permanent Leave To Remain REFUSED - Child affected

[maryanna]

Hi all, this one is rather complicated.
My wife has had her permanent Leave To Remain in the UK refused. She is from the caribbean. Appeal has also been lost. The home Office also refused my little boy of 3 years who was born in the UK outside outside of the marriage.

The mother has run off with my little boy and hiding somewhere in the UK and I am experiencing the most pain.
My questions are:
How can I get my child back to live with me? Do I have any hope?
how long will it be before the mother is classed as an overstayer?

Please can someone help me.

[Frontier Mole]

She is already an overstayer!

Are you a UK citizen? Were you the named father on the birth certificate? If so what reason was given for the child rto be refused?

I am assuming your wife was on a spouse visa, then applied for ILR which was then refused?

Without the reason for refusals it is hard to offer any kind of help.

[maryanna]

Hi Frontier Mole , thanks for the reply.

you say she is already an overstayer. How can this be determined because they did not give her a date to leave. If she is a overstayer will the home office punish my son?

Yes I am a UK citizens.
Yes I am names father on the birth certificate
The time when the mother got her two years as a result of the marriage my little boy also got two years on the same paper work.
My was was on a marriage visa. Not sure if that is the same as a spouse visa though.
Due to marriage breakdown the home office made the decision tfor her to leave the country. But no date has been given. As far as i am ware.

How can I ever see my son again. Is there any glimmer of hope please?

[Frontier Mole]

Quick reply -full one later.

If child born in the UK to a UK citizen father - they have right of abode, route to British passport etc. Born out of marriage a minor problem in this case.

Wife - looks likely will becoming ex wife has no right of stay BUT can do so if she has custody of the child. See above as a way of giving the kid a British passport - then look at this.

[Twin]

Very cruel of the home office and the judge! Paragraph 248 of the Immigration rule should have applied at the time of appeal if not at decision stage by the home office.

This is where I find this particular rule discriminatory. A mother usually have residence of her child but had it being the father who was a visa national; for the mere fact that he is named on the BCert, he would have been exercising his parental responsibility without getting a court order.

The first thing you need to do is to make an application for the child's British passport since you are named on the BC and was married at the time of birth, I suppose.

Once the child becomes British, you can apply for contact order but in this case, subject to the mother agreeing (it would be for her own good), you could apply for joint residence of the child at the Family court or you apply for sole custody in which case the mother would have contact order. With this, the mother can return home and apply for Entry clearance.

However, since the spousal visa isn't expired yet, you can speak to your ex to give you temporary residence, with this she can apply for FLR as persons exercising rights of access to a child resident in the UK http://www.bia.homeoffice.gov.uk/siteco ... iew=Binary.

She should be allowed to stay on this basis.

[Frontier Mole]

Twin thanks for saving me a huge post!

Maryanna - (sorry Twin ) custody is the word I think Twin means when they say residence.

The process Twin sets out is the way to go about it. Agree with the statement about the UKBA not being fair on the child, however they would have used the strict rule - born out of marriage hence not in the rules per se.

[maryanna]

Thank you for your responses. most appreciated.

If I could give you some background to put in perspective because it is a bit more complicated.
Mother was initially a student. Got married and Home Office gave her 2 years to live in the country. They also gave my son 2 years at the same time. Son born before the marriage.
I am on birth cert. Goal: do 2 years as husband and wife go back to home office get stamp for indefinate leave into the country.
However, marriage broke up months after. Gun to my head if I do not continue with marriage. I disagreed so shoot me. Consequently, I wrote to the home office that marriage broke down and then they they said she must leave even after appeal.

Problem: they also had a seperate letter for my child to leave also. The passport for my child came was during the 2 year probationary period which the mother has.

I had no choice but to write to the home office or i would have been dead of end up in prison. I would be no good for my child that way. the environment was not good for the child. I did what I had to do to get her away from me.

after the appeal decison the mother has run off with my child and is somewhere in the country. I have applied for custody for my child but the courts cannot do anything because they dont know where she is. Her family knows where is though but they told me i am not going to see my boy again.

please advise.

[Twin]

Thank you for your responses. most appreciated.

If I could give you some background to put in perspective because it is a bit more complicated.
Mother was initially a student. Got married and Home Office gave her 2 years to live in the country. They also gave my son 2 years at the same time. Son born before the marriage.
I am on birth cert. Goal: do 2 years as husband and wife go back to home office get stamp for indefinate leave into the country.
However, marriage broke up months after. Gun to my head if I do not continue with marriage. I disagreed so shoot me. Consequently, I wrote to the home office that marriage broke down and then they they said she must leave even after appeal.

Problem: they also had a seperate letter for my child to leave also. The passport for my child came was during the 2 year probationary period which the mother has.

I had no choice but to write to the home office or i would have been dead of end up in prison. I would be no good for my child that way. the environment was not good for the child. I did what I had to do to get her away from me.

after the appeal decison the mother has run off with my child and is somewhere in the country. I have applied for custody for my child but the courts cannot do anything because they dont know where she is. Her family knows where is though but they told me i am not going to see my boy again.

please advise.

Did the court say they can't do anything or you're just guessing they would say this just because the mother has absconded? The fact is she's still in the country and the court can serve her at her family's house. Go ahead and apply to the court for an access order in the meantime whilst you apply for your child's passport.

In the meantime also, whilst you're processing access order, you can make an emergency application to the family court for prohibited steps order. This would mean that the mother cannot take the child out of the country until she appears before the court. This order would be given even in her absence so do that first.

It seems to me that your wife was given a 2 year spousal visa which hasn't run out? Or has it? If it hasn't then she can apply to stay on the basis of access to child. That would guarantee you having access to your child in this country even though you and the mother has seperated. It's your right and you won't be prevented so long you take it the legal route but either way you have to support the mother in order for her to get this visa to stay if not, say bye bye to your child.

Your wife is obviously scared of removal, that is why she's on the run but you can have her stay in the country for your sake and your child.

Goodluck and keep us updated

[maryanna]

Hi Twin, thanks for your response. I have prohibited steps in place thank goodness. The even said she could still slip out of the country. A lot of confidence that gives me.

I have served orders on a family member but the judge said that it is more effective to serve on mother. And that there is not much the courts could do if they do not know where she is. The judge said the order has to be served in the mothers hand. Personally, I think men do not stand a chance in this country when it come to caring for ttheir children.

I can confirm that the visa has run out which was dated last year. Please tell me that I will see my child again. It is unbearable to think I will not.

The court is telling me today that they can't do much because they dont know where she is. Do I have any options please?

[Twin]

Hi Twin, thanks for your response. I have prohibited steps in place thank goodness. The even said she could still slip out of the country. A lot of confidence that gives me.

I have served orders on a family member but the judge said that it is more effective to serve on mother. And that there is not much the courts could do if they do not know where she is. The judge said the order has to be served in the mothers hand. Personally, I think men do not stand a chance in this country when it come to caring for ttheir children.

I can confirm that the visa has run out which was dated last year. Please tell me that I will see my child again. It is unbearable to think I will not.

The court is telling me today that they can't do much because they dont know where she is. Do I have any options please?

Seems to me that you have taken all necessary steps. Now, that you have a PSO, I don't see any reason why you shouldn't contact immigration to let them know of this. They are the only ones who can stop your child being taken out of the country on departure.

I wonder what country your wife is from? If she's from an Hague signatory country, then there might be a chance of the child being returned to the UK if he has already being removed. If not, there is nothing that can be done, i'm afraid.

I'm sorry to say this as you might already know but you should really have thought of your child before you withdrew your support, but that is bye gone now.

You should find out where your child is so as to know if to start the Hague convention abduction process because the longer the child stays out of the UK, the harder it would be to prove that the UK is his habitual residence, most especially as he's a child.

Anyway, as the mother's visa is now invalid, she would have to re-apply for entry clearance as a person exercising rights of access to a child in the Uk from her country. You will need to support her for this to be successful as i've said earlier.

There's a site called reunite, you could visit to see if they can be of help.

[JAJ]

Quick reply -full one later.

If child born in the UK to a UK citizen father - they have right of abode, route to British passport etc. Born out of marriage a minor problem in this case.

If parents got married after child is born then child should already be a British citizen.

[Frontier Mole]

JAJ,
Do not disagree at all. Hence my earlier point that the OP should seek to get UK passport for the child. Thereafter allowing spouse, even on divorce, to have route to remain in the UK.

The problem is the fact that the child is being treated as "subject to immigration control" in line with the mother. What passport was presented on behalf of the child for that to happen? - certainly not a UK passport.

As to "minor problem", a DNA test resolves all possible doubt to parentage. That is all I was aiming at.

[maryanna]

Hi all, thanks for your reponses. This is a very helpful site.
The mother is from the Carribean so not sure if the Hague convention applies. I tried to apply for a British passport but the passport office turned be down because the mother already has one. I thought that she was not allowed to get a British passport because she still under marriage visa. I being British thought I should be able to obtain one. But the mother got the UK passport before she Home Office said she had to leave the country.

I believe they are still in the country. Court will do nothig because they dont where she is. I have already served wife's mother (disclosure of whereabout for missiing persons) Even then the court cant for her to disclose.
Have the passport office made a mistake by issuing a British passport to the mother?
And can I appeal against this decision?

Thanks for your help.

[Twin]

Hi all, thanks for your reponses. This is a very helpful site.
The mother is from the Carribean so not sure if the Hague convention applies. I tried to apply for a British passport but the passport office turned be down because the mother already has one. I thought that she was not allowed to get a British passport because she still under marriage visa. I being British thought I should be able to obtain one. But the mother got the UK passport before she Home Office said she had to leave the country.

I believe they are still in the country. Court will do nothig because they dont where she is. I have already served wife's mother (disclosure of whereabout for missiing persons) Even then the court cant for her to disclose.
Have the passport office made a mistake by issuing a British passport to the mother?
And can I appeal against this decision?

Thanks for your help.

why would you want to appeal your child being British? It doesn't matter who applied be it mother or father. The most important thing of it all is that your child is British and therefore you can start legal proceedings against the mother or the Home office removing him/her with the mother.

The child being British also gives a strong argument that this is his/her habitual residence.

Like I said earlier, contact the Home office and let them know that you have a PSO and that there is a legal proceeding for contact. Except the child is 7, I fail to see how the mother can remain in the country except of course, she puts in an article 8 application and the HO is sympathetic.

Frankly, right now, the mother appears to have sole custody; without a court order. With a court order, you could get contact but there is a chance of you getting joint residence order(previously joint custody) which would give you better leverage.

If you are hoping that the court would grant you sole custody of your child and send the mother packing, then forget it. The court is likely to give the mother Residence order (custody) and you; contact order. If you do have good grounds though, you could have shared residence but please don't think for once that if you don't support your ex wife's visa applications, you will still get to keep your child here - It's going to be difficult and almost impossible.

Actually, it just occured to me that if the family court gives your wife full residence order, she might be able to apply to the home office under article 8 as she obviously wouldn't be allowed to remove the child from the UK but it's going to be long and tedious and might be quicker for her to return home and apply.

[maryanna]

Hi Twin, thanks for your response. Very helpful. I have written to the Home Office and waiting for their response.
I take it, that since my boy has a passport if the mother was to leave the country I can get him back here. I am trying to find also if it is a british or jamiacan one.

I am not looking for full custody but want to father my child.

How long does the Home Office give before one has to leave after an appeal?