Settlement Visa For A Dependent Child

[Enquirer77]

My wife (Ukrainian) and I (British citizen) living in England are trying to determine what visa we need in order to bring her 11 year old (Ukrainian) son, from a previous marriage, into the UK to settle with us. My wife is here on a 2-year spouse visa following our marriage in September 2007. Her son could not come with her at the same time as she settled in the UK. The son's father has given permission for his son to settle in the UK.

Can we apply for a 2-year settlement visa for him at the British Embassy in Kiev? Or will they issue a 6-month visa initially?

[avjones]

Hi - it's a bit more complicated than that. The relevant section of the Immigration Rules:

Requirements for indefinite leave to remain in the United Kingdom as the child of a parent, parents or a relative present and settled or being admitted for settlement in the United Kingdom

298. The requirements to be met by a person seeking indefinite leave to remain in the United Kingdom as the child of a parent, parents or a relative present and settled in the United Kingdom are that he:

(i) is seeking to remain with a parent, parents or a relative in one of the following circumstances:

(a) both parents are present and settled in the United Kingdom; or

(b) one parent is present and settled in the United Kingdom and the other parent is dead; or

(c) one parent is present and settled in the United Kingdom and has had sole responsibility for the child's upbringing; or

(d) one parent or a relative is present and settled in the United Kingdom and 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; and

(ii) has limited leave to enter or remain in the United Kingdom, and

(a) is under the age of 18; or

(b) was given leave to enter or remain with a view to settlement under paragraph 302; and

(iii) is not leading an independent life, is unmarried, and has not formed an independent family unit; and

(iv) can, and will, be accommodated adequately by the parent, parents or relative the child was admitted to join, without recourse to public funds in accommodation which the parent, parents or relative the child was admitted to join, own or occupy exclusively; and

(v) can, and will, be maintained adequately by the parent, parents or relative the child was admitted to join, without recourse to public funds.

The bit you are likely to have trouble with if the other parent is still alive and in the country of origin is " (c) one parent is present and settled in the United Kingdom and has had sole responsibility for the child's upbringing;"

Who does he live with at the moment?

[vinny]

I believe that paragraph 302 would be applicable since his mother currently has limited leave to enter/remain.

See also How can I qualify to join my parents in the UK? and 14.4 Children of parent(s) being admitted with a view to settlement in the United Kingdom and how they qualify.

[Enquirer77]

Amanda & Vinny, thanks for your replies.

My wife doesn't have ILR at present, Amanda, she's on a 2-year spouse visa, so I think paragraphs 301 & 302 apply, granting 24 months leave to remain. My understanding is that she could have applied for her son to have a visa at the same time she applied for her Fiancée visa to come to England, but it wasn't possible for her son to come with her at that time. At present her son lives with her mother. He lived with my wife and mother before my wife came to England. The father will give notarised permission for the son to live in England.

So can the Britsh Embassy in Kiev grant a 2 year limited leave to remain visa? I believe the son's visa would have to align with the end date on my wife's 2 year visa.

[avjones]

Yes, you and Vinny are both right, it's 301 / 302.

However, there is still the same condition, namely:

(i) is seeking leave to enter to accompany or join or remain with a parent or parents in one of the following circumstances:

(a) one parent is present and settled in the United Kingdom or being admitted on the same occasion for settlement and the other parent is being or has been given limited leave to enter or remain in the United Kingdom with a view to settlement; or

(b) one parent is being or has been given limited leave to enter or remain in the United Kingdom with a view to settlement and has had sole responsibility for the child's upbringing; or

(c) one parent is being or has been given limited leave to enter or remain in the United Kingdom with a view to settlement and 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;

so it depends who else is involved in his care, and to what extent.

[Enquirer77]

Amanda, paragraph (b) applies, as my wife has sole responsibility for housing and caring for her son.

[JAJ]

Amanda, paragraph (b) applies, as my wife has sole responsibility for housing and caring for her son.

So who is looking after the child right now?

[avjones]

Amanda, paragraph (b) applies, as my wife has sole responsibility for housing and caring for her son.

what about the making of decisions, schools, etc? The father's being prepared to sign a document might well indicate that he has some responsibility. It's a hard test to meet.


The most recent case from the AIT on "sole responsibility" says:

"Sole responsibility" is a factual matter to be decided upon all the evidence. Where one parent is not involved in the child's upbringing because he (or she) had abandoned or abdicated responsibility, the issue may arise between the remaining parent and others who have day-to-day care of the child abroad. The test is whether the parent has continuing control and direction over the child's upbringing, including making all the important decisions in the child's life. However, where both parents are involved in a child's upbringing, it will be exceptional that one of them will have "sole responsibility".

[avjones]

and also, from the same case:

52. Questions of "sole responsibility" under the immigration rules should be approached as follows:

i. 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.

ii. 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.

iii. "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.

iv. 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.

v. 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.

vi. 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.

vii. 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.

viii. That, however, does not prevent the parent having sole responsibility within the meaning of the Rules.

ix. 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".

[Wanderer]

I think you need court permission in Ukr. to do this, not just a note from the father, otherwise the child will not be allowed to leave.

Certainly this is the case for Russia, and it seems to me most of the former USSR republics still follow the Soviet laws.

[VictoriaS]

No, if the other parent clearly gives consent then the ECO will accept this.

Victoria

[Enquirer77]

My wife's son has lived in her custody in the Ukraine since her divorce. That was the decision made at the time of her divorce and was agreed upon by the father. He pays a nominal amount of maintenance each month and rarely visits the son, maybe once every 2 months, so has not been involved in bringing up the child for the last 5 years.

The reason the son couldn't come to England at the same time my wife arrived was because the father (at that time) didn't give permission for the son to have a passport, therefore preventing him from leaving the country. He has changed his mind in the last week and has visited the son and my wife's mother to state that the son can now live in England with his mother. He now needs to go to the passport office (where the son's passport has been waiting for the last 6 months) and give permission for it to be relaeased. He then needs to give permission in writing (signed by a Notary) and this will be taken to the British Embassy ECO when my wife applies for her son's visa.

[Wanderer]

My wife's son has lived in her custody in the Ukraine since her divorce. That was the decision made at the time of her divorce and was agreed upon by the father. He pays a nominal amount of maintenance each month and rarely visits the son, maybe once every 2 months, so has not been involved in bringing up the child for the last 5 years.

The reason the son couldn't come to England at the same time my wife arrived was because the father (at that time) didn't give permission for the son to have a passport, therefore preventing him from leaving the country. He has changed his mind in the last week and has visited the son and my wife's mother to state that the son can now live in England with his mother. He now needs to go to the passport office (where the son's passport has been waiting for the last 6 months) and give permission for it to be relaeased. He then needs to give permission in writing (signed by a Notary) and this will be taken to the British Embassy ECO when my wife applies for her son's visa.

I asked around, looks like I was a bit wrong! This is what I was told u need:

"In packet 4 from embassy in Kiev, it states that you must have written permission, signed and notarized by father, along with photocopy of his local passport and signature page. The only exceptions to this is if father is dead (you will need proof of this), or your fiancee has court approved sole custody."

Also this for UKR to USA, I have since discovered it depends on who is issuing the visa so I am wrong, wrong, wrong. I think I'll become a Politician.