LINCOLN MAJOGO*
As economic pressures continue to exert their full might on Zimbabweans, many are emigrating to Europe, the United Kingdom(UK) being a common destination to scout for better employment opportunities.
Image: GOV.UK
Due to these developments, there is an increase in court cases dealing with applications for custody and guardianship, which are mostly meant to allow those emigrating to travel with their minor children for an indefinite stay.
Even with documents of sole custody, many visa applications have been rejected by the UK Home Office. One major reason for rejection is that the parent making the application (Applicant parent) has failed to prove that they have sole responsibility over the minor's upbringing.
In this article, we briefly assess what sole responsibility entails in the context of immigration law in the United Kingdom.
Where a parent is already a resident in the UK and intends to bring their minor child along for an indefinite stay, they can do so under 3 broad circumstances. These are;
- Where the other parent is dead and the remaining parent has sole responsibility over the minor;
- Where both parents are alive but the Applicant parent has sole responsibility over the minor's upbringing; and
- Where there are exceptional circumstances that would cause irreparable harm if the application is not granted.
For this article, we will only deal with the second requirement above.
An application to the Home Office for a visa is often met by a request for the parent to provide all documents that prove that the Applicant has sole responsibility over the child.
The most common form of evidence is a court order of sole custody and guardianship. However, at times there may need to be more evidence to prove sole responsibility for visa purposes especially if the order of custody is inconsistent with the lived realities on the ground.
This entails that the Applicant parent must also submit every other piece of evidence that is relevant together with the documents that were filed in court to obtain the order of sole custody.
It appears that there is a common mistake of believing that sole custody is the equivalent of sole responsibility. Sole custody in the context of immigration is not necessarily sole responsibility.
In Buydov v ECO Moscow [2012] EWCA Civ 1739, the court rejected an application for a visa where the Applicant's parent was the custodian parent at law.
The Court took into account evidence that revealed that the other parent was still involved in the child’s life. The Court held that the other parent had not fully abdicated parental responsibility.
Similarly, orders of sole custody attained through the consent of the parents have also been susceptible to rejection as consent can be interpreted to mean the existence of both parents in the child’s upbringing.
It is therefore apparent that drafting an application for custody intended for use as proof of sole responsibility must be done diligently and with an appreciation of UK immigration law.
The application must include all necessary and relevant evidence that the Applicant parent is solely responsible for the minor's upbringing. Sole responsibility means enough evidence that the Applicant parent makes all key decisions about the child’s upbringing.
To avoid rejection and costs associated with reapplying for a visa, it is therefore important that one must appreciate the complexities of applying for a minor’s visa to enable them to stay in the UK for an indefinite time.
*Lincoln Majogo is a registered attorney practicing in Zimbabwe. +263718832210/LincMajogo1@gmail.com
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