I just had a success registering  an almost- 16-year old young man as British recently, in a complicated case that perhaps most aptly highlights the misgivings of UK immigration policy in relation to immigration of children whose other parent stays overseas. Restrictions on such immigration are least known and often ignored by prospective immigrants, leading often to disaster.

Several of such cases with families from the US were recently in the news – the “white distress” thing again –  but I have had numerous Russian ones as well. The issue is exacerbated by people not even having a clue that this may be a problem and therefore often taking steps or making representations directly opposite to those that would be in their interest. This is also not helped by the fact that most families headed to the UK from overseas get advice locally in their country of origin from UK Visa consultants, who often specialize primarily in visitor visas and completely fail to understand that where it comes to immigration, the Rules are almost the exact opposite of what the rules for visitors are.

“The other parent” and visitor visas

For instance, visitor rules are commonly interpreted by applicants from Russia to require a written permission from another parent (it’s a bit more complex than that as the Rules do not actually require any such thing, and the perception stems from years-old, and also mistaken, belief that somehow the Russian government requires another parent’s permission for a child to exit the country, which it does not)  but to make the long story short, it’s one of those things everyone always does and it becomes a rule of its own because everyone does it. Russian (and Ukrainian) mothers that have children from whose parents they are divorced, usually go to great lengths to procure from the other parent, however distantly estranged, a notarized written “permission to travel”.

Do the Immigration rules require anything of sorts? No they do not, again, this is a myth perpetuated for years by local visa consultants and locally hired VAC staff in some countries, such as Russia – and now has become almost the norm that many visa officers also expect to see. In the current version of the Immigration Rules for Visitors, Appendix V states, verbatim::

V 4.12 If the applicant is not applying or travelling with a parent or guardian based in their home country or country of ordinary residence who is responsible for their care; that parent or guardian must confirm that they consent to the arrangements for the child’s travel to, and reception and care in the UK. Where requested, this consent must be given in writing.

WHO IS RESPONSIBLE FOR THEIR CARE is the key phrase here — one estranged parent should very well be able to travel, by demonstrating that they are responsible for that child’s care. In fact if a child is a non-visa national, for instance American, the ONLY enquiry at the border will be into whether the accompanying individual is a parent or IF NOT is acting with the parent(s) consent. And this will be applying exactly the same rules.

To make matters worse, visitor visa consultants, concerned with requirement of ties to the country of origin, encourage parents applying for visitor visa with children to beef up and overstate the child’s relationship with family members remaining in the country of origin, including an often, in reality, estranged father.

UPDATE I am writing this update because I received calls from distressed users of uk-yankee forum where apparently it is a popular opinion that  a left-behind father’s consent is needed for a child’s application for a derivative of a spouse/fiancee. This is FALSE. People who came to this conclusion are reading the wrong guidance – it is relevant in situations where the application if by a PARENT on PARENT ROUTE, which confusingly also has aspects of “sole responsibility”. It has nothing to do with applications where child is THE APPLICANT.   Agreements between parents on custody and parental responsibility MAY be relevant but only when they were SOME TIME AGO, as evidence that parent HAS HAD sole responsibility — giving up of those rights or consent NOW is IRRELEVANT and can even contradict historic sole responsibility claim.

Rules for long-term and “settlement” visas: the other parent and “sole responsibility”

The same confused women then take similar approach when time comes to apply for a spouse visa, or a work  (PBS) visa and bring the child along as a dependant. And this is when all of this comes back to bite big time.

In reality, for any long-term and leading to settlement immigration, the UK rules boil down to this: you can only bring along a child, if they do not have another parent with parental rights, or, in US parlance, any degree of shared custody, left in their home country. Since standard American contested divorce yields some form of shared custody, at least legal custody, and for instance a standard Russian divorce often does not put custody disposition in writing at all, this always creates a problem.  Even more so it is the problem for unmarried parents who have a name of an often AWOL father on a birth certificate, in Russia or Ukraine it may even be an invented name (used to be a thing, although nowadays I’d venture to guess the stigma that led to this is so dated, that most children to whom this applied are over 18 by now). But I recall having at least one client who had a certificate from the Registrar in Russia that her son’s other parent entry on the birth certificate was made-up (it worked, coming under (b) below).

The UK Immigration Rules state that, effectively, the child can come if (a) both parents are coming, or the second parent already lives in the UK of their own volition, (b) the other parent is dead or undetermined, eg the applying parent is the only parent on the birth certificate, (c) the applying parent HAS HAD THE SOLE RESPONSIBILITY for the child’s upbringing. I capitalize the latter because this is where most applications fall, and this is the the least known bit of the Rules, most often misunderstood, especially due to cultural and legal differences in different countries. So what is that sole responsibility?

If you are American and your divorce says you have full custody, physical and legal, good for you, you have sole responsibility. Now. So you are if you have divorced, for instance, in Russia, and the agreement between the parties is that the child “is to live with you”, since which time perhaps you have not heard form the father, There is no court order. But you can — something Americans would probably guess, but most Russians don’t realise – prove sole responsibilty by a variety of means, such as letters from school, doctors, day care centers etc essentially confirming that you are the only parent on their record(s) or that they ever saw picking the child up or taking interest in their education or treatment. But remember, the rules do not call for you to have sole responsibility NOW — this is not enough. You must HAVE HAD that responsibility — by which the UK government means, throughout most of the child’s life. So if you divorced with full custody when your child was 1 year old, and they are now 7, then yes, you have had sole responsibility. You can argue, usually, if the child was anywhere under 3 when the other parent dropped off their horizon, that they simply do not remember them. So if you were never married and never lived together with the other parent, that will also work.

In 2001, when I was divorcing my first husband in the United States, I had the wisdom to ask him not to appear in the proceedings so I can receive a default judgement, which included “full custody”  for our then 1-year old US-born daughter Sophia (now in uni). A wannabe-lawyer instinct at the time served me well — I only sensed then that this would come to matter, and boy, it did. If I did not have this judgement — and US is, unlike Russia btw, on a list of countries from which the UK officials are told to accept family court dispositions as to custody –  I’d have had a nightmare of a time to bring Sophia along when I decided to move to the UK, even though we lived in Russia by that time, and so did her father.

However if you just had a highly contested divorce and eventually received custody, and the kid is 10 — but until recently, their other parent has had shared custody, visitation, has paid or is still paying child support, etc etc – or even if you received full custody, but it happened just now and the kid is 10 – then technically you do not fall within having had full responsibility.  If you are or have been in receipt of child support, and especially if it is ordered by the same court who determined custody, then you do not have and never had sole responsibility, even if the other parent hadn’t had a visit with the children  for years. If they are close to their grandparents on the other side, or have stayed with the other parent or grandparents on that parent’s side while you have traveled to the UK to look for a job or get to know your future British spouse – then you do not and have not had sole responsibility. Make sure you can always show that if you traveled without the child, they stayed with relatives on YOUR side. You will not be asked to prove a negative, but in many cases an existence of a custody battle or another parent self-evidently emerges from the facts otherwise presented. For instance, for a spouse visa you are required to present your divorce decree to show you are no longer in your previous marriage, and the age of the child at the time of divorce and any arrangements for support or custody might become evident from the same decree. Or you may have a court decision that the child lives only with you, but it will be useless if it also established a visitation schedule for another parent.

If you are a mother of a child whose father signed a birth certificate record but then immediately went AWOL, but you were never married, the situation may not be that dire — since cases of unmarried parents do not involve them divorcing, most often custody and visitation rights of the other parent likewise are not adjudicated in any way.  The authorities will usually accept in such cases your statement that you raised this child alone, in absence of obvious evidence to the contrary. But mothers who first establish a long record demonstrating how their kids are connected to the motherland and procuring “permissions to travel” from estranged parents, themselves create this evidence to the contrary which then harms them. Plus, your claim to sole custody still has to be backed up, including with letters from schools and medical institutions, at the very  least.

There is of course the No 4 caveat para, about extraordinary circumstances. But divorce is not an extraordinary circumstance. In fact I had not once claimed an extraordinary circumstance, so far, but I can imagine that if the other parent was serving a life sentence for multiple violent crimes,  or were a convicted child abuser, that would maybe qualify. But ordinary American divorce, which leaves at least shared legal custody, visitation rights and child support obligations, technically, does not qualify.

This is of course nonsense, and pretty much every client I ever had had difficulty understanding it. My main contingents are people from the United States and former USSR, and in all of those places the expectation of an ordinary citizen is that this is something that can be overcome by consent and agreement of all parties — in other words, that the left-behind parent should have the right to bless the relocation in some form of notarised writing, and it will then go ahead. But it ain’t so: in fact, where there was a flicker of hope for “sole responsibility”, it disappears with any caring involvement or interjection from the left-behind parent, which in itself demonstrates that they are not as absent and even take interest in the child. At best, such declarations and consents simply do not improve the situation, if evidence otherwise does not meet the “sole responsibility” guidelines.

Why?

The ostensible reasons for it all are the classic nanny-state reasons: the people don’t know what’s better for them, the state does — in this case, the state presumably unconnected and foreign to the left-behind parent, whom however it presumes to be incapable of consenting to relocation of their own child overseas. The interests of the child and of the child-related justice, eg respect for visitation access etc arrangements, is the official dressing of these rules — eg , emigrating parent cannot make a decision that loss of contact with the remaining parent is not in their kid’s interest, blah-blah-blah. Except of course, at least half of my clients are people whose lives are splashed across several countries, so the “left behind” parent is often not in the country in which the child is applying, at all. Where most countries view parental access rights as rights, which are by definition alienable — eg, a person can dispense with them by giving consent for their kid to move – the UK says, well, you see, it’s an obligation. Parental responsibility is a responsibility and you can’t give it away just because you agree to not want it.   Therefore the circus, which just ends up hurting everyone (as do most nanny-state policies).

I suspect the real reason, as usual, is unadvertised. In the UK, a child, once settled, attracts a further right of residence for their non-custodial parent with access or visitation rights. There is even a possible settlement route. So it was probably thought to be necessary to lay a parent trap — or “perjury trap”, rather )) – if you state at this stage that the other parent isn’t in the picture, funny thing will be if he then subsequently shows up! Although I imagine if he shows up after 5 years it is possible a lot has changed.

In any event, the UK is the only country I know that has this ridiculous policy — nothing of sorts exists in the US, where one legitimate custodial parent and one child is enough, and the sky hasn’t yet fallen. Nor is there any requirement or global understanding under any rule or convention, that a state’s immigration policy needs to operate to enforce child custody decisions. In fact, as written and applied, it in fact contradicts custody decisions, as in practice it prevents custodial parents, with custody awarded by the court, from entering the UK with their child(ren). My client’s case illustrates it very well.

The Case

The client is a British woman who approached me initially in May 2015, fresh from a custody battle over her children, who had been left behind in a Siberian town in Russia for the past 5 years. She had been divorced from her sons’ father since 2007, when the oldest was 5 and the youngest under 3 years old.  Following the divorce, she was raising the children by herself. The big and rather heartbreaking caveat in this case is, that at the time she married her British husband in 2010, she’d probably have been able to simply get derivative visas for the children — at least definitely for the small one, but in likelihood, on the balance, the older one maybe as well. If you subtract the first three years of life as those during which the child retains no long-term memories, the older son at that time would have lived with her as his only carer for most of the time that mattered and he could remember, and the father  was not in the picture. It was certainly worth a shot.

But no one told her that (and to be honest the husband did not do a lot of research on this, clearly – as he could have done). She took advice from local UK visa expert in the town — who as usual, knew mainly only about getting a visitor visa. She was told, devastatingly, that she needs the father’s written consent. Now, if the father did consent, it would have made no difference rather than hurt the case — but in this case, the advice was very harmful. This is because the advice prompted the poor mother to seek the father, otherwise unaware of her new marriage, out – and so he became aware of it. And, as it turns out, he was really, really against it — he was a Russian patriot, unsympathetic to Britain, to moving overseas, or having any such treasonous influence in his children’s lives, which suddenly, he purported, interested him a lot. He wages a public campaign in their small rural hometown, declaring the poor mother a traitor to the Russian state, and sued for custody. This was it. The mother ran off, he said, with the British man, clearly a spy and what not. While the mother was in the UK sorting her own status and trying to build her family life, he was awarded custody of the confused children, and took it. This was the point of no return for the children’s possible future UK immigration application.

Now, it is fair to point out that there are numerous additional interjecting details here. Firstly, children at one point did visit the UK as visitors, with the permission of the Russian court (and over the father’s opposition), but then their subsequent visitor visas were refused by the British government, it is not now clear why, but the mother, by then with ILR, lodged an appeal and spent the time in the UK fighting, and eventually winning  it, only to discover, upon return to Siberia, that custody had been taken away from her. So it’s not like everyone has been sitting doing nothing, they were all just pursuing course of action that in retrospect looks bizarre — but at the time this case landed in my lap in 2015, it had been already forgone.

After learning that her hard-won appeal for visitor visas was now not good because she was no longer a custodial parent, the mother — who by then had been naturalised in the UK, so no longer tied to the residence requirement – rushed back to Russia, to fight several appeals up to the region’s Court of Appeals.  In course of that, she started to maintain a local household and even did some  work, so overall appeared in the proceedings as a very much present-in-the-picture and responsible – and very Russian – parent.  She also commissioned a battery of testing by psychiatrists and social workers which revealed depression and allegations of abuse that the children suffered in the father’s new family (he remarried and had a new baby). The alleged abuser was, however, not the father but the stepmother. The Appellate court, under impression that the mother had returned to Russia, awarded custody to her, with a note that father has a right of access, but without specifying amount or manner of such access. Upon obtaining the determination, she flew to the UK and she and her British husband took the bus all the way to London to see me.

She had a custody of the children, which was freshly recovered after they had lived with their father, basically, for three immediately preceding years. There was no way this would qualify for “having had sole responsibility”. There were also no notable allegations that the father was the abuser. that could maybe amount to some degree of extraordinary circumstances — and you could not really claim that Russia is a dangerous place for the mother or the British husband. I felt that, at the point they were now, the Immigration Rules  would take them nowhere. But what the mother also then had, was an FTT decision in the UK that allowed the children’s appeal against the refusal of their visitor visas. There was nothing else really to advise — I said, “you take these children and you bring them here and you put them in school. The father calls, you tell him you will buy him a ticket and pay for a visa to come and visit”.

For the record, I never before, and never again, gave advise, specifically, to break the Immigration Rules — but, technically, children under 18 in the UK are incapable of being immigration violators, so this was not advice to break the law. IMHO. Then, I knew from experience that even the hostile environment would not pick up children under 16, and seeing as their mother is a British citizen, no one would expect them to have any documents. Then  I said, come back and see me after 2 years, where the oldest child would have lived in the UK, and attended school, for at least 2 years. I hatched a plan then, to apply directly for his registration as British, bypassing the Immigration Rules which would still offer him no remedy.

I am not a family lawyer, or a solicitor, but my instinct was that even if some custody proceedings were somehow to follow them, no British court was  going to send back children of a British mother, who were happy and settled in a UK school; I have been told since that there are certain thresholds for habitual residence, but clearly they’d be overcome way sooner than in 2 years. In 2 years, I thought, these will be British children with some sort of bureaucratic quirk of a problem, rather than illegal immigrants.

Yes, nationality guidance says to regard with great caution applications by children brought to the UK “in violation of custody orders” — but my client had not violated any custody orders — custody had been awarded at this stage TO HER, and the court did not say she could not move anywhere.  The British stepfather was concerned whether any of this would constitute a Hague abduction – which, I told him, he’d have to ask a family solicitor  — but none of this seemed to be actually in violation of the Russian court’s decision. She was now the custodial parent, and no specific arrangements for access were prescribed to the father (which I must say is simply a thing rare for Russian courts to do).

By the end of  2015, the mother reported back that the children were now with her in the UK and they were going to do as I advised — a prospect that both excited and horrified the family, as they are very law abiding and felt that they were doing wrong, even though I assured them that no child under 18 is going to be deported for overstaying, and let alone – no child of a British mother. The scared family hid the kids’ passports with a distant relative and sat there in fear that the worst would happen. But nothing happened. The children were enrolled in school, registered with a GP, and the father never turned up or took any action. It was only in Siberia he was all fire and fury, here all of this simply exited his field of vision, and he had no interest in going to England, seeing anyone or making any noise. As many men, his objective thus far had been clearly to obstruct his ex-wife’s new marriage, rather than any genuine concern for the children. So why do we have the immigration policy that did not stand on her side?   Why were they put through all of this?

This Spring, three years more wiser, we all got together and took a look at the case again. I was sh*t scared, to be honest. The oldest was entering the last year of GCSEs, and the A-levels were not offered in the local school; he was soon to turn 16, where for the first time things like lack of NIN, inability to work or attend college, or get a provisional license, will all come back to bite — and, the day he turned 18, for all we knew he could be sent back to Siberia, where he’d be drafted into the compulsive military service. A kid from Yorkshire would find himself in Siberia. He would not have been in the Uk 7 years before he is 18; he would not be in the Uk half of his life any time he is under 25; and moreover, the only parent he was now growing up with, was British. his only future was in the UK, short of being deported into service in Siberian army.  It was time to test my strategy.

For the boy’s application, we gathered the standard set of things — letters from schools and sports classes etc – but also commissioned an expensive comprehensive psych evaluation by a child psychologist, who interviewed the whole family to asses the family dynamic and degree of integration into life in the UK, and views and intentions of the children.  Registration of children is ENTIRELY at discretion, and their best interests and common-sense assessment of whether or not this is – and will be — a British child, comes into play. The government does not want to give passports to young people — or any people – who would then leave and have nothing to do with the country. With an older teenager, I felt it was important to show that he did not harbour resentment over the move or any desire to return to Russia.

His application for British citizenship was approved, and he now received a British passport. Just in time to get his NIN.

Now what?

Can this possibly be a prescription for others? No. It was a very unique set of circumstances that I felt made this a feasible strategy in this case. But it simply can’t be the case that this is EVER a feasible strategy in order to get a fair and reasonable outcome. The Rules on sole responsibility need to be changed, as this case illustrates, to include cases of RECENT custody dispositions in favour of the relocating parent.   Otherwise, we just breed these bizarre situations of Brits’ children marooned overseas until they age out.

I now ponder the situation of the younger brother — we only applied for the oldest, because this is an expensive application – but the younger is also in a slightly different position. In theory, he COULD receive leave to remain under the immigration Rules, and possibly even a discretionary ILR (any application for LTR woudl lead to ILR being granted, as internal policy instructs caseworkers to grant ILR where there is no other parent on temp status whose leave the child will track). So if any application under the immigration rules is to be granted, it would be presumably on the sole responsibility criteria, and lead automatically to ILR. He would then be eligible to apply  for citizenship the next day, and presently only lack of ILR separates him from a clearly approvable registration application.

HO really does not like to give citizenship to children without ILR or ILE — in the above case of the older brother, I think we suceeded by showing that no immigration route under the rules was available to that particular child (and what is the point of a discretionary application for immigration leave, if we could have — and did — make one for nationality directly, and it is also discretionary?).

But does it make any sense considering that the younger brother’s situation is different because he will be here 7 years before he is 18, or does it all make no sense — why launch him on an immigration route, if his mother is British, and my making an application to BC we actually make the more appropriate one – where  discretion is the only and main criteria, rather than outside-the-rules-last-resort criteria. Plus, there is such thing as “the last child in the family (who is not British)”, which he now is. I am leaning towards making the MN1 for the younger brother next year, simply because everything else would be nonsense. It is ironic how our immigration rules and our nationality rules are on different planets.

***PLEASE NOTE NOTHING IN THIS ARTICLE IS APPLICABLE TO CHILDREN OR STEPCHILDREN OF EU RESIDENCE WITH RIGHT TO RESIDE UNDER EEA REGULATIONS/ FREE MOVEMENT DIRECTIVE. THERE IS NO SOLE RESPONSIBILTY REQUIREMENT IN EU LAW.  ANY STEPCHILD WILL QUALIFY, AND THERE IS NO ROOM IN EU LAW FOR ENQUIRY AS TO CUSTODY STATUS OR OTHER PARENTS STATUS AT THE STAGE OF ISSUANCE OF EEA DOCUMENTATION ****

 

 

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