Dependent Children in UK Work Visa Routes

Dependent Children in UK Work Visa Routes

John is a Skilled Worker in the UK. His son, Stephen, is 15 years old. He lives abroad and wants to join John in the UK as a dependent child of a Skilled Worker. Stephen’s mother, Gwen, separated from John when Stephen was only 5 years old. After separation, Stephen continued living with his father. Although they are still officially married, Gwen has not seen Stephen for many years. She did not play any role in the child’s upbringing.

Will Stephen encounter any challenges when making such an application?

This topic involves discussion of many elements. For your ease of reference, I have divided this article into two parts. This is part 1 of 2. You can read part two HERE.

Three Requirements

Generally, the rules allow dependent partners and children to join a Skilled Worker in the UK. To succeed in such an application, Stephen will need to meet the following 3 requirements:

1. Age and Independent Life Requirement
2. Care Requirement
3. Relationship Requirement

Age and Independent Life Requirement

First of all, if applying outside the UK, Stephen needs to be under 18.

However, a child may be over 18 on the date of application if they were last granted permission as the dependent child of their parent.

Also, Stephen needs to prove that he is not leading an independent life.

According to the Home Office rules, this means:

1. living with their parents (except where they are at boarding school, college or university as part of their full-time education)
2. is not employed full-time (unless aged 18 years or over)
3. is wholly or mainly dependent upon their parents for financial support (unless aged 18 years or above), and
4. is wholly or mainly dependent upon their parents for emotional support.

Care Requirement

Once the above requirement is satisfied, the next step will be for Stephen and his father to prove that they meet the care requirement. In other words, John needs to demonstrate that he has suitable arrangements for the child’s care and accommodation in the UK that comply with relevant UK law. This means that Stephen will need to have exclusive use of the property and that there are sufficient rooms for the family to live in.

The Relationship Requirement

This is the most challenging aspect of Stephen’s application. This is because, in addition to proving that Stephen is John’s child and intends to join John, who is in the UK as a Skilled Worker, they’ll generally need to show that the second parent is either in the UK already (not as a visitor) or is applying with the child at the same time.

There are 3 exceptions to this rule:

1. The Skilled Worker parent is the sole surviving parent or has sole responsibility for the child’s upbringing; or
2. The second parent, who does not have permission:
   • is a British citizen or a person who has a right to enter or stay in the UK without restriction; and
   • lives, or intends to live, in the UK; or
3. there are serious and compelling reasons to grant the child’s visa application.

In our case scenario, the 3^rd exception applies.

 

Common Misconception

Most parents assume that if one parent travels to the UK and the other stays behind, the child should be automatically allowed to join the one who intends to live in the UK. Sadly, this is not the case.

In these case scenarios, the UKVI will only allow for the child to join his parent in the UK if they can prove serious and compelling reasons for a child to do so.

Why is it so hard for the child to join the parent in the UK in these circumstances? The Home Office is concerned that children will become a burden on the UK education system. They have introduced the ‘serious compelling reasons’ test to deter applicants like Stephen and John from using the UK solely to obtain free education and to access the social security system.

Serious and Compelling Reasons

Proving serious compelling reasons is not a straightforward matter. John and Stephen will need to gather strong, objective evidence to demonstrate that these reasons exist.

They can do so proving that if the Home Office does not grant the application, Stephen will be separated (excluded) from John and that such an exclusion will be detrimental to Stephen’s wellbeing.

 Exclusion Undesirable

When making an assessment, the decision-maker will focus on the circumstances of the child’s life, age, and social background. They’ll check if there was evidence of neglect or abuse, which is, most likely, not relevant in John’s and Stephen’s case. Also, whether there are unmet needs that should be catered to and if there are stable arrangements for the child’s physical care.

This is a highly fact-sensitive matter and will all depend on the family’s circumstances and the evidence provided to prove them. It doesn’t cover situations where it is more ‘convenient’ or it is simply the ‘desire’ of both parents for their child to move to the UK.

The Best Interest of the Child

Section 55 of the Borders, Citizenship and Immigration Act 2009 is a very powerful section which places an obligation (a statutory duty, in fact) on the decision-maker to assess and take into account the need to safeguard and promote the welfare of children. However, this section does not apply to children who are outside the UK.

Sole Responsibility

Another valid argument will be that John has sole parental responsibility for Stephen.

In almost all cases, the UKVI should agree that it will be in the child’s best interests to live with their UK-based parent.

According to the UKVI’s guidance, ‘sole parental responsibility’ means that one parent has abdicated or abandoned parental responsibility, and the remaining parent is exercising sole control in setting and providing the day-to-day direction for the child’s welfare.

If the child intends to live with a carer or a relative as a result of the Skilled Worker moving to the UK and the other parent cannot or does not want to provide care, then it will be a very strong argument for the child to be admitted to the UK.

Factors to Consider with Sole Responsibility Cases

In very simple terms, the sole responsibility test consists of three main parts:

1. legal responsibility (i.e. legal custody of the child);
2. financial responsibility; and
3. emotional responsibility.

When assessing this, the Home Office consider many factors, including (but not limited to) the following:

• who made major decisions in relation to Stephen’s upbringing
• was this done with Gwen’s input?
• was John responsible for Stephen’s welfare and for what happens to him in key areas of his life, and that Gwen does not share this responsibility for the child
• does John have exclusive responsibility for:
  • making decisions regarding Stephen’s education, health and medical treatment, religion, residence, holidays, mode of dress and recreation;
  • protecting Stephen and providing him with appropriate direction and guidance
• where has Stephen been residing before making an application
• who makes legal representation on Stephen’s behalf?
• did Stephen have sole responsibility for a substantial amount of time?

click HERE to continue reading part 2.