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Dependants and family members of visa holders

Introduction

As a general rule, non-EEA nationals who enter and remain in the UK are entitled to have their direct family members accompany them for the length of their own stay in the UK, provided the main applicant can support their dependants without recourse to public funds. Dependants may apply for a visa at the same time as the main applicant. If this happens, the success of the application is predictably conditional upon the success of the main applicant’s own application, as well as certain requirements specific to the dependant’s application. Dependants may also apply to join the main visa holder in the UK later. In this case, dependants may still need to demonstrate that the main visa holder is satisfying the conditions of their visa, as well as other specific requirements.

Who is a dependant?

In almost all instances, the definition of dependant is limited to partners and children of the main applicant. A partner must fall into one of the following categories in order to be eligible for a dependant’s visa:

  • Spouse;
  • Civil Partner;
  • Unmarried Partner (dependants must generally have lived with the main applicant for at least two years prior to the visa application in order to qualify under this provision);
  • Same Sex Partner (dependants must generally have lived with the main applicant for at least two years prior to the visa application in order to qualify under this provision).

Children (including adoptive children) will generally need to be under the age of 18, although the overriding principle is that dependant children must be financially and emotionally dependant upon the main applicant, and must not have formed an adult life away from the family home (i.e. the child should not be married, living away from home or working full time). In some instances, children under 18 may be refused dependant’s visas if they are deemed to have formed an adult life. Conversely, it may be possible for children over the age of 18 to accompany their parents if they are deemed still to be totally dependant on their parent(s). The normal situation where the latter is applicable would be where the child is studying for a further or higher education course. Please note that in the case of ‘first time’ Points Based System applications, children over the age of 18 will never be permitted to apply as dependants. In the case of a PBS extension, applications from children over the age of 18 may be permitted providing the above conditions are met and the child has an existing visa as the dependant of a PBS visa holder.

In the situation where a visa holder would like their parents to accompany them, this may be possible, although an extremely high burden of proof is placed upon the applicants to demonstrate that the parent is financially dependant solely on the main applicant, and that if the parent were not permitted to accompany the main applicant, they would suffer undue hardship as a result. Comprehensive evidence of this dependence is required and if the parent cannot provide this, or has any other adult children in their home country who are capable of supporting them, any application made on this basis is likely to be refused.

General requirements

As a general principle, dependants must meet the following requirements in order to qualify for a visa:

  • The dependant must demonstrate the relationship on which the application is based and provide documentary evidence of this relationship; and
  • The dependant must provide evidence either that the main applicant has enough funds/income to support the dependant or that the dependant has sufficient funds to support themselves, without access to public funds.

Application specific requirements

Dependants of Points Based System (PBS) visa holders such as Tier 1 (General), Tier 2 etc

Individuals applying as dependants of PBS visa holders, either at the same time as the main applicant or later on will need to meet a very strict ‘Maintenance’ requirement. The dependant must show that they (or the main applicant) have access to a specific sum of funds. It is usually the case that these funds must have been continuously available over the three months prior to the application. The exact amount of funds differs between the Tiers, and may also change depending on how long the main applicant has been in the UK.

For further details on the exact sums required, please contact us.

Dependants of non PBS visa holders, such as work permit visas, HSMP visas etc

Although applicants do not need to show a specific level of funds to apply as dependants of these visa categories, they must still show that there are ‘sufficient’ funds to support them without access to public funds. Applicants must also show that there is sufficient accommodation for them in the UK (if the main applicant is already in the UK).

For further details on the type of evidence that is required here, please contact us.

Conditions of a dependant visa

The vast majority of dependant visas allow the holder to work without restriction in the UK, even where the main applicant is restricted as to their employment, i.e. with a work permit / Tier 2 visa. Dependants are also normally free to enter self-employment. The main exceptions are as follows:

  • Visitor Visas. Dependants of main applicants with visitor visas may not work in the UK;
  • Student visas issued for less than 12 months. Dependants of these visa holders are not permitted to work in the UK.

Dependants are also generally subject to the following conditions:

  • No Access to Public Funds;
  • No Work as a ‘Doctor in Training’.

Permanent Residence

In most instances, dependants will qualify for Indefinite Leave to Remain (Permanent Residence for non EEA nationals) when the main visa holder qualifies. There are two main exceptions to this rule:

  1. Where the main visa holder holds a PBS visa, and the dependant has only ever held a PBS dependant’s visa, the dependant must have been in the UK for at least two years prior to the application for Indefinite Leave to Remain.
  2. Where the main visa holder qualifies for Indefinite Leave to Remain based on ten years’ long residence in the UK, dependants are not permitted to apply at the same time. If the dependant has also completed ten years in the UK, they may apply in their own right. The alternative would be for the dependant to switch onto a visa as the dependant of an individual settled in the UK, the main visa holder now holding a settlement visa.

For more information on the process of applying for a dependant’s visa, or for a free assessment of the viability of such an application, please contact us.

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