Both the UK Immigration Act 1971 and the EEA regulations 2016 provides a legal framework for a person to apply for a visa, to exercise their parental rights if the child is resident in the UK. Following Brexit, the EEA Regulations 2016 has now been incorporated into the domestic law, the Immigration Rules HC395.
Whilst we have seen a shift to the policy, the principle that governs the ruling on how a parent can apply to either enter or remain in the UK has not changed. We remind ourselves that the child status, as well as the other parent’s status will matter in your application.
The application for an access to a child visa, allows a parent to apply under the 5 years route to settlement or 10 years route to settlement as both categories come under similar requirements, however there are small details which are different to the type of grant given.
What are the eligibility requirements for an access to a child visa
The access to a child visa for a parent requires them to meet the following requirements in brief:
The child must be under the age of 18 years at the date of application.
The child must not have formed an independent family unit or be leading an independent life as defined under the Immigration Rules HC395.
The Applicant must be able to meet the financial requirements and demonstrate that there is adequate accommodation in the UK.
The Applicant must provide reasonable evidences to demonstrate contact with the child and this is determined on a case by case basis.
Depending on the type of grant, the Applicant will require to meet the appropriate English Language requirements.
The burden of proof sits on the Applicant to demonstrate that they meet the published requirements of Appendix FM Immigration Rules HC395. The Home Office will consider the application based on the information and evidences provided at the date of application. The policy of paragraph 27 of the Immigration Rules HC395, states that the Home Office must make a decision based on the date of application.
Best interest of the child and Human Rights Article 8 ECHR
First of all, Article 8 ECHR is considered in an application made by a parent, as this impacts family life, whenever an application for an access to a child or parent visa is applied for:
Article 8 provides:
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
The Home Office must demonstrate that their decision is fair and proportionate when considering the parent visa or access to a child visa. The evolution of Appendix FM of the Immigration Rules HC395, which now sets out the parent visa and the First Tier Tribunal being restricted on what matters they can consider on a human rights appeal, has given the Home Office greater powers on how they come to deciding an application which impacts family life.
Article 8 of the ECHR includes the right to be free from unlawful and unreasonable interferences, and the ECHR policy states that the State, here the Home Office, has an obligation to ensure that a person leads a normal family life. If the States wishes to interfere to maintain an effective immigration control, reasons must be aligned with the public interest arguments.
As matters are being challenged, case laws are changing interpretations on right to family life, as well as the circumstances when the Home Office can interfere in a person’s right to both family & private life. We know that on an access to a child visa or a parent visa, it will surely impact family if an application is refused. However, one case law, which is an established authority, is in the case of Marckx v Belgium whereby the burden sits on the Applicant to provide the authority the reasons why the State’s interference is unlawful and disproportionate.
Frequently asked questions
We hope the following will provide answers to some of the most common questions asked in respect of an access to a child visa. We do advise that you to speak with our UK Immigration Lawyers first on 0207 237 3388, so we can assess your position and advise you on how to go about making this application. You can also email us on email@example.com your circumstances and we will surely come back to you as soon as we can.
How do I apply for the access to a child visa or parent visa?
The application is usually done online and you must choose the appropriate box depending on your current immigration status if you’re applying from the UK. Those who are applying from outside the UK can simply choose the parent visa route.
Falling under the transitional arrangements?
We know that the access to a child visa was part of Part 7 of the Immigration Rules HC395. It was somewhat hidden away from the family based routes until the changes came into force on the 9th July 2012. You cannot combine periods of residency on the previous or current rules to secure indefinite leave to remain.
How long are the access to a child visa or parent visa is granted for?
If you apply for the visa from outside of the UK, this is granted for 33 months. Those in the UK will usually receive a period of 30 months.
What are the conditions of an access to a child visa or parent visa?
You will be permitted to work full time but cannot claim public funds. There may be other conditions set and you must check those depending on your nationality. Breach of conditions can lead to a visa being cancelled.
Can I apply for indefinite leave to remain under the access to a child visa?
Yes, in most cases. When you can qualify depends on the extensions that are granted under. You need to keep all your Home Office letters, as we have found out that sometimes errors are made and your placed under the 10 years route to settlement. You need to take legal advice prior making an application.
Trusting ICS Legal with your access to a child visa or parent visa?
We appreciate the diverse challenges we face from 'No Win No Fee firms and 100% success rates'. ICS Legal are not in the business to provide such promises, after all we are not the Home Office.
Our trust with you is based on conversation, in spite of everything and above all you are buying our expertise. Speaking to us will give you the comfort and satisfaction that we are the right lawyers.
We have been part of the changes and will continue to be part of this, as we continue to support our Clients through their UK access to a child visa application. You can contact us on 0207 237 3388 to get more information on how we can help you. Email us your enquiry today at firstname.lastname@example.org.
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