The reason for this is that the UK Immigration Rules do not simply allow a parent to choose where their child will live but instead place an emphasis on maintaining family life with the child's parents.
In practice this means a child cannot come to the UK unless:
- Both parents are in the UK or will be coming to the UK;
- One parent has died; or
- The parent coming to the UK has "Sole Responsibility" for the child's upbringing.
The Sole Responsibility test applies across all visa categories, although there are inconsistencies in the Home Office guidance, but it is a legal concept which only exists in immigration law. In recent years, family law in most jurisdictions has moved away from the idea of sole responsibility or custody and instead seeks to preserve a role for both parents in a child's life which often means the UK immigration requirements are difficult to meet.
What does "sole responsibility" mean?
The Home Office defines a parent as having "sole responsibility" where they are the sole decision-maker on key decisions in the child's life. The emphasis is on key decisions such as where they live, where they go to school and medical decisions and the Home Office accepts that some decisions may be taken by others who are temporarily looking after the child. For example, the fact the child stays with a grandparent one night per week does not necessarily mean the parent has lost their sole decision-making power.
"Sole responsibility" is not necessarily a legal question but it is based on a factual assessment. However, there is contradictory guidance from the Home Office on the role of legal decisions relating to the child. One section of the Home Office guidance says that a legal agreement is not sufficient to show sole responsibility, but another guidance document says that a residence or custody order should normally be accepted as evidence that the test is met.
In practice, it is rare for these applications to succeed unless it can be shown that the parent who is not coming to the UK has little to no involvement in their child's life. Even something as simple as a parent saying they consent to the application, which is required under the Rules, has been enough for the Home Office to argue that they have retained some parental responsibility.
How do you show "sole responsibility"?
The evidence needed to show sole responsibility is very case specific, but as a general rule we would start with any court documents setting out the legal powers of the parents. This can be divorce agreements or parenting agreements which have been formalised under local laws. While the Home Office guidance is contradictory on the weight to be given to these, they often provide a good starting point for the assessment. For example, if one parent has sole custody and the legal documents state they are the only person allowed to make decisions about the child's welfare, it is strong evidence. On the other hand, where the document says both parents have an involvement in decision-making, it suggests more evidence will be needed of how the arrangement functions on a day-to-day basis.
Even if the legal documents clearly give decision-making powers to one parent, it is essential to show how it is being used in practice. This can vary from case to case but in general we look for evidence of:
- Who is the primary contact for the child's school and doctor.
- Who is primarily financially responsible for the child.
- Who organises and decides on extracurricular activities.
- Who has been the person to sign off on the major decisions about the child's life to date.
- How involved the other parent is and whether there is any reason they are not involved or will not be involved moving forward.
Regardless of circumstances, our recommendation for these cases is to submit as much detailed evidence as possible and also to make submissions about the relevant legal tests as we have seen contradictory applications of them by Home Office decision-makers.
How can we help with an application?
Our team are experts in these cases and have recently successfully assisted with:
- An application where the overseas court would not provide a declaration that the mother had sole custody, but the father had not been involved in decisions about his children's lives for several years;
- A case where a parent had been exercising parental rights until recently but was unable to provide the children with care in the future due to a change in circumstances;
- A case where the Home Office initially refused an application and then issued a notice that they were minded to refuse a second application with new evidence.
In each of these cases we helped our clients identify the right evidence to provide the Home Office and provided detailed legal submissions. These submissions set out the correct tests and how the evidence should be applied to these tests, and as a result the applications have been successful.
If you are considering a move to the UK with a child, and the other biological parent will not be moving, we recommend getting advice before applying for the visa. We can assist with preparing the application or considering next steps after a refusal, so please get in touch.
