Breytenbachs recently assisted a client with a complex appeal for a dependant child. An unmarried partner application was submitted and approved for the child’s mother’s partner. The child’s mother, who was a British citizen, had a child from a previous relationship. The mother was the child’s primary carer. The child’s mother’s unmarried partner was granted a visa in 2022. However, the child’s application had been refused on the basis that she did not have Sole Responsibility for the child at the time of the application. Sole responsibility is a key requirement for applications involving children who are cared for by one parent if the other parent is still alive and somehow involved in the child’s life.
Breytenbachs did not agree with this decision and advised the client to lodge an appeal against the Home Office’s decision. Unfortunately, at present, immigration appeals can take between 9 and 12 months to be heard. The client’s son would have turned 18 in October 2023, and his appeal could have been refused on this basis.
Breytenbachs regularly chased the matter with the Tribunal, and we managed to get the appeal heard two weeks before the child turned 18 years old. The Immigration Judge agreed with our arguments and allowed the appeal, overturning the Home Office’s refusal decision.
How Breytenbachs argued the appeal for the Sole Responsibility Dependency Visa
Breytenbachs argued the appeal on the basis that the child’s mother had been and was exercising sole control in setting and providing the day-to-day direction for the child’s wellbeing.
According to the Home Office’s own guidance, sole parental responsibility means that one parent has abdicated or abandoned parental responsibility, and the remaining parent is responsible for making decisions in the child’s life (schooling, religion, education, etc.).
In this specific client’s case, the Judge found that our client had been the appellant’s primary carer and guardian and continued to have, sole responsibility for her son’s care. The Judge also accepted Breytenbachs’ submissions that a parenting plan, sealed by the High Court of South Africa, which had originally been referred to by the Home Office as one of the reasons for refusal, was a legal requirement under the South African Children’s Act [No.38 of 2005], according to which for a minor child to relocate the consent of both parents is needed regardless of whether one parent has sole responsibility or no’. This is required to prevent a Hague Convention Child Abduction.
It is important to note that the majority of these applications are, unfortunately, refused merely on the basis of sole responsibility, with the result that children are separated from their parents for long periods of time and that the parent incurs significant losses in terms of money and time.
How Breytenbachs can help you
Breytenbachs often deals with cases where a parent must prove sole responsibility for a minor child. To navigate these complex immigration applications, it is advisable to seek professional assistance. Breytenbachs can provide expert guidance to ensure your application stands the best chance of success. Contact us for more information.