Immigration rules and the meaning of sole responsibility for children
As London immigration solicitors we are often consulted by parents who, after a separation or divorce from their foreign national husband or wife, want to bring their children to live with them in the UK. Achieving a parent’s goal of reunification with their children is often far harder to achieve than the average person would anticipate.
The complexities in sorting out the arrival of children into the UK stems in part from the Home Office immigration rules that say that a UK parent must have ‘sole responsibility’ for their children in order to meet the immigration test for their children to gain UK entry. The requirement that one parent has ‘sole responsibility’ for their children flies in the face of current UK parenting philosophy and UK children law that both parents share responsibility for their children. In the UK, the ideal scenario from the family court perspective, is that provided that a shared parenting regime meets the children’s needs, children of separated parents should be co-parented by their mothers and fathers.
Why does the Home Office place such emphasis on one parent having sole responsibility for the children? The Home Office guidance acknowledges the expense of educating and providing state benefits and health care for children entering the UK to live with a parent. This may explain the emphasis on ‘sole responsibility’ for children as the concept of sole responsibility is far harder for top London immigration solicitors to establish than showing that both parents share parental responsibility for their children and want to continue to play a role in their lives.
The complexity of the rules on sole responsibility has meant that parents need to take expert advice from the top London immigration solicitors to stand the best chance of successfully bringing their children to the UK.
What is the Home Office test of sole responsibility for a child?
Under Home Office rules and regulations, children under the age of 18 can ask permission to enter the UK to either accompany or join a parent who is present and settled in the UK. The caveat though is that the parent who is present and settled in the UK must have sole responsibility for the children.
Sole responsibility is defined by Home Office rules as:
- Legal responsibility;
- Financial responsibility;
- Responsibility for making decisions on the children’s upbringing.
Home Office guidance on assessing if a parent has sole responsibility for their children
The Home Office has produced a set of criteria for Home Office officials to consider when deciding whether or not a parent has sole responsibility for their children. The criteria includes:
- Which parent has the day to day control of the children
- Which parent spends a substantial amount of time with the children;
- Which parent financially supports the children - if both parents provide financially for the children then the parent who is claiming sole responsibility for the children must be able to establish that he or she provides most of the financial support and resources to maintain the children;
- Which parent makes the decisions about the children’s upbringing, for example the children’s faith, type of schooling, whether they undergo medical procedures and have medical treatment etc. The parent who is asserting that they have sole responsibility for the children must be able to demonstrate that they have all or exclusive responsibility for the making of all major decisions about the children’s upbringing;
- Contact with the children – how much time does each parent spend with the children. This question is particularly relevant for the parent who is living in the UK.
The Home Office guidance shows that for a parent to be successful it is not simply a case of producing a child custody order or child arrangements order relating to the children. Legal responsibility for the children is only one part of the ‘sole responsibility’ criteria.
The complexity of the definition of sole responsibility for children has resulted in the court making a number of decisions on what the court considers to be sole responsibility for children. That is why it is so important that legal advice is sought from top London immigration solicitors to maximise a parent’s chance of successfully persuading the Home Office or the court that the parent has sole responsibility for the children.
What is the definition of a parent who is present and settled in the UK?
Put simply under Home Office guidelines and immigration law a parent is present and settled in the UK if:
- They have acquired British citizenship or
- They have obtained indefinite leave to remain.
What are the options to bring children to the UK if a parent cannot establish that they meet the Home Office criteria of sole responsibility for their children?
As an alternative or in addition to the Home Office ‘sole responsibility’ criteria a parent can also contend that:
- There are ‘serious and compelling’ reasons why their children should be able to join a parent in the UK and/or;
- Under human rights legislation, the right to a family life, the children should be able to enter the UK.
The UK family court approach to the parenting of children
If a family court in England is asked to make a decision about the upbringing of children then, in the vast majority of court decisions, the welfare of the child is the court‘s paramount consideration.
In the family court there is a presumption that it is in children’s best interests for them to be brought up by both separated parents. That does not mean that the children will necessarily spend an equal amount of time with each parent but there is an emphasis on the benefits (unless there are safeguarding concerns) of the involvement of both parents in children’s lives.
The difference in approach taken by the Home Office and family court to the concept of parental responsibility
UK children law has moved a long way from the concepts of sole custody orders and occasional access rights for estranged parents. Family law now recognises just how important it is for both parents to play a meaningful role in their child’s life and courts have encouraged parents to agree flexible shared care arrangements with joint responsibility for welfare decisions.
Contrast the UK children law approach to the care of children with the Home Office test of sole responsibility for children and the Home Office approach appears out of touch with the common perception of what is in a child’s best interests. That is why many parents feel they have to get top London immigration solicitors on their side to help them navigate the sole responsibility test criteria to reunite their families.