There are parents of British children in the UK and overseas who do not hold settled status or leave to remain. This can be an extremely stressful and difficult situation for parents of British children who are overseas as they are separated from their child. The situation is just as difficult for parents in the UK without settled status who fear separation of the same.
The Immigration Rules in the UK contain relevant provisions to reunite parents with their children or assist parents already in the UK to remain with their child. This visa category is most suited to a parent exercising access rights to a settled child in the UK or for those who wish to continue their parental relationship with their settled child in the UK.
What are the requirements of applying for a visa as the parent of a British child resident in the UK?
A crucial point to firstly note is that a parent is not eligible to apply under this category, if he/she is eligible to apply for leave to enter or remain based on their relationship with a partner who is present and settled in the UK. If a parent is eligible to apply for leave to enter or remain based on such a relationship, then he/she must apply under that category instead.
An applicant submitting the application from within the UK cannot make an application if, he/she currently holds a visit visa or leave for a period of six months or less under a different visa category. In circumstances where the applicant is making an entry clearance, the applicant must be outside the UK.
The relationship requirements under this visa category stipulate that the applicant must be 18 years of age or older and as expected, the child of the applicant must be under the age of 18. The applicant’s child must be residing in the UK with settled status which means that the child must either be a British citizen or hold Indefinite Leave to Remain.
However, in circumnutates where the applicant is making an application from within the UK whose child has not acquired settled status, he/she may still be able to make an application if the relevant child has been residing in the UK continuously for at least seven years. Contact us if you are of the opinion that your child falls within this category and our specialist immigration solicitors will ascertain whether you are still eligible to apply for leave to remain as the parent of a child in the UK.
Appendix FM of the Immigration Rules also states that the applicant must have acquired sole parental responsibility for the settled child. Parental responsibility is defined under section 3 of the Children Act 1989 as “all rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property”. As with all applications, the applicant must provide sufficient evidence to demonstrate that he/she has acquired sole parental responsibility.
If the applicant has not acquired sole parental responsibility, the parent with whom the child usually resides must be settled in the UK and must not be in a relationship with the applicant. As mentioned, the applicant must not be eligible to apply for entry clearance or leave to remain as a partner under Appendix FM. It is vital that the applicant can provide evidentiary documentation to establish that he/she has direct access to the relevant settled child by way of an agreement with the parent that the child usually resides with.
Alternatively, the applicant can also rely on an order sealed by the courts in the UK if the parents have not been able to reach an amicable agreement. Such an order is commonly referred to as a Child Arrangements Order which helps determine with whom a child resides and the contact a child is to have with their non-resident parent.
Before an application is made for a Child Arrangements Order, the parent intending to make such an application must first demonstrate that mediation was attempted in order to resolve the matter at hand. The applicant will therefore be required to show that a mediation information assessment meeting (MIAM) was attended; the mediator will sign the relevant form to confirm that mediation was attempted.
In circumstances where mediation is unsuccessful, an application can be made to the court for a Child Arrangements Order for which there is a fee of £215. It is essential to take note of the fact that only those who have parental responsibility, whether sole or shared, can apply for a court order. This can at times be difficult for fathers who were not married to the mother of their child at the time of the child’s birth as they will not have parental responsibility. The relevant legislation states that a father will have parental responsibility if he is named on the birth certificate and the child was child born after 1 December 2003. A father will not have parental responsibility if the child was born before 1 December 2003 in which case an application can be made to the court for a Parental Responsibility Order.
Contact us you if require assistance in determining whether you have parental responsibility, or if you require further guidance on applying for a Child Arrangements Order.
Further to the relationship requirements of the relevant visa, the financial requirements of the application dictates that applicants must be able to sufficiently prove their ability to maintain and accommodate themselves privately and their child without being a burden on the state. The applicant must show that he/she has the appropriate accommodation to house the child in question without any issues surrounding overcrowding.
There is also an English language requirement that must be met by applicants in order to demonstrate a good knowledge of English. This requirement will be met if the applicant:
- has as obtained Level A1 of the Common European Framework in speaking and listening; or
- is a national of a majority speaking English country; or
- has successfully obtained a degree which was taught or researched in English; or
- has obtained a qualification overseas equivalent to a bachelor’s degree or higher which has been confirmed by UK NARIC to have been taught or researched in English at level A1 of the Common European Framework
The applicant is exempt from meeting the English language requirement if the applicant is:
- aged 65 or over;
- disabled, regardless of whether it is a physical or mental disability; or
- subjected to exceptional circumstances
The supporting documents that are provided with the application are all vital in ensuring the success of the application and as such, it is important to be aware of the relevant documents that must be submitted with such an application. It is helpful to remember that without the necessary supporting documents, an applicant is unable to prove that the requirements under this visa are met. If the application is successful, the applicant will be placed on the 10 year route to settlement with an initial grant of leave for 2.5 years which must be extended continuously thereafter.
Contact our experienced immigration lawyers in London
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