\n<\/p>\n
In this post we are going to look at the requirements for children to obtain permission to enter and stay in the UK under Appendix FM. Appendix FM<\/a> (for \u201cfamily members\u201d) sets out the rules for immigrants who want to come and join loved ones in the UK.<\/p>\n Before we go any further, remember that if a child\u2019s parent is applying for a visa to enter the UK under Appendix FM, and that child is British or otherwise has settled status, the child will not be required to apply for entry clearance.<\/p>\n Appendix FM is used for applications for children where the parents (or one parent in some circumstances, as we discuss below) are entering the UK under Appendix FM themselves or have already entered and are living in the UK under Appendix FM.<\/p>\n There are also a number of routes for children under Part 8 of the Immigration Rules<\/a>, which is different to Appendix FM. People often talk about the unnecessarily complicated way in which the UK immigration rules are drafted and arranged. This is a good example: similar rules on children are found in completely different places in the rules, unfortunately.<\/p>\n The following rules are for applications made by, or on behalf of, children whose parents are not <\/em>entering or already in the UK under Appendix FM, and where the parents have some other form of leave to remain:<\/p>\n In addition, there are category specific rules for those children joining or accompanying a parent who has leave to remain in a work route, such as Skilled Worker.<\/p>\n The route for children under Appendix FM has borrowed much from Part 8, and many of the requirements of the route we consider below have already been usefully explored in case law over the years.<\/p>\n If the child is making an application at the same time as their parent, then all of the application steps will be undertaken at the same time as those of the parent. In practice, it is likely that most applications under these rules\u00a0<\/em>will be made in this way.<\/p>\n Applications outside the UK are made by filling out an\u00a0online<\/a>\u00a0application form and paying the required fee (\u00a31,846 at the time of writing). On top of this fee, applicants in this route also have to pay the\u00a0Immigration Health Surcharge<\/a>, which for children is \u00a3776 for each year of the visa which is granted (again, figures correct at the time of writing). This visa lasts for two years and nine months, so the total immigration health surcharge is \u00a32,328\u00a0in addition to the fee (\u00a3776 x 3 as it is rounded up to the nearest half year).<\/p>\n Once the application has been submitted and fees paid, the applicant will be invited to book an appointment at their local\u00a0visa application centre<\/a>\u00a0to \u201cenrol biometrics\u201d. This essentially means providing fingerprints and having your photograph taken. If a child is applying to join the parent, it is likely that they will need to accompanied by a responsible adult to this appointment.<\/p>\n Applicants will either need to upload their documents online ahead of their biometrics appointment or pay for the Visa Application Centre to scan them in for them at the appointment. From there they will be sent to the Home Office.\u00a0<\/p>\n The supporting documents which should be submitted will depend on the facts of the particular case.<\/p>\n If an applicant is unable to provide all of the information they would like in the application form, it can help to submit a covering letter. A covering letter can explain how the requirements of the rules are met and provide a guided tour to the evidence being submitted. If the application is complex, or there is a lot of supporting evidence, then this is definitely recommended.<\/p>\n The rest of this note looks at the legal issues which tend to come up most often in these types of applications, and makes suggestions on what evidence might be useful for applicants\u00a0to get hold of in certain situations.<\/p>\n The requirements are set out under Section E-ECC: Eligibility for entry clearance as a child<\/em>. They can be found within Appendix FM<\/a> of the Immigration Rules, within the drop-down menu titled \u2018Family life as a child of a person with limited leave as a partner or parent\u2019. The general requirements are as follows:<\/p>\n EC-C.1.1. The requirements to be met for entry clearance as a child are that-<\/p>\n (a) the applicant must be outside the UK;<\/p>\n (b) the applicant must have made a valid application for entry clearance as a child;<\/p>\n (c) the applicant must not fall for refusal under any of the grounds in Section S-EC: Suitability for entry clearance; and<\/p>\n (d) the applicant must meet all of the requirements of Section E-ECC: Eligibility for entry clearance as a child.<\/p>\n<\/blockquote>\n Although a refusal on \u2018suitability\u2019 grounds (criminal records, bad character etc) is unlikely in a child application, there is a detailed look at possible reasons for refusal in this post<\/a>. The more specific eligibility criteria are then set out:<\/p>\n E-ECC.1.1. To meet the eligibility requirements for entry clearance as a child all of the requirements of paragraphs E-ECC.1.2. to 2.4. must be met.<\/p>\n Relationship requirements<\/p>\n E-ECC.1.2. The applicant must be under the age of 18 at the date of application.<\/p>\n E-ECC.1.3. The applicant must not be married or in a civil partnership.<\/p>\n E-ECC.1.4. The applicant must not have formed an independent family unit.<\/p>\n E-ECC.1.5. The applicant must not be leading an independent life.<\/p>\n E-ECC.1.6. One of the applicant\u2019s parents must be in the UK with limited leave to enter or remain, or be being granted, or have been granted, entry clearance, as a partner or a parent under this Appendix (referred to in this section as the \u201capplicant\u2019s parent\u201d), and<\/p>\n (a) the applicant\u2019s parent\u2019s partner under Appendix FM is also a parent of the applicant; or<\/p>\n (b) the applicant\u2019s parent has had and continues to have sole responsibility for the child\u2019s upbringing; or<\/p>\n (c) there are serious and compelling family or other considerations which make exclusion of the child undesirable and suitable arrangements have been made for the child\u2019s care.<\/p>\n<\/blockquote>\n The success of the child\u2019s application is also subject to their parent meeting the financial requirements which are set out at E-ECC.2.1.- E-ECC.2.4. Essentially, if the parent does not meet the minimum income requirement, and\/or cannot show that they have adequate accommodation upon arrival, nor will the child. For further reading on the financial requirements, see this necessarily detailed post<\/a>.<\/p>\n Section E-ECC.1.6. requires that one of the child\u2019s parents is either applying for an Appendix FM visa from abroad, or already has one in the UK. In addition to this, either<\/p>\n The meaning of some of these phrases has been disputed and subsequently considered by the courts, who have given further guidance on their interpretation.<\/p>\n But the upshot is that if a child\u2019s other parent or someone else with parental responsibility is based abroad, it will be much more difficult for the child to succeed in coming to the UK under Appendix FM. The child won\u2019t qualify under these rules unless they can show\u00a0serious and compelling family or other considerations which make their exclusion undesirable.<\/p>\n Where only one parent is involved in a child\u2019s upbringing, it will be necessary to show that he or she has \u201csole responsibility\u201d. This is something we discuss in-depth in our blog post Making sense of sole responsibility for child visas in immigration law<\/a>.<\/p>\n The first point to make is that sole responsibility is not the same as legal \u201ccustody\u201d or control. Sole responsibility is more about the substance of who is actually responsible, overall, for the upbringing of a child.<\/p>\n Also, sole responsibility is not about day-to-day care and responsibility. Where the parent is relocating to the UK and has actually had day to day care, this will be helpful. But where the parent has been living apart from the child for some time, someone else will obviously have had to look after the child\u2019s needs. This does not mean that the sponsoring parent cannot show sole responsibility.<\/p>\n The short story, according to the Home Office<\/a>, is that\u00a0<\/p>\n Sole parental responsibility means that one parent has abdicated or abandoned parental responsibility, and the remaining parent is exercising sole control in setting and providing the day-to-day direction for the child\u2019s welfare.<\/p>\n<\/blockquote>\n The guidance goes on specifically to say<\/p>\n where both parents are involved in the child\u2019s upbringing, it will be rare for one parent to establish sole parental responsibility.<\/p>\n<\/blockquote>\n Where the other parent has almost any level of involvement in the child\u2019s upbringing, this will make it hard to impossible to establish the parent coming to the UK has sole responsibility. For example, if the child lives or stays with the other parent or the other parent makes a regular financial contribution then it is going to be very difficult to provide sole responsibility.<\/p>\n This is also something we discuss in our post on applying for a visa as the parent of a child in the UK<\/a>.<\/p>\n The alternative where both parents are not applying under Appendix FM, or where \u201csole responsibility\u201d cannot be adequately demonstrated, is to show that there are family or other considerations making the child\u2019s exclusion undesirable and suitable arrangements have been made for the child\u2019s care. This phrase was considered in a case called Mundeba (s.55 and para 297(i)(f)) <\/em>[2013] UKUT 88 (IAC)<\/a>:<\/p>\n The exercise of the duty by the Entry Clearance Officer to assess an application under the Immigration Rules as to whether there are family or other considerations making the child\u2019s exclusion undesirable inevitably involves an assessment of what the child\u2019s welfare and best interests require.<\/p>\n<\/blockquote>\n When making this assessment the court suggested the following:<\/p>\n iv) Family considerations require an evaluation of the child\u2019s welfare including emotional needs. \u2018Other considerations\u2019 come in to play where there are other aspects of a child\u2019s life that are serious and compelling for example where an applicant is living in an unacceptable social and economic environment. The focus needs to be on the circumstances of the child in the light of his or her age, social background and developmental history and will involve inquiry as to whether:-<\/p>\n The assessment involves consideration as to whether the combination of circumstances are sufficiently serious and compelling to require admission.<\/p>\n<\/blockquote>\n The evidence which might be advanced to support an application made on this basis will be, as lawyers say, highly fact-sensitive. Here is one example.<\/p>\n Example<\/strong><\/p>\n Charlie is ten years old. He has special needs and requires care 24 hours a day. His mum, Maria, is a senior engineer with a major oil company, and has had to keep working in order to pay for Charlie\u2019s care. However, to do this, she spends much of her time on oil rigs out at sea. Charlie\u2019s dad left Maria when he was a baby, and the person who has spends the most time looking after him whilst his mum is working is his grandma, Gertrude, who coordinates Charlie\u2019s care and takes many of the important decisions in his life.<\/p>\n Maria meets Jock, a travelling whisky salesman from Aberdeen. They fall in love and decide that Maria should move to the UK as Jock\u2019s spouse. She will be able to work in the oilfields of the North Sea, and would be able to spend much more time looking after Charlie herself, rather than relying on Gertrude, who is herself starting to struggle to provide care. The nearby special needs school which Charlie used to attend has also recently closed, and the nearest one is an hour-long drive away. When Maria makes the application, she cannot show that she has \u2018sole responsibility\u2019 for Charlie\u2019s upbringing, because Gertrude has such an extensive role in his care. Nor is Jock Charlie\u2019s parent.<\/p>\n Maria therefore makes the application on the basis that there are serious and compelling family or other considerations which make Charlie\u2019s exclusion undesirable. She includes evidence of Gertrude\u2019s recent hip-replacement, meaning that she can no longer lift Charlie at home, and preventing her from driving long distances without experiencing severe pain. A letter is also provided by a special needs school in Aberdeen, which has agreed to take Charlie as soon as he arrives.<\/p>\n Maria submits letters from a domiciliary private care company who specialise in looking after little boys like Charlie, confirming that they have capacity to assist following the family\u2019s arrival. Maria also sends letters from several oil companies in the area expressing interest in her employment should she move to the area. Jock should provide evidence of his role in Charlie\u2019s life so far (for example, flight tickets evidencing visits, photographs of days out etc).<\/p>\n Importantly in a case such as this, detailed statements are prepared and submitted from the key individuals in the case: Maria, Jock and Gertrude. The statements touch on all features of the case explored above, referring to the evidence submitted where necessary, and focussing in on Charlie\u2019s best interests. Ideally a covering letter will be submitted with the application which ties everything together, explaining the law and guidance, giving a guided tour of the enclosed evidence, and explaining by reference to the evidence how the application meets the requirements.<\/p>\n There are a few other phrases within the rules which have been explored by the courts. One of the requirements of the route is that the applicant must not have formed an independent family unit (E-ECC.1.4.). BM and AL (352D(iv); meaning of \u201cfamily unit\u201d) Colombia<\/em> [2007] UKAIT 55<\/a>, admittedly a refugee family reunion case rather than an Appendix FM case, provides some guidance on what this means:<\/p>\n What is a \u2018family unit\u2019 \u2026 is a question of fact. It is not limited to children who lived in the same household as the refugee. But if the child belonged to another family unit in the country of the refugee\u2019s habitual residence it will be hard to establish that the child was then part of two different \u2018family units\u2019 and should properly be separated from the \u2018family unit\u2019 that remains in the country of origin.<\/p>\n<\/blockquote>\n Although perhaps unusual, this means that if a child applicant has married and moved in with his or her own spouse, that child will not be eligible to apply under this route.<\/p>\nWhen does Appendix FM apply to a child\u2019s case?<\/h2>\n
\n
How to make an application<\/h2>\n
Eligibility requirements<\/h2>\n
\n
\n
Relationship requirement<\/h2>\n
\n
\u201cSole responsibility\u201d<\/h3>\n
\n
\n
\u201cSerious and compelling family or other considerations which make exclusion of the child undesirable\u201d<\/h3>\n
\n
\n
\n
\u201cIndependent family unit\u201d<\/h3>\n
\n
\u201cLeading an independent life\u201d<\/h3>\n