ILR for Children Born Outside the UK: Employer Guidance

When employees apply for Indefinite Leave to Remain (ILR) in the UK, the immigration status of their dependent children born outside the UK can present complex challenges for employers. Understanding how these cases impact right to work checks, sponsor licence compliance, and HR practices is essential for employers managing a diverse workforce.

This guide provides a comprehensive overview of ILR applications for children born abroad, focusing on the legal framework, employer responsibilities, common scenarios, and compliance best practices under UK immigration law.

 

Section A: Legal Framework for ILR Applications

Employers must first understand the legal foundations of ILR applications for children born outside the UK. This section outlines how UK immigration law defines ILR, the eligibility requirements for dependent children, the influence of the parents’ immigration status, and key Home Office rules that govern these applications.

 

1. Definition of Indefinite Leave to Remain (ILR) in UK Immigration Law

Indefinite Leave to Remain (ILR) is a form of permanent residence in the UK, allowing individuals to live, work, and study without immigration time restrictions. ILR status provides settlement rights but is distinct from British citizenship. However, ILR can lapse if the holder remains outside the UK for a continuous period of two years (or five years for ILR granted under post-Brexit rules).

 

2. Eligibility Criteria for Children Born Outside the UK

Children born outside the UK are not automatically eligible for ILR, even if their parent(s) hold or are applying for ILR. Eligibility depends on several factors, including:

• The child’s immigration history and length of lawful residence in the UK.
• The parent(s)’ immigration status and route to settlement.
• Continuous residence requirements and adherence to immigration rules.
• The child’s dependency on their parent(s) in the UK.
• Evidence of adequate maintenance and accommodation without recourse to public funds.

For dependent children, the relevant Immigration Rules typically require that the child is under 18, unmarried, and not living an independent life.

 

3. Impact of Parent(s)’ Immigration Status on Child ILR Applications

A child’s ILR application is intrinsically linked to the immigration status of their parent(s). Where a parent is applying for ILR, the child’s application is usually made as a dependent at the same time. If one parent has ILR and the other holds limited leave, this can complicate the child’s eligibility, requiring tailored legal strategies depending on the family’s immigration history and routes (e.g., Skilled Worker, Family Route, Long Residence).

In cases where the child is living with one parent or there are family breakdowns, applications may rely on demonstrating ‘sole responsibility’ or serious and compelling family or welfare considerations under Appendix FM of the Immigration Rules.

 

4. Relevant Immigration Rules and Home Office Guidance

The main legal provisions for dependent child ILR applications are set out in Appendix FM and Part 8 of the Immigration Rules, with specific guidance under:

• Immigration Directorate Instructions (IDIs) on family members.
• Home Office guidance on “Children of Parents with Limited or Indefinite Leave to Remain”.
• Long residence guidance where children qualify under the 10-year continuous lawful residence route.
• Discretionary Home Office policy where refusal would breach Article 8 of the European Convention on Human Rights (right to family life).

Employers should be aware that updates to these rules or transitional arrangements can directly impact application routes and eligibility assessments.

 

Summary for Section A – Recap of Legal Fundamentals Employers Need to Understand

Employers must understand that ILR applications for children born abroad are governed by strict eligibility criteria linked to the parent(s)’ status and immigration history. Familiarity with the relevant Immigration Rules, including Appendix FM, long residence provisions, and Home Office discretionary policies, is essential for supporting employees and ensuring compliance with legal obligations.

Section B: Employer Responsibilities and HR Implications

From a compliance perspective, an employee’s ILR application involving dependent children born abroad introduces specific considerations for employers. This section examines how these cases affect right to work checks, sponsorship duties, handling temporary visa statuses, and record-keeping requirements under Home Office regulations.

 

1. Right to Work Checks for Children Dependent on Employees

While children themselves are not employees, their immigration status can affect an employer’s right to work compliance when the child’s parent is a sponsored worker or employee applying for ILR. Employers must ensure that:

• The employee maintains lawful status during the ILR application process.
• Any dependent child’s immigration status does not jeopardise the parent’s right to work.
• Proper documentation is retained, including Certificates of Application (CoA) or application submission receipts.
• Where necessary, a Positive Verification Notice (PVN) is obtained from the Employer Checking Service to establish a statutory excuse.

Failure to conduct correct right to work checks may expose the business to civil penalties, particularly if an employee’s immigration status is linked to unresolved dependent applications.

 

2. Implications for Sponsoring Employees with Dependent Children

For sponsor licence holders, managing employees with dependent children born abroad carries sponsor duties that extend beyond the individual worker. Key considerations include:

• Monitoring and reporting changes in family composition where dependants are added.
• Ensuring sponsored employees with dependent children maintain compliance with visa conditions during the ILR application.
• Recognising that dependants are not themselves sponsored workers, but their immigration issues can affect the sponsor’s overall compliance if left unmanaged.
• Being aware that delays or refusals in a dependent child’s ILR application could impact the employee’s stability and future work arrangements.

Employers should also consider the risk to their sponsor licence rating if systemic non-compliance is identified during a Home Office audit involving dependent family members.

 

3. Handling Temporary Visa Statuses During ILR Applications

Where a child’s current visa is due to expire during the ILR application process, employers must ensure that:

• The parent has submitted the ILR application in-time, extending their lawful status under Section 3C leave.
• They retain evidence of the in-time application to protect against illegal working penalties.
• They understand that during Section 3C leave, the conditions of the previous visa continue to apply, including work rights for the employee.
• They conduct PVN checks where necessary to maintain a statutory excuse for the continued employment of the parent.

Employers should avoid assumptions that pending applications automatically resolve all compliance risks. Active case monitoring and legal advice are critical in managing these periods.

 

4. Record-Keeping and Home Office Audit Risks

Employers must maintain robust HR records when employees apply for ILR with dependent children, including:

• Copies of application submission receipts and any correspondence from the Home Office.
• Updated right to work check evidence post-ILR grant.
• Audit trails demonstrating proactive management of immigration compliance for sponsored workers and their dependants.
• Records of PVN checks where applicable during pending applications under Section 3C leave.

Failure to retain accurate records can lead to Home Office sanctions, including civil penalties or sponsor licence suspension.

 

Summary for Section B – Key HR Compliance Actions for Employers

Employers must implement rigorous right to work checks and monitor the immigration status of employees with dependent children applying for ILR. Sponsor licence holders face additional duties to report and manage changes involving dependants. Proper record-keeping, PVN checks, legal oversight, and proactive compliance practices are vital to mitigating risks during dependent child ILR applications.

Section C: Common Scenarios for Employers

Employers often encounter specific scenarios where an employee’s ILR application involves dependent children born outside the UK. Understanding how to navigate these cases is critical for maintaining compliance and supporting affected employees. This section addresses common ILR scenarios employers face, from Skilled Worker route transitions to long residence applications.

 

1. Employee Switching from Skilled Worker to ILR with Child Dependents

When an employee transitions from the Skilled Worker route to ILR, they may include their dependent children in the application. Employers should be aware of the following:

• The child must hold valid leave as a Skilled Worker dependent at the time of application.
• Any gaps in the child’s immigration status can affect the parent’s settlement process.
• Employers must ensure that right to work documentation remains current and reflects the employee’s lawful status during the ILR process.
• Where a dependent child’s application is delayed or refused, HR teams must be prepared to manage the implications for workforce continuity and compliance.

Active case monitoring and legal advice are essential to navigate these scenarios effectively.

 

2. EU Settlement Scheme Family Members Applying for ILR

For employees with EU Settlement Scheme (EUSS) status, dependent children born abroad may need to apply for status under the EUSS family member provisions before progressing to ILR. Employers should consider:

• Verifying the child’s lawful status via share codes or Certificates of Application.
• Ensuring that the employee’s right to work is unaffected during any transition from pre-settled to settled status.
• Recognising that new applications under the EUSS are now closed, except for eligible family members, increasing reliance on ILR routes under Appendix FM.
• Managing documentation requirements, such as proof of relationship and continuous residence, for EUSS family members applying for ILR.

Employers must monitor EUSS-related deadlines and seek specialist advice where family dependants are involved.

 

3. Long Residence Route Cases Involving Children Born Abroad

Where a child has resided in the UK lawfully for at least 10 continuous years, they may qualify for ILR under the long residence provisions. Employers managing employees with children on this route should be mindful that:

• The child’s application is independent but may be processed concurrently with the parent’s ILR application.
• Delays in long residence processing can impact family stability, affecting employee wellbeing and performance.
• Right to work compliance remains linked to the parent’s lawful immigration status, irrespective of the child’s application route.

Employers should consider offering flexible working arrangements or legal assistance to employees facing prolonged processing times in these cases.

 

4. Handling Gaps in Child Immigration Status Documentation

Gaps in a child’s documented immigration status—such as expired visas or missed application deadlines—pose significant compliance risks. Employers should:

• Encourage employees to disclose any dependent child immigration issues early.
• Seek legal advice promptly where status gaps arise.
• Conduct PVN checks where appropriate to maintain compliance during status resolution periods.
• Avoid assumptions that a child’s unresolved status will not impact the parent’s right to work or sponsor compliance obligations.

Effective communication and early intervention are essential in managing these sensitive cases while safeguarding the employer’s compliance position.

 

Summary for Section C – Employer Strategies for Common ILR Scenarios

Employers should develop practical strategies to address common ILR scenarios involving children born abroad. From Skilled Worker transitions to long residence applications, each case demands tailored HR actions and compliance monitoring. Proactive management of right to work documentation, support for affected employees, and legal oversight are key to navigating these complexities successfully.

Section D: Risks of Non-Compliance and Best Practices

Failure to manage ILR applications involving children born outside the UK can expose employers to significant compliance risks. This section explores the potential consequences of non-compliance, including civil penalties and sponsor licence issues, and outlines best practice recommendations for employers supporting employees through these complex immigration processes.

 

1. Civil Penalties for Illegal Employment

Employers who fail to conduct correct right to work checks or who continue employing individuals without lawful status risk civil penalties of up to £60,000 per illegal worker. Although dependent children are not employees, gaps or issues in a child’s immigration status can indirectly impact the parent’s lawful right to work if their family-based ILR application is refused or delayed.

Employers must:

• Ensure ongoing right to work checks are valid and up to date.
• Monitor application outcomes for dependants where relevant to the employee’s status.
• Retain proof of pending applications to rely on a statutory excuse, including Certificates of Application or PVN checks.

Negligence in these areas can result in hefty fines, reputational damage, and disruption to workforce operations.

 

2. Impact on Sponsor Licence Compliance

For sponsor licence holders, the immigration status of dependants is integral to meeting sponsor duties. The Home Office expects sponsors to:

• Accurately report changes in family circumstances where dependants are involved.
• Ensure sponsored workers with dependent children maintain compliance with visa conditions.
• Respond promptly to Home Office queries or audits involving family dependants.

While dependants are not themselves sponsored, unresolved status issues can lead to increased scrutiny of sponsor compliance. Failure to manage these obligations may result in:

• Downgrading of the sponsor licence rating.
• Suspension or revocation of the licence.
• Increased scrutiny in future sponsor licence renewals or applications.

 

3. Employer Best Practices for Supporting Staff with Child Dependents

Employers can mitigate compliance risks and support employees through the ILR process by implementing the following best practices:

• Educate HR teams on ILR processes for dependants and the impact on right to work checks.
• Encourage early disclosure of immigration issues involving family members.
• Offer access to immigration legal advice where complex cases arise.
• Develop internal escalation protocols to address status gaps or urgent compliance risks.
• Maintain accurate and up-to-date right to work documentation at all times.
• Conduct PVN checks promptly when an employee’s status depends on pending applications.

Supporting staff proactively not only strengthens compliance but also fosters employee loyalty and wellbeing.

 

4. Updating HR Policies to Reflect Immigration Risks

Employers should ensure their HR policies and compliance procedures are updated to address the risks associated with ILR applications for dependent children, including:

• Embedding ILR and dependant status checks into onboarding and ongoing right to work protocols.
• Including escalation procedures in HR compliance frameworks.
• Training HR teams to recognise when a dependent’s immigration issue may affect the employee’s right to work.
• Keeping abreast of Home Office policy changes that could affect dependant child applications, including discretionary policies under Article 8 ECHR.

Regular policy reviews and training sessions are essential for ensuring the business remains compliant in a dynamic immigration environment.

 

Summary for Section D – Avoiding Compliance Pitfalls and Proactive HR Management

Employers must recognise the serious risks of non-compliance when managing ILR applications involving children born abroad. Implementing best practice policies, maintaining rigorous right to work processes, and supporting employees through tailored HR strategies are vital to safeguarding against penalties, sponsor licence breaches, and operational disruptions.

FAQs

 

Can employers assist with ILR applications for an employee’s children?

Employers are not legally required to assist employees with ILR applications for their dependent children. However, many employers choose to offer support, particularly where the employee’s right to work or sponsor licence compliance could be affected. Assistance may include providing access to legal advice, offering flexible working arrangements during application processing, or covering application fees as part of an immigration support policy.

 

What if a child’s visa expires before ILR is granted?

If a child’s visa expires while an ILR application is pending, the child will generally benefit from Section 3C leave, extending their lawful stay until a decision is made. Employers must ensure that the parent’s right to work remains valid by retaining evidence of the in-time application and conducting a Positive Verification Notice (PVN) check with the Employer Checking Service where required. Accurate documentation is critical for compliance during this period.

 

Does the child need to be in the UK for ILR?

In most cases, a child must be physically present in the UK to apply for ILR as a dependent. Applications made from outside the UK are typically for entry clearance purposes rather than settlement. Employers should advise employees to seek legal guidance where family members are abroad to determine the correct application route and avoid delays in processing.

 

How does ILR for dependents affect the employee’s visa status?

While a dependent child’s ILR application does not directly impact the employee’s immigration status, unresolved or refused dependant applications can create personal and professional challenges for the employee. For sponsor licence holders, unresolved dependant issues may trigger Home Office scrutiny during compliance audits. Employers should remain proactive in monitoring these applications to protect both the employee’s and business’s compliance standing.

 

Conclusion

Employers play a pivotal role in managing the complexities of ILR applications involving children born outside the UK. While the primary responsibility for these applications lies with the employee, the implications for right to work compliance, sponsor licence obligations, and overall HR risk make it essential for employers to stay informed and proactive.

By understanding the legal framework, maintaining rigorous right to work procedures, and offering structured support to affected employees, businesses can safeguard their compliance position while fostering a supportive workplace environment. Given the evolving nature of UK immigration law, employers are strongly advised to seek specialist legal advice in complex or high-risk cases involving dependent children.

HR teams must remain vigilant in ensuring policies and processes are up-to-date, reflecting the nuances of ILR applications for dependants. A proactive, well-informed approach will help employers navigate these scenarios effectively, mitigating legal risks and supporting their workforce with confidence.

 

Glossary

Term	Definition
ILR (Indefinite Leave to Remain)	Immigration status granting permanent residence in the UK without time restrictions, subject to lapsing after 2 or 5 years absence.
Right to Work Checks	Employer checks required by law to verify an individual’s legal right to work in the UK.
Sponsor Licence	Authorisation granted by the Home Office allowing employers to sponsor migrant workers under the Points-Based System.
Child Dependant Visa (Appendix FM/PBS Dependant)	Visa category for children under 18 dependent on a parent with valid leave to remain under Appendix FM or the Points-Based System.
Section 3C Leave	Statutory provision extending lawful stay where an in-time application is pending a Home Office decision, under the conditions of previous leave.

 

Useful Links

Resource Description	Link
Home Office Guidance on ILR for Children	https://www.gov.uk/indefinite-leave-to-remain/children
Employer Right to Work Checklist (gov.uk)	https://www.gov.uk/government/publications/right-to-work-checklist
Sponsor Licence Duties Overview	https://www.gov.uk/government/publications/worker-and-temporary-worker-sponsorship-duties