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Immigration Rules designed to keep families together cause families to be separated

Written by
Gillian McCall, Richmond Chambers
Date of Publication:
11 September 2019

Individuals coming to the UK for work or investment purposes, such as Entrepreneurs, Innovators, Investors, Sponsored Workers and Sole Representatives, are usually able to bring family members with them, including a Spouse or Partner and children who are under the age of 18. However, there are specific rules in place which can make it difficult for some families to bring their children. In this article we will look at what the Immigration Rules require, why they are not fit for purpose and what applicants can do about it.

The Immigration Rules

The rules for Children of Points Based System Migrants and Appendix W Migrants are set out in Part 8 of the Immigration Rules. The rules for Children of Sole Representatives of Overseas businesses are contained in Part 5 and so far as is relevant for this post, are phrased in more or less the same terms as those in Part 8. For simplicity, I will refer to the Rules in Part 8.

Paragraph 319H(f) states:

(f) Both of the applicant's parents must either be lawfully present (other than as a visitor) in the UK, or being granted entry clearance or leave to remain (other than as a visitor) at the same time as the applicant or one parent must be lawfully present (other than as a visitor) in the UK and the other is being granted entry clearance or leave to remain (other than as a visitor) at the same time as the applicant, unless:

(i) The Relevant Points Based System Migrant or Appendix W Worker is the applicant's sole surviving parent, or

(ii) The Relevant Points Based System Migrant or Appendix W Worker parent has and has had sole responsibility for the applicant's upbringing, or

(iii) there are serious or compelling family or other considerations which would make it desirable not to refuse the application and suitable arrangements have been made in the UK for the applicant's care.

Who might have difficulty meeting these requirements?

These requirements are fairly straight-forward for a family to meet where both parents are planning to move to the UK and to bring their children with them. Similarly, if the PBS migrant is the child's sole surviving parent there are no difficulties.

But what about the families that don't neatly fall into these categories? Modern families can take many forms. And while by no means should anyone ever be forced to co-parent across borders, sometimes families choose to do so. The Immigration Rules, rather than facilitating this choice, do not permit it.

For example, if a family unit outside of the UK consists of a mother, who is being moved to the UK by her employer as a Sole Representative, her partner, their biological child (child A) and her child from a previous relationship (child B), there is a risk that child B will not be able to accompany the rest of the family, as in this case child B's biological father is not accompanying the family to the UK. There is no provision in the rules for the other parent to consent to the child coming to the UK.

Sometimes there are competing interests of schooling timetables and work commitments that just mean that a two parent family is not able to or does not intend to move to the UK at the same time, but that it would be best if the child could arrive in the UK with the first parent, rather than waiting for the time that the second parent will join them in the UK. Again, the rules do not allow for this decision and instead, require both parents to be either in the UK or applying at the same time as the child, in order for either parent to bring a child.

It might seem reasonable, to try to keep families together as much as possible, but this is inconsistent with other parts of the Immigration Rules. For example, Tier 4 (Child) Students are able to come to the UK without any parents at all providing they have care arrangements in place. Suitable care arrangements include staying with only one of their parents. The Parent of a Child at School category explicitly only permits one parent to accompany a child in the UK. This is therefore likely to encourage families to be separated when they want their children to be educated in the UK. So if it is permissible in one part of the rules, why not elsewhere?

Even a family that wants to be together could be caught out by these rules. If one parent is refused, the children's applications will also be refused on the basis that both parents are not being granted entry to the UK. This means that parents don't get a choice about who it is more appropriate for the children to live with. Instead, the Home Office makes this decision with only a cursory, templated reference to what is in the children's best interests.

What options do families in these circumstances have?

There are potentially three options for families, but these won't be appropriate in all circumstances.

Option 1: Both parents apply

The first is for the other parent to apply with the family, despite not intending to live on a long term basis in the UK. This is a potential route for those who have chosen for just one parent to travel.

The reason that this is possible is that Dependant Spouses under paragraph 319E are not required to intend to live in the UK for any particular length of time. The only requirement is that they intend to live with their partner in the UK when they are in the UK. Therefore, a partner who is just entering the UK for short trips to see their family would be able to do this in this category.

The problem does not necessarily go away though, it is really only delayed. The reason for this is that children cannot obtain Indefinite Leave to Remain in the UK until both parents apply (unless one parent has sole responsibility). This means that if the Dependant parent is not able to get Indefinite Leave to Remain as they do not meet the residence requirements, the children would also be unable to settle. In these circumstances their options would be to continue to extend their stay until they have been in the UK for 10 years and apply for Indefinite Leave to Remain on the basis of their long residence, or argue that due to the infrequency of the other parent's visits to the UK, that the Main Applicant parent is not in a position where they do have sole responsibility.

Option 2: Serious or compelling family or other considerations

The Rules do allow one parent, who does not have sole responsibility for a child, to nevertheless bring the child to the UK if:

'there are serious or compelling family or other considerations which would make it desirable not to refuse the application and suitable arrangements have been made in the UK for the applicant's care.'

The Home Office Guidance for Dependants does not provide any guidance on what is meant by compelling, but this is addressed in the Immigration Directorate Instructions where it states:

'The objective of this provision is to allow a child to join a parent or relative in this country only where that child could not be adequately cared for by his parents or relatives in his own country. It has never been the intention of the Rules that a child should be admitted here due to the wish of or for the benefit of other relatives in this country.'

This is therefore likely to make it very difficult for someone to apply for their children to come to the UK through their own choice, unless they can show that the other parent cannot (rather than will not, or would find it more convenient not to) look after them.

Option 3: Apply in another category

Another option is for the children to apply in another category of the Immigration Rules, which permits them to come to the UK without both parents. The most likely category to be appropriate is Tier 4 (Child) student. This does not require either parent to be in the UK. The downside of this category is that it does not lead to settlement in the UK (though potentially could if the child spends ten years in the UK), and will require the child to attend a fee paying school which holds a sponsor licence in the UK.

It may be that if circumstances change further down the line, a child could switch from this category to be their parent's Dependant, from within the UK, in order to get on a 5 year route to settlement.