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Children of single parents: the sole responsibility and exclusion undesirable tests

Children of single parents: the sole responsibility and exclusion undesirable tests

Where parents have already or are relocating to the United Kingdom and both parents will end up in the UK (or one parent will and the other is deceased) then the Immigration Rules permit them to bring their children. The main requirements are that the child or children are under the age of 18 and can be adequately maintained and accommodated.

This option is available for a range of migrants, including Tier 1 migrants, Tier 2 skilled workers, Tier 4 students studying above degree level and migrants settled or settling in the UK.

It would be surprising, after all, if the cost of relocating to the UK was to have to abandon one’s children in the country of origin.

However, where one of the parents is going to be based in the UK and there is a surviving parent who will remain abroad, the Immigration Rules impose a strict test before a child will be permitted to come to the UK. The rules say that it is not up to the parents to decide what is best for the child concerned. Instead, the parent relocating to the UK must show that there is a very good reason for the child to be allowed in.

The legal test is that parent must show that one of the following:

the applicant’s parent [the one in or coming to the UK] has had and continues to have sole responsibility for the child’s upbringing

OR

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’s care.

These are often paraphrased by immigration lawyers as the “sole responsibility” test or the “exclusion undesirable” test.

Best interests test does not directly apply

In all immigration decisions affecting children in the UK, section 55 of the Borders, Citizenship and Immigration Act 2009 has the effect that the best interests of the child must be considered. That duty does not apply to children outside the UK, though. In T (s.55 BCIA 2009 – entry clearance) Jamaica [2011] UKUT 00483 (IAC) the Upper Tribunal inevitably decided that the language of section 55 allowed for no other conclusion.

The statutory guidance referred to by the Upper Tribunal in the determination is that of November 2009 entitled Every Child Matters, Change for Children. This remains current today. At paragraph 2.34 of the guidance it states

The statutory duty in section 55 of the 2009 Act does not apply in relation to children who are outside the United Kingdom.  However, UK Border Agency staff working overseas must adhere to the spirit of the duty and make enquiries when they have reason to suspect that a child may be in need of protection or safeguarding, or presents welfare needs that require attention. In some instances international or local agreements are in place that permit or require children to be referred to the authorities of other countries and UK Border Agency staff will abide by these.

The Upper Tribunal also held that

…where there are reasons to believe that a child’s welfare may be jeopardised by exclusion from the United Kingdom, the considerations of Article 8 ECHR, the “exclusion undesirable” provisions of the Immigration Rules and the extra statutory guidance to Entry Clearance Officers to apply the spirit of the statutory guidance in certain circumstances should all be taken into account by the ECO at first instance and the judge on appeal.

As the tribunal says in the case, it is difficult to contemplate a scenario where the section 55 duty is material to an immigration decision and indicates a certain outcome but Article 8 does not. The fact that section 55 does not apply to children outside the UK therefore should matter very little in practice.

Sole responsibility

The meaning of “sole parental responsibility” was explored in a case called TD (Paragraph 297(i)(e): “sole responsibility”) Yemen [2006] UKAIT 00049Although it refers to a previous version of Immigration Rules (you will see the outdated reference to paragraph 297 in the case name), it remains good law:

The test is, not whether anyone else has day-to-day responsibility, but whether the parent has continuing control and direction of the child’s upbringing including making all the important decisions in the child’s life – if not, responsibility is shared and so not “sole”.

The court set out a list of considerations to be taken into account by decision-makers looking at this question. They should be read carefully by anyone making an application where this might be an issue:

  1. Who has “responsibility” for a child’s upbringing and whether that responsibility is “sole” is a factual matter to be decided upon all the evidence. 
  2. The term “responsibility” in the immigration rules should not to be understood as a theoretical or legal obligation but rather as a practical one which, in each case, looks to who in fact is exercising responsibility for the child. That responsibility may have been for a short duration in that the present arrangements may have begun quite recently.
  3. “Responsibility” for a child’s upbringing may be undertaken by individuals other than a child’s parents and may be shared between different individuals: which may particularly arise where the child remains in its own country whilst the only parent involved in its life travels to and lives in the UK.
  4. Wherever the parents are, if both parents are involved in the upbringing of the child, it will be exceptional that one of them will have sole responsibility.
  5. If it is said that both are not involved in the child’s upbringing, one of the indicators for that will be that the other has abandoned or abdicated his responsibility. In such cases, it may well be justified to find that that parent no longer has responsibility for the child. 
  6. However, the issue of sole responsibility is not just a matter between the parents. So even if there is only one parent involved in the child’s upbringing, that parent may not have sole responsibility.
  7. In the circumstances likely to arise, day-to-day responsibility (or decision-making) for the child’s welfare may necessarily be shared with others (such as relatives or friends) because of the geographical separation between the parent and child.
  8. That, however, does not prevent the parent having sole responsibility within the meaning of the Rules. 

It is the concept of “authority” or “control” over a child’s upbringing which is important. Whilst others (for example, relatives) may, look after a child, it may be that they are doing so only on behalf of the child’s parent.

A really key issue will be the evidence of contact between the applicant parent and the carer on important decisions to be taken about the child and his or her upbringing.

In situations where only one parent is in the picture, if that parent can show that he or she has control over the major decisions that affect a child’s life, even from afar, then this will be strong evidence to suggest that they meet the “sole” responsibility test.

The courts suggest it may also be helpful to look at the financial support (or lack of it) provided by the parent to the child or the carers of the child for the purposes of his or her upbringing. The courts specifically mention that its absence may be telling, so this issue should be highlighted — either confirming financial support is given and providing evidence of this, or explaining that it is not and explaining why not. 

Exclusion undesirable

This phrase was considered in a case called Mundeba (s.55 and para 297(i)(f)) [2013] UKUT 88 (IAC):

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’s exclusion undesirable inevitably involves an assessment of what the child’s welfare and best interests require.

When making this assessment the court suggested the following:

iv) Family considerations require an evaluation of the child’s welfare including emotional needs. ‘Other considerations’ come in to play where there are other aspects of a child’s 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:-

  • there is evidence of neglect or abuse;
  • there are unmet needs that should be catered for;
  • there are stable arrangements for the child’s physical care;

The assessment involves consideration as to whether the combination of circumstances are sufficiently serious and compelling to require admission.

The evidence which might be advanced to support an application made on this basis will be, as lawyers say, highly fact-sensitive.

Is this still the right approach today?

The ‘sole responsibility’ and ‘serious and compelling family or other considerations which make exclusion of the child undesirable’ tests for the admission of children to join parents in the UK have featured in the Immigration Rules for time immemorial. Both legal context and best practice have changed considerably in recent years, though. With the lifting of the UK’s immigration reservation to the UN Convention on the Rights of the Child, the passage of section 55 of the Borders, Citizenship and Immigration Act 2009 and cases like EM (Lebanon) and ZH (Tanzania) we should all now be following a much more child-centred approach in immigration law.

That means putting the best interests of the child front and centre but also ensuring that the voice of the child is heard.

Like the rules themselves, the truth is that not a lot has changed in the way some of us argue and evidence these child entry clearance cases where one parent is resident in the UK but the other is not.

Too often, immigration cases for or about children are still devoid of real evidence from or concerning the child. What does the child think of moving country, leaving everything he or she knows behind him or her and joining a hitherto absent parent? Is it exciting and will it fill an emotional hole in their life to be with the parent, or are they scared at the prospect of the unknown? Or both? Quite often, we simply don’t know. Or should we simply accept that parents know what is best for the children and should be permitted to make decisions about their country of residence?

The ‘sole responsibility’ test in particular is a distraction from what should, if a genuinely child centred approach were followed, be the real relevant considerations. It diverts Entry Clearance Officers, immigration lawyers and judges from looking at the situation of the child and causes focus on the situation of the parent. It is almost as if being reunited with one’s child is a reward for taking a long distance interest in their upbringing. The right approach is surely to examine the case from the child’s perspective — it is the child’s appeal after all — and consider what is best for that child.

In almost all circumstances it is axiomatic that it will be best for a child to live with his or her parent. If the child is currently living with a carer or a relative other than a parent and the other parent is not able or willing to provide care, there is a very strong argument that the child should be admitted to the UK on the same basis as other children without additional hurdles being imposed.

In Mundeba (s.55 and para 297(i)(f)) Democratic Republic of Congo [2013] UKUT 88 (IAC) the Upper Tribunal deconstructed the language of para 297(i)(f) and allowed for a more inclusive approach to the ‘exclusion undesirable’ test than has traditionally been the case, reading into it at least some of the more child-centred modern considerations one would expect in this day and age. Even then, though, the test requires something far more than best interests:

In our view, ‘serious’ means that there needs to be more than the parties simply desiring a state of affairs to obtain. ‘Compelling’ in the context of paragraph 297(i)(f) indicates that considerations that are persuasive and powerful. ‘Serious’ read with ‘compelling’ together indicate that the family or other considerations render the exclusion of the child from the United Kingdom undesirable. The analysis is one of degree and kind.  Such an interpretation sets a high threshold that excludes cases where, without more, it is simply the wish of parties to be together however natural that ambition that may be.

The tribunal goes on to hold:

The exercise of the duty by the Entry Clearance Officer to assess the application under the Immigration Rules as to whether there are family or other considerations making the child’s exclusion undesirable inevitably involves an assessment of what the child’s welfare and best interests require…

As a starting point the best interests of a child are usually best served by being with both or at least one of their parents. Continuity of residence is another factor; change in the place of residence where a child has grown up for a number of years when socially aware is important: see also SG (child of a polygamous marriage) Nepal [2012] UKUT 265 (IAC); [2012] Imm AR 939.

Sole responsibility as interpreted as a test of a parent’s level of engagement with the major decisions in a child’s life is a hangover from a bygone age. The astute lawyer can draw on other arguments to advance the case in an appropriate, modem and child-centred way to further stretch the interpretation of the words of the rules.

This article was originally published in March 2013 and has been updated to take account of changes in the law since then. It is correct as of the new date of publication.

Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder and editor of the Free Movement immigration law website.

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