Entry Clearance applications for Children

Applicants who wish to migrate to the UK often have to arrange for applications for their dependants to accompany or join them. A dependant is any of the following:

• Child under 18 years of age
• Husband, wife, civil partners
• Unmarried/same sex partner

Migrants often mistakenly overlook many important factors when preparing and submitting entry applications for their children to accompany/join them in the UK and are often disappointed when applications are refused. Further, applicants who have children over the age of 18 but who are dependant on the applicant face tough decisions under the UK Immigration Rules. The applicant will in most cases need to arrange for their ‘adult’ child to enter the UK under an alternative immigration route.

In contrast, the EEA Regulations are more lenient with respect to the age which children are considered “dependant”. European law permits children up to the age of 21 to accompany or join family members in the UK. However in both cases (i.e under both UK and European law) children who are not financially dependant on their parents and are leading independent lives or are married or have formed an independent family unit will not be considered as a ‘dependant child’.

There are also further issues which need to be addressed in relation to situations where children have parents who are separated, divorced and/or share custody of the children. These issues can complicate applications where the migrant coming to the UK may not have sole responsibility of their child or a custody order or the necessary evidence to satisfy the Entry Clearance Officer that the other parent is satisfied for the child to go to the UK.

It is therefore recommended that where there are issues of complexity and ambiguity, applicants should seek immigration advice and clarify the issues at stake. We at XANTO TRADING LLP. have extensive experience in handling dependant applications, particularly where children are the applicants involved.

The requirements for child applications under the UK Immigration rules will now be explained in turn. We have identified the following common categories of applications:

A. Dependant Children of a person present and settled in the UK
B. Dependant Children of a person who has limited leave to remain in the UK
C. Dependant children of an EEA national exercising treaty rights in the UK

A. Dependant Children of a person present and settled in the UK

Children who have parents who are settled in the UK are able to join them here and be granted indefinite leave to remain in the first instance. There are however several conditions that need to be satisfied before the children can qualify. These are as follows:

• One parent must be present and settled in the UK and the other should be applying to be admitted on the same occasion for settlement; or
• One parent must be present and settled in the UK or should be applying to be admitted on the same occasion for settlement and the other parent is dead; or
• One parent must be present and settled in the UK or applying to be admitted on the same occasion for settlement and has had sole responsibility for the child`s upbringing; or
• One parent or the relative must be present and settled in the UK or applying to be admitted on the same occasion for settlement and there are serious and compelling family or other considerations which make exclusions of the child undesirable and suitable arrangements have been made for the child`s care.

The application of a child for indefinite leave to enter can be refused on any of the above-mentioned issues and immense care and detail to attention is required in the preparation and submission of any such application.

The rule of “Sole Responsibility” is also observed strictly and involvement of the other parent in the upbringing of the child ‘may’ lead to the conclusion that the sponsoring parent does not have sole responsibility of the child or have responsibility of the major decisions in the child’s life.

It is possible that even having regular contact with the other parent can serve as an indication that the sponsoring parent does not have ‘sole responsibility’ and this may well lead to an adverse decision on an entry clearance application. We recommend that you approach accredited immigration advisers, such as XANTO TRADING LLP. in relation to problematic applications.

B. Dependant Children of a person who has limited leave to remain in the UK

Most long term category visas under the UK Immigration Rules permit individuals to apply to bring their dependants with them (or to join them) in the UK which would include children under the age of 18 years.

The children are normally given the same period of limited leave to remain as their parents have and will be expected to apply for an extension in line with any extension application the parent makes.

There are some cases when children under the age of 18 who have entered the UK as dependants of their parents eventually do become 18. These children whilst still holding valid limited leave to remain as a dependant are still considered to be “dependant” and can further apply for extension / indefinite leave to remain in line with their parents.

Children who hold dependant visas in the UK are given full rights of access to public schooling and access to the NHS, however they are unable to seek assistance from UK public funds.

The same rules concerning “sole responsibility” and funds for maintenance as well as accommodation in the UK are also applied to applications for dependant children of individuals with limited leave to remain.

C. Dependant children of an EEA national exercising treaty rights in the UK

The children of EEA nationals exercising Treaty Rights in the UK are permitted to join their parents in the UK up until the age of 21. They are required however to comply with the same requirements with regards to not being married or having formed an independent family unit and being financially independent.

In addition, an Entry Clearance application will also mean that the applicants will be required to meet the requirements similar to those under the UK Immigration Rules for leave to enter the UK as the child of a person present and settled in the UK.

The child applying to join their parent (s) (if not an EEA national themselves), can apply to enter the UK on a family permit which is valid for six months. Once the six months expiry date looms, the child will need to apply for an extension of their stay in the UK either by submitting an application for FMRS (family member residence stamp – if the sponsoring parent is registered under the workers registration scheme) or a residence card (if the sponsoring parent is not required to register under the workers registration scheme and is exercising treaty rights in the UK).

Once the child has been residing in the UK together with the sponsoring parent(s) for five years, the child is eligible for permanent residence in the UK.

The main differences between the UK Immigration Rules and the EEA regulations is therefore the age requirement for ‘dependant’ children and the type of visa they are issued.

The rules on “sole responsibility” are not as simple as they appear and therefore can provide scope for the Entry Clearance Officer to refuse an application for a child intending to accompany / join his sponsoring parent in the UK. This is a mixed matter of fact and law and should be professionally dealt with as the future of the child lies at stake and in short depends on this application.

It is therefore always advisable to seek independent professional advice before lodging any immigration applications on behalf of the child.

Our Services

We can advise on the procedure of a child-dependant application and discuss the merits of the application.

We can advise on the procedure involved for applying for applications for children who have two parents in different locations

We can advise on the evidence required for the entry clearance application.

We can advise on the merits of an appeal – should the application be refused and attract a right of appeal.

Whatever the case, we are here to help, assist, advise and represent our clients in relation to any aspect of your immigration matter.