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. As we have seen in recent posts on the subject, Appendix FM (for “family members”) sets out the rules for non-EU citizens who want to come and join loved ones in the UK. It was introduced in 2012.

Before we go any further, remember that if a child’s parent is applying for a visa to enter under Appendix FM, and that child is British or otherwise has settled status, the child will not be required to apply for entry clearance.

When does Appendix FM apply to a child’s case?

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.

There are also a number of routes for children under Part 8 of the Immigration Rules, 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.

The following rules are for applications made by, or on behalf of, children whose parents are not entering or already in the UK under Appendix FM, and where the parents have some other form of leave to remain:

• Rule 297: the route for children making application to join a parent who is present and settled or being admitted for settlement in the United Kingdom
• Rule 301: the rules for children joining a parent or parents with limited leave to enter or remain in the UK with a view to settlement
• Rule 303A: requirements for limited leave to enter the United Kingdom as the child of a fiancé(e) or proposed civil partner
• Rules 304-309: these rules are for children born in the United Kingdom who are not British citizens
• Rules 309A-316A: for children who are either already adopted by a person with leave to remain in the UK, or is going to be adopted by a prospective parent

In addition, there are specific rules for those children joining or accompanying a parent who has leave to remain as a Points Based System migrant (see Rules 319F-319H).

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.

How to make an application

[application]

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 will be made in this way.

Applications are made by filling out an online application form, and paying the required fee (£1,523 at the time of writing). On top of this fee, applicants in this route also have to pay the Immigration Health Surcharge for use of the NHS, which is £200 for each year of the visa which is granted (again, figures correct at the time of writing). This visa lasts for two and a half years, so the total immigration health surcharge is £500 in addition to the fee (£200 x 2.5).

Once the application has been submitted and fees paid, the applicant will be invited to book an appointment at their local visa application centre to “enrol biometrics”. 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.

Applicants will also need to print out their online form, sign it, and take it along to the visa application centre along with all supporting documents relevant to their case. From there they will be sent to the Home Office. Most centres now operate a scanning system, where all documents are scanned and sent to the Home Office decision-maker in Sheffield, although some centres do not yet have this in place and require applicants to send the documents by courier.

The supporting documents which should be submitted will depend on the facts of your particular case.

If you are unable to provide all of the information you would like in the application form, it can help to submit a covering letter. A covering letter can explain how you meet the requirements of the Rules and provide a guided tour to the evidence you are submitting. If your application is complex, or you are submitting a lot of supporting evidence, then this is definitely recommended.

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 to get hold of in certain situations.

Eligibility requirements

The requirements are set out under Section E-ECC: Eligibility for entry clearance as a child. They can be found within Appendix FM of the Immigration Rules, within the drop-down menu titled ‘Family life as a child of a person with limited leave as a partner or parent’. The general requirements are as follows:

EC-C.1.1. The requirements to be met for entry clearance as a child are that-

(a) the applicant must be outside the UK;

(b) the applicant must have made a valid application for entry clearance as a child;

(c) the applicant must not fall for refusal under any of the grounds in Section S-EC: Suitability for entry clearance; and

(d) the applicant must meet all of the requirements of Section E-ECC: Eligibility for entry clearance as a child.

Although a refusal on ‘suitability’ 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. The more specific eligibility criteria are then set out:

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.

Relationship requirements

E-ECC.1.2. The applicant must be under the age of 18 at the date of application.

E-ECC.1.3. The applicant must not be married or in a civil partnership.

E-ECC.1.4. The applicant must not have formed an independent family unit.

E-ECC.1.5. The applicant must not be leading an independent life.

E-ECC.1.6. One of the applicant’s 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 “applicant’s parent”), and

(a) the applicant’s parent’s partner under Appendix FM is also a parent of the applicant; or

(b) the applicant’s parent has had and continues to have sole responsibility for the child’s upbringing; or

(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’s care.

The success of the child’s 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.

Relationship requirement

Section E-ECC.1.6. requires that one of the child’s parents is either applying for an Appendix FM visa from abroad, or already has one in the UK. In addition to this, either

1. The child’s parent’s partner must also be the parent of the child who is applying
2. The child’s parent (the one whom the child is applying to join, or who is applying and will be travelling with) must have has sole responsibility for the child’s upbringing; or
3. There must be serious and compelling family or other considerations which make exclusion of the child undesirable

The meaning of some of these phrases has been disputed and subsequently considered by the courts, who have given further guidance on their interpretation.

But the upshot is that if a child’s 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’t qualify under these rules unless they can show serious and compelling family or other considerations which make their exclusion undesirable.

“Sole responsibility”

Where only one parent is involved in a child’s upbringing, it will be necessary to show that he or she has “sole responsibility”. This is something we discuss in-depth in our blog post Making sense of sole responsibility for child visas in immigration law.

The first point to make is that sole responsibility is not the same as legal “custody” or control. Sole responsibility is more about the substance of who is actually responsible, overall, for the upbringing of a child.

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’s needs. This does not mean that the sponsoring parent cannot show sole responsibility.

The short story, according to the Home Office, is that 

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’s welfare.

The guidance goes on specifically to say

where both parents are involved in the child’s upbringing, it will be rare for one parent to establish sole parental responsibility.

Where the other parent has almost any level of involvement in the child’s 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.

This is also something we discuss in our post on applying for a visa as the parent of a child in the UK.

“Serious and compelling family or other considerations which make exclusion of the child undesirable”

The alternative where both parents are not applying under Appendix FM, or where “sole responsibility” cannot be adequately demonstrated, is to show that there are family or other considerations making the child’s exclusion undesirable and suitable arrangements have been made for the child’s care. 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. Here is one example.

Example

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’s care. However, to do this, she spends much of her time on oil rigs out at sea. Charlie’s 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’s care and takes many of the important decisions in his life.

Maria meets Jock, a travelling whisky salesman from Aberdeen. They fall in love and decide that Maria should move to the UK as Jock’s 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 ‘sole responsibility’ for Charlie’s upbringing, because Gertrude has such an extensive role in his care. Nor is Jock Charlie’s parent.

Maria therefore makes the application on the basis that there are serious and compelling family or other considerations which make Charlie’s exclusion undesirable. She includes evidence of Gertrude’s 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.

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’s 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’s life so far (for example, flight tickets evidencing visits, photographs of days out etc).

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’s 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.

“Independent family unit”

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 “family unit”) Colombia [2007] UKAIT 55, admittedly a refugee family reunion case rather than an Appendix FM case, provides some guidance on what this means:

What is a ‘family unit’ … 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’s habitual residence it will be hard to establish that the child was then part of two different ‘family units’ and should properly be separated from the ‘family unit’ that remains in the country of origin.

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.

“Leading an independent life”

In a similar vein, a child who is “leading an independent life” will be unable to apply. This doesn’t necessarily mean that a child who has had to live an independent life by dint of circumstance will be prevented from applying. The question was explored in NM (“leading an independent life”) Zimbabwe [2007] UKAIT 51:

Where a child … is seeking limited leave to remain as the child of a parent with limited leave, in order to establish that he is not “leading an independent life” he must not have formed through choice a separate (and therefore independent) social unit from his parents’ family unit whether alone or with others. A child who, for example, chooses to live away from home may be “leading an independent life” despite some continuing financial and/or emotional dependence upon his parents.

Example

The fact that Simba was forced to grow up with Timon and Pumbaa would not necessarily have prevented his mum from making an application on the basis that he was living an ‘independent life’: this only happened because of Scar and those dastardly hyenas.