also known as recognised or designated list adoptions – are adoptions effected under the law (not including customary and common law) of a country or territory listed in a regulation. These adoptions take effect as if the orders were made by a UK court.

*        Foreign adoptions recognised under the High Court’s inherent jurisdiction and in accordance with common law.

UK Immigration law also recognises the relationship termed ‘de facto adoption’ where persons have lived with and looked after a child outside the UK for at least 18 months as if they were his parents.  This de facto adoption is not an adoption under UK family law and the parents do not have parental responsibility for the child, even though their de facto adoption is recognised as a basis for admitting the de facto adopted child to the UK under the Immigration Rules.  

What is Kefalah and Guardianship?

A Kefalah is an Islamic Guardianship Order which is arranged and established in a variety of ways via judicial or administrative decision. These arrangements are similar to other child protection arrangements such as guardianship or simple adoption, but cannot be fully assimilated to this relationship.  Kefalah does not create a child/parent relationship and the child does not have inheritance rights from the guardians and the Kefalah comes to an end when the child reaches his majority.  The Kefalah may be revoked at the request of the biological parents.  We have experience on assisting in applications on the basis of human rights for those children who were adopted via the Kefalah route.

What is a Hague Convention Adoption?

The Convention provides for mutual recognition as between all contracting Hague party states of certified Hague adoption.  A list of the contracting parties to the 1993 Hague Convention can be found on its web site and this Convention Adoption must comply with a set of Convention procedures and with Part 3 of the Adoptions with a Foreign Element Regulations 2005.  The Convention Adoption Order can be made by a Court in the child’s or adopters’ home country. A certified Convention Adoption is recognised in all Hague states. If a single adopter is a British citizen or one of a couple is a British citizen, and the sole or both adopters are habitually resident in the UK when the Convention Order is effected, a child acquires British citizenship on the effecting of the Convention Adoption Order.

What is a recognised or designated list overseas adoption? 

An Overseas Adoption Order made on or after 3rd January 2014 will automatically recognise in England, Wales and Scotland if the Adoption Order was made pursuant to statute/regulatory laws in a country or territory listed in the schedule to the Adoption (Recognition of Overseas Adoptions) Order 2013.  Such adoptions are termed ‘Overseas Adoptions’.

Articles Related To Family Immigration and FM appendix.

Danielle is an experienced Immigration Lawyer, and together with her team of Immigration Solicitors, she will be able to give you comprehensive advice on the relevant requirements, help you to gather the right evidence and aim to make the process as clear and straightforward as possible. If you would like Danielle and her team to assist with your application, or you have a general query please do not hesitate to contact us or call us on 020 7267 4133.

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