Best interests of the child- Eligibility and application process

Where a relevant child is affected, Immigration Rules - GEN.3.3 and Section 55 of the BCIA (Borders, Citizenship and Immigration Act) 2009 require the UKVI to treat the best interests of the child as a primary consideration.

A ‘relevant child’ is someone in the UK or overseas, aged under 18 on the date of application, and who would be affected by a decision to refuse the application.

What does “primary consideration” mean

Primary consideration means the best interests of the child must be considered first, they must be given substantial weight, and even though they are not automatically decisive, but carry significant weight, however it is not the only consideration.

Common applications involving children where the best interests of a child are considered

A child can apply to join their parent in the UK under a family route. If the child is in the UK and their parent cannot include them in their application form, they may be eligible to apply for the Private Life route.

A child can be included as a dependent of a person who is applying for a UK partner visa

A child can apply as a dependant of a parent who has, or is applying for, leave under a work route such as Skilled Worker, Global Talent, or Innovator Founder route, or their partner.

A child can apply in their own right or as a dependant where the parent has or is applying for refugee status or humanitarian protection

A child can apply to the Private Life route in their own right  

A child can apply to the Private Life route if they were born in the UK to a person who has or is applying for permission on the Private Life route

A child can apply for settlement as dependants of a parent who has or is applying for settlement. This includes children on family, work, private life, refugee, or humanitarian routes

A child can apply for registration for British citizenship

Application from children and those with children

UKVI is required to take into account the circumstances of each case and the impact on children, or on those with children, in the UK. Borders, Citizenship and Immigration Act 2009 - Section 55 places an obligation on the Secretary of State (UK) to take into account the need to safeguard and promote the welfare of children in the UK when considering immigration, asylum, and citizenship through registration applications.

The UKVI is required to consider the best interests of the child in decisions that have an impact on that child. This is particularly important where the decision to refuse may result in the child having to leave the UK, where there are obvious factors that adversely affect the child, or where a parent caring for the child asks the UKVI to take particular circumstances into account. 

The child’s best interests are considered as a primary, but not necessarily the only, consideration.

The case laws regarding the best interests of a child

In all applications which involve children, the UKVI is required to consider the child’s best interest before refusing the application due to their own failure or failure of their parent (s) to meet the route-specific requirements. 

The Supreme Court (UK) determined, in ZH (Tanzania) [2011] UKSC 4 case, that the child’s best interests broadly mean their well-being and that in undertaking a proportionality assessment under ECHR - Article 8, those best interests must be taken into account as a primary consideration. However, the best interests of the child are not necessarily determinative or absolute and can be outweighed by public interest considerations. The Court also noted that British citizenship is of particular importance in assessing the best interests of a child.

In FZ (Congo) [2013] UKSC 74, the Supreme Court confirmed that a child’s best interests are an integral part of the proportionality assessment under ECHR - Article 8. However, in making that assessment, the best interests of a child must not always be the only primary consideration, and the best interests of a child do not of themselves have the status of paramount consideration.

Exceptions to certain eligibility requirements for those applying as a partner

If the applicant applying as a partner cannot meet certain requirements, including the knowledge of English and financial requirements, they may still apply for a visa or extend their permission to stay in the UK if they have a child in the UK who is a British citizen or Irish citizen, or has lived in the UK for 7 years or more, and it would be unreasonable to expect them to leave the UK.  

Exceptions to certain eligibility requirements for those applying as a parent

Under Immigration Rules - Appendix FM, the applicant applying for leave to remain as a parent may get an exemption from fulfilling certain eligibility criteria, including English language and financial requirements, if they have a genuine and ongoing parental relationship with a child in the UK who is a British citizen or Irish citizen, or has lived in the UK for 7 years or more, and it would be unreasonable to expect them to leave the UK.

The best interest of the child applying as dependant of a person on the Work route

While the UKVI should normally be satisfied that a child is either joining both parents in the UK, or a parent who is the sole surviving parent on a work or study route, or has and has had sole responsibility, there may be exceptional cases where UKVI may issue the child entry clearance.

As with all decisions involving children, the UKVI is required to consider the best interests of the child and their safeguarding responsibilities in the spirit of the Borders, Citizenship and Immigration Act 2009 – Section 55, that the other recognised parent who is not coming to the UK has given their written consent, and that care arrangements are suitable.

If a relevant child is involved, the applicant will need to prove the child’s best interests through documents, such as a British passport or immigration status of the child, evidence of length of residence in the UK, school letters or reports, GP or paediatric medical letters, nursery or childcare letters, social worker or safeguarding reports.

Settlement as a dependent child under Appendix Children

Appendix Children applies to many routes such as Graduate, most work routes, UK Ancestry, and Private Life route. 

Both parents of a dependent child applicant must be applying for settlement at the same time as the applicant or have settled unless there are serious and compelling reasons to grant the applicant settlement.

Serious and compelling reasons

While the child is expected to accompany or join both parents, or the sole surviving parent, or a parent with sole parental responsibility, there may be situations where this is not the case, but it may be appropriate to grant the application on the basis of the best interests of the child.

When considering whether there are serious and compelling reasons to grant the child entry clearance or permission (leave to enter or remain), or settlement, the UKVI considers the particular circumstances of the case and the evidence available.

Where one parent of the child is coming to the UK and the other parent is staying overseas, the UKVI would consider the following factors:

•  Are there good reasons why the child’s other parent is not coming to the UK

• Are there good reasons for the child not to remain overseas with their other parent

• Whether coming to the UK or staying here would be in the best interests of the child

Where one parent of the child is in the UK or coming to the UK, and the other parent is staying overseas and is involved in the child’s life, written consent from the other parent will be a positive factor in assessing the child’s best interests.

Private Life Visa application based on Article 8 ECHR (European Convention on Human Rights)  

Where a person fails to meet the eligibility or suitability criteria under the Private Life route and relies on Article 8 of the convention, the UKVI must give priority to the best interests of the child involved.

How to consider a child's best interests 

While assessing a child's best interests, the UKVI must consider all relevant factors in the particular case. They should consider:

• The length of residence of the child in the UK

• The family circumstances of the child in which they are living

• The child's relationship with their parent (s) overseas and in the UK

• The length of time the child has spent in education and the current stage they have reached

• The child’s health

• The child’s connection/ties with the country outside the UK in which at least one parent is currently living or where the child is likely to live if their parents leave the UK

• The extent to which the decision to refuse will interfere with, or have an impact on, the family or private life of the child

• If (and, if it is so, to what extent) the relevant child will have medical, linguistic, or other difficulties in adapting to life in the country they would be moving to or living in 

• Whether any factors are present that would affect the welfare of the child that can only be alleviated by the applicant's presence in the UK

• What effective and material contribution does the presence of the applicant in the UK make to safeguarding and promoting the child’s welfare? Is this significant in nature?

• Support during or after a major medical procedure, especially if this is likely to lead to a permanent change in the child’s life

Where a child is involved, the applicant will need to prove the child’s best interests through documents, such as a British passport or immigration status of the child, evidence of length of residence in the UK, school letters or reports, GP or paediatric medical letters, nursery or childcare letters, social worker or safeguarding reports.

Steps to apply based on the child’s best interest

Where a child in involved the applicants will normally need to follow the steps mentioned below:

• Identify the Immigration Route

• Confirm the Child’s Immigration Status

• Collect Evidence of the Child’s Best Interests

• Demonstrate Hardship of Removal on the Child

• Address Immigration Requirements that cannot be met

• Prepare Supporting Documentation

• Submit Application

• Await Decision

Getting a decision

Successful applicants on most routes will normally be granted an initial leave for a period of 30 months, with scope to qualify for extension and settlement.

How can Visa and Migration help?

We can play an important role in supporting your application where a child is involved. Seeking permission on the basis of the best interests of a child is complex and relies heavily on the UKVI’s discretion. They usually depend on human rights grounds, especially ECHR Article 8, and require careful legal and factual presentation. 

We carefully identify the correct or appropriate immigration route for you and review how strong your case really is. We help you present a clear, strong, and convincing legal argument for your case, including demonstrating the best interests of any child involved. We help you at each step and provide ongoing support, making it as clear and stress-free as possible.

For expert advice and queries, you can call us at +44 (0)20 3411 1261 or write at info@visaandmigration.com