Successful application for leave to remain in the UK as a dependent child of a Tier 2 migrant under the Points Based System
Children often are the most affected ones when it comes to a breakdown of marriage. Their home and living environment change forever when the parents decide to terminate their relationship or marriage. It can be more overwhelming when one of the parents also decides to relocate to another country, which results in more complex matters as there will also be the Immigration aspect to consider. Our specialist Immigration team work cautiously and promptly to make the whole process as smooth as possible for the relevant child and parent.
Dependent children of PBS migrants can obtain leave to remain in the UK, even if one parent is no longer in the family picture. Like every other UK visa and leave to remain application, there are essential requirements which must be met and supporting evidence which must be provided. Our specialist Immigration department are here to guide you through the whole process, to make sure your child is not separated from you when you immigrate to the UK.
Our client was a Tier 2 migrant, who shortly after the birth of her child, divorced from her spouse. The Tier 2 migrant entered the UK together with her dependant minor child after accepting a job offer under the point-based system. Although the child did not have a visa in place, her entry was permitted by the Immigration officer at the border as the child had leave to remain in a self-governing British Crown state. This is a risky step to take, as it’s not in accordance with the strict interpretation of the Immigration Rules, therefore, it is best to apply for the Tier 2 migrant dependant entry clearance prior to attempting entry to the UK. The child applicant will then be able to extend her/his leave to remain in the UK by meeting the relevant requirements.
Once the Tier 2 migrant and dependant arrived in the UK, they sought legal advice from our team. It was advised that a leave to remain application must be submitted to legalise the dependant child’s stay in the UK. Our team immediately commenced on the application, advising on the requirements and situation when the migrant parent has sole responsibility of the child’s upbringing.
Our team guided the Tier 2 migrant through the requirements and the documentary evidence required for the dependant child’s application for leave to remain.
Requirements for leave to remain as a child dependant of a Tier 2 General Migrant
To be able to qualify for leave to remain as the child dependant of a Tier 2 Migrant under the Immigration Rules, you must meet the following requirements.
- The child must be under 18 or over 18 if they’re currently in the UK as a dependant
In our client’s case, the child was under the age of 18 and was therefore qualified for the dependant route.
- The child must not fall for refusal under the general grounds for refusal, and if applying for leave to remain, must not be an illegal entrant
This was a problematic area in our case as the child, while not an illegal entrant, had entered the country as a resident of a British Overseas Territories with the view that the entry was a short one and for a visit. Therefore, this point could have counted against our clients case, as it could have seen as attempt at deception, leading to a possible refusal. This is why, our immigration lawyers made sure to cover this point and explain the circumstances in which the child was brought to the UK.
- The applicant must be the child of a parent who has, or is at the same time being granted, valid entry clearance, leave to enter or remain, or indefinite leave to remain, as:
- a Relevant Points Based System Migrant or Appendix W Worker, or
- the partner of a Relevant Points Based System Migrant or Appendix W Worker.
or who has obtained British citizenship having previously held indefinite leave to remain as above.
Our client met this requirement as a child of a parent who had leave to remain in the UK as a relevant point based system migrant.
- The applicant must not be married or in a civil partnership, must not have formed an independent family unit, and must not be leading an independent life and, if he is over the age of 16 on the date the application is made, he must provide the specified documents and information in paragraph 319H-SD to show that this requirement is met.
Our minor client was too young to fall under this category. However, if applicable, the dependant must meet this.
- The applicant must not intend to stay in the UK beyond any period of leave granted to the Relevant Points Based System Migrant or Appendix W Worker parent.
This requirement was again not applicable to our client as she was too young. However, If necessary, you must meet the requirement.
- Both of the applicant’s parents must either be lawfully present (other than as a visitor) in the UK, or being granted entry clearance or leave to remain (other than as a visitor) at the same time as the applicant or one parent must be lawfully present (other than as a visitor) in the UK and the other is being granted entry clearance or leave to remain (other than as a visitor) at the same time as the applicant, unless:
- The Relevant Points Based System Migrant or Appendix W Worker is the applicant’s sole surviving parent, or
- The Relevant Points Based System Migrant or Appendix W Worker parent has and has had sole responsibility for the applicant’s upbringing, or
- there are serious or compelling family or other considerations which would make it desirable not to refuse the application and suitable arrangements have been made in the UK for the applicant’s care.
The Tier 2 migrant parent had sole responsibility of the child and therefore this requirement was met. To ensure that we would not encounter any issues in this respect, we had worked closely with the client during the child arrangement process that took place overseas. This enabled us to guide the client throughout, securing the necessary position and documents that we knew would be required for the immigration application.
- You must show that your dependants can be supported while they’re in the UK.
Each dependant must have £630 available to them whether they apply with you or separately. This is in addition to the £945 you must have to support yourself.
- An applicant who is applying for leave to remain must not have last been granted:
(i) entry clearance or leave as a:
(b) short-term student (child)
unless the applicant is applying as the Child of a Relevant Points Based System Migrant who has, or is being granted, leave to remain as a Tier 5 (Temporary Worker) Migrant in the creative and sporting subcategory on the basis of having met the requirement at paragraph 245ZQ(b)(ii);
(ii) temporary admission;
(iii) temporary release; or
(iv) after the date on which paragraph 1 of Schedule 10 to the Immigration Act 2016 is commenced, a grant of immigration bail in circumstances in which temporary admission or temporary release would previously have been granted.
This was another difficult point, as the child technically was a visitor, therefore an in-country application was not possible. To counter this point, our lawyers relied on the fact that the child was born in an Independent Crown Territory and argued that this should have been taken into account. They further put together a strong case n respect of applying the discretion vested in the Home Office, given the young age of the child and the aspect that the best interest of the child should be considered in all applications involving children.
- All arrangements for the child’s care and accommodation in the UK must comply with relevant UK legislation and regulations.
The Tier 2 migrant must evidence that appropriate accommodation and care is in place and can be provided to the dependant child.
Our specialist Immigration lawyers drafted strong representations to support our client’s application and why she should still be granted with leave to remain.
After obtaining detailed instructions from our client and obtaining evidence of sole responsibility, and reasons why the application cannot be submitted from abroad, we prepared our client’s application and advised our client on the next steps if it were to be refused.
As a result of our hard work, the child was granted leave to remain and the mother was able to continue with her work in the UK without any further disruption.
If you are a dependent family member of a PBS migrant or a PBS migrant seeking to bring your family, it is highly advisable that you speak to the best immigration lawyers, prior to making any arrangements in respect of relocation.
Contact our immigration team to find out how we can help you with your UK immigration matter.