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Children | Partners and Families | Family Members | ICS Legal

Children applying to join as dependents or applying for indefinite leave to remain

A child is allowed to join their parents, relatives, adopted parents or their guardians in the UK. Under the Immigration Act 1971, they are termed as “sponsors”. It is possible to apply for limited leave to remain or indefinite leave to remain. In most cases, all applications are either considered under Appendix FM or Part 8 of the Immigration Rules.

Where the child’s sponsors hold temporary leave, then their applications are usually considered under the limited leave to remain route i.e. under the point based system and depending on the sponsor’s status in the UK, the appropriate Immigration Rules HC395 are considered.

The main requirements of a child to come and join their sponsors, is that they must prove they are under the age of 18 years, not living an independent life and are dependent on their sponsor.

Types of applications available to apply

Here we discuss in brief the various routes that a child can make an immigration application to either enter or remain in the UK. In most cases, a child’s immigration status is governed by their sponsor’s status. Here, we mean their parents, relatives, adoptive parents or guardians.

Applying as a dependent on a visa category

One of the most common routes for child dependants to apply is under the point based system and under Part 5 of the Immigration Rules. These categories in most cases are granted usually for a period of 5 years to the sponsor and a child is granted leave to enter or remain in accordance to that period of leave.

In all cases, both parents must be present in the UK, unless one of the parents has passed away or the sponsor holds sole parental responsibility.

Children aged 18 years and over cannot apply as a child dependent even if they are financially dependent on their sponsor. The only exception to the rule is that, if a child holds leave to enter or remain as a child dependent, then they can continue to extend their leave to remain or possibly apply for indefinite leave to remain subject to meeting strict guidelines as set out by the immigration rules.

Applying for indefinite leave to remain

A child can apply for indefinite leave to enter or remain in a number of circumstances. Their sponsor will be applying for indefinite leave to remain at the same, or are settled already or hold British citizenship.

Here is a summary of requirements which needs to be met by the child:

  1. The child must not be leading an independent life.

  2. The child must not be married or in a civil partnership.

  3. Must not have formed an independent family unit.

  4. The child must be aged under 18 years unless exception applies.

The sponsor’s to the application must be able to provide evidences that they can support the child both financially and provide adequate accommodation in the UK.

Legal custody

The Children Act 1989 has undergone changes and the custody orders have now been replaced by the “Residence Orders”. In most cases, if this order is granted, then the parent of that child holds sole parental rights of the child.

Children who may be British Citizens

Family Law Reform Act 1987 amended Section 1 of the Legitimacy Act 1976, whereby a child of void marriages may have a claim to become a British citizen. It is important to note that the Court can only be the independent body to consider whether a marriage of the parents is valid or not.

Article 8 ECHR and right to family life

When an application is lodged by a child to join their sponsor in the UK or apply to extend their leave, Article 8 ECHR will play a role in determining the decision.

It is settled law and in reference to the case of Zoumbas was preceded by ZH (Tanzania) where Baroness Hale stated the following, at [33]:

"We now have a much greater understanding of the importance of these issues in assessing the overall well-being of the child. In making the proportionality assessment under article 8, the best interests of the child must be a primary consideration. This means that they must be considered first. They can, of course, be outweighed by the cumulative effect of other considerations. In this case, the countervailing considerations were the need to maintain firm and fair immigration control, coupled with the mother's appalling immigration history and the precariousness of her position when family life was created.

But, as the Tribunal rightly pointed out, the children were not to be blamed for that. And the inevitable result of removing their primary carer would be that they had to leave with her. On the facts, it is as least as strong a case as Edore v Secretary of State for the Home Department [2003] 1 WLR 2979, where Simon Brown LJ held that "there really is only room for one view" (para 26). In those circumstances, the Secretary of State was clearly right to concede that there could be only one answer".

When this is considered, Article 8 ECHR will need to be reasoned by the Home Office when they make a decision on your child dependant’s application. The proportionality testing must be balanced, and this is done through a detailed assessment which is material facts as well as the factual matter of an application.

The primary consideration in a child dependant application is to consider their best interest.

Section 55 of the Borders, Citizenship and Immigration Act 2009

In an application lodged by a child, their best interest must be considered. The Immigration Act 2014 and, with it, the commencement of the new Part 5A of the Nationality, Immigration and Asylum Act 2002, are considered as part of all immigration based applications.

It is trite that the decision must be considered as a whole and not in isolated fragments by the Home Office when considering an application based on a child. The aim of this policy for the Home Office to demonstrate that they would be safeguarding a child’s interest and will promote a child’s welfare in their best interest.

How to apply for the child dependant visa?

First of all, it depends on your location but all applications are part of the new digital transformation changes. This will require a person to register for the UK child visa application, ensure the correct fields are chosen and then an application is then created.

What are the visa processing times for a child dependant application?

If the application is applied from outside of the UK, then the decision usually takes anything between 15 working days to 12 weeks. Applications in the UK can take anything between 8 weeks to 6 months, however the decision making process are dependent on the type of application.

How long does the child dependant visa is granted for?

The child dependent visa is usually granted in line with their sponsor or indefinite leave enter/remain is granted if the sponsor is settled or is going to settle in the same time as the child.

When a child dependant visa is refused?

Depending on the category this application has been lodged under, if an application for a child dependant visa is refused, then it would either generate a right to appeal or administrative review.

There are different legal processes in both the appeal and administrative review, because on an administrative review, you will be required to identify the case working errors and will not be able to provide new evidences. The matter is usually referred back to the Home Office and another case worker reviews that decision.

In contrast, on an appeal, the First Tier Tribunal, which is an independent body, considers the matter and although the matter is sent for a review to the Home Office, the ultimate decision makers are the Tribunal Judge’s.

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