Education
In-country settlement applications for children and the different sole responsibility requirements
As anyone who has ever battled the Home Office over whether a client has “sole responsibility” over a child’s upbringing or whether their exclusion is otherwise undesirable will know, this requirement is antiquated, outdated and causes a lot of unnecessary stress and hassle while separating children from their parents. Paragraph 298 (indefinite leave to remain as a child) has a more lenient test than other routes and in some cases it is possible to rely on this rule when making an in-country settlement application.
We have covered this requirement previously with respect to family applications under paragraph 297 (indefinite leave to enter as a child) and Appendix FM. There is a similar sole responsibility requirement for applicants in work and study routes, though instead of “exclusion undesirable”, the alternative test is phrased as whether there are “serious and compelling circumstances” (paragraph CHI 4.3 (b)) to grant the child settlement to live with their parent in the UK. In practice, it is easier to qualify in work and study routes, though refusals on this basis are still fairly common.
Paragraph 298
When it comes to in-country settlement applications under paragraph 298, the test for children is different. They must be seeking to remain in the UK with a parent, parents or a relative where (emphasis added):
(a) both parents are present and settled in the United Kingdom; or
(b) one parent is present and settled in the United Kingdom and the other parent is dead; or
(c) one parent is present and settled in the United Kingdom and has had sole responsibility for the child’s upbringing or the child normally lives with this parent and not their other parent; or
(d) one parent or a relative is present and settled in the United Kingdom and 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
The distinction is an important one. Once the child is in the UK, and their parent is British or settled, they are eligible to apply for settlement on the basis that they normally live with their UK-based parent and not their other parent, bypassing the sole responsibility test that applies to entry clearance settlement applications under paragraph 297 and settlement applications in work and study routes.
“Normally lives with”
There is no case law or guidance on what “normally lives with” means. Applying the natural meaning of the phrase, it seems to mean the parent with whom the child spends more time living with than the other parent.
The kind of evidence that you might want to submit to show that the child normally lives with their parent might include a court order (if there is one), letters from the child’s school and/or GP confirming where the child lives or other evidence of cohabitation. Where possible, I also include evidence of where the other parent lives, which might be passport stamps showing they are outside the UK and correspondence addressed to them at their home address.
What are the other requirements under paragraph 298?
The requirements are relatively limited. The parent they live with in the UK must be British or settled. If the child is under 18 at the date of application, there is only a requirement that they have or have had leave to remain in the UK. Thus, they are eligible even if they’re an overstayer, assuming they had leave at some point.
The immigration status requirement is more stringent for over 18s, which requires that the applicant:
(b) was given leave to enter or remain with a view to settlement under paragraph 302 or Appendix FM; or
(c) was admitted into the UK in accordance with paragraph 319R and has completed a period of 2 years limited leave as the child of a refugee or beneficiary of humanitarian protection who is now present and settled in the UK or as the child of a former refugee or beneficiary of humanitarian protection who is now a British Citizen, or
(d) the applicant has limited leave to enter or remain in the United Kingdom in accordance with paragraph 319X, as the child of a relative with limited leave to remain as a refugee or beneficiary of humanitarian protection in the United Kingdom and who is now present and settled here; or
(e) was last given limited leave to remain under paragraph 298A
As with under 18s, that leave does not have to be current, though I would still be nervous about lodging an out-of-time application for a child over 18 that wasn’t covered by the exceptions for overstayers in paragraph 39E of the Rules if it could be avoided. The child must also not be “leading an independent life, is unmarried, and has not formed an independent family unit”.
There is the usual adequate maintenance/accommodation requirement:
(iv) can, and will, be accommodated adequately by the parent, parents or relative the child was admitted to join, without recourse to public funds in accommodation which the parent, parents or relative the child was admitted to join, own or occupy exclusively; and
(v) can, and will, be maintained adequately by the parent, parents or relative the child was admitted to join, without recourse to public funds;
However, unlike with other maintenance requirements, you can rely on credible third-party support to meet this requirement.
Finally, they must not fall for refusal under the Part 9 general grounds for refusal and if they’re over 18, they must meet the English language and Life in the UK requirements.
Where an applicant falls for refusal on the basis of suitability or not meeting the English language or Life in the UK requirements, there is a provision for a grant of limited leave instead:
298A If an applicant does not meet the requirements of paragraph 298 only because:
(a) the applicant does not meet the requirement in paragraph 298(vi) by reason of a sentence or disposal of a type mentioned in paragraph 9.4.3. of Part 9 of these Rules; or
(b) an applicant aged 18 or over does not meet the requirement in paragraph 298(vii); or
(c) the applicant would otherwise be refused indefinite leave to remain under paragraph 9.4.3. of Part 9 of these Rules, the applicant may be granted limited leave to remain for a period not exceeding 30 months and subject to a condition of no recourse to public funds.
When is it relevant?
This provision might be relevant in a number of different circumstances. For one, this is actually the provision under which every child with leave under Appendix FM obtains settlement, as Appendix FM has no provisions for child settlement.
Sometimes a settled or British parent will find themselves in the UK with their child, who is here as a visitor.
Case study
Amira is a British citizen by descent and a citizen of the US. She has only lived in the UK for a year prior to the birth of her daughter, Ayesha, who was born in the US. Ayesha’s father is Mark, a US citizen.
Amira and Mark have recently separated and with Mark’s knowledge, Amira and Ayesha moved to the UK to live with extended family. Without their taking legal advice (which should have been not to do this if the intent was to settle) or being questioned at the border, Ayesha entered the UK as a visitor.
Because Amira had not lived in the UK for three years prior to Ayesha’s birth, she does not qualify for registration under section 3(2) of the BNA 1981.
Amira instead applies for settlement for Ayesha under paragraph 298. She provides evidence that Ayesha lives with her in the UK by way of school and GP letters showing she is resident at the same address. The letters also say that Amira is the only parent they have on record. She also provides evidence from Mark showing his residence in the US. Amira is still looking for work so she relies on cash savings to meet the adequate maintenance requirement as well as evidence that Amira’s grandmother, with whom they live, is able to provide financial support for Ayesha in the form of her bank statements showing cash savings and a letter confirming the support.
The application is successful.
It is also not uncommon for a family to move to the UK in a points based route like Skilled Worker, only for the parents to separate before reaching the settlement stage. In those circumstances, if the child normally lives with the main applicant, they have two choices for the child’s settlement application. Their first option is to apply for the child to settle with them in their points based route and go through the hassle of trying to prove either that they have sole responsibility or that there are serious and compelling reasons to grant the child settlement. Alternatively, they can obtain settlement for themselves in their points based route and then immediately lodge a paragraph 298 application for the child and only show that the child lives with them and not the other parent.
Conclusion
Essentially, this is a reminder that paragraph 298 exists and can be used successfully in a variety of different situations. It will potentially be a far better alternative to other routes which have far more stringent requirements around the need to show “sole responsiblity”.
