immigration laws + children by tdelight


									IAS information leaflet                                                                         January 06

Understanding immigration law: Children
This leaflet is designed to give some basic information about immigration law including frequently asked
questions relating to:
√   What children can qualify;
√   Maintenance and accommodation rules;
√   Evidence of sole responsibility for the child;
√   Serious and compelling reasons for not excluding the child;
√   Temporary visas and chidlren.
Please note that this leaflet is for general information purposes only. It is not a complete guide to the law
and is not intended to be a guide to how the law will apply to you or to any specific situation. Our leaflets
are regularly updated but the law may have changed since this was printed, so information in it may be
incorrect or out of date. If you need further legal advice please see the end of this leaflet for our contact
details or email us:
Please note that children of EEA nationals and their spouses are covered on our information sheet
Understanding immigration law: European law and applications.

What children can qualify?
Children must be under 18 years of age and must not be married or have their own family. They must not
be leading an independent life, meaning they must be dependent on their parent or parents.

With whom can children apply to settle in the UK?
A child can apply to join in the UK (or travel with to the UK) his or her parents or, in some cases, can apply
to join or travel with a different relative. Where the child is applying to join either both parents or the one
surviving parent where the other parent is deceased, this is a relatively straightforward application. As with
other types of immigration application, the maintenance and accommodation rules must be satisfied. This is
discussed below.
Where one of the parents is alive and outside the UK and the child is applying to join the other parent in the
UK, the application is not so straightforward. The UK-based parent must show he or she has 'sole
responsibility' for the child or that not admitting the child to the UK would be undesirable because of
serious and compelling family or other circumstances. These more problematic cases are discussed below.
A child can also apply to join another relative, if it can be shown (as above) that not admitting the child to
the UK would be undesirable because of serious and compelling family or other circumstances. There is no
definition of how close the relative must be.

What are the maintenance rules for children?
The parent or parents or other relative sponsoring the application (known as 'the sponsor') must show that
the child can be adequately maintained in the UK without recourse to public funds (see our information
sheet Understanding immigration law: Terminology and definitions or our website). This means that the
family's disposable income must be equivalent to a family on Income Support. Current benefit rates can be
checked on the website. A person on Income Support is also entitled to other
benefits such as housing benefit, council tax relief and free school meals, so the disposable income must be
after the costs of accommodation, council tax and school meals are deducted.
Additional entitlement to child benefit once the child is admitted to the UK does not count as additional
recourse to public funds.

                                                                                          /...continues overleaf
         Understanding immigration law: Children. More information at                      Page 1
IAS information leaflet                                                                           January 06

The financial support must be from the sponsor or sponsors. It cannot be from a friend or other family

What are the accommodation rules for children?
The sponsor or sponsors must show that he, she or they can provide adequate accommodation for the
child. 'Adequate' accommodation mainly means accommodation that is not overcrowded, although if the
accommodation is seriously flawed in some other way that may also mean it is inadequate. Overcrowding is
judged according to the table below, where rooms are proper rooms - not, for example, a kitchen or
bathroom. For the purposes of this calculation, a child under the age of one does not count as a person and
a child between one and ten counts as half a person:

    Rooms                         Persons permitted
      1                                     2
      2                                     3
      3                                     5
      4                                    7.5
      5                                    10
      *                     with an additional 2 persons for
                               each room in excess of 5

In addition, the spouses or partners must show that they own the accommodation or will occupy it
exclusively, meaning that they have a private space that is theirs alone. This can include a room or rooms in a
shared house or in a parent's house.

What does 'sole responsibility' mean?
This is one of the two alternative tests that have to met if one of the child's parents is alive and outside the
UK. The UK-based parent must show sole responsibility for the child's upbringing at the time of the
immigration application. The rule is not interpreted literally as it would be impossible to show sole
responsibility in a strict sense if anyone else was helping to care for the child. The sponsoring parent must
instead show that he or she has responsibility for the major decisions in the child's life and, even though apart
from the child, is highly involved in the child's upbringing, for example through regular contact with the child's
carer (often the child's grandparent or grandparents or a family friend). Equally it can be important to show
that the carer defers to the UK-based parent and does not exercise major responsibility for the child's
upbringing, other than day to day care.
Evidence of financial support is important but not necessarily decisive. Knowledge of the child's life, schooling
and upbringing is also important, as it provides evidence of frequent contact with the child and the carer, for
example by telephone and/or correspondence.
It is possible to succeed with an application where sole responsibility has recently been thrust upon the UK-
based parent, for example through the illness or death of the carer.

What are 'serious and compelling family or other considerations which make exclusion of
the child undesirable'?
This is the other test that a child can apply under if one parent is still alive and outside the UK or if another
relative is sponsoring the child's application. There is quite a lot of overlap with the sole responsibility test
but it is not the same.
Only one of these two tests must be satisfied, not both.
One example of when this test might be satisfied would be where the care arrangements for the child in
the country of origin are or have become highly unsatisfactory.

                                                                                            /...continues overleaf
         Understanding immigration law: Children. More information at                         Page 2
IAS information leaflet                                                                        January 06

What are the rules for a child applying to join a parent or parents on a temporary visa?
A temporary visa might for example include a student or a work permit holder. There are immigration rules
that allow children of those with temporary visas to join their parents in the UK in the same sorts of
circumstances as outlined above. Where all surviving parents have been granted leave to remain in the UK,
the application is relatively straightforward, subject to adequate maintenance and accommodation. Where
one parent remains outside the UK, one of the sole responsibility or serious and compelling family or other
considerations tests must be satisfied.
The visa granted to the child will be for the same duration as for that of the parent or parents.

Where can I find further advice?
At IAS we specialise only in immigration and asylum law. Our teams of expert advisers can be found in
offices across the country: see overleaf for details or check our website.
If you are in the UK, we can give you a free assessment to establish whether we can give you free legal
help. Even if we cannot, we may still be able to help with a fee-paying service that is run on a non-
profit basis. The charges are correpondingly modest; see our website for the current list of fees.
Birmingham      King Edward House, 135a New Street, Birmingham B2 4QJ                     0121 616 3540
Bradford         Unit 26, Carlisle Business Centre, 60 Carlisle Road, Bradford BD8 8BD    01274 482 588
Cardiff          211A City Road, Roath, Cardiff CF24 3JD                                  029 2049 6662
Derby            49 Friar Gate, Derby DE1 1DF                                             01332 371 385
Glasgow          115 Bath Street, Glasgow G2 2SZ                                          0141 248 2956
Leeds            Coverdale House, 14-15 East Parade, Leeds LS1 2BH                        0113 244 2460
Lahore, Pakistan No. 84-B/I Ghalib Road, Ghalib Market, Gulberg III, Lahore, Pakistan     00 92 42 5872760
Leicester       11 Millstone Lane, Leicester LE1 5JN                                      0116 262 9899
Liverpool       Beetham House, 59-61Tithebarn Street, Liverpool L2 2SB                    0151 242 0920
London          County House, 190 Great Dover Street, London SE1 4YB                      020 7967 1200
London           Ebury Business Centre, 161-163 Staines Road, Hounslow TW3 3JB and        020 8607 6570 and
(Hounslow)       71 Grove Road, Hounslow TW3 3PR                                          020 8814 1115
Manchester      Cloister House, West Riverside, New Bailey Street, Salford M3 5AG         0161 834 9942
Middlesbrough Newham House, 96-98 Borough Road, Middlesbrough TS1 2HJ                     01642 219 222
Norwich         4 Rigby’s Court, Norwich, NR2 1NT                                         01603 666 661
Oakington       Oakington Reception Centre, Longstanton, Cambridgeshire CB4 5EJ           01954 783 333
Peterborough Crescent House, 46 Priestgate, Peterborough PE1 1LF                          01733 555 317
Sylhet           5th Floor, Al-Hamra Shopping City, Zindabazar, Sylhet-3100, Bangladesh 00880[821]813448

We also run surgeries across the country - see our website for more details.

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         Understanding immigration law: Children. More information at                 Page 3

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