One of the biggest concerns for persons looking to obtain a permit or visa is whether their partners, spouses and children will be able to stay with them in the UK. Fortunately the UK immigration rules and Immigration (European Economic Area) Regulations 2006 do make provision for dependants.
How to qualify
In order to qualify as a dependant, you must be the spouse, unmarried or civil partner of the main applicant. Children under the age of 18 years may also accompany the main applicant to the UK as dependants under the Immigration Rules. If you are applying as a dependant on someone who is an EEA national, the dependency age for children is 21.
It is sometimes possible for a child to accompany one parent to the UK, but special rules apply, and these applications are very fact centric, As a result, we advise you to contact us to ascertain your particular status.
Children over 18 need to qualify independently under the Immigration Rules for rights of residence in the UK. Exceptional applications for children over 18 to accompany parents as dependents may be possible in very restricted circumstances.
There are different maintenance requirements depending on the application being made by the main applicant, or immigration status of the sponsor, such as whether the sponsor is present and settled in the UK, the main applicant is residing in the UK on a visa, or have a right to reside under the Immigration (EEA) Regulations.
Length of stay and right to work
The length of the permit or visa will depend on whether the sponsor is present and settled in the UK, the main applicant is residing in the UK on a visa, or has a right to reside under the Immigration (EEA) Regulations. Generally speaking, where the main applicant is residing in the UK on a visa, the dependant will be granted leave in line with the main applicant. Where the sponsor is present and settled, generally speaking the dependant will be issued with a visa for 33 months. This visa must be renewed for a further 33 months, before an application for indefinite leave to remain can be made. Where an application is made under the European Regulations, the dependant will be issued with a five year permit, during which time the EEA national must be exercising a Treaty Right.
There are no work restrictions on the holder of a dependency visa.
The Rules for Dependent Children
Apart from child dependants of Points-Based System migrants (covered in the PBS course) the Immigration Rules envisage 2 situations: a child is joining a parent or parents settled in the UK, and a child is joining or entering with a parent with non Points-Based limited leave to remain. The parent may be entering the UK with limited leave as a parent of other children in the UK, or as a partner of someone who is not the child’s other parent.
A child is only admissible under these Rules while under 18 years, but age is considered as at the date of application not the date of decision (HC395, para 27). So, an entry clearance (or in-country variation) application lodged only days before the 18th birthday will not fail for this reason alone, however long it takes to be decided.
This is the only instance in the Immigration Rules where the relevant date is the date of application rather than decision. Part 8 of the Immigration Rules, which up to 9 July 2012 covered all family members, still covers in paras 296-316F the children and adopted children of British citizens and persons settled in the UK. Children of those with limited and non-PBS leave as a parent or partner are covered by sections EC-C to D-LTRC of Appendix FM.
Proof of Paternity
In any entry clearance application where the ECO is not satisfied a child applicant is related as claimed to the sponsor, DNA testing should be offered free of charge to prove the relationship (unless the children concerned have already been refused entry previously). If it is not offered and the sponsor is being advised and assisted under the Legal Help Scheme of the Legal Services Commission, the cost of the DNA test may be covered under that Scheme.
The requirements for entry for children contain two distinct issues in paragraph 297 of the Immigration Rules: the parent’s status as a British citizen or settled person; and the general entry requirements for the child applicant.
Children can apply to join parents under para 297 if:
- both parents are present and settled in the UK
- both parents are being admitted for settlement
- one parent is settled and the other is being admitted
- one parent is settled and the other has died
- one parent is settled and has had sole responsibility for the child’s upbringing
- one parent or another relative is settled and there are ‘serious and compelling family or other considerations which make exclusion of the child undesirable and suitable arrangements have been made for the child’s care’.
The general entry requirements for children under para 297 are that the applicant:
- is under 18 years
- is not leading an independent life, is unmarried and has not formed an independent family unit
- will be accommodated adequately without recourse to public funds by the parents in accommodation they own or occupy exclusively
- can be maintained adequately without recourse to public funds
- if seeking entry, holds a valid entry clearance for this purpose (switching may be permitted).
- has no unspent convictions
Whilst paragraph 297(v) of HC 395 states that a child must be maintained adequately by the parent or relative he/she is joining, without recourse to public funds, the Supreme Court in Mahad v ECO  UKSC 16 held in effect that third-party support was permitted, although it might be difficult to establish satisfactorily the availability of such long-term support. This reversed the previous case law that parents had to supply maintenance for children, and reverted to much earlier case law on the admissibility of third-party support subject to evidence that it was genuinely available. Chapter 8 of the IDIs on Family Members – Maintenance and Accommodation does acknowledge that third party support can be provided although the guidance relates it to where the Immigration Rules still require “adequate” maintenance and accommodation rather than the categories in Appendix FM. The third party supporter would probably be asked to become a joint sponsor and sign a formal undertaking.
Entry Clearance for a Child who is Joining or Coming to the UK with a Parent with Limited Leave to Remain
Note that this does not apply to Points-Based dependants. The child will have the same essential characteristics as a child under para 297 but the parent will have limited leave as a parent or partner of someone who is not the child’s British or settled parent. In this situation the child is subject to the stringent financial requirements of Appendix FM on joint income of the parent and partner (£18,600 pa gross plus £3,800 pa gross for the first child and £2,400 pa gross for each subsequent child unless the parent’s partner is in receipt of Disability Living Allowance or similar in which case it is “adequate” maintenance.
Joining one parent in the UK
The sole responsibility test does not need to be met over any particular period of time. Where relatives overseas have become unable to care for a child any longer, sole responsibility may be passed to the UK-resident parent.
It may be harder to show sufficient evidence if the period relied on to establish sole responsibility is a short one. The sole responsibility test does not need to be met over any particular period of time. The application will usually need to show more than financial dependence and regular contact, though evidence of both these should be obtained. Where relatives overseas have become unable to care for a child any longer, sole responsibility may be passed to the UK- resident parent. The child will have been cared for day to day by someone else, often a grandparent or an aunt but not necessarily a relative. It will help to show, perhaps through letters or a statement from the relative, that this person has asked for the parent’s opinion before taking important decisions in the child’s life.
It is arguable that sole responsibility may be exercised by a parent even when the financial support of his children abroad is largely by contributions from other members of the household. He may be regarded as the head of the household who controls the disposition of such contributions. Refer to NA (Bangladesh) v ECO, Dacca  EWCA Civ 128.
The principal factor in establishing whether the parent in the UK has had sole responsibility for the child’s upbringing will be whether that parent has taken the main decisions in the child’s life and exercised control over how the child is brought up by the person who has the day-to-day care of the child. If the other parent has also been playing an active part in the child’s life, it will be rare not to find shared responsibility. Refer to TD (Paragraph 297(i)(e): sole responsibility)  UKAIT 49.
If the sole responsibility test cannot be met, there is an alternative in the exclusion undesirable test. Paragraph 297(i)(f) of HC 395 where there are “serious and compelling family or other considerations which make exclusion of the child undesirable as suitable arrangements have been made of the child’s care” permits entry to join another relative, not just a parent. In practice any application to join a relative other than a parent would have to be made under this Rule.
Whether exclusion is undesirable refers to the sponsor’s circumstances as well as that of the applicant, even though the IDIs state that where the UK sponsor is not a parent or settled in the UK, only factors relating to the child should be considered. Such factors as poverty, unemployment and overcrowding in the home country are not necessarily sufficient, but should not be compared to what would be available for a child in the UK. Equally, even though conditions may be worse for other children in the home country, it does not mean that the exclusion of an applicant becomes justified.
The Rules covering the entry and settlement of adopted children are complex. A child adopted by settled parents in these cases has the same rights under the Rules as a natural child, and there are no extra requirements to meet.
International agreement was reached on the mutual recognition of adoption arrangements in the Hague Convention, and this has been brought into force by the Adoption (Intercountry Aspects) Act 1999. Among its provisions, it includes automatic recognition of the proceedings in another signatory State, to the extent that if either of the adoptive parents is a British citizen, a child takes British citizenship directly, by virtue of the court order in the other country.
Children adopted in countries not on the approved lists or not British citizens by adoption have to meet more stringent rules, and so do the children of a ‘de facto adoption’, where the care of a child has been effectively transferred, so that she is treated like a child of the family, without any formal proceedings having taken place.
The extra requirements they must meet, in addition to those for all children, are that they must show (HC 395, Paragraphs 309A-310):
- the parents have been living together outside the UK for a period of at least 18 months
- they have been living with the child for at least the final twelve months
- they have had full parental responsibility for at least 18 months
- the child has ‘the same rights and obligations as any other child’ of the adoptive parents’ family
- the adoption has been because of the inability of the original parents to care for the child
- there has been a ‘genuine transfer of parental responsibility’
- ties with the family of birth have been broken or lost
- it is not an adoption of convenience.
These strict rules mean that a child will not generally be admitted where the adoption has come about mainly because of the parents’ desire to adopt rather than the child’s need for adoption (but refer to Pawandeep Singh v ECO  EWCA Civ 1075, for the relevance of human rights claims). The appeal was allowed on the basis that the refusal of entry clearance was a breach of Article 8, even though the adoption did not meet the requirements of para 310 of HC 395. There was family life between the adopted parents in the UK and the child, and the potential for development of family life was a relevant consideration. This was despite there being no inability by the natural parents to care for the child. In other cases, however, the Court of Appeal has said that para 310 should not be used where a child was handed over for adoption through choice, rather than an inability to care for him/her.
Where there has been no formal adoption in another country, and the family have not been living together in a de facto relationship, they may wish to sponsor a child for entry for the purpose of legally adopting him or her in the UK (HC 395, Paragraph 316A). Entry for the purposes of a de facto adoption is not permitted. The requirements in this case are the same as for a child who has been adopted in a country whose orders are not recognised, such as Pakistan and India. Other countries such as Jamaica and Nigeria are on the Designated List.
Although adopted children and those coming to the UK for adoption are still covered by paras 310-316F in Part 8, Appendix FM imposes additional requirements if the non-British or settled adoptive parent is applying as a partner for entry clearance or limited leave to remain.
The Rules bar the children of polygamous marriage, if the parent is barred from entry. But, this Rule cannot apply if the child has the Right of Abode, so if one or both parents was a British citizen before the child’s birth, the child will be a British citizen by descent. In these cases, the child would have the same right of entry as any other British citizen, so even if the child’s mother is refused because there is another wife of the polygamous marriage, the child would be able to enter freely.
It is possible for dependants to obtain Indefinite Leave to Remain, provided that the main applicant obtains Indefinite Leave to Remain at the same time, and the dependant has spent sufficient time in the UK over the preceding period as applicable in each individual case. Where the sponsor is already present and settled in the UK, generally speaking the dependant must spend a probationary period of 60 months in the UK before applying for settlement. Dependants under the European Regulations are required to spend a period of five years in the UK, during which time the EEA national must be exercising a Treaty right, before applying for confirmation of the right of permanent residence.