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Kitty wrote:Some time ago, kate4885 posted her experiences in trying to get her Australian partner to the UK on the basis of Paragraph 246 of the Rules (right of access to a child resident in the UK).
http://www.immigrationboards.com/viewto ... highlight=
The advice she was given by the Home Office at the time was that Paragraph 246 does not only cover parents who are separated (I think kate4885 and her partner were not married and were unable to satisfy the 2-year rule).
Has anyone tried to use paragraph 246 to work around the marriage visa age restrictions (e.g. overseas parent of British child, where either or both parents are under 21)? I can't see anything that would prevent it, if the advice is that the parents do not have to be separated.
Any thoughts?[/b]
Hi,Kitty wrote:Some time ago, kate4885 posted her experiences in trying to get her Australian partner to the UK on the basis of Paragraph 246 of the Rules (right of access to a child resident in the UK).
http://www.immigrationboards.com/viewto ... highlight=
The advice she was given by the Home Office at the time was that Paragraph 246 does not only cover parents who are separated (I think kate4885 and her partner were not married and were unable to satisfy the 2-year rule).
Has anyone tried to use paragraph 246 to work around the marriage visa age restrictions (e.g. overseas parent of British child, where either or both parents are under 21)? I can't see anything that would prevent it, if the advice is that the parents do not have to be separated.
Any thoughts?[/b]
@HRYHRY2005 wrote:Hi,Kitty wrote:Some time ago, kate4885 posted her experiences in trying to get her Australian partner to the UK on the basis of Paragraph 246 of the Rules (right of access to a child resident in the UK).
http://www.immigrationboards.com/viewto ... highlight=
The advice she was given by the Home Office at the time was that Paragraph 246 does not only cover parents who are separated (I think kate4885 and her partner were not married and were unable to satisfy the 2-year rule).
Has anyone tried to use paragraph 246 to work around the marriage visa age restrictions (e.g. overseas parent of British child, where either or both parents are under 21)? I can't see anything that would prevent it, if the advice is that the parents do not have to be separated.
Any thoughts?[/b]
I have just applied using the same paragraph 246 to the HO this week (in-country). I haven't got any leave to remain anyway but my solicitor advised that we should apply depending on the Chikwamba judgement (article 8 ) when I decided not to return home for an entry clearance.
I couldn't apply as an unmarried partner because I am over 21 but my gf is not and we've been living together for 1 year and half (not up to 2 years for co-habitation)
There is a part of the Chikwamba judgement that support not to go back home for entry clearance when a child is involved or when it's likely that and entry clearance would be issued.
I 'll update the forum as it goes, hope I 'll be lucky. Give it a try and pray, para 246 covers all parents (separated or not)
Good luck.
HRY
Technically they dont qualify for access to child visa as well.Casa wrote:Spouse application? Presumably because they're not married and don't qualify for a UPV either.
Hi,Lynnuk wrote:@HRYHRY2005 wrote:Hi,Kitty wrote:Some time ago, kate4885 posted her experiences in trying to get her Australian partner to the UK on the basis of Paragraph 246 of the Rules (right of access to a child resident in the UK).
http://www.immigrationboards.com/viewto ... highlight=
The advice she was given by the Home Office at the time was that Paragraph 246 does not only cover parents who are separated (I think kate4885 and her partner were not married and were unable to satisfy the 2-year rule).
Has anyone tried to use paragraph 246 to work around the marriage visa age restrictions (e.g. overseas parent of British child, where either or both parents are under 21)? I can't see anything that would prevent it, if the advice is that the parents do not have to be separated.
Any thoughts?[/b]
I have just applied using the same paragraph 246 to the HO this week (in-country). I haven't got any leave to remain anyway but my solicitor advised that we should apply depending on the Chikwamba judgement (article 8 ) when I decided not to return home for an entry clearance.
I couldn't apply as an unmarried partner because I am over 21 but my gf is not and we've been living together for 1 year and half (not up to 2 years for co-habitation)
There is a part of the Chikwamba judgement that support not to go back home for entry clearance when a child is involved or when it's likely that and entry clearance would be issued.
I 'll update the forum as it goes, hope I 'll be lucky. Give it a try and pray, para 246 covers all parents (separated or not)
Good luck.
HRY
But question I have why you have not applied for spouse visa on Chikwamba or why you have not applied for DL based on human rights.
Why on earth your solicitor advised you for access to child visa.
And one correction inside uk access to child visa rule is 248A not 246.
B
Lynnuk,Lynnuk wrote:Technically they dont qualify for access to child visa as well. ??????? ( wrong, should've read "they dont qualify for in-country application" ) One more thing according to immigration rule entry clearance is mandatory for this visa category asCasa wrote:Spouse application? Presumably because they're not married and don't qualify for a UPV either.
248(vii) the applicant has limited leave to remain in the United Kingdom as the spouse, civil partner, unmarried partner or same-gender partner of a person present and settled in the United Kingdom who is the other parent of the child; and even he won on artcile8 then he would get DL for 3 years(most likely).
I have read your posts thats way I am showing my input.HRY2005 wrote:Lynnuk,Lynnuk wrote:Technically they dont qualify for access to child visa as well. ??????? ( wrong, should've read "they dont qualify for in-country application" ) One more thing according to immigration rule entry clearance is mandatory for this visa category asCasa wrote:Spouse application? Presumably because they're not married and don't qualify for a UPV either.
248(vii) the applicant has limited leave to remain in the United Kingdom as the spouse, civil partner, unmarried partner or same-gender partner of a person present and settled in the United Kingdom who is the other parent of the child; and even he won on artcile8 then he would get DL for 3 years(most likely).
Take your time to read my first post. I mentioned that I decided not to return home for entry clearance. That explained that we realized what the requirements are. Application was made outside the rule.
I also mentioned the Chikwamba case earlier and the judgment on people returning to their home country for entry clearance when a child is involved. Can I quickly say its not automatic though but we are relying on those arguments and praying.
Thanks
Perhaps in your opinion, an ECO could ask me to ask my family to relocate to my home country if I am making an ACCESS RIGHT TO A CHILD application abroad ???Lynnuk wrote:I have read your posts thats way I am showing my input.HRY2005 wrote:Lynnuk,Lynnuk wrote:Technically they dont qualify for access to child visa as well. ??????? ( wrong, should've read "they dont qualify for in-country application" ) One more thing according to immigration rule entry clearance is mandatory for this visa category asCasa wrote:Spouse application? Presumably because they're not married and don't qualify for a UPV either.
248(vii) the applicant has limited leave to remain in the United Kingdom as the spouse, civil partner, unmarried partner or same-gender partner of a person present and settled in the United Kingdom who is the other parent of the child; and even he won on artcile8 then he would get DL for 3 years(most likely).
Take your time to read my first post. I mentioned that I decided not to return home for entry clearance. That explained that we realized what the requirements are. Application was made outside the rule.
I also mentioned the Chikwamba case earlier and the judgment on people returning to their home country for entry clearance when a child is involved. Can I quickly say its not automatic though but we are relying on those arguments and praying.
Thanks
When you refer Chikwamba you dont to include its details as I read this case law many times.
My question is when you rely on artcile8 then age factor would go in your favour as unable to apply for spouse visa so in my view your solicitor should has apply for spouse visa mentioning these case laws like Chikwanba and Baku.
Problem is you can be refused saying you can relocate to your country with your family.
If you have case like you are separated and have a child then you have a good chance on access to child visa on articel8.
Thanks a lot CASA, I appreciate all supports or suggestions. This forum is the best place to get advise from in my opinion. I have received spot on advise from members but oftentimes I read other peoples post, people who posted their problems for honest and genuine advise, and some other people will turn it to a personal issue, verbal attacks and discourage them. It takes a lot to post your personal problems online for others to discuss and advise.Casa wrote:HRY2005, well put. It's dangerous for someone who is unqualified to advise against a solicitor's advise. I'm pleased you've found a good legal advisor who you have faith in and really hope it goes well for you.
Hi Kitty,Kitty wrote:Thanks for the case posting Lynnuk, but is it not superseded by Chikwamba in respect of the Article 8 grounds? I think that the "insurmountable obstacles" test no longer applies.
Asylum and Immigration Tribunal Appeal Number: IA/08945/2008
THE IMMIGRATION ACT
Heard at Field House Determination Promulgated
On 22 August 2008 On 2 September 2008
Prepared 22 August 2008
Before
SENIOR IMMIGRATION JUDGE LATTER
Between
[ ]
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Ms B Gill of Counsel
For the Respondent: Ms Z Kiss, Home Office Presenting Officer
DETERMINATION AND REASONS
1. This is the reconsideration of an appeal against the respondent’s decision made on 8 May 2008 refusing the appellant further leave to remain to exercise rights of access to children resident in this country. His appeal was dismissed on immigration and article 8 grounds by an immigration judge following a hearing on 13 June 2008. Reconsideration was ordered on 16 July 2008.
2. The appellant is a citizen of Uganda who has had leave to remain as a student for varying periods between May 2002 and February 2007. He entered into a relationship with his partner, a British citizen, and they have three children born on 29 March 2001, 3 April 2005 and 27 January 2007 respectively. The children are all British citizens who will remain living in this country. The appellant’s relationship with his partner has come to an end but the judge was satisfied that he has maintained regular contact with and takes an active role in the children's upbringing.
3. However, the appeal could not succeed under the provisions of paragraph 248C. The judge went on to consider the appeal under article 8 and found that removal would be proportionate, commenting that it might be the case that on his findings the appellant had good grounds for pursuing an out of country application to obtain leave to enter.
4. The appellant applied for a review, relying on the opinions of the House of Lords in Beoku-Betts [2008] UKHL 39 and Chikwamba [2008] UKHL 40, arguing that the judge had not fully taken into account the rights of the appellant’s children and his former partner and that this was a case where it would not be proportionate to require the appellant to make an application from abroad.
5. At the hearing before me, Ms Kiss conceded that the judge had materially erred in law and that, in the light of the appellant’s particular circumstances, the appeal should be allowed on article 8 grounds.
Decision
6. Accordingly, I find that the original Tribunal materially erred in law and I substitute a decision allowing the appeal on article 8 grounds.
Signed Date: 28 August 2008
Senior Immigration Judge Latter
© CROWN COPYRIGHT 2008
Thanks CASA,Casa wrote:HRY2005..many thanks for your valuable contribution. It's appreciated.
Thanks Lynnuk,Lynnuk wrote:Hi
I never claimed I am professional or I am perfect.These are my personal views(Not immigration advise).Hi Lynnuk,
While I have nothing personal against you, I am only saying it is wrong to discourage or mislead others by giving personal opinion without proper consideration with any relevant authorities.
This forum as a community of interest, has done a lot for many people, a lot of people are smiling today, thanks to information received from this forum. I wouldn't have responded to this any more, remember I "rest my case" but for the benefit of this forum and other people, who need information like this to sort their problem. Remember this is my personal case and don't wanna sound cocky and my argument does not in anyway mean that my application would succeed but I believe.
Our point here is the chances of a successful applications, we should look from PRO, then ask in terms of WHAT ARE THE CONS. Not a 100% focus on the CONS. The refusal of Appellant X on case M, does not indicate that Appellant Y on case M would be refused, if their cases are different in content.
Anyway I have carefully studied your authority and realized that you need to do a lot more. Its been established that caseworkers and ECO's assessed and judge cases on individual merit. However, your claimed authority has got nothing to do with this case apart from the title (ACCESS RIGHT). you really need to study the content/details of a case law properly before using them as a basis to advise others.
I would appreciate it, if you go back to the case and study all the highlighted part.
Once again, I have nothing against you, we are all learning and improving or updating our knowledge.
You dont know my study level on this visa category.I have a lot of research and case law study on this matter.
You have a good solicitor and have already legal advice.But remember I am the only one who can give you a clear pic on this issue.You agree or not is your choice.I would only say my views with light of recent case in appeal court proving I am not saying just bull sits.
Remember I am not doing this for any financial incentives.
I also love to study more as learning never stops.
But please dont just take everything negative..
I can give lot of cases to prove what I said.
Thanks for this Lynnuk, did you noticed the influence of the CHIKWAMBA and BEOKU-BETTS on that case??? I am happy that proved my point. The appeal was allowed.Lynnuk wrote:Hi
One more case..Not completely similar but has some good points
Asylum and Immigration Tribunal Appeal Number: IA/08945/2008
THE IMMIGRATION ACT
Heard at Field House Determination Promulgated
On 22 August 2008 On 2 September 2008
Prepared 22 August 2008
Before
SENIOR IMMIGRATION JUDGE LATTER
Between
[ ]
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Ms B Gill of Counsel
For the Respondent: Ms Z Kiss, Home Office Presenting Officer
DETERMINATION AND REASONS
1. This is the reconsideration of an appeal against the respondent’s decision made on 8 May 2008 refusing the appellant further leave to remain to exercise rights of access to children resident in this country. His appeal was dismissed on immigration and article 8 grounds by an immigration judge following a hearing on 13 June 2008. Reconsideration was ordered on 16 July 2008.
2. The appellant is a citizen of Uganda who has had leave to remain as a student for varying periods between May 2002 and February 2007. He entered into a relationship with his partner, a British citizen, and they have three children born on 29 March 2001, 3 April 2005 and 27 January 2007 respectively. The children are all British citizens who will remain living in this country. The appellant’s relationship with his partner has come to an end but the judge was satisfied that he has maintained regular contact with and takes an active role in the children's upbringing.
3. However, the appeal could not succeed under the provisions of paragraph 248C. The judge went on to consider the appeal under article 8 and found that removal would be proportionate, commenting that it might be the case that on his findings the appellant had good grounds for pursuing an out of country application to obtain leave to enter.
4. The appellant applied for a review, relying on the opinions of the House of Lords in Beoku-Betts [2008] UKHL 39 and Chikwamba [2008] UKHL 40, arguing that the judge had not fully taken into account the rights of the appellant’s children and his former partner and that this was a case where it would not be proportionate to require the appellant to make an application from abroad.
5. At the hearing before me, Ms Kiss conceded that the judge had materially erred in law and that, in the light of the appellant’s particular circumstances, the appeal should be allowed on article 8 grounds.
Decision
6. Accordingly, I find that the original Tribunal materially erred in law and I substitute a decision allowing the appeal on article 8 grounds.
Signed Date: 28 August 2008
Senior Immigration Judge Latter
© CROWN COPYRIGHT 2008
I like criticism if I know this is said in positive mode.Thanks CASA,
I am just not happy when people are pessimistic on other peoples problem without relying on a good authority to back their case. It should be discouraged on this forum because someone life or future may depend on information received on this forum.
People in a situation like this are in it for one reason or the other. its not a very good situation to be in, I have experienced it and still in it, struggling to find a way out and live a normal life. So its sad when I read about other people being discouraged when they are making efforts or turn a serious issue to a personal and verbal attack.
I have a lot of respect for all of you moderators and other members who gives genuine, informed and honest advise.
Thanks a lot
HRY2005 wrote:Thanks for this Lynnuk, did you noticed the influence of the CHIKWAMBA and BEOKU-BETTS on that case??? I am happy that proved my point. The appeal was allowed.Lynnuk wrote:Hi
One more case..Not completely similar but has some good points
Asylum and Immigration Tribunal Appeal Number: IA/08945/2008
THE IMMIGRATION ACT
Heard at Field House Determination Promulgated
On 22 August 2008 On 2 September 2008
Prepared 22 August 2008
Before
SENIOR IMMIGRATION JUDGE LATTER
Between
[ ]
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Ms B Gill of Counsel
For the Respondent: Ms Z Kiss, Home Office Presenting Officer
DETERMINATION AND REASONS
1. This is the reconsideration of an appeal against the respondent’s decision made on 8 May 2008 refusing the appellant further leave to remain to exercise rights of access to children resident in this country. His appeal was dismissed on immigration and article 8 grounds by an immigration judge following a hearing on 13 June 2008. Reconsideration was ordered on 16 July 2008.
2. The appellant is a citizen of Uganda who has had leave to remain as a student for varying periods between May 2002 and February 2007. He entered into a relationship with his partner, a British citizen, and they have three children born on 29 March 2001, 3 April 2005 and 27 January 2007 respectively. The children are all British citizens who will remain living in this country. The appellant’s relationship with his partner has come to an end but the judge was satisfied that he has maintained regular contact with and takes an active role in the children's upbringing.
3. However, the appeal could not succeed under the provisions of paragraph 248C. The judge went on to consider the appeal under article 8 and found that removal would be proportionate, commenting that it might be the case that on his findings the appellant had good grounds for pursuing an out of country application to obtain leave to enter.
4. The appellant applied for a review, relying on the opinions of the House of Lords in Beoku-Betts [2008] UKHL 39 and Chikwamba [2008] UKHL 40, arguing that the judge had not fully taken into account the rights of the appellant’s children and his former partner and that this was a case where it would not be proportionate to require the appellant to make an application from abroad.
5. At the hearing before me, Ms Kiss conceded that the judge had materially erred in law and that, in the light of the appellant’s particular circumstances, the appeal should be allowed on article 8 grounds.
Decision
6. Accordingly, I find that the original Tribunal materially erred in law and I substitute a decision allowing the appeal on article 8 grounds.
Signed Date: 28 August 2008
Senior Immigration Judge Latter
© CROWN COPYRIGHT 2008
Also notice tha first judgement which disallowed the appeal was in mid 2008 before the Chikwamba became a precedence.
Thanks.
HRY2005
Thanks for your understanding Lynnuk. Its not about you or me, its about other people. If we dont get the facts straight, someone like Kitty might be discouraged and think theres no way out.Lynnuk wrote:Hi
I like criticism if I know this is said in positive mode.Thanks CASA,
I am just not happy when people are pessimistic on other peoples problem without relying on a good authority to back their case. It should be discouraged on this forum because someone life or future may depend on information received on this forum.
People in a situation like this are in it for one reason or the other. its not a very good situation to be in, I have experienced it and still in it, struggling to find a way out and live a normal life. So its sad when I read about other people being discouraged when they are making efforts or turn a serious issue to a personal and verbal attack.
I have a lot of respect for all of you moderators and other members who gives genuine, informed and honest advise.
Thanks a lot
With due respect I never said I am perfect or this is my immigration advice as said these are my personal views and to prove these I give you some cases heard in appeal court and what points these were refused or granted.
I have a good study on artcile8(Never claimed I am perfect).
If you agree with me fine if no then great.
We are in a live forum and different people have different views.
Thats the beauty of this forum.