Can I Get To Stay in The UK Through my Child?

Posted onMarch 13, 2020

If your child is a British citizen and you are not a British national then an obvious question for you to ask in response to 'my child is British, can I stay in the UK?' is whether you can obtain a parent visa or leave to remain in the UK, and ultimately British Citizenship, through your child. In this blog we look at the circumstances in which a parent can get leave to remain in the UK and British Citizenship through their child.

Immigration solicitors

Applying for a parent or family visa or British Citizenship is an important step in any family. For expert help from specialist London based Immigration solicitors call OTS Solicitors on 0203 959 9123 or contact us online.

Our immigration solicitors are friendly and approachable and provide easy to understand legal advice that is tailored to you and your family circumstances. Call us on 0203 959 9123

family immigration applications

The first question for immigration solicitors to look at in response to 'can I get British Citizenship through my child' is whether you have a spouse or partner in the UK. If you do then the Immigration Rules say that you should make your family immigration application (or family visa or leave to remain application) based on your relationship with your spouse or partner rather than based on your relationship with your child. For example you may be eligible to apply for a spouse visa or a spouse visa extension.

Can I make a family immigration application because my child is a British citizen?

Although you may not be a British citizen, the UK Immigration Rules say that in some situations your child may have automatic British citizenship. If you are in any doubt about whether your child is a British citizen you should take legal advice as the answer isn’t always obvious.

Immigration solicitors say if your child is a British citizen (or has Settled Status) then potentially you can rely on the parent-child relationship to secure permission to stay in the UK.

What Immigration applications can I make based on the parent –child relationship?

Subject to meeting the eligibility criteria as a parent of a relevant child you can apply for a parent visa or family visa for leave to remain in the UK. After you have been in the UK for five years you can apply to settle in the UK by applying for Indefinite Leave to Remain. Once you have secured ILR status you can then decide whether or not to apply for British Citizenship, subject to meeting the British nationality eligibility criteria.

family visa applications and qualifying children

To make a UK Immigration application based on your relationship with your child the Immigration Rules say that your child must either:

Be under the age of eighteen years on the date of your Home Office application or
Have been under the age of eighteen years of age when you were first granted leave to enter the UK and your child must not live an independent life. Your child will be classed by the Home Office as ‘independent’ of you if your child has left the family home and moved into their own accommodation or, for example, has got married and had children.

To be able to use your relationship with your child as the basis for your parent visa or continued leave to remain in the UK, your child must be living in the UK and must be:

A British citizen or
Settled in the UK , for example, have Permanent Residence, Settled Status or Indefinite Leave to Remain or
If you are making your application from within the UK then your child must have lived in the UK for seven years continuously and furthermore it must not be reasonable for your child to leave the UK.

You can make an application for a parent visa or family visa if you are outside the UK or from within the UK, provided that you meet all relevant eligibility criteria.

Who is classed as a parent?

To be classed as a parent and able to make an application to the Home Office based on your relationship with your child you must have:

Parental responsibility for your child or
Shared parental responsibility for your child, for example with your former partner or ex-husband or ex-wife or former civil partner.

It is natural to assume that the Immigration Rules say that to meet the definition of parent you must be a child’s biological parent and have legal parental responsibility for the child but that isn’t the case. For the purposes of a parent visa or family visa or for leave to remain, the definition of a parent includes:

The step-mother or step-father of a child whose biological mother or father is dead
The father of a child who whilst being the biological father does not have legal parental responsibility for the child – provided that the father can prove that he is the child’s natural father
The adoptive parent of a child provided that the child was adopted in a country where the UK recognises the adoption order or was the subject of a de-facto adoption order.

Sole parental responsibility for your child

For the purposes of Immigration law and your Home Office application you will be treated as having sole parental responsibility for your child if you are the parent who has responsibility for the control and direction of your child’s life.

The Home Office is likely to treat you as having sole parental responsibility for your child if there is no other parent around or you are the only one responsible for all major decisions relating to your child’s welfare. If you do not get financial support or child support from the other parent then this can be treated as evidence that you are a parent with sole parental responsibility. However, financial support (or lack of it) isn’t the only test of sole parental responsibility.

Shared parental responsibility for your child

If you share parental responsibility for your child with your child’s other parent (your former husband, wife, civil partner or partner) then the child’s other parent must:

Not still be in a relationship with you
Be a British citizen or settled in the UK ( through Permanent Residence, Settled Status under the EU Settlement Scheme , Pre-settled Status or have Indefinite Leave to Remain).

If you share parental responsibility for your child you will need to either:

Have to have your child living or residing with you or
Have contact with your child if the child lives with the other parent. The contact must be direct contact. The contact can either be agreed with the other parent or can take place under a family court child arrangements order. You will need to be able to show that you take an active role in your child’s upbringing and that your role in your child’s life will continue after your Home Office application.

To fall within the Immigration Rules definition of contact with a child the contact must be ‘direct’ and that does not include access or contact that is purely Skype or phone calls or letters.

Proving the strength of your relationship with your child

To stand the best chance of proving that you play an active part in your child’s life (if you do not have a child arrangements order that says the child lives with you and that you are the primary carer or a shared carer) you can provide:

A letter from your child’s other parent setting out and detailing how active a role you take in your child’s life and the contact arrangements. You could support this evidence with holiday bookings or other evidence of time spent in direct access to your child
A letter from your child’s school saying you are an active parent, for example, saying that you attend parent evenings or take the child to school
If your child attends regular medical appointments a letter from your child’s doctor or hospital clinic detailing how active a part you take in your child’s attendance at hospital or treatment plan
If your child attends church, mosque or synagogue or other regular activity (such as football or swimming club) a letter from the leader detailing how active a part you play in your child’s life.

If you rely on evidence from your former partner and the child’s other parent then you will need to prove their identity to the Home Office. This can be done, for example, by production of your former partner’s passport.

Immigration solicitors

For help with your family visa or parent visa application call OTS Solicitors on 0203 959 9123 or contact us here.

What are the rules if my child is an EU citizen and has Settled Status

With all the news on Brexit it is important to look at the position if your child is an EU citizen and has Settled Status. If your child has Settled Status under the EU Settlement Scheme then you may be eligible to apply for Settled Status.

Once you have secured Settled Status you will in future be able to apply for Indefinite Leave to Remain and then British Citizenship, provided of course that you meet the settlement eligibility criteria.

What are the eligibility criteria for a parent visa?

In addition to the parental responsibility requirement, as a parent applying for Immigration status based on your relationship with your child you also need to:

Have a good knowledge of English and meet the English language requirement or be exempt from taking the English language test
Be able to financially support yourself and your child without applying for public funds

Some parents will not meet the above criteria but they can still make a Home Office application based on their relationship with their child even though they don’t meet the criteria set out above provided that:

Your child is in the UK and is a British citizen or your child has lived in the UK for at least seven years and
It would be unreasonable for the child to leave the UK.

How long does leave to remain last for?

If you are successful in applying for leave to remain on a parent or family visa then you will secure permission to stay in the UK for two and a half years (30 or 33 months depending on if your application is made within the UK or not). Prior to the expiry of your leave to remain you should apply for an extension to your parent or family visa.

Can you settle in the UK after entering on a family visa?

If you secure leave to remain in the UK on a parent visa because of your relationship with your child then you can apply for Indefinite Leave to Remain after you have been in the UK for at least five years. This is provided that you meet the continuous residence requirement under the Immigration Rules.

Once you have secured Indefinite Leave to Remain you can either remain indefinitely in the UK with this Immigration status or you can make a British naturalisation application to secure British citizenship.

Immigration solicitors

If you are considering making a parent visa or family visa application then it is best to take expert legal advice from specialist Immigration solicitors before doing so to ensure you meet the eligibility criteria and to make sure your application stands the best chance of a successful outcome.

For help with your family visa application call OTS Solicitors on 0203 959 9123 or contact us here.

OTS Solicitors are specialist in Immigration law and British nationality. The firm is recommended for Immigration law in the leading law directories, Chambers Guide to the Legal Profession and the Legal 500. OTS Solicitors also have Law Society accredited solicitor status as trusted specialists in Immigration law.

For advice on family visa and parent visa applications and extension applications or settlement and Indefinite Leave to Remain applications after entry on a family or parent visa, call OTS Solicitors on 0203 959 9123 to speak to one of our experienced London based Immigration solicitors or complete our online enquiry form.