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Oct 1, 2021 · If you have lost a loved one and are considering making a claim for dependency, there are various legal requirements that set out the basis of being able to make such a claim, and what compensation is available if you are an eligible dependent. We will explore this further in this article.
- Leonie Millard
Feb 20, 2007 · A dependant is defined as: your wife; any of your children who have not reached age 23 or , if 23 or over, are, in the opinion of the scheme administrator, dependent on you at the date of your death due to their being physically or mentally impaired; a per who, in the opinion of the scheme administrator, was financially dependent on you at the ...
- 1. About this guidance
- 2. Introduction
- 3. Relevant legislation
- 4. Applications to be considered as a dependant
- 5. Granting or refusing permission to stay in line
- 6. Evidence from dependants
- 7. Dependants claiming in their own right
- 8. Deciding claims by former dependants
- 9. Children born in the UK
This guidance tells decision-makers how to process and consider asylum claims where a main claimant has one or more family members who are either dependent on the claim or claiming asylum separately in their own right. It also provides guidance on handling asylum claims from former dependants who make a claim in their own right, with or without the...
This guidance provides specific instructions on:
•the categories of persons who may be accepted as dependants on an asylum claim and the consequences of a grant or refusal of permission to stay
•considering claims involving dependants or separate claims from family members
•how asylum claims by those previously accepted as dependants should be considered
•how applications for permission to stay by UK-born children of asylum claimants, those granted protection or other permission to stay should be considered.
This guidance must be read in conjunction with the asylum policy guidance in particular:
3.1 The Refugee Convention
The Refugee Convention is the primary source of the framework of international refugee protection. As a post-Second World War instrument, it was originally limited in scope to those fleeing events occurring before 1 January 1951 and within Europe. The 1967 Protocol removed these limitations to give the Refugee Convention universal coverage. It has since been supplemented in the European Union and other regions by a subsidiary protection regime, as well as through the progressive development of international refugee and human rights law. Under paragraph 328 of the Immigration Rules, all asylum applications have to be decided in accordance with the Refugee Convention. Many of the principles set out in the Refugee Convention have been applied and interpreted by UK law, through statute, caselaw, and policies.
3.2 The European Convention on Human Rights (ECHR)
The ECHR (formally the Convention for the Protection of Human Rights and Fundamental Freedoms) is an international convention to protect human rights and political freedoms in Europe. Drafted in 1950 by the Council of Europe, the Convention entered into force on 3 September 1953. The Convention established the European Court of Human Rights (ECtHR). Any individual who feels his or her rights have been violated under the Convention by a state party can take a case to the Court. The ECHR has been given effect to in UK law through the Human Rights Act 1998. This makes it unlawful for a public authority to act in breach of the UK’s obligations under the ECHR. Decision-makers are in some cases required to assess whether an individual has protection needs related to their rights under the ECHR and this is dealt with through separate guidance on claims for humanitarian protection and family life.
3.3 Immigration Rules
Part 11 of the Immigration Rules sets out the provisions for the consideration of asylum claims and reflects our obligations under the Refugee Convention. Paragraph 349 of the Immigration Rules sets out who may be considered as dependants of the main claimant on an asylum claim. A spouse, civil partner, unmarried or same-sex partner, or minor child who is accompanying the main claimant and does not wish to claim asylum in their own right will normally be treated as a dependant provided, in the case of an adult dependant with legal capacity, they consent to be treated as such at the time the application is lodged. If the main claimant is granted protection status and permission to stay, any qualifying dependant will be granted permission to stay under paragraph 339QC of the Immigration Rules, for the same duration with the same expiry date and conditions as the main claimant. Family members with protection needs should make an asylum claim in their own right to enable these needs to be considered. If an independent claim is made by a family member this must be considered individually in accordance with paragraphs 328 to 333B of the Immigration Rules. See Family Asylum Claims guidance for cases where children have the same protection needs as their parent. Appendix Family Reunion (Protection) of the Immigration Rules set out requirements for family reunion for those who are seeking leave to enter or remain as the family member of someone granted asylum or humanitarian protection.
4.1 Dependants: definition
Dependants will normally be identified at the screening stage of the initial claim, or on occasion, at the substantive asylum interview. You must be satisfied that an individual applying to be treated as a dependant of the main claimant: is related as claimed to the main claimant, is not a British Citizen and the relationship falls within the categories set out in paragraph 349 of the Immigration Rules in the case of an adult dependant with legal capacity, consents to being treated as a dependant at the time the claim is lodged (consent will normally be gained during the screening process) if claiming to be a child, is under 18 years of age or, in the absence of documentary evidence establishing age, does not appear to be significantly over 18 if claiming to be an unmarried or same sex partner, is an individual who has been living together with the main claimant in a subsisting relationship akin to marriage or a civil partnership for 2 years or more Relatives who accompanied the main claimant to the UK who are not the partner or minor child, for instance a dependent parent or other relative, must not be accepted as dependants and should claim asylum in their own right if they have protection needs. In cases where the age of a dependant is disputed, they should be treated as being under 18 until the age dispute is resolved unless they are considered to be significantly over 18. See the Assessing age guidance. A parent cannot be accepted as a dependant on a child’s asylum claim. For FGM claims, see the Gender issues in the asylum claims guidance where there are accompanying parents. If the main claimant is looking after a child but they are neither the parent nor have they adopted the child, then the child cannot be their dependant, even if the individual has responsibility for the child by law, custom or private fostering arrangement. The child can, however, claim asylum in their own right and may be considered as an accompanied asylum-seeking child. Such cases are to be linked and considered together. See Children’s asylum process for more detail on issues such as private fostering arrangements and definitions of accompanied and unaccompanied children. The asylum support provisions for who can be included as a dependant on an asylum support application are not the same as who can be included as a dependant on an asylum claim, see Dependants on a support application. You must check with the main claimant whether any children they want to be dependant on their claim have the same protection needs as the main claimant or any additional or different protection needs. If they have the same protection needs they can be considered as a Family Asylum Claim, see Family Asylum Claims guidance for processing these claims. Where the children have additional or different protection needs they must be treated as an accompanied child and the Processing children’s asylum claims guidance be followed. Where the children have no protection needs, they can be added as a dependant in line with this policy guidance.
4.2 Traditional or customary marriage
If the main claimant claims that their dependant is a partner as a result of a traditional or customary marriage, the dependant should be treated as an unmarried partner, providing they meet the criteria set out in paragraph 349 of the Immigration Rules.
4.3 Polygamous and polyandrous marriages
It is government policy to prevent the formation of polygamous and polyandrous marriages in the UK. Only the first married spouse can be included as a dependant in accordance with Section 2 of the Immigration Act 1988 and paragraphs 278-279 of the Immigration Rules. Any other spouses should claim asylum in their own right if they have protection needs. The files should be linked for consideration purposes.
5.1 Granting permission to stay to dependants
Dependants of an asylum claimant who have been included in the initial asylum claim should, if the main claimant is granted protection status normally be granted permission of the same duration, with the same expiry date and conditions as the main claimant under paragraph 339QC of the Immigration Rules. Dependants must not be granted protection status in line unless you have specifically considered that they qualify for refugee status or humanitarian protection under Part 11 of the Immigration Rules. Permission to stay of the same duration with the same expiry date and conditions as the main claimant will also normally be granted where the main claimant is granted family or private life leave to remain or Discretionary Leave. Paragraph 349 of the Immigration Rules states that if the main claimant is granted protection status and permission to stay, any qualifying dependants will also be granted permission for the same duration. This applies whether the dependants arrived in the UK with the main claimant or followed at a later date but were included on the claim before the decision was made. If when considering the asylum claim it is apparent that the dependants would also be at risk of persecution or serious harm, despite not claiming asylum in their own right, you should check again whether it remains the case that the dependant would prefer to be granted leave in line with the main claimant or if they should be granted protection status. You should make them aware that having considered the main claimant’s asylum claim, you have concluded the dependant would also be at risk on return. See Evidence from dependants sections. Casework systems must be updated to grant leave in line to dependants by creating a leave in line record. Dependants should only be granted protection status where they have been treated as having a protection claim in their own right (the includes children who are treated as claimants as part of a Family Asylum Claim as set out in the Family Asylum Claims guidance) and been considered to have a protection need, in line with Part 11 of the Immigration Rules. Official – sensitive: Start of section The information in this section has been removed as it is restricted for internal Home Office use only. Official – sensitive: End of section Where the main claimant has been granted permission to stay under the Restricted Leave policy, any dependants should normally be granted leave outside the rules. The length of leave granted should be in line with the duration of restricted leave granted to the main claimant. However, it may not be appropriate or necessary to attach the same conditions to the dependant’s leave as the main claimant. You must have regard to the need to safeguard and promote the welfare of children in the UK under section 55. You must therefore consider the likely impact that imposing such conditions may have on dependent children and consider what is appropriate in the particular circumstances of the individual case. See Application in respect of children section and the Restricted Leave guidance. See also the Exclusion and dependants section of the Exclusion guidance
5.2 Refusing permission to stay to dependants
Applications for permission to stay as a dependant will not be granted if the applicant does not qualify as a dependant under paragraph 349 of the Immigration Rules. The applicant must be notified, with reasons, why they do not qualify to be treated as a dependant and what this means for their immigration status. If the main claimant is refused permission to stay, any dependants on that claim will not normally qualify for permission to stay and should normally also be refused in line, unless they have individual protection needs or section 55 consideration leads to a grant of leave. Dependants do not receive a right of appeal as refusal of leave in line is not an appealable decision. If the main claimant is refused leave to remain and is to be deported, deportation action may be taken against a family member under section 3(5)(b) of the Immigration Act 1971. A family member is defined as a spouse, civil partner or children under the age of 18. Where a deportation order is made against a person under the 1971 Act, a deportation order cannot be made against the family member of that person if more than 8 weeks have elapsed since the person was removed from the UK. For further information, see the Conducive Deportation guidance. Similarly, if the main claimant is subject to administrative removal under section 10 of the Immigration and Asylum Act 1999, removal directions may be served on children under section 10(2) of the 1999 Act.
You must ensure that all available evidence in asylum claims is fully considered, including evidence provided by dependants and other family members. It will normally be appropriate to link relevant files to consider claims from family members together, even where separate claims have been lodged, to ensure all relevant factors have been considered, including an evaluation of protection needs in the family context, and to ensure consistency in decision-making.
Relevant issues affecting dependants, which may give rise to individual protection needs, can come to light at any point in the asylum process but are most likely to be identified through evidence provided during a dependent adult’s screening interview, written evidence submitted in a ‘one stop’ section 120 notice or by the main claimant. It may also be important to gather additional information on key aspects of the claim from dependants where this is necessary to fully consider the claim.
Paragraph 349 of the Immigration Rules states that family members dependent on the main claimant’s asylum claim, may claim asylum in their own right. Their claim must be considered individually irrespective of the outcome of the main claimant’s claim.
Family members may lodge their own asylum claim at any time during their stay in the UK but are expected to claim protection, where this is needed, at the earliest possible opportunity, see The One Stop Notice (section 120 of the NIA Act 2002) section.
8.1 Cases being handled by Asylum and Protection
Where former dependants claim in their own right the case should be routed to the asylum team who had conduct of the main claimant’s case, where this is possible. If an interview is required this should be arranged and conducted in accordance with existing guidance, see the Asylum interviews guidance. You must raise any barriers to removal on the relevant databases for the dependants of the claimant in cases where the family should not be split. This should make it clear that there is an outstanding claim from a former dependant which, until considered, prevents removal. All Home Office records relating to the main claimant and all dependants must be obtained and linked before considering the case. This is important to ensure all relevant evidence is properly considered in the family context and to ensure decisions made are consistent, whilst ensuring that any confidentiality issues in relation to the claims are taken into account, see Disclosure and confidentiality section. When a decision has been made, you must refer to the asylum guidance on Drafting, implementing and serving decisions. Claims from children Generally, unless children do not have a protection need, they are understood to have made an asylum claim. Asylum claims from children who were previously dependent on another claim or could not be treated as a Family Asylum Claim, as they have additional or different protection needs, must be considered by decision- makers trained to handle claims from children. See the Processing children’s asylum claims for further guidance. You must not apply the actions set out in these instructions either to children or to those with children without having due regard to Section 55 of the Borders, Citizenship and Immigration Act 2009. Considering the claim Asylum claims made by former dependants should be considered on their own merits, in the same way as other asylum claims. Whilst delay in claiming asylum in their own right will be a factor that should be addressed, you must provide an opportunity for the claimant to explain, and any reasons given for failure to disclose information earlier must be given careful consideration. It is not appropriate to reject the claim on the basis of the delay in claiming alone and you must consider any new material, including any reasons for the delay, in the round and in the context of all the evidence available. See Assessing credibility and refugee status and Gender issues in the asylum claim for further guidance. Where it is considered appropriate to refer to evidence from other dependants or family members in the decision, you must carefully consider any confidentiality issues that may arise, see Disclosure and confidentiality section. If the claim falls to be refused, consideration should be given to whether certification is appropriate, see Certification under section 96 of the 2002 Act and Certification under section 94 of the 2002 Act. Certification under Section 96 of the 2002 Act Section 96 of the Nationality, Immigration and Asylum Act 2002 (as amended) allows the Home Office to certify that the claim is late in certain circumstances. This means that an appeal may not be brought either in-country or out-of-country. This decision can be challenged by judicial review. If the dependant claiming asylum in their own right has previously been served with a section 120 one-stop notice as a dependant (or on another basis) and failed to raise asylum or human rights issues in the Statement of Additional Grounds, certification under Section 96 may be appropriate if the present claim now falls for refusal. Section 96 is intended to prevent people raising matters at the last minute to frustrate removal. For example, it would usually be appropriate to certify where one spouse has an asylum claim refused and the other claims on the same grounds. However, a certificate should not be issued unless and until the claim by the former dependant has been carefully considered. See the Appeals guidance for further details. Certification under Section 94 of the 2002 Act If no section 96 certificate is issued, you must consider whether it is appropriate to certify under section 94 that the claim is clearly unfounded. A decision to certify a case under section 94 must only be made by a fully NSA accredited decision-maker. See the Asylum Instruction Certification under section 94 of the NIA Act 2002 for further guidance.
Section 55 of the Borders, Citizenship and Immigration Act 2009 (section 55) requires the Home Office to carry out its functions in a way that takes into account the need to safeguard and promote the welfare of children in the UK. You must not apply the actions set out in this guidance either to children or to those with children without having due regard to section 55. The instruction Every Child Matters – Change for Children sets out the key principles to take into account.
The statutory duty to children includes the need to make decisions affecting children in a timely and sensitive way. The best interests of the child will be a primary consideration (although not necessarily the only consideration) when making decisions affecting children, whether the child is the main claimant or an adult claimant is the primary parent or guardian of a child in the UK, or has genuine and subsisting family life with a child in the UK.
Jun 6, 2024 · Guidance on applying Appendix Children, which sets out requirements for applications from children, including those applying as child dependants.
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- This section applies to the following routes, where the applicant can be under the age of 18: Child Student International Sportsperson Short-term S...
You will need to fill in an application form, and someone will arrange to visit you and the person you want to act on your behalf. You can also arrange for someone to deal with your benefits or tax credits case by giving them power of attorney.
May 25, 2023 · dependent children born in the UK to a person who has permission or is seeking permission on the private life route. It sets out the approach to considering applications from children whether...
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