It has come to our experience that people often take risk by dealing with their children`s entry clearance applications by themselves and get disappointed when the entry clearance officer assesses the application against the strict rules of "sole responsibility" and other criteria. This rules is quite complicated to understand and even more difficult to make the entry clearance officer to appreciate the actual facts relating to the relationship of the separated parent (non-sponsoring parent) with the child.

The immigration rules and the EEA regulations treat children quite differently when they intend to join their parents in the UK. The EEA regulations allow children of upto 21 years of age to become a dependant of their parents in the UK while the Immigration rules only allow children of upto 18 years of age to join their parents in the UK, whether they are themselves on limited leave to remain or are settled in the UK.

However, the other requirements to make use of the regulations and the rules are similar that are; the children must not be leading an independent life or must not be married or must not have formed an independent family unit.

In this article, we`ll only deal with the children of following persons who intend to come to the UK to join their parents as their dependants.

1. A person present and settled in the UK
2. EEA national exercising treaty rights in the UK
3. A person having limited leave to remain in the UK

A. Children of persons present and settled in the UK

Children of parents who are settled in the UK can also come and join their parents in the UK, and they would be given indefinite leave to remain straight away. There are however a few conditions that they need to fulfil before they can claim to be eligible to join their parents:

1. The sponsoring parents / relative must be present and settled in the UK; or
   • Both parents are being admitted on the same occasion for settlement; or
   • One parent is present and settled in the UK and the other is being admitted on the same occasion for settlement; or
   • One parent is present and settled in the UK or being admitted on the same occasion for settlement and the other parent is dead; or
   • One parent is present and settled in the UK or being admitted on the same occasion for settlement and has had sole responsibility for the child`s upbringing; or
   • One parent or a relative is present and settled in the UK or being admitted on the same occasion fro settlement and there are serious and compelling family or other considerations which make exclusions of the child undesirable and suitable arrangements have been made for the child's care; and
2. The child should be under 18 years of age and not leading an independent life or is married and have formed an independent family unit.
3. The child would be maintained and accommodated adequately by the parents or relative, the child is seeking to join without recourse to public funds.

The application of a child for indefinite leave to enter can be refused on any of the above-mentioned issues and extra ordinary care is required while submitting any such application. The rule of "Sole Responsibility" is also observed very strictly and involvement of the other parent in the upbringing of the child might lead to conclude that the sponsoring parent has not got the sole responsibility. Sometimes, even having a regular contact with the other parent is taken as that parent having part responsibility of the upbringing of the child and the sponsoring parent no more remains having sole responsibility of the child thus resulting in the refusal of entry clearance to the child.

B. Children of persons having limited leave to remain in the UK

Most of the persons residing in the UK on a long-term immigration category (apart from working holidaymakers where the children can only accompany the parent (s) if they are not more than 3 years of age), can invite their children (only under 18 years of age) to join and reside them in the UK. There is however a concession for children of Intra country work permit holders whose children are allowed to join their parents even if they are above 18 years of age.

The children are normally given the same period of limited leave to remain as their parents have got it. There are some cases when the children who enter the UK as the dependants of their parents but then turn to be more than 18 years of age while having valid leave to remain as dependant. In those cases, the children are still considered to be dependant and they can apply for extension / Indefinite leave to remain in line with their parents. While residing on dependant visa, the children are given full rights of access to public schooling and NHS, however they cannot have access to public funds.

The rules of "sole responsibility" and maintenance and accommodation also apply on children of persons having limited leave to remain as they apply on the children whose parents are present and settled in the UK.

C. Children of EEA nationals exercising treaty rights in the UK

The children of EEA nationals are permitted to enter the UK to join their parents till the age of 21 years but they must comply with the other requirements like they must not have married or living an independent life. There is no requirement for the sponsoring parent to have sufficient funds to maintain and accommodate their children without recourse to public funds.

The child, if they are not already EEA, they can come on a family permit that is valid for six months and require to be extended either by making an application for FMRS (family member residence stamp - if the sponsoring parent is registered under the workers registration scheme) or residence card (if the sponsoring parent is not required to register under the workers registration scheme and is exercising treaty rights in the UK). On living here together with the sponsoring parents for five years, the child can make an application for permanent residence in the UK.

The difference between the immigration rules and EEA regulations is therefore the age limit, maintenance and accommodation requirement and the type of visa they get.

2. Conclusion

The rule of "sole responsibility" is quite a wide avenue for the entry clearance officer to turn down an application of a child intending to accompany / join his sponsoring parent. This is a mixed matter of fact and law and should be professionally dealt with as the future of the child depends on this application. It is therefore always advisable to seek independent professional advice before lodging any immigration applications on behalf of the child.