The Guardian published a story recently about Amber Murrey, an American academic, whose two young children have been refused entry to the UK as her dependants.
Ms Murrey is an expert on social change in Africa, and has worked at universities across the globe including in Egypt and Ethiopia. She has recently taken on the post of associate professor in Geography at Oxford University.
The article stated that Ms Murrey’s husband resides in Cameroon and that he had provided explicit written consent for their daughters, aged nine and four, to relocate to the UK in order to live with their mother.
What do the Immigration Rules say?
The position in the Rules on visas for children is surprisingly harsh. Although children can apply under various different routes (depending on their parents’ status) all children must meet the following requirements, regardless of the route under which they apply:
- The child must be under the age of 18 on the date of application (or have already been recognized as a Dependent Child prior to turning 18);
- The child must not be married, must not have formed an independent family unit and must not be leading an independent life;
- Any child who is over the age of 16 and is applying under the Points Based System must provide evidence to show that they continue to remain dependent on their parents;
- Both parents must be lawfully in the UK, or must be making an application for entry to the UK at the same time as the child. If only one parent is in the UK or making an application at the same time as the child then:
- That parent must be the sole surviving parent, or
- That parent must have sole responsibility for the child’s upbringing, or
- There must be serious or compelling family or other considerations which would make it undesirable to refuse the application, and suitable arrangements must be made in the UK for the child’s care.
It is the “sole responsibility” requirement which usually represents the biggest obstacle for most applicants in Ms Murrey’s position, where one parent is relocating to the UK and the other is not. Unless the parent who lives abroad abdicates all parental responsibility for the care and welfare of their child, it will be very difficult to prove sole responsibility. As Ms Murrey’s case shows, it is not enough for that parent to simply want their child to live in the UK and to consent to it.
Parents must therefore rely on other considerations to argue why their children should be allowed to live with them in the UK - and this is where the problem lies.
The wording in the Rules which refers to ‘serious and compelling considerations’ allows the Home Office to implement an exceptionally strict test when considering applications of this nature. Effectively, it must be shown that neither the parent abroad, nor any other relative, can adequately care for the child in their own country, and that the child’s circumstances must be exceptional in relation to other children living in their home country.
Although the Home Office is supposed to take account of all arguments and circumstances put forward in an application, the unfortunate reality is that these applications are consistently refused where responsibility for the child is shared, and where parents are unable to meet the particularly onerous requirement to demonstrate ‘serious and compelling’ circumstances.
Are the Immigration Rules irrelevant in modern times?
In her interview with The Guardian, Ms Murrey stated that “this policy seems to operate under the guise of keeping families together”. However, what is becoming increasingly clear is that the Immigration Rules are antiquated and fail to reflect the reality of modern family dynamics. The Rules pertaining to children fail to consider families where parents are divorced, separated or simply choose to live apart for other reasons, but continue to raise their children together.
In an age where both men and women pursue successful careers, and where both parents take responsibility for raising their children, it is absurd that parents are forced into choices with such significant consequences for their children’s welfare and upbringing.
Parents should have the right to choose whom the child lives with, having regard to important factors such as access to healthcare, education, childcare, and emotional support. The Immigration Rules should, at their core, take a child-centered approach, and by preventing parents from balancing these factors they simply serve to do the opposite.
The Home Office alleges that there has been a significant shift in policy to welcome to the UK highly talented individuals within the fields of academia, research and science. But with a hostile and old-fashioned immigration system which prevents people from being the ‘brightest and the best’ in their profession by causing potentially devastating disruptions to their family life, will these proposed changes really have any significant impact at all?
Gherson have a wealth of experience in dealing with family immigration matters and dependency applications. If you require any advice or assistance with respect to your personal circumstances, please do not hesitate to contact us.
The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Gherson accepts no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please don’t hesitate to contact Gherson. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Gherson.
Consultant in our Private Client department