We receive a lot of enquiries from couples who want their children to move to the UK with one parent. Sometimes this is because they have separated, and other times it is because one parent wants to continue working in Hong Kong for a few more years while the children get settled in UK education. Unfortunately, this is not always possible because of rules around ‘sole responsibility’.
What is the issue with sole responsibility?
In most cases, the Home Office expect that a child under 18 applying to live in the UK will be coming with both of their parents. If one parent is staying outside the UK then the child is expected to stay with them. If only one parent is going to be living in the UK, then UKVI will usually refuse a visa for the child. They will only grant a visa if;
- One parent has died
- One parent has ‘sole responsibility’ for the child
- There are ‘serious and compelling reasons’ why the child should be granted a visa.
This issue does not affect applications for your children who are over 18 years old, but are applying as BNO household members.
What is ‘sole responsibility’?
Having ‘sole responsibility’ means that one parent has control of the child’s upbringing including making all important decisions for the child. If the parents share control and make decisions together, then they have joint responsibility.
If both parents are involved in the child’s upbringing then it will be rare for only one parent to have sole responsibility.
How do UKVI decide if I have sole responsibility for my child?
There is no precise formula to know if a parent has sole responsibility and the Home office consider the issue on a case by case basis.
The decision maker should look at how responsibility is shared in real life. For example,
- Are both parents named as contacts with the school?
- Can both parents take the child to the doctor?
- Do both parents provide financial support?
- Do both parents have regular contact with the child?
It is up to the applying parent to provide evidence in relation to these factors. They will usually need to demonstrate that they are making the key decisions for the child without reference to the other parent.
I have a court order that says that I have custody of my child. Is that enough?
Not necessarily. If the other parent is still involved in the child’s upbringing, and has regular contact with them, then UKVI may well decide that you still share parental responsibility.
They will also consider whether the other parent provides financial support.
My child’s other parent has given consent for them to move to the UK.
Consent on its own will not be enough, the other parent would need to give up their decision making responsibility for the child.
What if both parents apply for a BNO visa but one parent returns to Hong Kong?
You need to consider future applications as well as the current application. If your child is still under 18 years old when they apply for indefinite leave to remain then they will only be granted settlement if both of their parents are settled or applying for settlement at the same time.
If one parent has spent more than 180 days a year away from the UK then they will not be able to settle in the UK. If one parent is not able to settle in the UK, then you will have to address the sole responsibility question again, or apply for extensions of the BNO visa.
What about ‘exceptional and compelling’ reasons
It is very rare for a child to be granted leave on that basis. However, it might apply in cases where one parent has a degree of parental responsibility but is neglectful or abusive. It might also apply if the child has a particular need, such as health needs, that one parent simply cannot meet. Equally it might apply if one parent is not able to care for the child, for example due to disability.
The sole responsibility rule is a harsh one. There will be cases where a BNO parent has to choose between staying in Hong Kong with their children and moving to the UK without them.
Where parents intend for their child to be privately educated in the UK then they may be able to get a student visa. This is not a perfect solution, as a student visa does not lead to settlement. However, it would allow children to move to the UK with one parent. Once the child turns 18, they may be able to apply for indefinite leave to remain on other grounds.
Applications involving sole responsibility issues are potentially complex and benefit from being prepared by a person with experience in this area of law. OTB Legal have experience of successfully assisting clients with complex applications involving sole responsibility. Your representative can provide advice on evidence that will strengthen the application and prepare strong representations in support. If this is an issue that may affect you, then you can make an appointment for a free consultation below