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If my child is British, can I stay in the UK?

Written by
Amar Ali, Reiss Edwards
Date of Publication:
01 October 2021

If you are a foreign national with a British child and have made the decision to move to the UK, it is vital that you understand the immigration options available to you. Under the UK's immigration rules, the principal visa route for foreign nationals who want to join their family members is outlined in detail in Appendix FM (FM stands for 'family members'). This popular immigration route is intended for anyone who wishes to come to the UK on the basis of their family life with a British national or a person who has settled permanently in the UK. In this article, we will explain how a foreign national with a British child can stay in the UK by applying through the family member (FM) route.

Can I live in the UK if I have a British child?

It may be possible to move to the UK to live with and care for your British child assuming they are under 18 (on the day you submit your application to UK Visas and Immigration – UKVI) or if they were 18 when you first gained leave to remain in the UK and they do not live an independent life. The key requirement here is that the child must not be 'independent'. In real terms, this means that they are not financially independent, not married, and do not have children.

The FM route does not just apply to children who are British citizens, it also applies to:

• Irish citizens

• Those who have settled in the UK – i.e., they have indefinite leave to remain, settled status for child, or permanent residence

• EU, Switzerland, Norway, Iceland or Liechtenstein nationals with and pre-settled status under the EU Settlement Scheme (For this to apply, they must have started living in the UK before 1 January 2021)

In addition, applicants under the FM route wishing to join their eligible child in the UK must meet the parental responsibility requirements, as follows.

Meeting the parental responsibility requirements

One of the main requirements which must be fully satisfied before UKVI will grant a parent visa is that the person applying has proper sole or shared parental responsibility for the child. Where access is shared, this must be formally agreed with the parent or carer that the child normally lives with, or there must be a child access order put in place by a UK family court. The rules also say that if the child normally lives with their other parent, the parent must be a British citizen or have settled in the UK.

In addition, UKVI will want to see that the parent applying for a visa intends to take an active role in the raising of the child and will continue doing so. This may be proven by providing evidence such as:

• a letter from your child's school confirming you take them to school or go to parent evenings

• a letter to your address from the local authority confirming your child's school

• a letter from your child's doctor, dentist, or health visitor confirming that you take them to appointments

• court order paperwork confirming that your child lives with you or that you're taking an active role in their upbringing

In some cases, it may be that the parent applying to join their child does not have any such evidence. In this case, they need to consider other forms of proof such as:

• a parental agreement drafted by a solicitor and signed by you and the child's other parent

• a letter from HMRC confirming that you're claiming Child Tax Credit

• social services paperwork confirming that you spend time with your child or that you're applying for access

The risk of not having clear evidence that you have been actively involved in raising your child to date is that UKVI may reject the application. That said, there are often genuine reasons outside the control of the applicant as to why this could not happen. If this applies in your situation, we recommend engaging an immigration Solicitor who can assess your case, draft a covering letter explaining the circumstances, and provide the evidence needed to overcome this potential hurdle.

What are the other requirements for a family visa?

Applicants for a parental visa also need to show they have sufficient evidence to support themselves and their family members in the UK without the need to access public funds (i.e., benefits). They must also meet the English language requirement, either by being from an exempt country, by being aged over 65, or passing an English language test to least level A1 on the Common European Framework of Reference for Languages (CEFR) scale.

What is the 'seven-year rule'

Under the seven-year rule, even if one of the eligibility criteria listed above are not met, it may still be possible to secure a family visa as long as:

• the child is under 18 years old

• the child is in the UK

• the child has lived in the UK for at least seven years immediately prior to the application; and

• it would be unreasonable to expect the child to leave the UK.

How long can I stay in the UK to care for my British child?

Family member visas are typically granted for two years and nine months. It is possible, however, to extend this for an additional two years and six months. After five years, a person on an FM visa can apply for permanent residency (Indefinite Leave to Remain) and UK citizenship a year after that.

Wrapping up

Making a successful parental visa application is particularly important if the child needs the care and support of their parent. This is why it is so important to carefully prepare the application and provide all of the evidence needed to support the case. Immigration solicitors in the UK can prepare and/or review your application and the accompanying documents prior to being submitted for consideration.