UK: Legacy cases and children

New Zimbabwe – MANY of the so called “legacy cases” are being resolved by the United Kingdom Border Agency. Figures published this week show that the UKBA is dealing with approximately 5,000 cases per month.

Not all of the cases are resulting in the granting of leave to remain, but the vast majority are being granted Indefinite Leave to Remain in the UK. (Please see previous posts on legacy cases).

With the granting of ILR comes a set of new challenges for many migrants living in the UK. Many people left Zimbabwe for political and economic reasons. It was difficult to travel as a family due to financial constraints or the uncertainty of life in the UK. As a result, many families were separated by the move to the diaspora in the early 2000’s.

The separation between parents and children has been heartbreaking for both parents and children. The purpose of this post is to highlight the difficulties that can be encountered in making an application for children to join their parents in the UK. It is not a straightforward issue.

The immigration rules in summary require that the applicant (child) meet the following criteria:

They must be under 18 years of age, and show that they cannot support themselves financially, are not married or in a civil partnership and are not living independently away from your parents.

A child cannot normally go to live in the UK if one parent is living abroad, unless the parent in the UK has sole responsibility for the child, or if there are special reasons why the child should be allowed to join the parent in the UK

Parents must live in the UK legally, with no time limit on their stay.

One parent is living and settled in the UK or is applying for settlement at the same time as applicant, and has had sole responsibility for looking after the applicant

Parents can support applicant without help from public funds

Parents have enough accommodation, which they own or live in, where you can live without help from public funds, and

The applicant is the child of those seeking to come to the UK.

The difficulties that may be faced by many parents will be that they may find it difficult to show that they can support their children without recourse to public funds. Many have been out of work for many years waiting for their cases to be resolved.

It is also difficult to obtain employment during this recession. It may, therefore, take several months for parents that have been granted Indefinite Leave to Remain to be reunited with their children.

The “sole responsibility” rule causes such applications to be very complex, as the meaning of the term cannot be precise. Every family’s situation is unique. For example, sole responsibility is not the same as legal custody, even though the question of who has legal custody will be a relevant consideration in deciding whether a parent has sole responsibility.

How is the term understood by the Border and Immigration Agency (BIA) of the Home Office, and by courts and tribunals in the UK?

The parent based in the UK is known as the “sponsor” of the application and will be the motivating force behind it. The child overseas is known as the “applicant”.

To meet the sole responsibility requirement, it is necessary to satisfy the Home Office that the sponsoring parent has, usually for a substantial period of time, been the chief person exercising parental responsibility for the child. This means that the sponsoring parent has had and still has the ultimate responsibility for the major decisions relating to the child’s upbringing and provides the child with the majority of the financial and emotional support it requires.

The sponsoring parent must show that he or she has had, and continues to have, care and control of the child.

It has been accepted by the courts that many parents would find it impossible to establish literal or absolute “sole responsibility”, since in the majority of situations the other parent has at least some responsibility for their child’s upbringing. Moreover, there will be many situations in which the parents are separated and the sponsoring parent has left their child in the care of other relatives and gone to the UK without the child.

The Home Office instructions to BIA caseworkers, in the form of internal guidance, states that they expect that where the child is being looked after by relatives, they should be the relatives of the sponsor rather than of the child’s other parent. In such a case, the sponsoring parent must still show that she or he has retained the ultimate responsibility for the child’s upbringing and provides the majority of the emotional and financial support needed.

The guidance to BIA caseworkers suggests that an application should normally be refused where, for example, the child is being cared for by the father’s relatives but it is the mother who has applied for the child to join her in the UK.

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