RIGHTS OF ACCESS TO A BRITISH CHILD.

[Twin]

Hi again, everyone.

A few members might have been following my ordeal with Immigration that have recently yielded no positive fruits for me as my appeal was dismissed.

There is still the option of the seven year concession for me come January but then, I have had to wait close to 4 years to put closure to my current application and I understand that it might take a year or more for the child concession application to be considered as it isn't within the rules.

I am therefore considering seeking entry clearance method by returning to my home country to apply for access rights to my daughter. However, this isn't so straight forward either as I understand that ECO have now started to reject applications based on overstay not to mention the entry requirements which seems hard to meet.

Please see below:

Persons exercising rights of access to a child resident in the United Kingdom
Requirements for leave to enter the United Kingdom as a person exercising rights of access to a child resident in the United Kingdom
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 my question to you please, are:

1. In your opinion, do you think it is feasible to wait and see how the Child concession application will pan out in the UK or should I return and apply for the above?

If the latter, can you please advise on how to meet the accomodation and maintanance requirement?

Thank you ever so much.

[OL7MAX]

Do you have to return to make this application? Can't you make it while you are still here?

Also, it seems strange that being the parent is not sufficient. It appears you have to provide court documentation to say you are "divorced" and you have access rights. What if you aren't divorced/separated? Or if the child is normally resident with you?

[Twin]

Do you have to return to make this application? Can't you make it while you are still here?

Hello OL7MAX,

good to see you again.

As I understand that rule, the only way one can apply within the UK would be if one is currently on a spousal visa otherwise, it has to be from outside the country.

My husband is seeking custody of my child now and he is likely to be given primary care given my shakey immigration status so home office might find it easy to send me packing even sooner so i'm looking for alternatives.

That aside, I am running out of money and think it might be wise to save on legal fees and face this squarely.

[Twin]

Do you have to return to make this application? Can't you make it while you are still here?

Also, it seems strange that being the parent is not sufficient. It appears you have to provide court documentation to say you are "divorced" and you have access rights. What if you aren't divorced/separated? Or if the child is normally resident with you?

This indeed is a good question.

I think the court order would definitely show that one is separated. However, I am at the moment - the primary carer but this would obviously change if the British courts rule that my child cannot be taken outside the UK, yet the HO wants me to pack my bags which means that I will automatically lose my right as the primary carer (this would then go to the father).

The only choice then left is to return and re-apply to re-join my daughter. At that time, I would have had the court order in hand.

[OL7MAX]

I see the relevant section now. Section 7 is only about access awarded by a court. (It still seems strange that you don't get access automatically as a parent!)

You "shaky" immigration status has nothing to do with custody. Custody is awarded in the child's best interest. If the family court judge decides you're the best parent to bring the child up then you get custody.

If you do give up custody it looks like you'd better get a letter from the court/district judge before you leave the UK!

If the court rules that you can't take your child out of the UK then don't you automatically have an Article 8 claim?

[vinny]

If you do give up custody it looks like you'd better get a letter from the court/district judge before you leave the UK!

See also partner sent home - 12 week old baby - help.

[Twin]

I see the relevant section now. Section 7 is only about access awarded by a court. (It still seems strange that you don't get access automatically as a parent!)

You "shaky" immigration status has nothing to do with custody. Custody is awarded in the child's best interest. If the family court judge decides you're the best parent to bring the child up then you get custody.

If you do give up custody it looks like you'd better get a letter from the court/district judge before you leave the UK!

If the court rules that you can't take your child out of the UK then don't you automatically have an Article 8 claim?

Reading the rule better now, it appears that it was actually designed for the father of a child rather than than both parents. Which now begs the question:

If I am given primary care, would I be able to apply from outside the country?

The other thing that I need to know is:

If the court rules that the childs habitual residence should be in the UK and that the father has a right to see his child, would I be able to take her with me if served a removal notice?

[VictoriaS]

if you are given primary care, there is no case for you, as you won't be applying for access, you will just have to take your child with you.

If your husband gets custody then you will be able to apply on the basis of access, but only from poutside the UK accoring to the rules - you can always try an in country application outside the rules.

Obviously if this happens and you are removed then you cannot take the child with you, and that is when you make the out of country application.

You can apply for a visa to stay while the custody matter is happening - you have a right to stay here to defend this. This won't give you residency, but will give you time.

Victoria

[Twin]

if you are given primary care, there is no case for you, as you won't be applying for access, you will just have to take your child with you.

If your husband gets custody then you will be able to apply on the basis of access, but only from poutside the UK accoring to the rules - you can always try an in country application outside the rules.

Obviously if this happens and you are removed then you cannot take the child with you, and that is when you make the out of country application.

You can apply for a visa to stay while the custody matter is happening - you have a right to stay here to defend this. This won't give you residency, but will give you time.

Victoria

Thanks Victoria.

If you can shed more light on this please...

Is primary care equivalent to sole custody? And with sole custody means the child can be taken outside the country? What if the other parent seeks court order and gets a grant? Would the court rule therefore that the child cannot be taken out of the country?

Thanks

[Twin]

If I apply to stay to fight my case and I win the custody battle, the home office will have an even better ground to throw me out with my child and that would mean out of the window for access right application.

The time bought from the legal proceedings will only buy time to enable me apply for the seven year concession which judging by the way my court case went, has no guarantees!

What to do now...?

[Twin]

Victoria, I suppose my next question is:

Would a joint custody help? Would I be able to make an out of country application on that? Surely that would mean that the child cannot leave the country?

[VictoriaS]

I think that joint would be the best for all concerned, not least your child.

Have you been to a family lawyer yet?

Victoria

[Twin]

I think that joint would be the best for all concerned, not least your child.

Have you been to a family lawyer yet?

Victoria

I contacted one earlier this week and they said they would call me back but still, no reply.

I will look up yell.co.uk to find a list of family lawyers around me and contact them now.

If you have any direct referral, i would appreciate it too.

That aside, with the 246 requirements, do you have an idea of how to meet the accomodation and maintanance requirement/

[Twin]

Has anyone ever applied on this basis at all? Can someone share their experience please?

What are the likely reasons for refusal?

Am I mad to be considering this seeing that refusal based on overstaying is rife?

Help, somebody....anybody...

[Twin]

How do the Home Office react to a Prohibited steps order from the court which orders that a child isn't allowed to be removed from the UK?

Would they insist on the parent leaving without her child? How is an article 8 claim going to fare on this basis?

Your advise would be greatly appreciated

Thanks.

[Rozen]

Twin,

Have a look at kate4885's post in "immigration for family members". I don't know, but you might get some inspiration from there.

[Twin]

Thanks Rozen.

I have actually read her thread and keeping a tab on it.

Friends and families have advised that I stay and fight this in country but I am aware that this might take forever with no guarantee of a favourable outcome. However, this fight is affecting my health now and i'm thinking of just going back home to start afresh but at the detriment of my daughter. I might not be allowed back in and i'm sure that my ex would not bring her visiting (He loves the benefits(public funds) life a wee much).

If the para 246 rule is reliable then I might give up my custody rights for a few months (assuming the court agrees) and re-apply from home.

Thanks once again, Rozen.