UK Child Visas: Relocating to the UK with your child after an overseas separation or divorce

You often hear reports in the press about separated or divorced parents where one parent wants to take their child abroad to live after their divorce and the other parent objects. As immigration solicitors we also advise our international clients where, after a separation or divorce, a parent wants to settle in the UK with their child. In this blog we look at UK child visas after a separation or divorce.

Immigration and child visa solicitors

If you need immigration or family law advice on relocating to the UK with your child after a separation or divorce then the experts at OTS Solicitors can help you. Call us on 0203 959 9123 or complete our online enquiry form to speak to a friendly specialist solicitor. Appointments are available through video conference, Skype or telephone.

UK child visas

If a parent is coming to the UK, whether it is to take up a new job on a Tier 2 (General) visa, setting up a new business with a start-up visa or working for the National Health Service on an NHS visa or an alternate visa option, they will normally want to be accompanied by their child if their move to the UK has been generated by a separation or divorce.

Immigration and child visa solicitors say there are two initial points to consider:

• Does the UK relocating parent need the permission of the other parent or a court order giving authority for the child to move to the UK with the relocating parent? If the relocating parent doesn’t get the necessary permission from the other parent or from the court in the country that they reside in then they may be in breach of their national child custody laws. We have many international clients and work with Immigration and child custody solicitors in lots of different overseas locations. That means we can put parents in touch with expert child custody solicitors in their country of residence or their former country of residence. We can also advise on ,and where necessary , secure mirror UK child custody orders

• Will the parent need a visa to enter the UK and, if so, does their child meet the criteria for a UK child visa or dependant visa?

What is the eligibility criteria for a child visa?

If you are a parent applying for limited leave to enter the UK on a visa then if your child is under the age of eighteen they may meet the eligibility criteria for a child visa (also called a dependent visa).

If your child secures a child or dependent visa then their leave to remain in the UK will expire at the same time as the parental work visa or other type of visa, such as an Investor Visa. A child visa can be applied for at the same time as your visa or after you have secured your entry clearance. Whether you make the application for a child visa at the same time as your visa application or later on, the child visa eligibility criteria are:

• The child is the child of a parent who is in the UK or who is applying to come to the UK

• The child is under the age of eighteen at the date of the application

• The child is not married or in a civil partnership and is not leading an independent life

• The parent has adequate accommodation for the child and can financially support their child without recourse to public funds

• The child’s parent has sole responsibility for the child or there are serious and compelling family or other considerations which make exclusion of the child from the UK undesirable and suitable arrangements have been made for the child’s care.

Does a child visa applicant have to meet the English language requirement?

Child visa applicants under the age of eighteen don’t have to meet the English language requirement or sit the English language test. That is because they fall within the category of visa applicants that are exempt from having to meet the English language requirements.

How does a parent meet the sole responsibility test for their child?

If you are applying for a child visa on behalf of your child (and the other parent isn’t deceased) then you have to be able to prove that you have sole responsibility for your child. According to Home Office Immigration Rules, the other parent’s agreement to the child moving to the UK with you isn’t sufficient evidence that you meet the sole responsibility test.

The sole responsibility test can be very frustrating for visa applicants and difficult to understand. Immigration and child visa solicitors say that it is easiest to say that the sole responsibility test is not about:

• What is best for your child or

• Whether the other parent agree to the move or

• Whether an overseas court has given permission for your child to relocate with you to the UK (although it is important that you get agreement or court order if required)

• Whether you have a sole custody or responsibility court order for your child as the test is more one of facts though a court order could be used to support the child visa application.

To secure a child visa you have to be able to demonstrate that you have sole responsibility for your child’s upbringing. That means that in practical terms are you the only parent or adult who is exercising responsibility for the child.

Every family situation is different and that is why it is best to get legal advice from an immigration and child visa solicitor on whether you are likely to meet the sole responsibility test. For example, if you left your child in the care of a grandparent overseas whilst you came to the UK to settle and sort out accommodation you could still argue that you have sole responsibility for your child as you have had the continuing care and control of the child’s upbringing and made all the decisions on behalf of the child.

If the other parent is in contact with the child then you may still be able to evidence that you have sole responsibility for your child depending on your circumstances. It is obviously harder to say that you have sole responsibility if child care or custody was previously shared or the other parent provides financial support for the child. However, each case turns on its facts and the evidence as whilst care may have been shared you may be able to evidence that you have been the parent with sole responsibility for the control and direction of the child’s upbringing.

The key to a successful child visa application is presenting sufficient evidence of sole responsibility for your child. It is therefore best to take legal advice about what evidence, in your particular circumstances, meets the UK Immigration Rules threshold for sole responsibility.

Can I still get a UK child visa if I don’t have sole responsibility for my child?

If you are advised that you may not meet the sole responsibility test under the Immigration Rules for a child visa then you can still apply for a child visa on the basis that there are serious and compelling family or other considerations which make exclusion of the child from the UK undesirable and suitable arrangements have been made for the child. Another option is to use human rights arguments in support of the child visa application.

Immigration and child visa solicitors highlight the fact that if you are a separated or divorced parent looking to relocate to the UK on a visa accompanied by your child then the child visa application eligibility criteria and evidence requirements are far from straightforward. That is why it is best to look at your circumstances and get objective expert evidence on how best to secure your child visa so you can relocate to the UK after your separation or divorce.

UK Immigration and child visa solicitors

If you want to relocate to the UK with your child after a separation or divorce and need either immigration or family law advice then the experts at OTS Solicitors can help you. Call us on 0203 959 9123 or complete our online enquiry form to speak to a friendly specialist solicitor. Appointments are available through video conference, Skype or telephone.

OTS Solicitors specialises in immigration law . The firm is recommended in the two leading law directories, The Legal 500 and Chambers Guide to the Legal Profession. The specialist lawyers provide easy to follow immigration and family law advice looking at your best visa options and evidence requirements to meet the Immigration Rules. For expert Immigration law advice you can trust from specialist child visa solicitors call the Immigration lawyers at OTS Solicitors on 0203 959 9123 or contact us here.