Factors an Entry Clearance Officer will take into consideration
Read the more recent guide: Settlement visas for dependent relatives !
16th April 2009: For those who have permanent, settled status in the UK such as British Citizenship or Indefinite Leave To Remain, such individuals are eligible to apply to bring over their dependant relatives who live abroad, for settlement purposes in certain circumstances.
It is fair to state that the UK immigration system is overall a fair and compassionate system. The UK has an excellent track record of Human Rights and the Immigration Rules are geared towards respecting an individual’s private and family life and the Human Rights Act 1998 confers the UK government to abide by a more powerful law than Domestic law when assessing an individual’s immigration status, which can often be more favourable to an individual’s immigration application.
Dependant relatives include: children, parents, grandparents and other dependent relatives of persons present and settled in the United Kingdom.
The requirements for indefinite leave to enter the United Kingdom as the child of a parent, parents or a relative present and settled or being admitted for settlement in the United Kingdom are that:
(i) the child must be seeking leave to enter to accompany or join a parent, parents or a relative in one of the following circumstances:
(a) both parents are present and settled in the United Kingdom; or
(b) both parents are being admitted on the same occasion for settlement; or
(c) one parent is present and settled in the United Kingdom and the other is being admitted on the same occasion for settlement; or
(d) one parent is present and settled in the United Kingdom or being admitted on the same occasion for settlement and the other parent is dead; or
(e) one parent is present and settled in the United Kingdom or being admitted on the same occasion for settlement and has had sole responsibility for the child's upbringing; or
(f) one parent or a relative is present and settled in the United Kingdom or being admitted on the same occasion for settlement 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; and
(ii) the child is under the age of 18; and
(iii) the child is not leading an independent life, is unmarried and is not a civil partner, and has not formed an independent family unit; and
(iv) the child can, and will, be accommodated adequately by the parent, parents or relative the child is seeking to join without recourse to public funds in accommodation which the parent, parents or relative the child is seeking to join, own or occupy exclusively; and
(v) the child can, and will, be maintained adequately by the parent, parents, or relative the child is seeking to join, without recourse to public funds; and
(vi) holds a valid United Kingdom entry clearance for entry in this capacity.
Perhaps the most important requirement is to satisfy that of sole responsibility. In order to fulfil the 'sole responsibility' requirement of the Rules, a sponsoring parent must be able to show that he or she has been solely responsible for exercising parental care over the child for a substantial period. This is in contrast to the concept of the ordinary family unit where responsibility for the child's upbringing is shared between both parents. It will need to be shown that sponsoring parent has consistently supported the child, either by direct personal care or by regular and substantial financial remittances.
If the sponsoring parent and child are separated, the child will normally be expected to have been in the care of that parent's relatives rather than the relatives of the other parent. This means, for example, that an application by a child to join his/her mother in the United Kingdom on the basis of sole responsibility should normally be refused if it transpires that the child has been in the care of his/her paternal relatives and that the father lives nearby and takes an active interest in the child's welfare.
An Entry Clearance Officer will take the following factors into consideration in assessing sole responsibility:
• If the parents' marriage/civil partnership has been dissolved, one of the parents must have been awarded legal custody, which includes assumption of responsibility for the child.
• Does the marriage/civil partnership subsist, but the parents do not live together?
• Are the parents married/in a civil partnership?
• If the parent migrated to the UK:
o how long has the parent been separated from the child?
o what were the arrangements for the care of the child before and after the parent migrated?
o what has been/what is the parent's relationship with the child?
• By whom, and in what proportions, is the cost of the child's maintenance borne?
• Who takes the important decisions about the child's upbringing, for example where the child lives, the choice of school, religious practice etc?
Substantial documentary evidence must be included in the entry clearance application which will be submitted to an Entry Clearance Officer at the British Embassy closest to the where the child lives. The kind of evidence to be included is: birth certificates, evidence of legal custody, money transfer receipts, photographs of the sponsoring parents with the child over a period of time, sworn affidavits from relatives looking after the child in the absence of the sponsoring parent, the parent’s divorce certificate and evidence of the sponsoring parent’s legal residence in the UK.
Assuming that the entry clearance application is detailed, thorough and complies with the immigration rules outlined above, then the child should be granted a visa to join his/her parent(s) in the UK.
In addition, it is possible for a parent, grandparent or other dependent relative of a person present and settled in the United Kingdom to apply for settlement so long as they can satisfy that he/she:
(i) is related to a person present and settled in the United Kingdom in one of the following ways:
(a) mother or grandmother who is a widow aged 65 years or over; or
(b) father or grandfather who is a widower aged 65 years or over; or
(c) parents or grandparents travelling together of whom at least one is aged 65 or over; or
(d) a parent or grandparent aged 65 or over who has entered into a second relationship of marriage or civil partnership but cannot look to the spouse, civil partner or children of that second relationship for financial support; and where the person settled in the United Kingdom is able and willing to maintain the parent or grandparent and any spouse or civil partner or child of the second relationship who would be admissible as a dependant; or
(e) parent or grandparent under the age of 65 if living alone outside the United Kingdom in the most exceptional compassionate circumstances and mainly dependent financially on relatives settled in the United Kingdom; or
(f) the son, daughter, sister, brother, uncle or aunt over the age of 18 if living alone outside the United Kingdom in the most exceptional compassionate circumstances and mainly dependent financially on relatives settled in the United Kingdom; and
(ii) is joining or accompanying a person who is present and settled in the United Kingdom or who is on the same occasion being admitted for settlement; and
(iii) is financially wholly or mainly dependent on the relative present and settled in the United Kingdom; and
(iv) can, and will, be accommodated adequately, together with any dependants, without recourse to public funds, in accommodation which the sponsor owns or occupies exclusively; and
(iva) can, and will, be maintained adequately, together with any dependants, without recourse to public funds; and
(v) has no other close relatives in his own country to whom he could turn for financial support; and
(vi) if seeking leave to enter, holds a valid United Kingdom entry clearance for entry in this capacity.
Perhaps the most important requirement is to satisfy is that of dependency in the context of financial dependence and emotional and physical dependence.
Evidence of financial support may be:
• payments from the sponsor necessary because the applicant is unable to finance himself/herself, possibly from a small pension;
• a house provided by the sponsor;
• rent from land or property owned by the sponsor and paid to the applicant.
The Entry Clearance Officer will also consider whether there is a close relative in the applicant’s own country who, while not necessarily is able and willing to maintain the applicant as can the sponsor in the UK, has both the ability and the willingness to provide a home and/or financial support so as to make it reasonable to expect the applicant to depend on that relative rather than on the sponsor. The ability to provide continuing financial support can be a collective one shared amongst several close relatives.
In summary, it is important to ensure that an entry clearance application for a Dependant to live in the UK is made in strict accordance with the immigration rules and is supported by a vast amount of documentation so there is not doubt on the balance of probabilities, that the Dependant relative is a person who should benefit from the UK immigration laws.
PLEASE REGISTER IN OUR FORUM and post your question under the appropriate category (‘SETTLEMENT').
Greenfield Solicitors will answer them regularly.
By Raheela Hussain,
Senior Immigration Accredited Specialist
The above article is meant to be relied upon as an informative article and in no way constitutes legal advice. For legal advice regarding your case, please contact Greenfields Solicitors for a Consultation with a Solicitor.