Sole Responsibility: Children joining one parent in the UK
If you are a parent living in the UK or entering the UK with a view to settlement (Indefinite Leave to Remain, ILR), you may wish for your child to join you in the UK, possibly also for settlement. However, if the child’s other parent continues to live in another country, then you will have to satisfy the Home Office that you 'have had sole responsibility' for that child.
The 'sole responsibility' rule causes such applications to be very complex, as the meaning of the term cannot be precise. Every family’s situation is unique. For example, sole responsibility is not the same as legal custody, even though the question of who has legal custody will be a relevant consideration in deciding whether a parent has sole responsibility. How is the term understood by the Border and Immigration Agency (BIA) of the Home Office, and by courts and tribunals in the UK?
The parent based in the UK is known as the ‘sponsor’ of the application and will be the motivating force behind it. The child overseas is known as the ‘applicant’.
To meet the sole responsibility requirement, it is necessary to satisfy the Home Office that the sponsoring parent has, usually for a substantial period of time, been the chief person exercising parental responsibility for the child. This means that the sponsoring parent has had and still has the ultimate responsibility for the major decisions relating to the child’s upbringing and provides the child with the majority of the financial and emotional support it requires. The sponsoring parent must show that he or she has had, and continues to have, care and control of the child.
It has been accepted by the courts that many parents would find it impossible to establish literal or absolute 'sole responsibility', since in the majority of situations the other parent has at least some responsibility for their child’s upbringing. Moreover, there will be many situations in which the parents are separated and the sponsoring parent has left their child in the care of other relatives and gone to the UK without the child. The Home Office instructions to BIA caseworkers, in the form of internal guidance, states that they expect that where the child is being looked after by relatives, they should be the relatives of the sponsor rather than of the child’s other parent. In such a case the, sponsoring parent must still show that she or he has retained the ultimate responsibility for the child’s upbringing and provides the majority of the emotional and financial support needed.
The guidance to BIA caseworkers suggests that an application should normally be refused where, for example, the child is being cared for by the father’s relatives but it is the mother who has applied for the child to join her in the UK. However, it may be that the mother could show that she had a sufficiently close relationship to the father’s family to allow her to demonstrate sole responsibility for the child. The guidance should not deter people in such a situation.
The Home Office internal guidance goes on to consider the less clear situations in which neither parent can demonstrate sole responsibility. Such a situation can arise where the sponsoring parent is based in the UK and has transferred the care of the child to another person (as in the examples above), but has not maintained a close involvement in the child’s upbringing. The internal Home Office guidance sets out factors that can be taken into account when deciding whether a parent has satisfied the ‘sole responsibility’ requirement, to the exclusion of the other parent or those who have been looking after the child. The guidance says that these ‘may’ include:
• The period for which the parent in the UK has been separated from the child;
• What the arrangements were for the care of the child before that parent migrated to the UK;
• Who has been entrusted with day to day care and control of the child since the sponsoring parent migrated here;
• Who provides, and in what proportion, the financial support for the child’s care and upbringing;
• Who takes the important decisions concerning the child’s upbringing, such as where and with whom the child lives, the choice of school, religious practice, etc;
• The degree of contact that has been maintained between the child and the parent claiming ‘sole responsibility’;• What part in the child’s care and upbringing is played by the parent not in the UK and that parent’s relatives.
In addition to this list, the comments made by the courts in this kind of case identify some other factors. The time spent by the sponsoring parent with the child is a relevant but not conclusive factor. That the sponsoring parent has legal custody is a relevant consideration, but, again, not conclusive.
If the child’s other parent has had involvement in the child’s upbringing, this may disprove the sponsoring parent’s claim to have sole responsibility if the other parent’s involvement amounted to an independent exercise of responsibility. One example of this is where the everyday carer of the child outside the UK is the other parent. In such a situation, the Asylum and Immigration Tribunal (AIT) has commented that it will only be in exceptional cases that the UK based parent will be considered to have sole responsibility for that child [“TD (Paragraph 297(i)(e): "sole responsibility") Yemen [2006] UKAIT 00049]. The court said that it would only be in cases where the parent outside the UK has almost completely abdicated his or her responsibility for the child that the sponsoring parent could be deemed to have sole responsibility. However, responsibility exercised by the other parent in the distant past should not be enough to disprove sole responsibility on the part of the sponsoring parent.
The outcome of any sole responsibility application will depend heavily on its own particular facts and circumstances, and the ability of the sponsoring parent to provide evidence. Therefore, this is a kind of application where good quality and experienced legal representation will be extremely important.
If a child fails to qualify under the sole responsibility rule, he or she may qualify for entry to the UK on the grounds that there are serious and compelling family or other reasons that make his exclusion from the UK undesirable and arrangements have been made for his care. Under this rule, such a child can join a parent, a more distant relative by blood or marriage, or a legal guardian. However, the requirement of ‘serious and compelling family or other reasons’ may be difficult to satisfy: it would not suffice simply to compare the harsh and poor conditions in the child’s country with better conditions in the UK. The death of a carer in the home country or the incapacity of a parent in the home country to care for the child may give rise to such compelling circumstances. However, these are complex cases whose success depends heavily on their facts and supporting evidence, and in which legal representation will again be extremely important.
