Based on the number of enquiries we've had from concerned parents affected by the withdrawal of DP5/96 I’ve put together some information I found on how the UK Border Agency approach individual cases relating to UK visa applications concerning children.
I'm hoping this advice will reassure parents they're not about to be deported, you all seem very worried.
In all cases involving children the following must be established and reported to the relevant casework section:
UKBA withdraws DP5/96 replaced by Article 8 of the Human Rights Ac
• The child’s age,
• Ties with the natural parent, how often children see their natural parent, whether any maintenance is paid towards the children’s upkeep,
• Whether the children could easily adopt to a life abroad, whether such a move would cause hardship or put their health at risk,
• Whether the children have the right of abode; the nationality of the children.
For visa applications involving people and children who do not meet long residence requirements the longer a person has lived in the UK, the stronger their ties with the UK will be. This will help your UK visa application.
However, more weight is attached to the length of time a child has spent in the UK compared to an adult.
Time spent whilst waiting for an in-time application to be resolved or where residence has built because of delay or administration error by the Home Office, should be regarded more favourably than time spent in the UK illegally. Delay alone will not justify granting leave to remain, but it is a factor caseworkers should take into account.
When considering delays in visa applications caseworkers willtake into account if the claimant:
• has a UK visa application outstanding for over 2 years, and
• has not received a decision from the UK Border Agency during the time, and
• has been making progress enquiries during that time, and
• in the meantime, the delay has meant that they have built up significant private or family life or if the delay has resulted in considerable hardship, for example children who have been established in school over a period of years because of UK Border Agency delay in dealing with families’ applications.
UK immigration will take into account the visa applicants personal history, including character, conduct and employment record.
Regard will also be given to any criminal activity the person, or any dependents, liable to removal action have been involved in.
It will be relevant to consider whether a person has maintained contact with the UK Border Agency, as required, and has been actively pressing for resolution of his/ her immigration status.
Similarly, a person’s lawful employment history and how they have supported themselves and/or their family during their stay in the UK will form part of the consideration.
UK visa applications will be considered on strength of connections to the UK, including family ties, marriage and civil partnerships and other connections such as business or lawful employment.
In cases where a person has spent their formative years in the UK, consideration must be given to whether they have adapted to life in the UK and/or whether they can adapt to life outside the UK.
In addition, the Home Office must take into account the impact of deportation of a person on their spouses and children.
When a person is married, in a civil partnership or a relationship akin to marriage with a person lawfully resident in the UK, a genuine and subsisting relationship will create further ties with the UK. In this regard, reference should be made to Proportionality in the Asylum Policy Instruction (API).
Domestic circumstances including housing, tenancy and ownership, whether they or their children are in education, whether anyone in the UK relies on physical, financial or emotional support all increase strength of ties between a person and the UK and are weighed against any adverse effects.
Additional factors including whether the UK visa applicant can maintain himself/herself and any children without the need for public funds for the foreseeable future shoudl be taken into account.
In the case of a child of school age, the effect of removal on a child’s education must also be considered, the practicality of plans for the child’s care and maintenance in the UK if one or both parents are removed, and any representations made on behalf of the spouse and child.
Compassionate circumstances such as ill-health, medical treatment, the inability of a person to look after himself/herself, and reliance upon persons resident in the UK must also be taken into account.
What should you do now?
My advice is to go through the points and start writing down your strengths, listing everything you can think of that will help your visa application.
Start with your child’s age, how long your child has been here, your ties to the UK - list you or your child’s schools, list the lawful jobs, including voluntary work, you have had and the family members you have living in the UK.
Write down how you are involved in the community and how you have supported yourself, your spouse and children. You might be surprised at how extensive your list will be and in the end it will help your visa application.
I hope this helps.