Sole responsibility vs the welfare of the child – when immigration and family law collides
UK Immigration for parents can be a minefield – because concepts in Immigration law do not always line up with concepts in family law, particularly when questions of where, and with whom, a child should live are in play. Anyone considering making an application for a child to come to the UK to join them would be advised to instruct not only the best Immigration solicitors in London they can find, but Immigration lawyers who understand and are experienced in family law. While the overriding purpose of family law is to consider the welfare of the child as paramount, the Immigration rules take a different perspective, ultimately making it incredibly difficult for a parent to bring a child to live with them in the UK, regardless of what parents have agreed between them, or a court has ordered.
The Immigration rules and sole responsibility
In today’s global village, where international relationships thrive, the international dimension can also cause hardships when a relationship fails. divorce and Immigration can combine to create situations where a child lives in a different country to the UK-based parent. If the situation arises where it is the intention that the child should come to live in the UK with the UK-based parent, the Immigration rules dictate that that parent must be able to demonstrate that he or she has ‘sole responsibility’ for the child – responsible for the major decision making in the child’s life, for providing the majority of the financial support. He or she must have had sole responsibility for the child for a ‘substantial amount of time’ (case law suggests that this can be as little as 2.5 months, following the case of Nmaju v. Entry Clearance Officer). He or she must have day to day control of the child. The extent of contact he or she has with the child is also an important factor in determining sole responsibility.
The UK-based parent must be a British citizen (or have acquired British Citizenship) or have Indefinite Leave to Remain, in order to satisfy the requirement of being ‘present and settled’ in the UK as set out in para 297(i)(e) of the Immigration rules.
family law and the welfare of the child
Contrast sole responsibility – which effectively suggests that one parent needs to be almost completely cut out of the child’s life before it can be established by the other parent, with the family court approach. Decisions made by the family court have the welfare of the child at their heart. This is the paramount consideration. Financial and caring responsibilities are more often shared more equally between parents, and the relevant legislation, such as the Children Act, includes a presumption of continued parental involvement. Neither parent can claim a particular portion of the child’s time – but as long as it does not put the child at risk, both parents are presumed to remain involved with their children’s lives, even if their own relationship has broken down.
Alternatives to sole responsibility
As attitudes to parenting continue to focus on the importance of both parents being involved in a child’s life not just in the UK but internationally, many UK based parents whose children live overseas with an ex-partner may find that they are unable to demonstrate ‘sole responsibility’ in order to satisfy the UK Immigration rules and bring the child to live in the UK. So, what are the alternatives? Someone looking to bring their child to live with them in the UK could argue that there are serious and compelling reasons for the child to come to the UK. Alternatively, there may be an argument based on Article 8 Human Rights Immigration and the right to family life.
Serious and compelling reasons
Home Office guidance suggests that only when the other parent or relatives in the country where the child is living cannot care for the child would there be ‘serious and compelling reasons’ to allow the child to come and live with the parent in the UK. That the parents had agreed between them that it would be good for the child to spend more time with the other parent would not be sufficient.
The guidance does permit both the child’s circumstances and the UK based parent’s circumstances into account when determining if there are serious and compelling reasons to allow entry, but primarily, the Home Office’s view is that the “…child should first and foremost be cared for by his natural parent(s) or, if this is not possible, by his natural relatives in the country in which he lives. Only if the parent(s) or relative(s) in his own country cannot care for him should consideration be given to him joining relatives in another country.”
This again is a high threshold, and one that may not be easy to overcome, particularly if the reason for the child coming to the UK is based on an argument that the child would receive better schooling, or would benefit from seeing the other parent. Taking advice from top Immigration lawyers in London would be advisable if you were considering an argument along these lines.
Article 8 and the right to family life
An Article 8/right to family life argument might be attractive in these circumstances, but again it’s important to remember that this is a qualified right, and the Home Office can interfere (albeit that the interference must be ‘proportionate’) with the right to family life. In particular, if there is nothing to stop the UK-based parent from relocating to the country where the child lives, or from travelling there on a regular basis, the Home Office may be unsympathetic, arguing that family life can be maintained in this way. Remember, the Home Office has taken the view that family life can be maintained through ‘virtual contact’ via skype, email etc, so an Article 8 argument may likewise be hard to sustain.
Advice for a parent looking to bring their child to the UK
Unfortunately, and as you may have realised, bringing a child to live with you in the UK is not as straightforward as it could be, and many London immigration solicitors would welcome a change in the Immigration Rules to ensure that they take a more child-centred approach, focussed on the importance of a child having meaningful relationships with both parents. In the meantime, taking advice from an experienced Immigration and family lawyer is vital before embarking on an application of this kind.