Making sense of sole responsibility for child visas in immigration law

The “sole responsibility” immigration test comes into play where one of the parents of a child is relocating to the United Kingdom and one parent remains abroad. The United Kingdom’s immigration rules effectively presume that a child should remain outside the country with the other parent, unless the parent moving to the UK can show they have “sole responsibility” for the child.

There are also two other slightly less well-known routes. Where the child is applying from abroad or is already in the UK, there is the “exclusion undesirable” test. Where the child is already in the UK, a “normally lives with” test can be applied.

So, there are three potential routes by which a parent relocating to the UK might obtain a visa for their child or children where the other parent remains abroad:

1. The child’s parent who is in or coming to the UK has had and continues to have sole responsibility for the child’s upbringing

OR

2. There are serious and compelling family or other considerations which make exclusion of the child undesirable and suitable arrangements have been made for the child’s care

OR

3. The child is already in the UK and normally lives with a parent in the UK and not their other parent.

Unhelpfully, the relevant immigration rules are not all found in the same place. Children joining or seeking to remain with a parent or parents who are settled are assessed under paragraph 297 or 298 of the rules. Where the parent or parents have limited leave with a view to settlement, the relevant paragraphs are E-ECC.1.6 or E-LTRC.1.6 of Appendix FM of the rules.

Where the other parent has died and the parent relocating to the UK is the sole surviving parent, though, there is no need to meet these tests. The main focus will be on showing the parent can provide adequate support and accommodation for the child. The child must also be under 18, not married or in a civil partnership, not have formed an independent family unit and not be living an independent life. But these issues rarely arise in practice.

It is where there is a living parent living abroad that problems most frequently arise. Even where that parent is not caring for the child, and perhaps even has no contact with the child or is manifestly unsuitable, the parent coming to or already in the UK must still show they meet the sole responsibility or exclusion undesirable tests. For example, if another relative or friend or other person is looking after the child, that can and does cause problems to arise because the parent can struggle to prove sole responsibility.

In this post we explore both these tests and also consider how far the best interests of a child might influence whether a visa is issued.

Sole responsibility

There are two main sources to which we can turn for guidance on what “sole responsibility” means in practice: the Home Office and the courts.

What does the Home Office say about sole responsibility?

The first source of guidance is the Home Office itself. Their view is obviously very important because it will be Home Office officials who decide an application. Any person making a visa application for a child will obviously want it to succeed. Helpfully, the Home Office publishes the guidance that it circulates to its own officials, so we can see what instructions they are given on how to consider visa applications.

The relevant guidance document is called Family Policy: Family life (as a partner or parent) and exceptional circumstances. You have to scroll down to page 36 to start reading the relevant sections (or go to the eligibility section if using the html version).

The first point to make is that sole responsibility is not the same as legal “custody” or control. Sole responsibility is more about the substance of who is actually responsible, overall, for the upbringing of a child.

Also, sole responsibility is not about day to day care and responsibility. Where the parent is relocating to the UK and has actually had day to day care, this will be helpful. But where the parent has been living apart from the child for some time, someone else will obviously have had to look after the child’s needs. This does not mean that the sponsoring parent cannot show sole responsibility.

The short story, according to the Home Office, is that

Sole parental responsibility means that one parent has abdicated or abandoned parental responsibility, and the remaining parent is exercising sole control in setting and providing the day-to-day direction for the child’s welfare.

The guidance goes on specifically to say

where both parents are involved in the child’s upbringing, it will be rare for one parent to establish sole parental responsibility.

Where the other parent has almost any level of involvement in the child’s upbringing, this will make it hard to impossible to establish the parent coming to the UK has sole responsibility. For example, if the child lives or stays with the other parent or the other parent makes a regular financial contribution then it is going to be very difficult to provide sole responsibility.

The Home Office guidance goes on to set out a list of other factors that officials will take into account. This includes whether

• decisions about the upbringing of the child are made under the “sole direction” of the sponsoring parent
• the sponsoring parent has exclusive responsibility for decisions about the child’s education, health and medical treatment, religion, residence, holidays and recreation
• significant or even exclusive financial support is relevant but not determinative

The Home Office recognises that it is unrealistic for a child to have had contact with no other adult than the sponsoring parent. What really matters is showing that the sponsoring parent has “continuing sole control and direction of the child’s upbringing, including making all the important decisions in the child’s life.”

One final point. Sole responsibility can be recent or long-standing. For example, sometimes a parent will leave a child with their own parent — the child’s grandparent — for a time while the parent establishes themselves in a new country. This sort of arrangement can raise questions at the Home Office about whether the parent has retained sole responsibility. But if the care arrangements start to break down, sometimes gradually as the child grows older or sometimes suddenly owing to the carer’s ill-health, then the parent might rapidly resume sole responsibility.

What do immigration judges say about sole responsibility?

The second source to which we can turn for guidance is the tribunal and the courts. The most important case is getting a bit old now but it is still followed and it heavily influenced the current version of the Home Office guidance. The meaning of “sole responsibility” was explored in a case called TD (Paragraph 297(i)(e): “sole responsibility”) Yemen [2006] UKAIT 00049. Although it is now a little long in the tooth, it remains good law:

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”.

The tribunal set out a list of considerations to be taken into account by decision-makers looking at this question. They should be read carefully by anyone making an application where this might be an issue:

1. Who has “responsibility” for a child’s upbringing and whether that responsibility is “sole” is a factual matter to be decided upon all the evidence. 
2. The term “responsibility” in the immigration rules should not to be understood as a theoretical or legal obligation but rather as a practical one which, in each case, looks to who in fact is exercising responsibility for the child. That responsibility may have been for a short duration in that the present arrangements may have begun quite recently.
3. “Responsibility” for a child’s upbringing may be undertaken by individuals other than a child’s parents and may be shared between different individuals: which may particularly arise where the child remains in its own country whilst the only parent involved in its life travels to and lives in the UK.
4. Wherever the parents are, if both parents are involved in the upbringing of the child, it will be exceptional that one of them will have sole responsibility.
5. If it is said that both are not involved in the child’s upbringing, one of the indicators for that will be that the other has abandoned or abdicated his responsibility. In such cases, it may well be justified to find that that parent no longer has responsibility for the child. 
6. However, the issue of sole responsibility is not just a matter between the parents. So even if there is only one parent involved in the child’s upbringing, that parent may not have sole responsibility.
7. In the circumstances likely to arise, day-to-day responsibility (or decision-making) for the child’s welfare may necessarily be shared with others (such as relatives or friends) because of the geographical separation between the parent and child.
8. That, however, does not prevent the parent having sole responsibility within the meaning of the Rules. 

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.

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. 

Normally lives with

The “normally lives with” test only applies where the child is already in the UK and applying for leave to remain with a sponsoring parent who has or is applying at the same time for settlement. There is no equivalent in the rules for entry clearance.

The sponsoring parent must show that the child “normally lives with this parent and not their other parent”. See paragraph E-LTRC.1.6 of Appendix FM.

Where the parents are separated and the child “lives with” both of them, on the face of it this situation does not qualify. However, the Home Office guidance goes on to explain that situations of shared responsibility do potentially qualify where there is a shared residence order or consensual agreement between the parents:

where a child spends equal time with either parent, for example 7 days out of 14 with both throughout the year, for the purposes of this route, the child will be considered to ‘normally live with’ the applicant.

Evidence will be needed. A court order would normally be considered sufficient where there is one. Confirmation from the other partner or evidence from school or similar, from a professional service provider or from a branch of government such as the Department for Work and Pensions, HM Revenue and Customs or social services can also be sought.

Exclusion undesirable

The full test under this route is whether

there are serious and compelling family or other considerations which make exclusion of the child undesirable and suitable arrangements have been made for the child’s care.

This test was considered in a case called Mundeba (s.55 and para 297(i)(f)) [2013] UKUT 88 (IAC). The tribunal held that

The exercise of the duty by the Entry Clearance Officer to assess an application under the Immigration Rules as to whether there are family or other considerations making the child’s exclusion undesirable inevitably involves an assessment of what the child’s welfare and best interests require.

When making this assessment the court suggested the following:

Family considerations require an evaluation of the child’s welfare including emotional needs. ‘Other considerations’ come in to play where there are other aspects of a child’s life that are serious and compelling for example where an applicant is living in an unacceptable social and economic environment. The focus needs to be on the circumstances of the child in the light of his or her age, social background and developmental history and will involve inquiry as to whether:-

1. there is evidence of neglect or abuse;
2. there are unmet needs that should be catered for;
3. there are stable arrangements for the child’s physical care;

The assessment involves consideration as to whether the combination of circumstances are sufficiently serious and compelling to require admission.

The evidence which might be advanced to support an application made on this basis will be, as lawyers say, highly fact-sensitive.

What about the best interests of children?

In all immigration decisions affecting children in the UK, section 55 of the Borders, Citizenship and Immigration Act 2009 has the effect that the best interests of the child must be considered. That duty does not apply to children outside the UK, though. In T (s.55 BCIA 2009 – entry clearance) Jamaica [2011] UKUT 00483 (IAC) the Upper Tribunal inevitably decided that the language of section 55 allowed for no other conclusion.

The statutory guidance referred to by the Upper Tribunal in the determination is that of November 2009 entitled Every Child Matters, Change for Children. This remains current today. At paragraph 2.34 of the guidance it states

The statutory duty in section 55 of the 2009 Act does not apply in relation to children who are outside the United Kingdom.  However, UK Border Agency staff working overseas must adhere to the spirit of the duty and make enquiries when they have reason to suspect that a child may be in need of protection or safeguarding, or presents welfare needs that require attention. In some instances international or local agreements are in place that permit or require children to be referred to the authorities of other countries and UK Border Agency staff will abide by these.

The Upper Tribunal also held that

…where there are reasons to believe that a child’s welfare may be jeopardised by exclusion from the United Kingdom, the considerations of Article 8 ECHR, the “exclusion undesirable” provisions of the Immigration Rules and the extra statutory guidance to Entry Clearance Officers to apply the spirit of the statutory guidance in certain circumstances should all be taken into account by the ECO at first instance and the judge on appeal.

As the tribunal says in the case, it is difficult to contemplate a scenario where the section 55 duty is material to an immigration decision and indicates a certain outcome but Article 8 does not. The fact that section 55 does not apply to children outside the UK therefore should matter very little in practice.

Is “sole responsibility” still the right approach today?

The ‘sole responsibility’ and ‘serious and compelling family or other considerations which make exclusion of the child undesirable’ tests for the admission of children to join parents in the UK have featured in the Immigration Rules for time immemorial. Both legal context and best practice have changed considerably in recent years, though. With the lifting of the UK’s immigration reservation to the UN Convention on the Rights of the Child, the passage of section 55 of the Borders, Citizenship and Immigration Act 2009 and cases like EM (Lebanon) and ZH (Tanzania) we should all now be following a much more child-centred approach in immigration law.

That means putting the best interests of the child front and centre but also ensuring that the voice of the child is heard.

Like the rules themselves, the truth is that not a lot has changed in the way some of us argue and evidence these child entry clearance cases where one parent is resident in the UK but the other is not.

Too often, immigration cases for or about children are still devoid of real evidence from or concerning the child. What does the child think of moving country, leaving everything he or she knows behind him or her and joining a hitherto absent parent? Is it exciting and will it fill an emotional hole in their life to be with the parent, or are they scared at the prospect of the unknown? Or both? Quite often, we simply don’t know. Or should we simply accept that parents know what is best for the children and should be permitted to make decisions about their country of residence?

The ‘sole responsibility’ test in particular is a distraction from what should, if a genuinely child-centred approach were followed, be the real relevant considerations. It diverts Entry Clearance Officers, immigration lawyers and judges from looking at the situation of the child and causes focus on the situation of the parent. It is almost as if being reunited with one’s child is a reward for taking a long distance interest in their upbringing. The right approach is surely to examine the case from the child’s perspective — it is the child’s appeal after all — and consider what is best for that child.

In almost all circumstances, it will be best for a child to live with his or her parent. If the child is currently living with a carer or a relative other than a parent and the other parent is not able or willing to provide care, there is a very strong argument that the child should be admitted to the UK on the same basis as other children without additional hurdles being imposed.

In Mundeba (s.55 and para 297(i)(f)) Democratic Republic of Congo [2013] UKUT 88 (IAC) the Upper Tribunal deconstructed the language of para 297(i)(f) and allowed for a more inclusive approach to the ‘exclusion undesirable’ test than has traditionally been the case, reading into it at least some of the more child-centred modern considerations one would expect in this day and age. Even then, though, the test requires something far more than best interests:

In our view, ‘serious’ means that there needs to be more than the parties simply desiring a state of affairs to obtain. ‘Compelling’ in the context of paragraph 297(i)(f) indicates that considerations that are persuasive and powerful. ‘Serious’ read with ‘compelling’ together indicate that the family or other considerations render the exclusion of the child from the United Kingdom undesirable. The analysis is one of degree and kind.  Such an interpretation sets a high threshold that excludes cases where, without more, it is simply the wish of parties to be together however natural that ambition that may be.

The tribunal goes on to hold:

The exercise of the duty by the Entry Clearance Officer to assess the application under the Immigration Rules as to whether there are family or other considerations making the child’s exclusion undesirable inevitably involves an assessment of what the child’s welfare and best interests require…

As a starting point the best interests of a child are usually best served by being with both or at least one of their parents. Continuity of residence is another factor; change in the place of residence where a child has grown up for a number of years when socially aware is important: see also SG (child of a polygamous marriage) Nepal [2012] UKUT 265 (IAC); [2012] Imm AR 939.

Sole responsibility as interpreted as a test of a parent’s level of engagement with the major decisions in a child’s life is a hangover from a bygone age. An astute lawyer can draw on other arguments to argue a case in an appropriate, modem and child-centred way.

This article was originally published way back in March 2013 and has been updated several times to take account of changes in the law since then. It is correct as of the new date of publication.