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Frontier Mole wrote:This is not going to be a simple case to resolve. Everything is currently stacked against you. Trying to get back to the UK is not going to resolve anything at this time. Even if you could afford to return I imagine it would only be on a visitor’s visa. What could you try to resolve in the UK any better than in Trinidad?
The whole issue revolves around paternity. You need to appoint a legal representative in the UK and pave the way for a DNA test to be carried out on the father. If that can not be achieved by a controlled voluntary test then the only option is to use appropriate legal means. I do not know how that is progressed so you will more than likely have to seek out an answer outside of this forum. ANY FAMILY LAWYERS OUT THERE???
Only once you can prove who the father is then can you start to get somewhere with the UK citizenship of your son. Remember one thing - even with citizenship for your son it does not give you an automatic right of abode in the UK. Your son is likely to be a dual national so can stay in Trinidad; he does not need to be in the UK. It is more than likely he will be better off in the UK however that does not mean you have free access to choose.
Frontier Mole wrote:Art 6 - used for criminal cases where a right to a fair trail is in question. Can not be used in civil proceedings in country.
Art 8 - the case you quote for those interested see link below. Two things, it was about the removal of an individual and the interference with his family life. It is not a method of saying let me into the country because my child has a right to be there.
As it is a Dutch case it has no force in law in the UK in any event. Merely persuasive.
http://www.legislationline.org/legislat ... less=false
No matter what way it is approached, getting to the UK is not an answer that is suddenly going to solve the issue. Having civil proceedings in the UK courts does not engage Art 6. Getting the kid here and saying he is a Brit Cit does not engage Art 8 either. There is nothing to stop family life if the kid stays with his mother if returned to Trinidad. If the father does not want anything to do with the kid - as he plainly demonstrates then his Art 8 rights to access etc are not engaged. So that leaves a mother with no right to be here with a kid that can have a UK passport. That will not stop removal if she does not have a right to be here.
There are so many obstacles in this case to deal without adding another by coming to the UK on a visa that is likely to be obtained for at best six months.
Frontier Mole wrote:Art 6 - used for criminal cases where a right to a fair trail is in question. Can not be used in civil proceedings in country.
Art 8 - the case you quote for those interested see link below. Two things, it was about the removal of an individual and the interference with his family life. It is not a method of saying let me into the country because my child has a right to be there.
As it is a Dutch case it has no force in law in the UK in any event. Merely persuasive.
http://www.legislationline.org/legislat ... less=false
No matter what way it is approached, getting to the UK is not an answer that is suddenly going to solve the issue. Having civil proceedings in the UK courts does not engage Art 6. Getting the kid here and saying he is a Brit Cit does not engage Art 8 either. There is nothing to stop family life if the kid stays with his mother if returned to Trinidad. If the father does not want anything to do with the kid - as he plainly demonstrates then his Art 8 rights to access etc are not engaged. So that leaves a mother with no right to be here with a kid that can have a UK passport. That will not stop removal if she does not have a right to be here.
There are so many obstacles in this case to deal without adding another by coming to the UK on a visa that is likely to be obtained for at best six months.
freshprince wrote:Gentlemen,
If you read the ladies account,you would notice she said she was here under the working holiday maker programme,those visas are valid for two years,hence the reason she was able to stay for two years,theoretically she can apply for that again giving her the right to work or she can apply for a visa with a longer validity i.e one or two years.Whilst in country,I submit that she would have more options than she would have outside the country,better access to the legal system for one,her problems presently weigh more on the financial and logistical since apparently she had no freinds/people to assist her while in the UK so its a case of its going to get worse before it gets better.
Again I think her welfare or wellbeing is peripheral to the issue,she is primarily trying to give her son a fighting chance in life with the advantages British citizenship *might have to offer,this is an informal forum and we can only give suggestions to the best of our abilities,I am convinced that there are legal options open that an expert family lawyer would embark on when properly briefed.Its a simple paternity case.What makes it semi complicated is the mothers geographical location/immigration status.
Get in touch with the Child Support agency,I assume that this happens a lot.Discuss the modalities of how to go about the case and get a court directed test http://www.dnasupport.co.uk/gpage3.html
Frontier Mole wrote:I do not concur.
Twin,
The individual is NOT in the UK and therefore can not engage Art 8 or Art 6 in her current circumstances. At this moment in time everything is an unproven claim. For all we know the father might not have UK status in his own right so the child might not even have the route to a UK passport in any event.
She can not demand a right of entry to the UK to take up civil proceedings. She does not NEED to be in the UK to take her case to court. That is why Art 6 is not engaged. The provisions in Art 6 DO not relate to civil proceedings, only those against or involving the state. She is not taking on UK Gov, just the father.
The Art 8 cases you quote are about removal in contested custody -in this case the father does not want the child so custody is not contested. She is not in the UK so can not be removed! Even if she was in the UK and was to be removed she can have a family life in Trinidad as there is no family life interference.
As for EU law as I deal with this aspect on an almost daily basis I can assure you non-UK ECHR decisions are not legally binding on the UK. Only those that originate from the UK are binding. All other non UK decisions are merely persuasive as I have already stated.
The trouble is Twin you read what you want into the circumstances and not the actual facts. The whole point is the mother has an untested paternity claim, not one shred of hard evidence to support her position and no money to do anything about it. To be blunt she should have refused to return home. In doing so she was prepared to put herself and her unborn baby at risk be allowing herself to be returned so late in pregnancy.
It is obvious to all she has been treated unfairly but that does not mean she has rights to be in the UK. By all means apply for a visa, do not expect it to be granted on the basis of an unsubstantiated claim the father of the child is from the UK. It will not get entertained.
Frontier Mole wrote:Twin - a few people actually know who I am on this site - take it as read - I have more cases under my belt than most. Just to prove another point have a read of Art 6 below. Proceddings in the Family Court would engage Art 6 but not so much as to allow / force entry to the UK. Immigration control takes presedence over the Family Courts so even when a contact order is in place it does not automatically prevent removal from the UK. Criminal deports overtake the right of contact as an example.
ARTICLE 6
In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgement shall be pronounced publicly by the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
(b) to have adequate time and the facilities for the preparation of his defence;
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.
dAs for EU law as I deal with this aspect on an almost daily basis I can assure you non-UK ECHR decisions are not legally binding on the UK. Only those that originate from the UK are binding. All other non UK decisions are merely persuasive as I have already state
You can only have one WHM visa, ie you can't apply for another after having had one.Twin wrote: However, Freshprince has reminded us that provided she obtains the same visa as before, she wouldn't need to apply to the home office as she would have enough time to go through court if she so wishes.
How do I qualify as a working holidaymaker?
You must be able to show that you:
are a citizen of a country listed in Appendix 3 of the Immigration Rules, a British Overseas Territories citizen, a British Overseas citizen or a British National (Overseas)
are aged between 17 and 30
want to come to the UK for an extended holiday, and intend to take employment as part of your holiday for no more than 12 months during your stay
do not intend to set yourself up in or run a business, or work as a professional sportsperson during your stay
are single, or that you are married to, or the civil partner of someone who also qualifies as a working holidaymaker and you plan to take the working holiday together
do not have any dependent children aged five or over, or who will be five before your holiday ends
can support yourself in the UK without needing any help from public funds
have not spent time in the UK on a previous working holidaymaker visa, and
intend to leave the UK at the end of your holiday.
Wanderer wrote:Twin wrote:
which is why my advise would be useful to her, then.You can only have one WHM visa, ie you can't apply for another after having had one.
Frontier Mole wrote:Twin,
If you want to state that non-UK ECHR cases are binding in law on the UK then go ahead. But that is not the case.
Yes there are non-UK ECHR cases that have lead to amendment of the UK law - however it was and still is entirely up to the UK to deceide to amend or not in responce to non-UK ECHR judgements. There are many ECHR cases that state ceratin points that are ignored by the UK. There are others that would help UKBA to enforce even harsher views held by some other countries. It just does not work like that. Hence when there is a case in point and it can be seen that it has direct relevence to UK immigration law it will be persvasive. At that time the immigration law is ameded.