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The Immigration Rules permit parents living overseas, who have British or settled children living in the UK, to apply for a visa to come to live with them. In this post we will consider the requirements that a parent applying for a visa in this category must meet in order to make a successful application.
Overview of the Immigration Rules on visas for parents
The requirements of the parent route are set out in “Section EC-PT: Entry clearance as a parent of a child in the UK”. This section can be found within Appendix FM, an appendix to the main body of the Immigration Rules. When you click through to Appendix FM, the drop-down menu to access Section EC-PT is confusingly labelled “Family life as a parent of a child in the UK” but it relates to the same route.
The main issues for applicants will be explored in detail below, but in summary, to make a successful application the parent must
- Meet the relationship requirement with the child
- Not be in a relationship with the child’s other parent or carer
- Provide evidence that they are taking, and intend to continue to take, an active role in the child’s upbringing
The parent must also be
- Outside the UK
- Over 18 years of age
- Able to adequately maintain accommodate themselves and any dependants on arrival
- Able to speak English to an acceptable level (CEFR A1)
The child must be
- Living in the UK
- Under 18 years of age
- Either a British national, or have settled status in the UK
The most tricky issue in these applications is usually the “relationship requirement” set out at paragraph E-ECPT.2.1-2.4 (unfortunately the Immigration Rules are full of confusing headings like this). By relationship requirement we mean the connection between the applicant parent and the child, but also the relationship between the parent applying for the visa and the child’s other parent if they are still involved in the child’s care. We will deal with both below.
We don’t go into much further detail on the second two sets of bullet points above, as they are usually less complicated. But they are still a requirement for the visa and shouldn’t be overlooked just because this post zeroes in on the most tricky elements of the application.
How to make an application
Applications are made by filling out an online application form, and paying a fee of £1,523. On top of the headline fee, applicants in this route also have to pay the immigration health surcharge for use of the National Health Service, which is £200 for each year of the visa which is granted. This visa lasts for two and a half years, so the total immigration health surcharge is £500 in addition to the fee (£200 x 2.5).
Once the application has been submitted and fees paid, you will be invited to book an appointment at your local visa application centre to “enrol biometrics”. This essentially means providing fingerprints and having your photograph taken.
Applicants will also need to print out their online form, sign it, and take it along to the visa application centre along with all supporting documents relevant to their case. From there they will be sent to the Home Office. Some centres now operate a scanning system, where all documents are scanned and sent to the Home Office decision-maker in Sheffield, but other centres do not yet have this system in place and require applicants to send the documents by courier.
The supporting documents which should be submitted will depend on the facts of your particular case. However, all applicants in this route should submit an Appendix 5 (VAF4A) document which is specifically designed for those entering in this route.
If you are unable to provide all of the information you would like within the form, it can help to submit a covering letter which explains how you meet the requirements of the Rules, provide a guided tour to the evidence you are submitting, and refer in the form to the letter you are supplying where you have more space. If your application is complex, or you are submitting a lot of supporting evidence, then this is definitely to be recommended.
The rest of this note looks at the legal issues which tend to come up most often in these types of applications, and makes suggestions on what evidence might be useful for applicants to get hold of in certain situations.
The relationship between applicant parent and child
Parents can either provide evidence that they have “sole parental responsibility” for their child, or they can provide evidence that the British/settled parent (or carer) with whom the child currently lives in the UK is not their partner and that they have “direct access” to their child.
All of these terms will be explored below, but it is worth setting out the requirements at E-ECPT.2.3.-2.4 in full:
E-ECPT.2.3. Either –
(a) the applicant must have sole parental responsibility for the child; or
(b) the parent or carer with whom the child normally lives must be-
(i) a British Citizen in the UK or settled in the UK;
(ii) not the partner of the applicant; and
(iii) the applicant must not be eligible to apply for entry clearance as a partner under this Appendix.
E-ECPT.2.4.
(a) The applicant must provide evidence that they have either-
(i) sole parental responsibility for the child; or
(ii) direct access (in person) to the child, as agreed with the parent or carer with whom the child normally lives or as ordered by a court in the UK; and
(b) The applicant must provide evidence that they are taking, and intend to continue to take, an active role in the child’s upbringing.
Whichever route is relied upon in the application (sole responsibility or direct access), evidence must also be presented which shows the applicant will take an active role in the child’s upbringing.
Who qualifies to be a “parent”?
A quick word on who counts as a “parent”. According to the definition set out at paragraph 6 of the Immigration Rules, it is broader than simply natural (birth) parents, and includes:
(a) the stepfather of a child whose father is dead and the reference to stepfather includes a relationship arising through civil partnership;
(b) the stepmother of a child whose mother is dead and the reference to stepmother includes a relationship arising through civil partnership and;
(c) the father as well as the mother of an illegitimate child where he is proved to be the father;
(d) an adoptive parent, where a child was adopted in accordance with a decision taken by the competent administrative authority or court in a country whose adoption orders are recognised by the United Kingdom or where a child is the subject of a de facto adoption in accordance with the requirements of paragraph 309A of these Rules (except that an adopted child or a child who is the subject of a de facto adoption may not make an application for leave to enter or remain in order to accompany, join or remain with an adoptive parent under paragraphs 297-303);
(e) in the case of a child born in the United Kingdom who is not a British citizen, a person to whom there has been a genuine transfer of parental responsibility on the ground of the original parent(s)’ inability to care for the child.
What does “sole parental responsibility” mean?
The meaning of “sole parental responsibility” is something we explore in our blog post Making sense of sole responsibility for child visas in immigration law. In short, the test is not whether anyone else has day-to-day responsibility but whether the parent has continuing control and direction of the child’s upbringing including making all the important decisions in the child’s life. If not, responsibility is shared and so not “sole”. It is the concept of “authority” or “control” over a child’s upbringing which is important. Whilst others (for example, relatives) may, look after a child, it may be that they are doing so only on behalf of the child’s parent.
You can read about the Home Office guidance to their officials in our main blog post, and also the approach that the tribunal and courts follow in these cases.
Key evidence of “sole” responsibility
A really key issue will be the evidence of contact between the applicant parent and the carer on important decisions to be taken about the child and his or her upbringing.
In situations where only one parent is in the picture, if that parent can show that he or she has control over the major decisions that affect a child’s life, even from afar, then this will be strong evidence to suggest that they meet the “sole” responsibility test.
The courts suggest it may also be helpful to look at the financial support (or lack of it) provided by the parent to the child or the carers of the child for the purposes of his or her upbringing. The courts specifically mention that its absence may be telling, so this issue should be highlighted — either confirming financial support is given and providing evidence of this, or explaining that it is not and explaining why not.
Example
Peter is a Nigerian citizen, and proud father of Charlie. Charlie’s mum, Patricia, dies when he is 7 years old. Charlie acquired British citizenship via his mother.
After Patricia’s death, Peter suffers a bout of depression, and returns home to Nigeria to recuperate in his home town. He leaves Charlie in the care of his sister, Aunty Agnes, who works part-time at a tattoo parlour in Seven Sisters.
Whilst Peter is laid low, Aunty Agnes takes all of the major decisions in Charlie’s life, and Charlie has limited contact with his dad. After a period of convalescence lasting a few years, Peter recovers and gets a job working at an oil depot in Abuja.
Peter begins to send money to Aunty Agnes — most of his pay each month, in fact — towards Charlie’s care, and speaks to Charlie on an increasingly regular basis via Skype and on the phone. Peter becomes more involved in the decisions taken about Charlie’s future, and expresses a desire that he take up the trombone and apply to Eton for secondary school.
Whilst Aunty Agnes continues to pick Charlie up from school and take him to football practice, she increasingly refers his questions about whether or not he is permitted to do certain things — get a life-size tattoo of David Bowie’s face on his back, convert to Judaism — to his father. Although she is Charlie’s primary carer, she no longer makes the important decisions in his life.
When Peter makes his application for leave to enter the UK as the parent of a child in the UK, he submits evidence that he has “sole” responsibility for Charlie. This includes
– Patricia’s death certificate
– Statements from Aunty Agnes and Peter about how decisions have been made in the past about Charlie, the reasons for this (i.e. Aunty Agnes took the decisions whilst Peter was unwell), how this has changed over time, and who makes the decisions now
– Emails, text messages, and WhatsApp messages between Peter and Aunty Agnes which confirm the statements made and submitted regarding the way that Charlie’s care has been arranged, and which show Aunty Agnes asking Peter questions about what to do with Charlie
– Evidence of communication between Peter and Charlie about these central decisions, preferably in writing (although probably unlikely for younger children) and visits Peter has made to the UK
– Other corroboratory evidence concerning the central decisions referred to above or the decision-making process in general (e.g. correspondence between Peter and the admissions office at Eton, letter from Charlie’s primary school confirming that Peter is the person from whom permission is sought for key decisions – e.g. school trips)
– Bank statements from Aunty Agnes and/or Peter confirming financial contributions made for Charlie’s upkeep
By submitting this evidence, Peter is able to demonstrate that, although he is based abroad, Aunty Agnes is only looking after Charlie by force of circumstance. It is important, though, that this is properly explained in the application, and sufficient evidence provided.
What does “direct access” mean?
In cases where sole responsibility cannot be shown, the parent must demonstrate that they have “direct access (in person) to the child, as agreed with the parent or carer with whom the child normally lives or as ordered by a court in the UK”.
The meaning of access rights was explored in JA (meaning of “access rights”) India [2015] UKUT 225 (IAC), although this case pre-dated an amendment to the Immigration Rules which changed the language from “access rights” to “direct access (in person)”.
Whilst “indirect” access to a child by means of letters, telephone calls etc may have previously been sufficient, the Rules now explicitly prohibit this, and require “in person” contact. This may be difficult for practical purposes if the parent is in a different country.
Key evidence of “direct access”
It is important to note that the courts don’t have to be involved for an applicant to meet this requirement. It is possible for the parents/carer to make contact arrangements between themselves. But whatever arrangement is in place, it would be useful from the point of view of a visa application if it were documented in some way.
Evidence might include an email or other type of message from one parent to the other parent/carer, confirming dates when the access will take place, location, duration, activities etc. It might also be contained in a formal document.
Other useful evidence would include details of the access itself, preferably matching up to the formal agreement/arrangements which have been made. So if it was agreed that the applicant parent and the child would spend half-term visiting Disneyland Paris, you might consider submitting with the application plane tickets, hotel bookings in both names (of applicant parent and child), and pictures with Mickey Mouse etc.
If there has been an access arrangement worked out through the family courts, it will probably be called “contact”. Family lawyers don’t like what for them is the outdated term “access” and would probably scold us for using it here, but that is the language used in the Immigration Rules.
Example
Pablo the Amazing is a Russian acrobat touring the UK with Cirque du Soleil. Following a performance at the Royal Albert Hall he meets Pamela, a British citizen.
Roughly nine months later, Pamela gives birth to Chelsea, and after much consideration Pamela decides to tell Pablo, whom she tracked down on tour in Japan.
After recovering from the initial shock and some crisis talks with the other acrobats over several bottles of Saki, Pablo explains that he would like to be involved in Chelsea’s upbringing, and Pamela thinks this would also be a good idea, despite their differences. Pamela agrees to re-register Chelsea’s birth and include Pablo’s name.
Over the following few years Pablo visits the UK on several occasions to see Chelsea, and as she gets older begins to speak to her on Skype and over the phone.
When Chelsea begins school the arrangements become a little more formal. Pablo starts taking Chelsea for holidays during summer and at half-term, and these plans are made in advance via email. Pablo is sometimes able to attend parents’ evenings in between performances. He makes financial contributions to Chelsea’s upkeep where he can.
Pablo eventually hangs up his trapeze and decides that he would like to spend more time close to his daughter. As Chelsea gets older, Pamela agrees that this would be a good idea. Pablo therefore makes an application to enter the UK as a parent of a child. He includes the following evidence in relation to this point
– Chelsea’s re-registered birth certificate
– Evidence of the care arrangements made between Pamela and Pablo (emails sent between them, and formal documents which confirm the care arrangements)
– Evidence of the contact set out in the care arrangements in practice (so if there was a plan for a holiday at half-term in one year, evidence of that holiday actually taking place should be submitted)
– Statements from both parents about the circumstances of the birth, their current relationship (i.e. they are not in one), the relationship between dad and daughter and his role in her life, the care arrangements in principle and in practice
– Evidence of Pablo’s role in Chelsea’s upbringing (letters from school indicating attendance at parent’s evening, evidence of financial support etc)
It is not necessary for care arrangements to have been ordered by a family court. However, where the relationship between parents is less harmonious than between Pablo and Pamela and the family courts are involved in making care arrangements for the child, evidence of these care arrangements should also be submitted.
The relationship between applicant parent, and the other parent
As stated in the Home Office guidance on this visa:
The parent route is not for couples with a child who are in a continuing genuine and subsisting partner relationship together. Applicants in this position must apply under the partner route where, or when, they are eligible to do so, or under the private life route. An applicant cannot apply under the parent route if they are or will be eligible to apply under the partner route, including where the applicant is in a partner relationship but the couple have not yet been living together for two years
Essentially, the applicant parent cannot be in a relationship with the parent or carer who looks after the child in the UK.
Couples in other types of applications based on their relationship often have to move mountains to demonstrate that they are in “genuine and subsisting relationship”. By contrast, applicants for this visa should bear in mind that, in this situation, the Home Office might consider the merest hint of civility as constituting a “genuine and subsisting relationship”.
Whilst it is difficult to prove a negative, if an applicant parent enjoys a particularly flirtatious relationship with their ex-partner and mother or father of their child even though they are no longer together, heart emoticons on social media and any other public displays of affection should probably be avoided if possible. If either partner is remarried, or in a new relationship, evidence of this may be useful in showing that there is no longer a “genuine and subsisting” relationship between the parents.
“Taking, and will take, an active role in child’s upbringing”
Whether making the application on the basis of sole or shared responsibility, evidence must be submitted by the applicant parent to show that he or she is taking, and will take, an active role in the child’s upbringing.
Either way, applicants are likely to have submitted evidence already which goes some way to meeting tis requirement. It will be important, though, to provide evidence which looks forward, describing care arrangements in the future and not just those which exist at present.
These might include residential arrangements, where the child and the applicant parent will be living together, or documented visitation arrangements as part of a wider care arrangement plan in the near future. The applicant parent’s vision of the precise role they will play can also be set out in statements from the applicant themselves, from the other parent/carer, and from other relevant third parties, if involved.
Other requirements
Applicants must show that they will be able to adequately maintain and accommodate themselves. There is no minimum income requirement to meet. There is guidance on what constitutes “adequate” when it comes to maintenance and accommodation.
Applicants also need to meet a minimum English language requirement unless they are exempt, which is CEFR Level A1. There is also guidance on what this means.
As with all applicants, they need to make sure they meet the “suitability” requirements for the route. These requirements take the form of a list of factors where an applicant will or may be refused if any of them apply (for example, if the applicant is subject to a deportation order, the application will be refused).
Bizarrely, the list of suitability factors (at S-EC.1.1.-S-EC.3.2.) has been plonked within the Immigration Rules relating to entry clearance for partners. Again, Home Office guidance includes a section on the suitability requirements.
