Generally, the concept of sole responsibility is only applicable where the parents may have separated or divorced. The responsibility of the child is such cases are with one of the parents who are in the UK. If the parent in the UK wants their child to join them in the UK then they will need to establish that they have the sole responsibility for the child. If you are settled in the UK or on temporary leave and want your child to join you from overseas then you will need to prove that you are solely responsible for the child. That means that you are the person who is the chief decision-maker in connection with the child who is currently outside the United Kingdom. The UK based parent, in this case, is the sponsoring parent. Such a parent must be able to show that he/she has been solely responsible for the care and development of the child for a substantial period. Thus they will be establishing that they are the chief decision-maker for the child’s well-being. If the child is separated from the sponsoring parent, then it will be expected normally that the child has been in the care of the sponsoring parent’s relatives rather than in the care of the relatives of the other parent outside the UK. And if it is found that the child has been in the care of the other parent’s relatives and also the other parent lives nearby the child and actively involved in the child’s welfare then such applications by sponsor parent for bringing their child to the UK under sole responsibility will be refused.

Sole responsibility test

A child under 18 outside the UK cannot simply join his/her UK-based parent unless the UK-based parent passes the sole responsibility test. A child under the age of 18 can seek to leave to enter the UK to accompany or join a parent who is present and settled in the UK (someone who has obtained indefinite leave to remain or who has acquired British citizenship) and is solely responsible for the child’s upbringing. Sole responsibility is a test invented for and exists solely in the immigration jurisdiction which has three main limbs: legal responsibility (for example legal custody of the child has been given to the UK parent), financial responsibility, and emotional responsibility which means they are making important decisions about the child’s upbringing and sending money for the child’s education and other needs.

Assessment of sole responsibility

While assessing the sole responsibility of a parent following factors are considered by the Home Office:

• Are the parents married / in a civil partnership?

• If the marriage/civil partnership does not sustain and gets dissolved, in that situation which parent was awarded legal custody of the child, which includes the assumption of responsibility for the child?

• When there is a legal custody order of the child is given in favor of the UK parent, the ECO should make sure that that the issue of a settlement entry clearance to the child will not contravene the terms of the custody order.

• Is there a situation where the marriage / civil partnership subsist, but both the parents do not live together?

• For how long has the sponsoring parent been separated from the child after he/she migrated to the UK?

• If the sponsoring parent migrated to the UK, how was the child taken care of before and after the sponsoring parent migrated?

• What has been the relationship between the sponsoring parent and the child if the sponsoring parent migrated to the UK?

• Has the child been consistently supported by the sponsoring parent directly or by personal care; or has there been a regular and substantial financial remittance by sponsoring a parent for the care of the child?

• Who of the parents and in what proportions bore the cost of the child’s maintenance?

• Who is the one taking the important decisions of the child’s upbringing, for example where the child lives, which schoolchild studies, which religion child practices, etc.?

However, there have been challenges when sponsoring parents tries to bring their child to the UK under sole responsibility. The case of TD Yemen [2006] UKAIT 00049 is the Stare Decisis for establishing sole responsibility. If you are looking for professional assistance in making the application for your child to join you in the UK, please contact Visa and Migration Ltd