When a child cannot make an EUSS application

Danielle Cohen
By Danielle Cohen Immigration Law Solicitor Linkedin
Danielle Cohen has over 20 years of experience as a lawyer and a reputation for offering professional, honest and expert advice.
9 January 2024

We acted on behalf of a South African child in an application for leave outside the immigration rules. The Applicant’s father is a South African national who was a widower following the death of his wife, who was an EU national. She entered the UK to exercise treaty rights as a European citizen under the EU Directive 2004/38/EC and her husband followed her in the UK under the EU Settlement Scheme Family Permit. The husband had two children from a previous relationship. The older child came and joined the family before the EU national passed away, but the youngest child remained living alone with his biological mother. Sadly, these arrangements could not continue and the application to bring him to the UK had to be made. The child has suffered greatly being away from his family and having to live with his mother who suffered with mental health issues for many years. The child also had learning difficulties and there was no one to provide him with the day-to-day care. Whilst the application for the elder brother was successful (as he came to the UK as a member of the EU household), the Applicant could not make an application under the EUSS as he did not meet the requirement of section EU14a of Appendix EU. This is because he was not joining a family member, as the EU national died and the father was not himself an EU national. The father was a family member who retained a right of residence by virtue of the relationship but, given that the child never lived with his father in the UK, he would not benefit from the retention of rights provisions. Therefore, we made an application for entry clearance under Appendix FM arguing under GN3.21 that the application should be made because of the exceptional circumstances where to refuse the application would result in unjustifiably harsh consequences for the Applicant. The assessment of the proportionality was whether a fair balance is to be struck between the competing public and private interest and we have successfully managed to prove that it is the best interest of this particular child to join the family in the UK. The application was successful.

The expertise in this case was in identifying the legal position of the father and his eldest child under the EU Settlement Scheme. The key concern in relation to the applicant was that he was not “joining family member” and “relevant sponsor” as defined at Annex 1 to Appendix EU and in any event, an application was not made before 1st July 2021 which was the required date for such an application as defined at Annex 1 to Appendix EU. As the child was not eligible under the EUSS, we decided to make it on the basis of his relationship with the father and prior to reaching the age of 18.