DIVORCED SPOUSE TO APPLY THROUGH HIS BRITISH SON TO RETURN

magata · Post by **magata** » Sat Jun 23, 2007 10:23 am

A frien of mine has been here on a spousal visa since 2005 and expires in December this year is planning on leaving the UK before his spousal visa expires, as he has recently completed the divorce from his wife. Yesterday, he was seen by an immigration advisor and was advised that as his 12 years son has just recently been registered british by her mother, he would be able to return to the UK by applying in his home country as being the father of a UK/EEA national. He was told as UK is part of EEA it is very likely that he could qualify for 6 months resident permit and then 5 years residence card as relative of the boy.

would you please shed some light on the following questions:

Is it true that he could apply through his son?

If so, what sort of application is supposed to filled/summited?

What supporting evidence is required?

Any advice or comments or clarification are appreciated

Thanks

Post by **John** » Sat Jun 23, 2007 11:11 am

Have a read through this part of the Immigration Rules :-

246. The requirements to be met by a person seeking leave to enter the United Kingdom to exercise access rights to a child resident in the United Kingdom are that:

(i) the applicant is the parent of a child who is resident in the United Kingdom; and

(ii) the parent or carer with whom the child permanently resides is resident in the United Kingdom; and

(iii) the applicant produces evidence that he has access rights to the child in the form of:

(a) a Residence Order or a Contact Order granted by a Court in the United Kingdom; or

(b) a certificate issued by a district judge confirming the applicant's intention to maintain contact with the child; and

(iv) the applicant intends to take an active role in the child's upbringing; and

(v) the child is under the age of 18; and

(vi) there will be adequate accommodation for the applicant and any dependants without recourse to public funds in accommodation which the applicant owns or occupies exclusively; and

(vii) the applicant will be able to maintain himself and any dependants adequately without recourse to public funds; and

(viii) the applicant holds a valid United Kingdom entry clearance for entry in this capacity.

So the father should get a Contact Order, if he does not already have one, and then he might qualify for a visa using para 246 as quoted above.

I cannot see that the EEA Regulations are relevant here. Even if they were, note that using such regulations ... the Chen route .... gives no right for the successful applicant to work. Indeed in para 257D it specifically states :-

Leave to enter or remain is to be subject to a condition prohibiting employment and recourse to public funds.

So I suspect that use of the EEA route is really not want you want to do.

magata · Post by **magata** » Sat Jun 23, 2007 12:07 pm

John, Many thanks for your prompt response, very informative and concise.

I will talk to my friend to explain your comments.

I believe that the divorce was processed through the consulate of his country located in London and therefore I assume they have not informed the Brtish courts and th BIA about it. Therefore, Would he be able to get this contact order from the family court? If so, would you know the process to follow?

I have just read the following. Please could you comment on the following

248A. The requirements to be met by a person seeking leave to remain in the United Kingdom to exercise access rights to a child resident in the United Kingdom are that:
(i) the applicant is the parent of a child who is resident in the United Kingdom; and
(ii) the parent or carer with whom the child permanently resides is resident in the United Kingdom; and
(iii) the applicant produces evidence that he has access rights to the child in the form of:
(a) a Residence Order or a Contact Order granted by a Court in the United Kingdom; or
(b) a certificate issued by a district judge confirming the applicant's intention to maintain contact with the child; or
(c) a statement from the child's other parent (or, if contact is supervised, from the supervisor) that the applicant is maintaining contact with the child; and
(iv) the applicant takes and intends to continue to take an active role in the child's upbringing; and
(v) the child visits or stays with the applicant on a frequent and regular basis and the applicant intends this to continue; and
(vi) the child is under the age of 18; and
(vii) the applicant has limited leave to remain in the United Kingdom as the spouse, civil partner, unmarried partner or same-sex partner of a person present and settled in the United Kingdom who is the other parent of the child; and
(viii) the applicant has not remained in breach of the immigration laws; and
(ix) there will be adequate accommodation for the applicant and any dependants without recourse to public funds in accommodation which the applicant owns or occupies exclusively; and
(x) the applicant will be able to maintain himself and any dependants adequately without recourse to public funds.
248A. The requirements for leave to remain in the United Kingdom as a person excercising rights of access to a child resident in the United Kingdom.

In this section does not specify if he needs to hold a valid UK entry clearance for entry in this capacity
Would he be able to apply from here or rather has to return home and apply for an entry clearance?

What about the accomodation stated in point ix?

Thanks for assistance

Post by **John** » Sat Jun 23, 2007 6:47 pm

I believe that the divorce was processed through the consulate of his country located in London and therefore I assume they have not informed the Brtish courts and th BIA about it.

Ah, well that is a big problem! That is, in the eyes of British Law this couple are not divorced at all! They are still married, and it would be a criminal offence if either of them attempted to remarry in the UK before getting a divorce recognised under British law (or the other one dies).

So whilst the country in whose Consulate the divorce was registered no doubt recognises the divorce, they will have to commence divorce proceedings in a British Court in order to get divorced under British law.

So where does this leave us, as far as the child is concerned? The couple are actually just separated in the eyes of British Law but that does not stop proceedings being commenced as regards a Residence Order or a Contact Order. Your friend needs to speak to a Family Law lawyer as regards the child, and indeed might also mention the little matter of a divorce!

By the way, which country's Consulate are we talking about here? That registered the divorce?

magata · Post by **magata** » Tue Sep 25, 2007 3:52 pm

Hi John, I was told by my friend that their divorced took about 5 moths to be processed in Colombia. They have been told by a solicitor that as they are divorced under the colombian law they would not need to apply for a divorce again under british law, and also was informed if required by HO he could get the divorce certificate translated into English. he is very confused with this advice and I would like to help him but I have not got idea how to it. Also, looking at the information below. Shoud he submitt the apllication now or does he have to wait until the last day of his current visa? Would you please advice us so I can help him.

Many thanks

The 'Single Parent' Visa

There is no visa specifically entitled 'single parent visa'. It is an informal term to describe a change in the rules that became effective in October, 2000 that allows for the settlement of divorced/separated parents who have children settled in the UK (the actual name would be "limited leave to remain for a parent exercising rights of access to a child who is resident in the UK").

It is used mainly by parents whose marriage has broken down whilst in the UK, but is also available to a parent outside of the UK who has (and wishes to exercise) rights of access to their child. It is only available if the child is normally resident in the UK, and if the child is under 18. If the applicant is outside of the UK, they must satisfy the following requirements:

The other parent (or carer) must be a UK resident.
The parent applying for settlement must demonstrate that they intend to maintain frequent contact with the child and participate in the child's upbringing.
The parent applying for settlement must show that they will not rely upon public funds.
The parent applying for settlement must show that they have rights of access to the child. This would take the form of a UK court order, or a certificate from a similar entity such as a district judge. A simple agreement between the parents is not sufficient.
If the applicant is inside the UK, the above conditions would apply and they must also show that they have not been in breach of immigration law. Additionally the applicant would be required to show evidence of frequent visits with the child. Finally, if the applicant is inside the UK, a court order may not be required if the applicant can prove regular contact with the child.

If the child resides in the UK only part-time because of a joint custody arrangement, at least 50% of the child's time must be spent in the UK in order to qualify. If the child spends less than 50% if his time in the UK, the application may not succeed.

Applicants outside the UK require an entry clearance and would use the VAF2 form to apply at a British consulate. Applicants already in the UK would apply at a Public Enquiry Office using the FLR(O) form.

If the application is successful, the parent is given a 12 month limited leave visa leading to indefinite leave (permanent residence) after the 12 months is spent. Indefinite leave can only be granted if the child is still under the age of 18.

During the 12 month limited leave visa, the parent is entitled to work.

magata · Post by **magata** » Wed Oct 03, 2007 12:15 pm

My friend is very desperate about his situation as the period for his visa is coming to an end. Does anybody have any knowledege of a good solicitor that could take on his case.

We really appreciate it

magata · Post by **magata** » Sat Oct 20, 2007 11:59 am

My friend managed to get a solicitor who has said that it should be OK if he can a get a letter signed by his wife confirming that my friend has been supprting his child not only economically but also emotionally. What do you think . Would you say this is going to be enough as to apply for access to child visa. or Would he be safer if he gets the contact order from the court?

thanks

Twin · Post by **Twin** » Sat Oct 20, 2007 4:35 pm

This is a very interesting thread that I think I also will find helpful.

I have recently been refused leave to remain. I have a 6 year old daughter who is a British citizen with a British passport too.

Now, I am thinking of going back to my country of origin to apply for the right of access to child but not sure of the success rate. What do you think my chances are? Is it better to go that route or to appeal my current refusal hoping that the dp5/96 will avail me as my daughter turns 7 in January?

Please John, I would appreciate your response on this too.

Many thanks.

avjones · Post by **avjones** » Sat Oct 20, 2007 11:18 pm

As I understand it, you are the parent with care? If so, this policy won't help you:

(ii) the parent or carer with whom the child permanently resides is resident in the United Kingdom;

Twin · Post by **Twin** » Sun Oct 21, 2007 11:05 am

avjones wrote:As I understand it, you are the parent with care? If so, this policy won't help you:

(ii) the parent or carer with whom the child permanently resides is resident in the United Kingdom;

Wow! What then would help someone like me? If i'm removed and I leave my daughter with my dad for instance, wouldn't I be able to apply from my country of origin to join her?

This rule seem unfair to the likes of me, it seems.

avjones · Post by **avjones** » Sun Oct 21, 2007 11:13 am

Her father would need to be the permanent carer of the child, which he isn't, as I understand it.

tinux · Post by **tinux** » Sun Oct 21, 2007 7:52 pm

I have a question

how would a person who lives abroad satisfy the condition of accomodation?????? surely if a child lives with his/her mum. the father will need to travel to the Uk first and rent a place?????
any clarification???????

Twin · Post by **Twin** » Sun Oct 21, 2007 7:58 pm

tinux wrote:I have a question

how would a person who lives abroad satisfy the condition of accomodation?????? surely if a child lives with his/her mum. the father will need to travel to the Uk first and rent a place?????
any clarification???????

Very good question indeed! I'd like to know too.

Twin · Post by **Twin** » Sun Oct 21, 2007 8:01 pm

avjones wrote:Her father would need to be the permanent carer of the child, which he isn't, as I understand it.

So in essence, it can be argued at the tribunal that I would have no other means of re-entry?

I'm still confused though. If i'm asked to leave the country and I decide to leave my daughter with a carer because I would be unable to care for her in my country of origin, I might as well say bye bye to her until she's old enough to come and visit me?

Surely the right of access to a child should be accessible to both parents, either primary or secondary.

A good question as asked above by another member is how to meet the accomodation requirement.

Anyone have an answer to this?

Docterror · Post by **Docterror** » Sun Oct 21, 2007 8:30 pm

how would a person who lives abroad satisfy the condition of accomodation??????

Have a look at this topic and judge for yourself.

I guess the safe way to cover the accommodation requirement would be to reserve a room in the hotel... even though, as pointed out, I have reservations about it's necessity.

avjones · Post by **avjones** » Sun Oct 21, 2007 10:30 pm

This policy applies to non-resident parents - those without full-time care of the child. Not to a parent with care, such as yourself, I'm afraid.

Twin · Post by **Twin** » Mon Oct 22, 2007 1:47 pm

avjones wrote:This policy applies to non-resident parents - those without full-time care of the child. Not to a parent with care, such as yourself, I'm afraid.

i understand that, avjones. My point is, if i'm removed and choose to leave my daughter with a carer over here. I automatically stop being the primary carer and surely should be able to access the right to her from overseas. I think I would meet the requirement if I don't live in the country.

Do you get my point now?

avjones · Post by **avjones** » Mon Oct 22, 2007 6:20 pm

I'm sorry to say I think they'd see it as a ruse to get round the Immigration Rules.

Not impossible, but if you are outside the country and are refused, what then?

sincere2007 · Post by **sincere2007** » Tue Oct 23, 2007 1:51 am

Dear friend.I believe you friend need immediately to make application in court regarding child contact.As my own experience It takes 1 to 2 month to get first court hearing as courts are very busy.He need to go family solicitors and make application on form c1.If he can not afford solicitors he can make application on his own on form c1.
I believe he will get contact on first hearing as court will like father have contact with his son.Before his visa expired he should apply under the home office rule 248a Leave to remain as a person excersing right to access his son/daughter.In his application he can say we are case is in court and he is waiting for decision.
He will get 12 month visa if he suceed then he can apply for ILR.
But he shoul focus on getting contact order as he has got short period of time.BJ

magata · Post by **magata** » Wed Oct 24, 2007 7:33 am

Dear friend.I believe you friend need immediately to make application in court regarding child contact.As my own experience It takes 1 to 2 month to get first court hearing as courts are very busy.He need to go family solicitors and make application on form c1.If he can not afford solicitors he can make application on his own on form c1.
I believe he will get contact on first hearing as court will like father have contact with his son.Before his visa expired he should apply under the home office rule 248a Leave to remain as a person excersing right to access his son/daughter.In his application he can say we are case is in court and he is waiting for decision.
He will get 12 month visa if he suceed then he can apply for ILR.
But he shoul focus on getting contact order as he has got short period of time.BJ

Valuable information, I will pass on you message to my friend

Thanks

Twin · Post by **Twin** » Sun Dec 09, 2007 4:29 pm

Avjones, one of the requirements for para 246 is a Residence order. As I understand this, only parent who the child permanently reside with has this. So, I guess it does work for parent with permanent care too. However, there seem to be contradiction in the first requirement.

This is a little confusing.

OL7MAX · Post by **OL7MAX** » Sun Dec 09, 2007 7:05 pm

I'm sorry to say I think they'd see it as a ruse to get round the Immigration Rules.

I'd be interested in why you think this. If the best interests of the child are served by leaving the child with the UK resident parent then the other parent becomes the "secondary" parent with no choice in the matter. It may revolve on what the best interests of the child are. That involves convincing a judge that the UK represents a better choice for bringing up children than the parent's original country?

Twin · Post by **Twin** » Sun Dec 09, 2007 9:44 pm

OL7MAX wrote:
I'm sorry to say I think they'd see it as a ruse to get round the Immigration Rules.
I'd be interested in why you think this. If the best interests of the child are served by leaving the child with the UK resident parent then the other parent becomes the "secondary" parent with no choice in the matter. It may revolve on what the best interests of the child are. That involves convincing a judge that the UK represents a better choice for bringing up children than the parent's original country?

It just appears to me that the rule seem to favour the father who has contact than the mother who has resident.

Still, what baffles me is this:

(iii) the applicant produces evidence that he has access rights to the child in the form of:

(a) a Residence Order or a Contact Order granted by a Court in the United Kingdom; or

With emphasis on the emboldened, doesn't it mean that even parents with primary care are eligible?

Twin · Post by **Twin** » Mon Mar 31, 2008 12:31 am

Twin wrote:
OL7MAX wrote:
I'm sorry to say I think they'd see it as a ruse to get round the Immigration Rules.
I'd be interested in why you think this. If the best interests of the child are served by leaving the child with the UK resident parent then the other parent becomes the "secondary" parent with no choice in the matter. It may revolve on what the best interests of the child are. That involves convincing a judge that the UK represents a better choice for bringing up children than the parent's original country?
It just appears to me that the rule seem to favour the father who has contact than the mother who has resident.

Still, what baffles me is this:
(iii) the applicant produces evidence that he has access rights to the child in the form of:

(a) a Residence Order or a Contact Order granted by a Court in the United Kingdom; or
With emphasis on the emboldened, doesn't it mean that even parents with primary care are eligible?

Any advise as per the above?

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DIVORCED SPOUSE TO APPLY THROUGH HIS BRITISH SON TO RETURN

DIVORCED SPOUSE TO APPLY THROUGH HIS BRITISH SON TO RETURN

DIVORCED SPOUSE TO APPLY THROUGH HIS BRITISH SON TO RETURN