the scouser

It seems that your contention is that a child who is undisputably defined as a family member by the regulations can still be refused a family permit on the basis of public policy, security and health. You further add that the lack of evidence of parental responsibility is sufficient cause for the ECO to have public policy concerns. However, the legislation itself makes it clear that the latter is not a public policy consideration, and therefore cannot lead to refusal of a family permit application on public policy grounds.

Regulation 21(5) sets out the definition of public policy. It states inter alia:-

( the decision must be based exclusively on the personal conduct of the person concerned;

© the personal conduct of the person concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society;

(d) matters isolated from the particulars of the case or which relate to considerations of general prevention do not justify the decision;

A lack of evidence of parental responsibility does not conceivably relate to the personal conduct of the child. Even if it did, it could not be considered a serious threat to a fundamental interest of society. Indeed, possibly it is a consideration of general prevention which the law states does not justify such a decision. Quite clearly the refusal of the OP's step-son's family permit cannot possibly have been a public policy consideration, and I can't see any provisions in the regulations to justify the decision.

As was my opening stance, it is quite clearly a case of the UKBA policy not being reflected in law. One might not like the provisions of a particular piece of legislation (personally, I'd shoot those responsible for the anti-smoking legislation), but until changed, it must be accepted. You may choose to accept what I have written or not, but remember: I did not write the legislation.

Scouse.

So what, then, does regulation 21 para 4(b ) mean?

A minor can't be denied EEA freedom of movement rights on public policy or public health grounds until his best interests have been considered; i.e. it is the child's best interests that are paramount and these could outweigh the perceived public policy or public health threat he poses. For example, a 14-year-old Romanian who has previous as long as your arm for shoplifting (not that I'm stereotyping) cannot be required to leave the UK on grounds of public policy (criminal record) until it has been considered whether it is in his best interests to be allowed to stay.

But discussion of 21(4)(b ) is otiose because, as already stated, the circumstance we're talking about doesn't begin to impinge upon questions of public policy.

Scouse.

To put it another way. It is a core precept of the EU that its citizens and their family members (irrespective of nationality) will have free movement to and within the area. To deny this right is to deny the raison d'etre of the EU. Consequently, and although the facility exists to deny the right, it must be exceptionally firmly founded and represent a tangible, present and on going threat.

I've represented a person in an EEA context who has previous for fraud, but that wasn't enough to justify his refusal of a family permit (although the ECO tried). It is therefore inconceivable that a child could be denied a family permit simply because the sponsoring parent is unable to substantiate responsibility despite being able to substantiate being a parent.

Scouse.

I agree wholeheartedly. The British government has previously been the source of some ridicule for not having signed up to the convention in its entirety, hence its efforts to now appear to be taking the matter seriously. Ultimately, however, it is simply lip service and a way of avoiding responsibility when things go awry.

With regard to "public policy", as well as "public security", the posed threat has to constitute a circumstance that fundamentally threatens the sanctity of the state, and the intended presence of a child in the UK with one of his/her parents, without some acknowledgement of parental responsibility, does not register on the threat-ometer.

The child would be with a parent. Whether that parent has recognised responsibility/custody is neither here nor there. If in disagreement, it is for the other parent to take steps to prevent the child from leaving the indigenous country, not for the UKBA to fulfil the role of the court that has jurisdiction. As Paully commented, the UKBA is not a court.

Scouse.

I think it's another instance of the UKBA presenting their policy as they would like the law to be rather than as it is.

Interestingly, for child settlement applications made under the Immigration Rules, it has been established by the Tribunal that custody orders and, in realtion to Thailand, Por Kor 14 statements are largely irrelevant to the outcome. In the oft-cited TD 2006, the Tribunal finds at para 52ii:-

"Questions of “sole responsibility” under the immigration rules should be approached as follows:

ii. The term “responsibility” in the immigration rules should not to be understood as a theoretical or legal obligation but rather as a practical one which, in each case, looks to who in fact is exercising responsibility for the child..."

In other words, responsibility is not a question of whether you have a court order or other (quasi-)legal paper, but in reality who actually cares for the child. Indeed, I'm aware of appeal proceedings where the UKBA has successfully argued that Thai custody orders are not recognised in the UK.

Scouse.

Public policy and security relate to a fundamental, present and on going threat to the very stability of the host EEA state, e.g. the Dutch MP who was excluded for wanting to show "Fitna" at the House of Lords, which was held to be inciteful (although he won his appeal). The provisions are there to protect the state rather than the individual applicant

I would suggest that the presence in the UK of a child without a custody document is not a fundamental threat to the socio-economic stability of the UK as we know it.

Scouse.

Whilst I am of the belief that the UKBA has infringed your family's EEA rights, I am no expert on litigation. You're best seeing a solicitor who deals with such matters to advise on your chances of success.

With regard to the child's application, I'd both appeal and re-apply, after all the applications are free and you can make as many of them as you want.

Scouse.

Essentially, it is not for the UK authorities to enforce another country's custody orders. Even the ECGs don't suggest that the parent with custody must consent to the family permit application; just simply that one of the parents' written consent might be obtained.

If the situation you describe were to arise, it would be for the offended parent with custody to prevent the child travelling to the UK by recourse to the courts that issued the original custody order.

Scouse.

...does it not apply in this case as the child in question is the direct descendant of the spouse of an EEA national? Seems rather inconsistent if so.

I'd be wary of taking the ECGs as sacrosanct. They represent the UKBA's policy and it is a well established legal principle that policy is secondary to law.

The legislation itself states at regulation 7 that family members are, inter alia:-

"direct descendants of his, his spouse or his civil partner"

Consequently, the child of a Thai woman married to an EEA national is classed as a family member. You'll also note that for those direct descendants aged under 21, r.7 does not require dependancy to be established. If the individual is demonstrably a direct descendant aged under 21, then he is a family member. R.12 then states that upon application an ECO must issue a family permit to a family member. NB the law says "must", not "can if he sees fit" or "feels like it"; i.e. there is a positive legal compulsion for the family permit to be issued.

Scouse.

There is no requirement for your wife to show that she has custody; only that the child who is applying is hers.

Refer to the current legislation at http://www.opsi.gov.uk/si/si2006/20061003.htm#1 and apply again.

Scouse.

Your friend really needs to see a solicitor who deals in family matters. If she is on a low income and/or has modest savings, she may qualify for public funding. She should apply to the county court for a residence order in respect of the two children. Once she has this order, even if only interim, she should then apply to the UK Border Agency for leave to remain under para 248. She should make this application as soon as is possible, and certainly before her current status expires.

On the assumption that such an application would be successful, she would be granted permission to stay for one year, after which she could apply for indefinite leave providing all requirements were to be met, notably that she has either passed the Life in the UK test or an ESOL with citizenship course. Prior to being granted indefinite leave, your friend would be able to work, but not claim any public funds.

Scouse.

For information; it would be impossible for anyone who is an overstayer in the UK, or otherwise in the UK illegally, to legally marry in the UK.

Not all visa categories allow the holder to marry in the UK, and in order to do so they would need to present evidence that their immigration status allowed them to or obtain a certificate of approval from the Home Office. Neither of which would be possible were one in the UK illegally.

I'm sure the above is well intended advice, but it is legally wrong. Unfortunately, the standard of UK immigration advice on this site is not what it was.

In the first instance, refer to the UKBA's own guidance at:-

http://www.ukba.homeoffice.gov.uk/sitecont...a/coa_guide.pdf

and for those who are of a more legal mindset, refer to:-

http://www.bailii.org/cgi-bin/markup.cgi?d...;method=boolean

Essentially, the right to marry is not qualified. If one is illegally in the UK, you can be turfed out, but the authorities can't stop you from marrying in the first instance.

Scouse.

Thanks all for the good wishes, which are returned to you all.

Scouse.

1) Re overturning a ban, if there is no right of appeal against the refusal, i.e. a straightforward visit visa application, presumably the only way to do it is sheer force of argument backed by the threat of JR? I've always thought that a 10-year ban without any right of appeal is a pretty draconian measure.

There's no right of appeal unless derived from other circumstances, e.g. as a family visitor. I have recently successfully made representations to the UKBA in Bangkok in the matter of a visitor who'd been hit with a ten-year "ban", and the threat has now been struck from the record. However, in that instance it really was a simple and innocent mistake and it was draconian to subject the person to 320(7A) and (7B). In this case, as 7 x 7 points out, it would seem that the individual acknowledges the deception. In which case, it will be a monumental task to have overturned a reference to future applications being refused under 320(7B).

2) I'm not sure how lack of a valid passport will disable a Brit seeking to travel to the UK any more than it does at the moment, as the Carriers Liability Act theoretically applies to anyone without a valid document. So are you saying there will be no discretion to authorise travel in such cases? It was an almost daily occurrence during my time at a South Coast port to get a call from the ferry company in France asking if it was ok to board the Brit who had lost his passport or succeeded in getting over there with only a driving licence, etc etc. I can't imagine any scenario now or in the future where a British citizen who actually arrives back in Blighty is not "let back in."

It's in the "simplification" bill that the only way a Brit can demonstrate his claim to citizenship is by production of a valid British passport. The inference is that if your passport expires whilst abroad, then you run the risk of the carrier refusing to carry you back to the UK upon pain of being hit with a £2000 charge.

NL, I appreciate that you may been there a "long time already".

However, in my experience, yes, they do hand out "bans" for perceived deception where none originally existed. Professionally speaking, I 've had several such accusations overturned.This romantic notion of yours that the Brits are the epitome of fair play is absolute nonsense: they'll deny anyone a visa given half the chance. Indeed, those who are British but live abroad will have to be careful in the future: have an out-of-date passport, and you won't be acceptable to the carrying company; i.e. you won't be let back in to your indigenous country.

Caveat emptor....

EEA citizens can't be treated less favourably than the indigenous population, so, that you are British living in Ireland does not hinder your ability to act as a sponsor.

Scouse.

Quick! Hide!

Scouse.

I generally chat to Scouse on a Friday, I'll see if he will give an interpretation that will help, only because you are a Rayong resident of course

I am still going to bore the he.ll out of you tonight

I'll be in the pub from 8-ish!

Scouse.

They can refuse entry if they can demonstrate that a material change of circs has occurred: a simple belief is not enough.

However, there is no suggestion here that circumstances have materially changed. It's a question of whether the wife's re-entry to the UK as a visitor, having just spent 6 months there in the same capacity, is a ground for refusal. If anything, the only thing they could consider refusing her upon is a change in purpose, but on the basis of the information provided, that would be rather tenuous.

Scouse.

No-one can foresee what will actually occur as this will only become apparent when you arrive back in the UK.

If questioned in any detail by the IO at the airport, you and your wife should reiterate what you have posted here with a view to demonstrating that you have no intention of staying in the UK beyond your studies. Possibly take with you evidence of the course you are studying and the anticpated end date. Additionally, if you have employment arranged abroad for a later date, then also produce evidence of that.

The nub of the matter is to satisfy the IO that your wife is only visiting the UK. It is the circumstances of your study that mean her having to stay for what might be perceived as "too long" as a visitor, but settlement is not the intention as you envisage leaving the UK as soon as your course is completed. If your wife is refused entry, she will be given the right of appeal from within the UK unless the IO can demonstrate to at least the balance of probabilities that she is coming for a completely different purpose; e.g. she holds a visit visa but intends to settle. Consequently, you and your wife should maintain your stance that she is only visiting, and give them no grounds to believe that any other purpose is intended.

If they refuse her without an in-country right of appeal, they will try to remove her on the first available flight. Should it come to that, you need to ask the IO to grant her temporary admission, and seek legal advice immediately from a solicitor rather than an OISC adviser as you would then be looking at getting an emergency injunction against her removal with a view to having the decision to refuse/remove judicially reviewed.

Scouse.

....It's got tennants ....

I'd expect nothing less of a Scotsman. Hopefully the "super" variety.

Scouse.

... and vindication for your counsel.

Aye, but his already-large ego is now twice the size and he's going on about how heavy is the burden of always being right.

Scouse.

When the judgement was promulgated, I took some legal opinion which is as follows:-

It is somewhat superficial and I would surmise an application to the High Court may develop the principle further in favour of the appellant.

Hodge has made no attempt to define what constitutes " support " and " third party ". Funds excluding recourse to public provision can be defined as income from pension and/ or employment that may be relied upon by any party and has to be realistic and the appropriate test is as ever on the balance of probabilities.Thus a job in hand or pension must be sufficiently remunerative and available and by definition comes from " a third party " viz the employer or pension provider. How can he exclude the income stream provided by the daughter which has been demonstrated to be both sufficient and reliable and has every expectation of being provided until the parties have no further need of it? How is an employer or pension provider so different from the daughter in these circumstances for they are both " third parties "? He has not considered this argument but yet he has opened it........

Well, two years on and the person from whom I sought the opinion has been vindicated.

It appears that the Supreme Court has now re-allowed 3rd party support in settlement cases.

Thanks go to "richardb" for having alerted me to this, and to "the gent" for his original opinion.

Scouse.

Possibly.

It will be open to the ECO to question the timing of the custody application and to also infer that if your wife feels obliged to seek the father's consent, it is reasonable to conclude he is still involved with the child.

Furthermore, it is imperative to understand that having sole custody is not the be-all-and-end-all of a successful child settlement visa application. To demonstrate sole responsibility is the requirement of the rules. Your wife is going to have to show that it is she alone who has provided the direction and control in the child's life. If the child has additionally spent time living with other family members, also bear in mind that case law has established that sole responsibility is not a matter to be decided only amongst the parents, but amongst all of those who have an interest in the child's upbringing. For example, the grandparents of a child for whom they had cared could be found to possess an element of responsibility, thereby meaning that the parent's responsibility was shared and not sole.

The point I'm trying to make is that the area of "sole responsibility" is not simply about getting a legal document, and Bob's-your-uncle, but can be a complicated area that hinges upon all of the given facts of a child's life.

Scouse.

Scouse, with respect whilst having sole custody is not by itself a requirement of the Immigration Rules, my own experience and that of others leads me to believe that the ECOs, certainly in Bangkok, do want to see a custody document of some sort...

I quite agree that in the instance of the child's parents having been married and divorced, there must be an order of custody, and that this will be a factor in the ECO's consideration. However, even being named as a custodian of the child is not conclusive, as that parent may still have abicated his/her responsibility.

Additionally, as we all know, many relationships in Thailand go unregistered, as a consequenbce of which, when they break down, there is no custody order. In lieu of this, it seems to be the belief that one must have a Por Kor 14, but it's not worth the paper it's written on.

As the UK courts have themselves found, "sole responsibility" is not a matter of being able to adduce various legal documents, but is to be decided upon all of the facts of a case, the essence of which is the question of who provides the direction and control in the child's life. Consequently, the rush to get a custody order/Por Kor 14 in the belief that it is going to prima facie establish that the named child is cared for by the named parent, is a red herring, and the OP may be better served by simply establishing his wife's direction and control in the child's life, rather than chasing round various bureaucrats trying to obtain a slip of paper.

Indeed, the OP has already commented that the court proceedings are going to be undertaken with the father's consent, and my concern would be that an ECO infers from this that the father is involved in the child's life and, therefore, the responsibility for the child is shared, rather than sole.

Scouse.