official word on entry as a parent of child resident in uk

[kate4885]

my partner who is Australian has had to leave the Country although we have a 12 week old child.

i have now had official word as to how he can apply to come back in circumstances where we are not married and do not qualify for an unmarried partners visa. This avenue applies when parents are separated OR together and may help many people on this web site.

The official word comes from the Home Office Visa Advisory Department AND from the senior entry clearance office at the High Commission in australia.

The application is under rule 246 - exercising rights of access to a child resident in the UK. You will need to ensure you fulfil the criteria listed in the rule ( able to support yourself etc ) but the rule talks about getting a court order or a certificate from a District Judge as to your rights of contact.

There is no such thing as a certificate from a District Judge and when questioned on this the Home Office stated the following -

'This (rule 246 ) applies to all parents, not just those who are divorced or legally separated.

Owing to claims that actually obtaining a Certificate from a District Judge is impossible, the Border and Immigration Agency (BIA) have taken advice from LAB & the Ministry of Justice who have confirmed that it is impossible to obtain a Certificate issued by a District Judge (at the time that this Rule was framed in the summer of 2000, this option was suggested as an acceptable means to verify the applicant's intent to maintain contact with the child.)

As this option is no longer available, and in the absence of any other legally based option to replace it, the sole alternative will be to request a sworn affidavit from the non-applicant parent, (i.e. the U.K. resident parent or carer of the child), confirming that the applicant parent can have access to the child, and describing in detail the arrangements made to allow for this. If contact is supervised, then the statement must be made by the supervisor.'

thus if you are the parent of a child resident in the Uk, separated or not from your partner and do not qualify for a spouse visa or an unmarried partners visa you, this may be a way of getting entry clearance. All you will need is a sworn affadavit from the other parent confirming you rigts of access. If you are separated and the other parent will not provide such an affadavit then you can as the family court to award you contact - the form needed is a 'C1' and con be downloaded from the court service web site - it is a fairly straightforward procedure.

You would still have to apply from your home country - entry would be for 12 months and you would be able to work

if after 12 motnhs you can demonstrate that you are still having contact with the child you are able to apply for indefinite leave to remain.

i hope that this information is of help to people.

and thank you to all those that took the time to reply to my earlier post.
[/quote]

[Twin]

Thanks for this detailed information, Kate.

I am currently looking into the option of returning home and seeking entry on this basis but very scared of the possibility that I might not be able to return to be with my child.

Please tell us how it all goes. Keep us posted.

Thanks

Twin.

[Twin]

Do yo have a link to this information, please?

[OL7MAX]

Different Link.

If H returned to Bangladesh, he would be unable to obtain a contact order; it was therefore vital that H remained in the UK for the duration of the contact proceedings.

[Twin]

Wow! OL7Max, you are so on the ball!

I found that link also. However, it doesn't give any guarantees of obtaining entry clearance.

My fingers are crossed for Kate's husband. I'm using Kate's experience as a case study.

[kate4885]

i have looked at the replies to my post and i would say the following :-


an application on this ground if it fulfils the criteria is 'mandatory' i.e. you must be given clearence - refer to the visa guidelines and immigration directorate rules - chapter 7 'other catagories' annex A section 1

OL7MAX - the reference to the bangladesi case was in respect of an illegal immigrant already in the country who sort to remain here. as he was an overstayer the home office had the right to refuse any future applications from outside the UK. From contacting my local family court, they said that there was no problem in making an application outside the UK. the difficulty i guess may come if the other parent ( ie the one resident in the UK ) contests contact... then there would have to be a hearing. please read on however.

you can apply to the family court for a contact order if you are separated from outside the uk - the form can be downloaded off the internet and filed with the family court nearest to where the child lives

you must be able to do this because you are applying outside the country to come back in - and must have the contact/ residence order BEFORE you make the application to come back in. You cannot apply inside the country. So, to say that you must remain in the country inorder to obtain the order defeats the rule!

you can obtain a contact order 'by consent' that is to say that you and your partner can agree the terms of contact - ie 'as and when the parties agree' which the court will approve.

when i contacted the high commission in Australia, they said that the one application they had dealt with involved a couple who had applied ( the applicant being in Australia ) for a contact order "pursuant to the requirements of rule 246 of the immigration rules" and had agreed by 'by consent' to contact as I have outlined above.

BUT as i indicated in my post - this does not seem necessary as where the couple have not separated then a sworn affidavit from the resident partner was sufficient. So applying for a contact order seems to only be necessary where the couple are separated - ( although i wonder..... as the rule says contact order / residence order or certficate froma District Judge - the latter not being available in law and therefore an affidavit will do, so can you use the affidavit route is separated ??????)

it must be remembered that where the applicant is already in the country as a spouse or unmarried partner they can apply to remain ie without leaving the country under rule 248.

my case applies where the applicant is not a spouse nor can apply for an unmarried partner due to the 2 year rule.

i cannot provide a link to the quote put in my post as it is the direct text of an email sent by the Visa Advisory Department

rule 246 can be found by entering 'uk immigtaion rules 246 ' in any search engine.

hope this helps

[Twin]

Thanks Kate.

Although I beg to differ on the contact order issue. I think it would be right to say a contact order can be obtained from outside the UK just as it can be in the UK before leaving the country.

I have read a number of AIT cases where Judges have allowed appellants time to apply to a family court for contact order to help with their out of country application for access.

I wasn't aware that contact can be requested from abroad but I guess one learns something new each day. I am however sure that obtaining contact prior to leaving the UK is very much accepted. I think I might have a link somewhere...http://books.google.com/books?id=g4z14h ... #PPA139,M1[/url]

[kate4885]

im sure that is right but knowing how the Home office work, they will no doubt try and and say you are an overstayer and use that against you


what part of the contact order do you differ on

the contact order 'by consent' was given to me by the High Commission in Australia who read me an actual order attached to an application they had granted

i outlined my circumstances and the very nice Entry Clearance Officer checked with the Home Office and got back to me two days later

[Twin]

im sure that is right but knowing how the Home office work, they will no doubt try and and say you are an overstayer and use that against you


what part of the contact order do you differ on

the contact order 'by consent' was given to me by the High Commission in Australia who read me an actual order attached to an application they had granted

i outlined my circumstances and the very nice Entry Clearance Officer checked with the Home Office and got back to me two days later

It would be very unfair if they use that as a line of refusal for one to join his/her child/ren when the courts have ruled that you have a right of access.

It would also be odd, seeing that one of the reasons the rule was created was for expelled parents to access their rights to their children.

Hmm...

[OL7MAX]

According to the EC Freedom of Movement Directive the spouse of an EC citizen can move freely between EC countries.

Member States shall
grant Union citizens leave to enter their territory with a valid
identity card or passport and shall grant family members who
are not nationals of a Member State leave to enter their territory
with a valid passport.

They can also freely exit any EC country:

all Union citizens with a
valid identity card or passport and their family members who
are not nationals of a Member State and who hold a valid passport
shall have the right to leave the territory of a Member
State to travel to another Member State.

True, the limit on stay for spouses of EC members is 3 months - that is three months per entry. Countries like Spain seem to have quite generous allowances.

So, in theory, anyone who isn't formally separated from their EC spouse can travel freely within the EC - and enter/leave the UK at will - because of this directive? Or am I missing something?

[ldoherty]

Kate!

This is great... I am in this same situation.. NOBODY understood or could explain how this worked... I am so glad you posted this...

Do anyone have any advice on how I would get a letter from the Home Office stating this?

[Site2Site]

I want to join my daughter who is a Dutch citizen living in the UK. I am currently living in the US as a permenant resident holding a Kenyan passport. What would I need to do to live with my daughter in the UK? Any suggestions would be greatly appreciated. Thanks.

[Site2Site]

Can anyone help me with this issue? I've tried to view the 11 replies that appear to have been posted to my initial question, but am unable to. I so appreciate all the information on this board, but would be even more grateful if someone could let me know what I need to do to join my daughter in the UK.

Thanks

[Wanderer]

Can anyone help me with this issue? I've tried to view the 11 replies that appear to have been posted to my initial question, but am unable to. I so appreciate all the information on this board, but would be even more grateful if someone could let me know what I need to do to join my daughter in the UK.

Thanks

Join permanently or visit? We need more info.

[Site2Site]

Can anyone help me with this issue? I've tried to view the 11 replies that appear to have been posted to my initial question, but am unable to. I so appreciate all the information on this board, but would be even more grateful if someone could let me know what I need to do to join my daughter in the UK.

Thanks

Join permanently or visit? We need more info.

I am looking to join her permanently.

[Heneni]

Hello!

I have just joined and spotted this topic. I have recently discovered this category myself, and to say the least I'm over the moon.

Twin, who I see has also posted here has given me some usefull advice.

My ex-husband is willing to give me a sworn affidavit. I'm thankful he is willing to co-operate. However, the most challenging I have encountered regarding this application is which form to complete.

I really do think it is form VAF4 (which Twin also suggested). This form seems to give you the option to work. However my local visa office has suggested VAF1, where there is NO option to work, and it clearly says, that if you complete 'this' section, please be adviced that you cannot work in the UK as a visitor. However this would be against the immigration rules for this category

Form VAF1 and form VAF4 both require a sponsor. My ex-husband is not sponsoring me financially.

So then...what to do? I have lodged a complaint regarding the lack of information regarding this category at various places, and have contacted many places to ask for more information. I seriously doubt whether my local visa offica has any idea what I am talking about.

When they suggested VAF1 they must have thought that the application is under the 'old' immigration rules under the same 'heading' -right to access a child.

When I spoke to the lady at our local office, she thought I was kidding when I said that I am allowed to work while accessing rights to my children.

Surely there must be greater communication and training for visa officers. The reprocussions of a visa official giving me the wrong form to complete will most certainly fall on me, and maybe an appology form the border agency...or not.

Does anyone really know which application form to complete?

I have looked at the entire UK visa site and the Embassy site, and no joy.

There are many forms, just not one for this category....

Perhaps they are terribly busy updating all the information on their site, given the huge immigration reform. Perhaps this is a 'low priority' category

Anyway, I can not describe the feeling of the possibility to be re-united with my children. For that I am thankful.

Thank you for any advice!

[Heneni]

Hello

Some useful information on this category

http://www.bia.homeoffice.gov.uk/siteco ... r7annexes/

http://www.bia.homeoffice.gov.uk/siteco ... schapter7/

http://www.britishembassy.gov.uk/servle ... nt%20eight

Also

UK visas site:

25.4 - Categories where referral is mandatory and to whom to refer [Updated]

NCC2

Dependants of persons with Humanitarian Leave to Remain (HLR) that was granted pre 30 August 2005
Dependants of persons with Humanitarian Leave or Discretionary Leave who does not yet have ILR.
Relatives or persons with Refugee status who do not meet the requirements of Paragraphs 352A, 352AA and 352d, where there are claimed to be compelling compassionate reasons for applications to be considered outside the Immigration Rules.
Persons exercising the right of access to a child, Chapter 10.
Former Foreign National Prisoners (FNPs) where an entry clearance may be appropriate.
BCU

Hope this helps someone!

[Twin]

Heneni,

since this application would be dealt with by the NCC2 department of the BIA, I think it's best to contact the UK (the specific department of course) to get more information on the right application form. As Kate also narrated, the ECOs know next to nothing about this kind of visa.

You could also e-mail UKvisas to get more info but I doubt that you would get anywhere with the ECO.

I'll try and find out too and let you know.

Hello!

I have just joined and spotted this topic. I have recently discovered this category myself, and to say the least I'm over the moon.

Twin, who I see has also posted here has given me some usefull advice.

My ex-husband is willing to give me a sworn affidavit. I'm thankful he is willing to co-operate. However, the most challenging I have encountered regarding this application is which form to complete.

I really do think it is form VAF4 (which Twin also suggested). This form seems to give you the option to work. However my local visa office has suggested VAF1, where there is NO option to work, and it clearly says, that if you complete 'this' section, please be adviced that you cannot work in the UK as a visitor. However this would be against the immigration rules for this category

Form VAF1 and form VAF4 both require a sponsor. My ex-husband is not sponsoring me financially.

So then...what to do? I have lodged a complaint regarding the lack of information regarding this category at various places, and have contacted many places to ask for more information. I seriously doubt whether my local visa offica has any idea what I am talking about.

When they suggested VAF1 they must have thought that the application is under the 'old' immigration rules under the same 'heading' -right to access a child.

When I spoke to the lady at our local office, she thought I was kidding when I said that I am allowed to work while accessing rights to my children.

Surely there must be greater communication and training for visa officers. The reprocussions of a visa official giving me the wrong form to complete will most certainly fall on me, and maybe an appology form the border agency...or not.

Does anyone really know which application form to complete?

I have looked at the entire UK visa site and the Embassy site, and no joy.

There are many forms, just not one for this category....

Perhaps they are terribly busy updating all the information on their site, given the huge immigration reform. Perhaps this is a 'low priority' category

Anyway, I can not describe the feeling of the possibility to be re-united with my children. For that I am thankful.

Thank you for any advice!

[Ben]

Can anyone help me with this issue? I've tried to view the 11 replies that appear to have been posted to my initial question, but am unable to. I so appreciate all the information on this board, but would be even more grateful if someone could let me know what I need to do to join my daughter in the UK.

Thanks

Join permanently or visit? We need more info.

I am looking to join her permanently.

You should apply to the British Embassy in the US for an EEA Family Permit to be issued to you in accordance with the Chen judgment. You will be able to join your daughter in the UK, but you will not be able to work (in accordance with the Chen judgment, you should be able to demonstrate self-sufficiency).

[Fuscia]

what are the conditions to entry?

will it have a bearing if the individual who was not british previously overstayed? he wasn't caught he left on his own. he has a british child who is nearly 5. and is married to a british woman. Spouse visa has been denied twice.

thanks.

[Ben]

what are the conditions to entry?

will it have a bearing if the individual who was not british previously overstayed? he wasn't caught he left on his own. he has a british child who is nearly 5. and is married to a british woman. Spouse visa has been denied twice.

thanks.

Chen conditions would not apply in such a case, since the child of the non-EU citizen wishing to enter the UK is British. The child has to be a citizen of another EU Member State, for EU law to apply, afaik.

[Fuscia]

Hi, thanks for the reply, but i dont quite understand your response. The father is Pakistani and has been in Pakistan since early 2006, he went back to come back to the UK to legalise his stay. He had overstayed previously for about 7 years, he wasnt caught he left himself. He admitted to overstaying and working in the UK illegally, and his visa was refused twice bwcause when he was here he married a asylum seeker, before the CoA came into play. His wife now got British citizenship through legacy and they have a biological daughter who is nearly 5. She is also British, Living in the UK now. Spoue visa was refused because the HO did not believe the marriage was real.

We were wondering whether this could be a possible way to get him into the UK. He has seen his daughter in only 3 times 3 years. will this be an issue?

[Ben]

Hi, thanks for the reply, but i dont quite understand your response. The father is Pakistani and has been in Pakistan since early 2006, he went back to come back to the UK to legalise his stay. He had overstayed previously for about 7 years, he wasnt caught he left himself. He admitted to overstaying and working in the UK illegally, and his visa was refused twice bwcause when he was here he married a asylum seeker, before the CoA came into play. His wife now got British citizenship through legacy and they have a biological daughter who is nearly 5. She is also British, Living in the UK now. Spoue visa was refused because the HO did not believe the marriage was real.

We were wondering whether this could be a possible way to get him into the UK. He has seen his daughter in only 3 times 3 years. will this be an issue?

In this case, forget about the Chen case. It doesn't apply to this case. I'm sorry if I confused the issue. It seems that the father may be able to return to the UK using the legislation detailed by the OP.