On 08 November 2021, the Home Office updated their guidance in respect Dependent family members in worker routes. The main changes are:

1. Co-habitation requirements for unmarried partners has been clarified

If the lead applicant and the person applying as a dependent partner are not married or in a civil partnership, they can demonstrate their relationship by providing evidence they have lived together for 2 years before the date of application. The 2-year period of living together for a couple who are not married or in a civil partnership must normally have been completed immediately prior to the date of application.

However, the new guidance clarifies that the 2-year period does not have to have been completed immediately preceding the date of application if, for example (this is not an exhaustive list):

• the couple are currently living apart for work reasons
• one partner needs to attend training in another territory
• one partner demonstrates they have significant caring responsibilities

The applicant must demonstrate that it was not reasonably possible for the other partner to accompany or join them and there is evidence that the relationship continued throughout that period, for example, by visits, letters, logged phone calls, shared financial accounts.

If the above apply and provided that the relationship has existed continuously since the 2-year period of cohabitation and continues to be genuine and subsisting at the date of application, then the lead applicant and the person applying as their dependent partner may still be considered as an unmarried partner within the definition of the Immigration Rules for worker routes.

2. Clarifying the status requirement of a second parent and providing guidance on exceptional circumstances for parents where the other parent cannot travel

Both parents of a dependent child applicant must usually be either applying at the same time as the applicant or have permission to be in the UK (other than as a visitor) unless one of the following applies:

• the parent with permission is the sole surviving parent
• the parent with permission has sole responsibility for the child’s upbringing
• the parent who does not have permission is a British citizen or a person who has a right to enter or stay in the UK without restriction (and who therefore would not apply for permission) – such persons must, however, be (or will be) ordinarily resident in the UK
• there are serious and compelling reasons to grant the child entry clearance or permission to stay with the parent with permission

The new guidance has provided some scope to allow a dependent child to be granted entry clearance when only one parent has permission to enter or remain in the UK and the other parent cannot travel. This is however only when there are serious and compelling reasons to grant entry clearance. The following list is not exhaustive, but are examples of scenarios where it may be judged that there are serious and compelling reasons to grant the child entry clearance or permission to stay with the parent with permission:

• due to employment or study commitments, one parent is delaying their entry to the UK
• one parent is travelling to a territory for reasonable purposes which makes it impossible to care for the child(ren) e.g. the father/mother is travelling to a country where it would not be safe for the child(ren) to join them
• one parent is travelling to a territory for reasonable purposes on a short-term basis such that it would be unreasonable to expect care/schooling arrangements to be made for the short length of the trip
• one parent is receiving medical treatment abroad and plans to join the family later

3. Clarifying how to address children from a previous relationship

The rules require that any dependent children are either jointly or solely the responsibility of the lead applicant. A ‘Parent’ is defined under the Immigration Rules as including:

(a) the stepfather of a child whose father is dead, and reference to stepfather includes a relationship arising through civil partnership; and

(b) the stepmother of a child whose mother is dead, and reference to stepmother includes a relationship arising through civil partnership; and

(c) the father, as well as the mother, of an illegitimate child where the person is proved to be the father; and

(d) an adoptive parent, where a child was adopted in accordance with a decision taken by the competent administrative authority or court in a country whose adoption orders are recognised by the UK or where a child is the subject of a de facto adoption in accordance with the requirements of paragraph 309A of the Immigration Rules; and

(e) in the case of a child born in the UK who is not a British citizen, a person to whom there has been a genuine transfer of parental responsibility on the ground of the original parents’ inability to care for the child.

If the child or children come from a previous relationship that the dependent partner has had, and the other natural parent is still alive, the new guidance requires Home Office caseworkers to consider whether the lead applicant may have become a de facto adoptive parent. A de facto adoption shall be regarded as having taken place if:

• at the time immediately preceding the making of the application for entry clearance under these Rules the adoptive parent or parents have been living abroad (in applications involving two parents both must have lived abroad together) for at least a period of time equal to the first period mentioned in subparagraph (b)(i) and must have cared for the child for at least a period of time equal to the second period material in that sub-paragraph; and
• during their time abroad, the adoptive parent or parents have:
• lived together for a minimum period of 18 months, of which the 12 months immediately preceding the application for entry clearance must have been spent living together with the child; and
• have assumed the role of the child’s parents, since the beginning of the 18-month period, so that there has been a genuine transfer of parental responsibility.

Overall, the Home Office have slightly widened the scope for dependents of lead applicants in worker routes to be granted entry clearance providing some flexibility to the former stringent approach. 

SINCERE IMMIGRATION