‘Sole responsibility' is a legal term used in UK immigration law when there is a child's visa application and only one parent is applying for a UK visa (or has an Indefinite Leave to Remain/is Settled) and the other parent is still alive but remaining outside the UK. In family visa applications this usually occurs when the parents relationship broke down permanently and one parent wants to bring the child to the UK when the other parent remains overseas. For example, when the parent is on a spouse visa with a new partner or when the parent has an indefinite leave to remain and wants to bring their child to the UK by applying for child's indefinite leave to enter.

According to  the Home Office guidance, sole parental responsibility for the purpose of the Immigration Rules, 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'. This is a harsh and frequently unrealistic requirement to meet. In real life it is rare that only one parent takes complete control over all key decisions in a child's life.

This blog is focused on the sole responsibility in ‘family visa applications'. We previously posted a blog on the sole responsibility under the work visa routes  here. When you read this previous blog relating to work visa routes, you will see that there have been some recent positive changes in how the Home Office interprets sole responsibility under those routes. However, these recent changes do not apply to the family visa routes and we focus on what is sole responsibility under the family visa scenarios.

In summary, the UK immigration law on sole responsibility is not in line with how the sole responsibility is interpreted under the family law, and it may frequently be the case that you may be considered as having sole responsibility under family law but not under the UK immigration law when your child is applying for UK visa. The key starting point in understanding the sole responsibility in UK immigration law, is to know that the definition is specific to immigration law and should not be mixed up with family law.

HOW TO ASSESS SOLE RESPONSIBILITY

To start with, assessment of sole responsibility is a complex legal matter and requires excellent knowledge of the Home Office rules, guidance and also the caselaw on the topic. We present some of the relevant court cases on the topic of sole responsibility to illustrate how the Courts are interpreting the sole responsibility.

The main precedent case  when assessing the sole responsibility is TD (Paragraph 297(i)(e): “sole responsibility”) Yemen [2006] UKAIT 00049  the Tribunal said that “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”.

In NA (Bangladesh) v Secretary of State for the Home Department [2007] EWCA Civ 128 the Court of Appeal said that, where a natural parent continued to live in the same country as the child, it was a necessary part of the reasoning on sole responsibility to consider the position of that parent to determine whether that parent had partial responsibility (which would of course preclude the parent in the UK from having sole responsibility).

In Buydov v ECO Moscow [2012] EWCA Civ 1739, as part of their written divorce agreement, the parents had agreed that the mother would have sole responsibility for the claimant's upbringing. The judge found that in practice the claimant's father retained some responsibility.

In DN v SSHD [2017] CSOH 144 the Court of Session was asked to rule that point ix) of the analysis in TD was not good law bearing in mind Articles 9 and 10 of the UN Convention on the Rights of the Child (UNCRC) as the starting point from those articles was that it was in the best interests of a child to be with a parent or parents and so where there was only one parent the starting point should be that the condition was prima facie satisfied.

The Court rejected that submission and held that the UNCRC was not fully incorporated in domestic law and the Convention did not impose any obligation on the receiving state party to grant an application. The guidance in TD was that the decision should be made on the basis of all the evidence and the assessment of whether a parent had sole responsibility would include a consideration as to the nature of the relationship between parent and child in a given case and the decision maker would be able to assess whether particular decisions were or were not important ones in the context of the evidence as a whole.

What the case law shows is that the question of ‘sole responsibility' is one of fact so you may have sole responsibility granted by a family court decision but if in practice the responsibility for a child is shared with the other parent there is no sole responsibility under the UK immigration law. Further conclusion from this is that any visa application involving sole responsibility for a child must be prepared with utmost attention to detail, with understanding of the UK immigration laws, and supported with suitable documentary evidence.

THE HOME OFFICE GUIDANCE ON THE SOLE RESPONSIBILITY

The Home Office rules and guidance are the starting point. According to Home Office guidance, when assessing whether one parent has the sole responsibility for a child, Home Office must consider if evidence has been provided to show the below:

  • decisions have been taken and actions performed in relation to the upbringing of the child under the sole direction of the applicant, without the input of the other parent or any other person
  • the applicant parent is responsible for the child's welfare and for what happens to them in key areas of the child's life, and that others do not share this responsibility for the child
  • the applicant parent has exclusive responsibility for: o making decisions regarding the child's education, health and medical treatment, religion, residence, holidays and recreation o protecting the child and providing them with appropriate direction and guidance o the child's property o the child's legal representation

In addition, Home Office caseworker should also include in their assessment that:

  • sole parental responsibility is not the same as legal custody
  • significant or even exclusive financial provision for a child does not in itself demonstrate sole parental responsibility
  • where both parents are involved in the child's upbringing, it will be rare for one parent to establish sole parental responsibility
  • sole parental responsibility can be recent or long-standing- any recent change of arrangements should be scrutinised to make sure this is genuine and not an attempt to circumvent immigration control

The Home Office states in their guidance that it is unrealistic for a child to have contact with no other adult other than the parent exercising sole responsibility. Home Office accepts that the child will have contact with other adults, including relatives, and that these are likely to include some element of care towards the child, either generally or specifically such as taking the child to school. Actions of this kind that include looking after the child's welfare may be shared with others who are not parents, for example, relatives or friends, who are available in a practical sense, providing the applicant has overall responsibility, on their own, for the welfare of the child.

Home office is not considering whether the applicant (or anyone else) has day-to-day responsibility for the child, but whether the applicant has continuing sole control and direction of the child's upbringing, including making all the important decisions in the child's life. If not, then they do not have sole parental responsibility for the child.

The Home Office guidance stresses that caseworkers must carefully consider each application on a case-by-case basis. It also reminds that the burden of proof is on the applicant to provide satisfactory evidence.

The guidance finally states that in some instances, it may be appropriate to interview an applicant to establish whether they have sole responsibility for the child, or to contact the other parent (with the consent of the applicant) in order to confirm they have no parental responsibility.

SUMMARY POINTS ON SOLE RESPONSIBILITY IN UK IMMIGRATION

Sole parental responsibility can lead to application refusal if careful consideration is not given before the application is submitted and suitable evidence is not provided. Applicants should aim to provide all relevant available evidence to support their assertion that they are the relevant parent who has sole control and direction over the child's upbringing. Sometimes applicants may want to evidence their sole responsibility by providing the family court documents only, however, as you could see from our blog above, the sole responsibility is what the situation is in practice and not only what the family court papers say. The court papers are of course useful but other evidence is mandatory too.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.