The immigration rules for children and young people differ widely to those for adults, allowing caseworkers to exercise discretion in line with the UK’s duty to safeguard and promote the welfare of the child.
In particular this flexible approach recognises that children are not responsible for any time spent in the UK as overstayers. AFF Foreign & Commonwealth and immigration specialist Katherine Houlston looks at some of the rules and discretions for children and young people coming to and remaining in the UK…
RULES FOR CHILDREN
In most cases children are expected to follow the immigration route of the non-serving parent and must be granted limited leave before being eligible for indefinite leave to remain (ILR).
However, in some cases, outlined below, it is possible for children to bypass the requirement for limited leave. New guidance issued in August 2023 has also clarified that in some circumstances children can apply for citizenship without first needing ILR.
CHILDREN ELIGIBLE FOR INDEFINITE LEAVE TO ENTER (ILE)
- Children whose parents are in the UK and are either both serving or both already settled here (i.e. are British and/or have indefinite leave).
- Children of serving personnel who have sole responsibility for them (i.e. children from a previous relationship) or whose other parent is deceased.
CHILDREN ELIGIBLE FOR ILR
- Children of serving personnel who have sole responsibility for the child or the child normally lives with them, or the other parent is deceased. This applies even if the child is in the UK as a visitor or is an overstayer.
- Children in the UK with parents who are either both serving or both already settled here (i.e. are British and/or have indefinite leave). This applies even if the child is in the UK as a visitor or is an overstayer.
CHILDREN ELIGIBLE FOR CITIZENSHIP
Children who have lived in the UK for 10 years who have a valid visa (ILR is not required) and whose parents are British or settled (both parents need to be British or settled unless separated).
RULES FOR OVER-18s ENTERING THE UK
Once a child reaches the age of 18 they are no longer able to enter the UK as a dependant if they have never previously held a UK visa as a dependant. This applies even if they are still at school and still dependent on their parents. There are limited exceptions to this rule.
ELIGIBILITY FOR ILR AS AN OVER-18 OVERSTAYER
Over-18s in the UK who used to have a visa as a child under the armed forces rules can still apply for ILR in some circumstances. Both parents need to be British or settled and the over- 18 cannot be living an ‘independent life’. Unfortunately, the cost of the ILR application is often prohibitive and usually these cases fall out of the scope of charitable funding. Over-18s who never had a visa or who are not eligible for ILR would have to apply for limited leave. Life in the UK is very difficult for over-18s with no valid visas as they cannot continue their education and cannot work. Children in these circumstances would need to look at other routes to enter the UK, such as the student route.
ELIGIBILITY FOR LIMITED LEAVE AS AN OVER-18 OVERSTAYER
There is a specific category within immigration rules for ‘young adults’. Young adults are classed as people aged between 18 and under 25 who arrived in the UK as a child and who have spent at least half their life in the UK. It doesn’t matter how much of this time has been spent as an overstayer. As long as they meet the continuous residence requirement, they can apply for leave to remain under the ‘private life’ route for five years.
The leave granted will allow them to work and, in some circumstances, will also grant them access to benefits. They can apply for ILR following five continuous lawful years on this route (or earlier if they have previously held leave).
APPLICATION COSTS
If the young adult has no financial support then they can apply for a fee waiver. The fee waiver application requires a lot of supporting documentation, but AFF can assist with these applications. There is no fee waiver application for ILR applications, you can only be granted limited leave if you apply for a fee waiver.
WHAT ARE THE OPTIONS FOR OVER-18s WHO DON’T MEET THE DEFINITION OF A YOUNG ADULT?
The immigration rules also allow for someone who has lived in the UK for 20 years to apply for limited leave on the private life route.
HOW CAN AFF SUPPORT YOU?
AFF can advise on the best route available for you/your young adult. We can also check over completed applications, help with supporting documents and provide letters of representation where required. Please contact fcsupport@aff.org.uk
AKOSUA’S STORY
Akosua (main photo) came to the UK when she was eight and had leave as a dependant under the armed forces rules until 2017.
Unfortunately, when her parents separated, her application for ILR was refused because her mother was by then an overstayer. She was granted leave on the five-year ‘young adult’ route but then became an overstayer again after another application for ILR was refused.
Due to the overstaying, she will have to wait until 2026 before she will be eligible for ILR again. As she didn’t qualify for charitable funding to extend her last visa, she has been waiting for the outcome of a fee waiver request since August 2023.
She is currently studying at university but is not receiving full student funding because of the overstaying.