Appendix Children: which routes does it apply to and what are the requirements?

Appendix Children was published in October 2023 and consolidates most of the rules for child dependents of parents on points-based immigration routes which were previously spread out across the individual categories. It also covers children applying in their own right in points-based categories that allow for that, such as the UK Ancestry route, which allows 17-year-olds to apply as a main applicant.

Child dependents

Applicable routes

The first part of Appendix Children applies to child dependents in the following categories:

•     Appendix Domestic Workers in a Private Household
•     Appendix Global Business Mobility – Senior or Specialist Worker
•     Appendix Global Business Mobility – Graduate Trainee
•     Appendix Global Business Mobility – UK Expansion Worker
•     Appendix Global Business Mobility – Service Supplier
•     Appendix Global Business Mobility – Secondment Worker
•     Appendix Global Talent
•     Appendix Graduate
•     Appendix Gurkha and Hong Kong military unit veteran discharged before 1 July 1997
•     Appendix High Potential Individual
•     Appendix Innovator Founder
•     Appendix International Sportsperson
•     Appendix Representative of an Overseas Business
•     Appendix Scale-up
•     Appendix Skilled Worker
•     Appendix Start-up
•     Appendix Student
•     Appendix Temporary Work – Creative Worker
•     Appendix Temporary Work – Religious Worker
•     Appendix Temporary Work – Charity Worker
•     Appendix Temporary Work – International Agreement
•     Appendix Temporary Work – Government Authorised Exchange
•     Appendix T2 Minister of Religion
•     Appendix UK Ancestry

On 31 January 2024 this list will be extended to include Appendix Bereaved Partner, Appendix Temporary Work – Creative Worker, Appendix Temporary Work – Government Authorised Exchange, Appendix Returning Resident and Appendix Victim of Domestic Abuse.

Age, independent life and care requirements

Children must be under 18 unless they entered the route when they were under 18, and they must not be living an independent life. The guidance explains that not living an independent life means the child does not have a partner and is living with their parent (unless they are at boarding school, college or university as part of their full-time education).

There is also a care requirement:

CHI 2.1. If the applicant is under the age of 18 on the date of application, there must be suitable arrangements for the child’s care and accommodation in the UK which must comply with relevant UK law.

The guidance says that where the child will be living with their parent, at school, college or university there will in most cases be no need to carry out further checks for this requirement.

Relationship requirement

As before, the applicant must be the child of a parent (referred to in the rules, irritatingly, as “P”) in the following circumstances:

(a) P has permission on the same route the applicant is applying for; or
(b) P is, at the same time, applying for (and is granted) entry clearance or permission on the same route the applicant is applying for; or
(c) P is settled or has become a British citizen, providing P previously had permission on the same route the applicant is applying for and the applicant had permission as P’s child at that time or was born since P’s last grant of permission and before P settled; or
(d) P is settled or has become a British citizen, providing P had permission on the UK Ancestry route when they settled and the applicant is applying on the UK Ancestry route

The only real change to this requirement brought in with this Appendix is that the wording of the status of the other parent, where the other parent is British, is slightly different:

CHI 3.2. The applicant’s parents must each be either applying at the same time as the applicant or have permission to be in the UK (other than as a Visitor) unless:
(a) the parent applying for or with entry clearance or permission to stay is the sole surviving parent or has sole responsibility for the child’s upbringing; or
(b) the parent who does not have permission:
(i) is a British citizen or a person who has a right to enter or stay in the UK without restriction; and
(ii) lives, or intends to live, in the UK; or
(c) the decision maker is satisfied that there are serious and compelling reasons to grant the applicant entry clearance or permission to stay with the parent who is applying for or has entry clearance or permission or who is covered by CHI 3.2.(b).

Previously, the rules stipulated that the other parent who is a British citizen or has the right to live in the UK without restriction “is or will be ordinarily resident in the UK”, which has now been replaced with the simpler “lives, or intends to live, in the UK”. In practice, however, this is unlikely to make much, if any, difference.

Sole responsibility

The guidance provides an outline of the kind of evidence they would expect to see where someone is applying on the basis of sole responsibility:

In assessing whether the applicant has sole parental responsibility for a child, you must consider any evidence provided to show that:

• decisions have been taken and actions performed in relation to the upbringing of the child under the sole direction of one parent
• only one parent is responsible for the child’s welfare and for what happens to them in key areas of the child’s life, and the other parent does not share this responsibility for the child
• one parent has sole responsibility for:
  • making decisions regarding the child’s education, health and medical treatment, religion, residence, holidays and recreation
  • protecting the child and providing them with appropriate direction and guidance

It also provides some helpful notes on the sole responsibility test:

• sole responsibility is not the same as sole legal custody – a parent may have sole legal custody for a child where the other parent is still involved in the child’s life
• making significant or even sole financial provision for a child does not in itself demonstrate sole parental responsibility
• where both parents are involved in the child’s upbringing, it will be rare for one parent to establish sole parental responsibility
• sole parental responsibility can be recent or long-standing – any recent change of arrangements should be scrutinised to make sure you are satisfied this is genuine. If you think it necessary, you should contact both the applicant’s parents for more information

None of this is particularly novel; we go into this subject in a detailed blog post all about sole responsibility and child applications generally. None of it will come as much of a surprise to practitioners with experience of preparing children’s applications.

Serious and compelling reasons

The guidance also provides an overview of how the “serious and compelling reasons” test will be applied:

Where one parent is coming to the UK and the other is remaining overseas, you should consider the following factors:

• are there are good reasons why the other parent is not coming to the UK
• are there are good reasons for the child not to stay overseas with the other parent
• whether coming to the UK or staying in the UK would be in the best interests of the child

Where one parent is in the UK or coming to the UK and the other parent is remaining overseas and is involved in the child’s life, written consent for the child’s will be a positive factor in your assessment of the child’s best interests.

Factors that are more likely to indicate that there are serious and compelling reasons, if supported by evidence:

Only one parent is coming to the UK but the other parent is:

• living somewhere which make it impossible for them to care for the child, for example they are filming in a hostile location, going on military manoeuvres, or there is another reason why it would not be safe for the child to live with them
• living in a country where the child cannot go, for example where being a single parent is not allowed
• planning to join the family after undergoing medical treatment or after completing their current work or study commitments within the period of the grant of permission that the child applicant is applying for
• looking after a relative overseas who requires care, such as an elderly parent
• no longer in a relationship with the parent coming to the UK, and unwilling to move to the UK, and the child currently lives with the parent coming to the UK

This list is not exhaustive or definitive. Any reasons or claims should be backed up by credible evidence.

Factors that are more likely to indicate that there are not serious and compelling reasons:

• the child lives with the parent who is not coming to the UK in a settled environment and that parent could continue to care for the child
• the child lives with another relative overseas who could continue to provide care (for example grandparents)

It is not a requirement for the other parent to be eligible to and intend to join the child in the UK, but that where there is satisfactory evidence that this is likely in the future, you must consider this a positive factor in your assessment

This is broadly in line with the previous guidance on child applicants under the points based immigration system, which tends to be significantly more flexible and sympathetic than the equivalent “exclusion undesirable” test for children applying under categories like Appendix FM and Part 8, in both formulation and how it’s applied in practice. The test that applies to settlement applications is similar:

CHI 4.3. The applicant’s other parent (who is not the person (P) in CHI 4.1.) must be being granted settlement at the same time, or be settled or a British citizen, unless:
(a) the person (P) in CHI 4.1. is the applicant’s sole surviving parent or has sole responsibility for the applicant’s upbringing; or
(b) the decision maker is satisfied that there are serious and compelling reasons to grant the applicant settlement.

Main applicant children

The second part of Appendix Children applies to the following categories:

•     Appendix Child Student
•     Appendix International Sportsperson
•     Appendix Short-term Student (English language)
•     Appendix Student
•     Appendix UK Ancestry

From 31 January 2024 this will be extended to include Appendix Temporary Work – Creative Worker, Appendix Temporary Work – Government Authorised Exchange and Appendix Returning Resident.

This section only deals with the parental consent requirement:

CHI 5.1. If the applicant is under the age of 18 on the date of application, they must have written consent from:
(a) both parents; or
(b) one parent, if that parent has sole responsibility for the applicant; or
(c) the applicant’s legal guardian.

CHI 5.2. The written consent must provide contact details of the parent(s) or legal guardian and confirm support for all of the following:
(a) the application; and
(b) the applicant’s living and care arrangements in the UK; and
(c) if the application is for entry clearance, the applicant’s travel to, and reception arrangements in, the UK.

The guidance also makes it clear that evidence of the relationship will be required:

Where one of the child’s parents is deceased, written consent will be required from the surviving parent. If there is reason to believe that another person shares parental responsibility with the surviving parent, their consent will also be required.

The applicant must provide evidence of their relationship with their parent or parents or legal guardian who have provided consent in support of their application. This can be in the form of a copy of one or more of the following documents:

• a birth certificate that shows the names of the applicant’s parent or parents
• a certificate of adoption that shows the name of the applicant’s parent or parents
• a court or government issued document naming the applicant’s legal guardian
• where one parent is deceased, a copy of the death certificate

It also provides more information about the form the consent should take. The written consent will satisfy caseworkers if it:

• includes contact details for the parent, parents or legal guardian
• confirms that the parent, parents or legal guardian consent to the child’s application
• confirms that the parent, parents or legal guardian consent to the child’s living and care arrangements in the UK
• confirms that the parent, parents or legal guardian consent to the child’s travel to and reception arrangement in the UK, if the application is for entry clearance

Finally, there is guidance on what happens where written consent is not provided as required:

If written parental consent is not provided, or is provided by only one parent when both parents share responsibility for the child, you should consider any explanation given for the absence of written consent and whether it is appropriate to exercise discretion to grant the application without it.

Examples of where you might exercise discretion include:

• they are estranged from one or both of their parents
• one or both of their parents is/are not contactable for some reason, for example, on military service and there is evidence of this, such as an official letter or payslip, or reliable country information which confirms that country’s arrangements for military service
• there is evidence of domestic abuse in the family and the applicant is unwilling or unable to seek consent from one or both parents

This is also broadly in line with previous guidance, only a little more detailed, which is always welcomed.

Conclusion

The explanatory memorandum that accompanied the introduction of Appendix Children said that it would be rolled out to further routes, so it is likely that we will continue to see new routes added beyond the 31 January 2024 expansion. There are still category-specific rules that apply to child dependents, such as the requirement for children applying in-country under Appendix Skilled Worker to have a certain type of immigration status, so Appendix Children should be read alongside the main category rules when looking at eligibility.