UK: Legacy cases and children

MANY of the so called “legacy cases” are being resolved by the United Kingdom Border Agency. Figures published this week show that the UKBA is dealing with approximately 5,000 cases per month.

Not all of the cases are resulting in the granting of leave to remain, but the vast majority are being granted Indefinite Leave to Remain in the UK. (Please see previous posts on legacy cases).

With the granting of ILR comes a set of new challenges for many migrants living in the UK. Many people left Zimbabwe for political and economic reasons. It was difficult to travel as a family due to financial constraints or the uncertainty of life in the UK. As a result, many families were separated by the move to the diaspora in the early 2000’s.

The separation between parents and children has been heartbreaking for both parents and children. The purpose of this post is to highlight the difficulties that can be encountered in making an application for children to join their parents in the UK. It is not a straightforward issue.

The immigration rules in summary require that the applicant (child) meet the following criteria:

They must be under 18 years of age, and show that they cannot support themselves financially, are not married or in a civil partnership and are not living independently away from your parents.

The applicant is the child of those seeking to come to the UK.

The difficulties that may be faced by many parents will be that they may find it difficult to show that they can support their children without recourse to public funds. Many have been out of work for many years waiting for their cases to be resolved.

It is also difficult to obtain employment during this recession. It may, therefore, take several months for parents that have been granted Indefinite Leave to Remain to be reunited with their children.

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.

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.

For people that have been granted Indefinite Leave to Remain after making a fresh claim can ask the UK Border Agency to consider their asylum claim and make a decision with regard to whether they are recognised as a refugee or not .If a positive decision is made on the asylum claim then the sponsor parent can make an application under the family reunion rules for refugees. These rules are more flexible than the rules for settlement for a person that has been granted Indefinite Leave to Remain.

It is, therefore, important to prepare well for entry clearance applications in cases such as these. It is also important to exercise patience and ensure that one meets the requirements of the immigration rules prior to embarking on making an application.

Disclaimer: This article only provides general information and guidance on immigration law.. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. The writer will not accept any liability for any claims or inconvenience as a result of the use of this information.

Rumbidzai Bvunzawabaya is a Solicitor at RBM Solicitors based in Coventry. She can be contacted at info@rbmsolicitors.co.uk or telephone: 02476520999