Can a Child and Partner be a Dependant?
We were recently contacted by a prospective immigration applicant from outside of the European Economic Area (EEA) who was unsure whether a child and a partner are classified as a dependant when applying for a visa, and the eligibility criteria which apply. In this article, we will outline what is meant by a dependant, who is eligible, and the conditions of stay.
What is meant by a dependant and a sponsor?
Dependent visas allow partners and children of UK visa holders to enter and live in the UK. The main visa holder on whom the dependant application is based is referred to as the 'sponsor'. In effect, they are sponsoring their family member to come to and live with them in the UK.
A person can apply as the dependant of a points-based system (PBS) migrant if they are:
- the family member of a person with, or applying for, leave under Tier 1, 2, 4 or 5
- the spouse or partner of a person with indefinite leave to remain (ILR) or British citizenship who last held leave as a Tier 1, 2, or 5 PBS migrant and do not yet qualify for indefinite leave to remain
- the child of a person with ILR or British citizenship who last held leave as a Tier 1, 2, or 5 PBS migrant, and:
- their other parent does not yet qualify for ILR
- they last held leave as the family member of a PBS migrant granted under the rules in place on or after 9 July 2012
The immigration rules state that a ‘dependant’ is any of the following:
- civil partner
- unmarried partner
- same-sex partner
- child (under the age of 18 when they first applied)
It should be noted, however, that a child will not be classified as a dependant if they are married or in a civil partnership, have formed an independent family unit (i.e. living with a partner, or have children of their own), or are otherwise leading an independent life. An independent life may include living away from the family home (but not in relation to education such as attending a boarding school or University), working in full-time employment, or where the child appears to be financially independent (i.e. if income exceeds their expenditure).
What are the ‘Conditions of Stay’ for a dependant visa?
One of the main benefits of the dependant visa is the ability to work, although not as a doctor or dentist in training, or as a sportsperson or sports coach. These restrictions aside, dependants are free to work with any employer and to switch employers without the need to seek permission to do so. It is also possible to study in the UK. Dependants cannot, however, apply for public funds, such as housing or child benefits.
Is my spouse or partner eligible for a dependant visa?
To be eligible as a dependant spouse or partner, you must satisfy the following requirements:
- both be aged 18 or over
- be married, or in a civil partnership, or have been living in a relationship similar to marriage or civil partnership for at least two years
If the main applicant is applying under the points-based system (PBS) (i.e. under the Tier 1, 2, 4, and 5 routes), a dependant partner will also need to provide evidence of £630 in savings to support themselves; this is referred to as the maintenance requirement.
Is my child eligible for a dependant visa?
When applying for a dependent child visa, both parents must be present in the UK (but not on a visit visa), or in the process of being granted entry clearance or leave to remain at the same time as the child.
If both parents are not present in the UK, the Home Office will still grant a dependent child visa if one parent is lawfully in the UK while the other is being granted immigration clearance at the same time as the child. The only other exceptions being if:
- the main visa applicant is the child’s sole surviving parent
- the main visa applicant is the parent that has and has had sole responsibility for the applicant’s upbringing; or
- there are serious or compelling family or other considerations that would make it desirable not to refuse the application and suitable arrangements have been made in the UK for the child’s care.
Beyond these requirements, the applicant will also need to provide evidence to the Home Office of £630 for each child for maintenance funds, in addition to the funds required for the main visa applicant. For example, a Tier 2 skilled work visa migrant making an application which includes their partner and two children will need to show that they have £2835 in available maintenance funds (£630 x 3 = £1890 + £945). In some cases, it may be possible to bypass this requirement if the main applicant is employed by a Tier 2 A-rated sponsor who is prepared to make a written undertaking (either on the Certificate of Sponsorship or a separate letter) that, should it become necessary, it will maintain and accommodate the family members for a month.
Several UK visa routes allow the partner/spouse and dependent children of the main visa applicant to join them in the UK. The dependant visa provides a great deal of freedom and flexibility for holders, but it is only valid while the main applicant remains in the UK. At that point, should a dependant wish to stay in the UK, they will need to apply in their own right, either for limited leave to remain or, if eligible, for indefinite leave to remain.
ILR For PBS Dependants: When A Dependant Gains Indefinite Leave to Remain Visa
- UK’s Point Based System
- Rules for Overstaying on a UK Visa and What You Need to Do
- What is Proof of Freedom from Immigration Time Restrictions?
- Latest Changes to the Immigration Rules Presented to Parliament – September 2021
- Important Questions You Should Ask an Immigration Lawyer During Your First Consultation