7by7

I long ago stopped being surprised by the poor IT systems used by the government. It seems that when any government department buys an IT system, it's rubbish and after many costly attempts at repair is eventually scrapped and replaced!

Even were the system working, you would only get one of two replies.

Application received and being processed.

or

Application processed and passport returned to VAC.

(Not sure if that's the exact wording; but you get the gist.)

I know, and have always said, that a custody document is not as important as parental responsibility; even for applications under the UK immigration rules. I asked for your clarification on this point because of Paully's comment "under law a parent automatically has parental responsibility simply by being a parent, unless this has been specifically taken away by a court." (my emphasis) which you seemed to be agreeing with. Thank you for clarifying that.

what constitutes "sole responsibility" is not a matter of having a signed letter or court document, but a consideration of the real and actual circumstances of the child's upbringing.

I know, and have always said as much. Check the archives of this forum if you do not believe me.

To think that obtaining a visa is a simply a matter of providing the "right" documents manifests a certain naivety as it is the circumstances that speak and not how many bits of paper one may have, to which ultimately no weight may be attributed.

I have always said that each application is treated on it's own merits, taking all relevant circumstances into account. No naivety on that point here. Again, you can check the archives if you don't believe me.

The UK ratified the UN convention in 1991; with certain reservations, none of which are relevant to this discussion. Whether the regulation in question is merely the UK paying lip service to the convention or not is moot. The regulation is there and Para EUN2.21 of the ECGs appears to be guidance to ECOs on interpreting and applying it when dealing with EEA applications from children.

Whether this does actually have any legal basis is not for us to decide; it is for the courts. I am assuming that no judgment by any court or tribunal, up to and including the European Court of Justice, has been made on this point; otherwise I am sure that you would have cited it before now.

Congratulations, uaelaelil. I have to admit that I was concerned that her previous breaches of the rules would make a successful outcome difficult.

When you have the judgment, would you mind posting the reasons for overturning the refusal? I'm sure it will be of interest and help anyone who is in a similar position.

There is no limit on the amount of time allowed out of the UK whilst qualifying for ILR. However, when she applies she will need to show that the UK is her main residence; difficult to do if she's spent more time in Thailand than the UK !

Seriously, reasonable trips out the UK are perfectly ok. If, for some reason, she does need to spend a long time away, then an explanation of why included with the application should cover it.

The 90 days a year comes from the residential requirements for naturalisation. As the spouse of a British citizen she can apply for naturalisation as British once she has ILR and has lived in the UK for at least three years. (Three years from first arriving; not three years from receiving ILR.) However, she must have been physically present in the UK on the exact date three years prior to applying and during the three years she must have spent no more than 270 days out of the UK with no more than 90 days in the final year.

I think that's why it's called a 'visa application fee'.

Your paying for the application process whether you succeed or not.

Exactly, and as far as I am aware it is common practice for most, if not all, governments.

To meet the residential qualification for ILR as a spouse the applicant must have been resident in the UK for a minimum of 24 months. So the date your wife can apply is not the second anniversary of the visa being issued, but the second anniversary of her arrival in the UK. (That's if she came as a spouse; if she came as a fiance then it is the second anniversary of her FLR after your marriage.)

She can apply up to 28 days before this date and any time after it, provided her current leave to remain (visa) is still valid.

You can apply for her children to join you at any time. If successful their LTR will be the same as their mothers.

If she does not have ILR they will be given visas which expire when hers does. They then apply for ILR at the same time and on the same form, paying an additional fee (currently £129) per child.

If you apply once your wife has ILR then they will be given Indefinite Leave to Enter; which is the same as ILR except it is granted to qualifying persons outside the UK, whereas ILR is granted inside the UK. Of course, to do this you would need to wait until your wife has ILR. She cannot apply until August 2011 and ILR applications can take up to 6 months to process; so doing this means it could be February 2012 before you could apply for them!

Better, I think, to apply as soon as you have the acommodation sorted and then when the time comes add them to their mother's ILR application; but the decision is for you and your wife to make.

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.

I accept that this is not a public policy, health or security concern. What is confusing me is the word 'unless' in the regulation.

A relevant decision may not be taken except on imperative grounds of public security in respect of an EEA national who:-

(b ) is under the age of 18, unless the relevant decision is necessary in his best interests, as provided for in the Convention on the Rights of the Child adopted by the General Assembly of the United Nations on 20th November 1989.

You have gone into great detail about what it doesn't mean, but can you please explain what it does mean?

Paully, you say

under law a parent automatically has parental responsibility simply by being a parent, unless this has been specifically taken away by a court.

and, Scouse, you seem to be agreeing with this. Which seems to suggest that it is reasonable for the ECO to check that the sponsoring parent does have responsibility and/or permission from the other parent and/or even legal custody before issuing a permit to a minor. Yet earlier you said that it was no business of the UK who had custody!

Can you clarify this, please?

Sorry to be a pain, but I am sure you understand why it is important to get this cleared up.

For both the visa application and to register the marriage in the UK it is only necessary to provide evidence of freedom to marry if she has been married before. Then her divorce certificate or the death certificate of her previous spouse is sufficient. There is no need to get this, or her birth certificate, translated for the application. Although you may need translations later in the UK, and a translation in Thailand would be cheaper, the stamp from the translation office is sufficient; no need for MFA authentication, no need to go to Laksi.

But, it's up to you.

I think, but am not 100% sure, that as she will only be transiting at KL her expired passport will be sufficient; unless you plan to leave airside and actually enter Malaysia whilst waiting for your connection. Maybe you could check with your airline or the Malaysian High Commission (02079190263/230)?

With respect, the moral of your story is:- Don't end up relying on slow bureaucracy; always check that passports will be valid for your trip before booking the tickets!

She's been told (whether correct or not) that it would be better for the application to go with a fiancée visa. Hence the confirmed Birth Cert and Single Cert.

Told by whom?

As said to you in this thread it would be better in terms of cost for you to go either the unmarried partners route or to marry in Thailand and go the spouse route. If you go the fiance route you will have to pay another £475 for FLR after the marriage and before the 6 month fiance visa expires.

Unmarried partners may be difficult as you need to have lived together for at least two years; you live and study in the UK, she has been living in Thailand, although a reasonable amount of time apart is allowable if there is a valid reason for the separation.

Spouse will be relatively simple; all you have to do is marry in Thailand; a relatively simple and quick procedure if you don't mind having just the civil, legal wedding and not the ceremonial one as well. See Guidance for British nationals wishing to marry in Thailand.

Whichever route you take, she will of course need to provide her birth certificate. However, unless she has been married before there is no need to provide a certificate that she is single. If she has been married before, then her divorce certificate or the death certificate of her previous spouse is sufficient. There is no need to get this, or her birth certificate, translated for the application. (Although you may need them later in the UK, and a translation in Thailand would be cheaper. The stamp from the translation office is sufficient, though; no need for MFA authentication.)

So, there is no need to visit the MFA at all; unless you do decide to marry in Thailand in which case you will need to do so for your AFM; see link above.

I disagree that discussion of the paragraph is futile; the paragraph says that a child applicant may not be refused unless the refusal is in his best interests (or on imperative public security grounds; unlikely for a child as you have already said). Which means, of course, that a child can be refused if the refusal is in his best interests.

The statement in the ECGs that it is reasonable, in the interest of the child, to establish that the sponsoring parent has parental responsibility does seem to be covered by this.

I'm not the professional, so please explain to me why this is not so; preferably in simple, plain English.

Phil, have you followed Scouse's advice in post 3? If so, can you tell us the response?

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.

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

Doesn't really matter who is the sponsor, although it makes more sense if your partner is as he is the boy's father.

Yes, they will take both your incomes into account, so you should provide evidence of both.

Provided your joint income is enough to support yourselves and the boy, there is no need for any savings. Although if you have them, I'd suggest providing evidence of them (belt and braces approach!).

Not sure what you mean by "confirm Birth Certificate and Single Status Certificate." In your previous posts you have said that your fiance intends to apply for an unmarried partner's visa. She does not need any document to confirm her single status to do this and she does not need any confirmation of her birth certificate. She doesn't even need a translation; unless it's not in Thai (or English!). Even if she did get a translation, a simple stamp by the translation office would be enough.

Can you clarify what you mean, please.

I think that the fee you pay the IoM covers X-rays etc.

Can't answer your other questions, I'm afraid.

Moved to Thai visas, residency and work permits.

People pulling out in front of you, near side-swipes, someone backing up on a busy street, a weaving vehicle with the driver immersed in a cell phone call, etc.

Same for me; and where I mainly drive is London!

Before I had to retire from the profession for medical reasons I was a driving instructor. One thing I always tried to impress upon my pupils was that you must always be alert to everything going on around you. You cannot rely on other road users doing the right thing.

I would be lying were I to say I've never done it, but whether it's smuggling in a few extra ciggies, booze or whatever or smuggling prohibited cooked meat and vegetable products; if you're caught then you should pay up and accept the consequences.

Same for other 'victimless' crimes such as speeding.

Ignorance of the law is no excuse, especially when each country's duty free allowances are well publicised and very easy to discover.

Onlycw, you took a chance and you got caught. It appears that you were fined the correct amount. Stop wingeing and learn from it for next time!

Whether to appeal (where possible) or wait and apply again is, of course, a personal choice only the applicant and sponsor can make between them.

However, I think that it is worth submitting an appeal; if the rules allow.

The first stage of an appeal is that the Entry Clearance Office will reconsider the refusal. If they feel the refusal was wrong then they will overturn it and issue the visa. This does happen; especially if the original refusal was due to lack of evidence and that evidence has now been supplied. More so if, as in the OP's case, it appears that evidence submitted with the original application has not been properly considered.

If they consider the original refusal to be correct, then the case will be sent to the First-tier Tribunal (Immigration and Asylum Chamber).

For a settlement appeal, they must have done one or the other within 16 weeks of the appeal being lodged (8 weeks for non-settlement appeals).

One can lodge an appeal directly with the FTTIAC, but doing so will cause delay. In most cases, an appeal lodged at post will be heard three weeks earlier than appeals lodged with the FTTIAC. This is because the Entry Clearance Office can begin work on reconsideration and preparation of documents as soon as they receive the appeal. They do not have to wait until the FTTIAC notifies them. The clock doesn't start until the ECO receives the appeal papers.

At this stage, the appeal will have cost the appellant nothing; although if it does go to a hearing then professional advice and representation, whilst not mandatory, is, in my opinion, essential.

So, my advice to anyone in this position is to first lodge the appeal with the embassy. Then wait until they have decided whether to overturn the refusal or send the appeal to the FTTIAC. If the latter, then it may be worth submitting a new application, the minimum time for a settlement appeal to be heard is 24 weeks after the appeal was lodged; but it often takes longer. A new application will probably be decided more quickly. If this new application is successful, then you simply withdraw the appeal; and vice versa.

You can, of course, submit a new application at the same time as the appeal. However, if the original decision was overturned at the embassy you would have wasted the money spent on the second application's fee.

Whether appealing, submitting a new application or both each and every point of the refusal must be adequately addressed. Otherwise it will only be refused again.

Having the right to appeal does not mean that the appeal will be successful; some (most?) refusals are correct.

See the FTTIAC website for more on appeals.

1) did not prove sufficient connection with the lady to be visited in England (she had sent a detailed letter of invitation to my wife, which was included in the application). Rejection said had not established actual personal contact. In fact the lady visits here son twice per year regularly here in Phuket, and spends days talking to my wife each time; they are very good friends

A letter of invitation is tenuous evidence of a connection and not evidence of personal contact at all. Did you provide records of phone calls, e-mails, etc.? Did you provide a copy of the lady's passport to show her immigration status in the UK and how often she has visited Thailand? That she visits your wife twice a year may be a fact, but simply saying so is not enough; the onus is upon your wife to provide evidence of this, and other contact, in the application.

2) Not adequate proof of our marriage. Sent copy of marriage certificate (Thai) and photo of us in front of our house. Did not include my passport or visa copies (should have, my error).

Yes, you should have provided copies of your passport to show your immigration status in Thailand as evidence that your wife would be returning. The marriage certificate should have been acceptable evidence of your marriage, though, and if your wife had been refused on this alone you would have a strong case for getting the refusal overturned.

What type of visit visa did she apply for? General or family?

If general, she cannot appeal, but if family she can.

However, whilst visiting your family in the UK would count as a family visit, visiting the mother of her brother in law would not.

Due to the shortage of time, I would suggest that she applies again, this time providing the missing evidence. She may get the visa in time, she may not. Remember, though, that the advice given by the VAC, embassy and UKBA is to not make firm travel plans and to certainly not purchase tickets until one has the visa.

Yes, the opening post is a bit confusing to those who cannot remember the OP's previous posts. As can be seen from this topic it is the OP who is a visa national; his wife is a British citizen. It is a long term visit visa he wants, not settlement.

DrJPB, not everyone will have read your previous posts, and even those who have may not remember them. So, if starting a new topic on basically the same subject it would help if you were to remind members of the situation. Actually, as I've said to you before, better to not start a new topic at all but to post in your old one.

The ECOs are well aware of the immigration rules. Pointing out to them that you could apply for settlement would not help your case for two reasons.

1) You do not want to settle in the UK, you want to visit. The settlement rules are irrelevant to your situation.

2) The problems you have had with your visit application are due firstly to you not providing sufficient evidence of your marriage and secondly to you not providing sufficient evidence of the accommodation available to you whilst in the UK. Both these requirements also apply to a settlement application.

In your previous topic you have been given plenty of advice on how to proceed. I honestly feel that rather than asking questions about a class of visa which you have no intention of applying for, you would be better served following that advice.

If you have further questions on this matter, then to avoid the obvious confusion shown by members in this topic it would be better if you were to post them in your original topic rather than start a new one each time, as I have already pointed out to you at least once!

I'm closing this topic.

Although we have been using the word "custody" the ECG paragraph I linked to earlier does not

In order to protect the interests of minors, ECOs should ensure that they have established parental responsibility for children applying for EEA family permits as direct descendants of EEA nationals........

(My emphasis)

As Scouse pointed out, the ECGs are not law, they are policy guidance, but Regulation 12 Para 5 appears to allow for this

But an EEA family permit shall not be issued under this regulation if the applicant or the EEA national concerned falls to be excluded from the United Kingdom on grounds of public policy, public security or public health in accordance with regulation 21

(My emphasis)

I still feel that Regulation 21 Para 4(b ) covers this issue,

A relevant decision may not be taken except on imperative grounds of public security in respect of an EEA national who:-

(b ) is under the age of 18, unless the relevant decision is necessary in his best interests, as provided for in the Convention on the Rights of the Child adopted by the General Assembly of the United Nations on 20th November 1989.

(My emphasis)

With respect, whilst you both have opined what this regulation doesn't mean, neither of you have expressed an opinion what it does mean.

It would help enormously were you to do so.

Obviously some applications are going to take longer to process than others, for various reasons.

However, when one submits the application is also, I believe, a major factor. There are a fixed number of ECOs at the embassy; submit the application at a busy time and it is going to take longer for that application to be looked at than if submitting at a quieter time.

Best advice is to follow the UKBA guideline

We strive to operate a fast and effective visa service and aim to process non-settlement applications within 15 working days. If you are applying to settle in the UK, in most cases we aim to process your application within 12 weeks.

Although usually, in Bangkok, the processing time is shorter than this, as last year showed there are times when, for reasons usually outside of the embassy's control, it may be longer.

Remember that if applying early you can ask for the visa's start date to be postponed for up to three months.

Glad to hear the news; enjoy your life together in the UK.

Phil, I had, admittedly, forgotten that the directive says an unmarried couple in a durable relationship are to be treated as a married couple. However, it also says that it is up to individual states to determine what counts as a durable relationship.

The UK is not, of course, in the Schengen area, but when dealing with EEA family permits the UK uses the same criterion as that in the immigration rules; living together in a relationship akin to marriage for at least two years. I've no idea, I'm afraid, what criterion France uses.

Manjara, are you saying that your brother's wife applied to the Danish embassy in China? If so, I'd be very interested if you can tell us what possible reason they gave for refusing.

The parent (natural or adoptive) of a child, who is a spouse/partner of an EEA national, has a perfect right to bring that child into the UK (or another EEA country).

Yes, I know.

A parent - and a mother in particular - cannot 'abduct' her own child unless there is an existing order in place in the father's country or the country where the child normally lives regarding custody which had been broken.......

Which is the purpose, I surmise, of asking to see the custody papers; to ensure that any custody order etc. isn't being broken.

As Scouse said, it's hardly a matter of grave national security for the UK, effectively it's a family law issue. It would not therefore be a 'reasonable request' by the UKBA to ask for evidence of custody.

But the regulations allow exclusion not just on the grounds of security, but also on policy and health grounds. It appears to me that Regulation 21, Para 4(b ) is not about national security; it's about the best interests of the child and so would come under policy.

Therefore it seems to me, for the reasons stated, that the request for a custody document, or similar, is reasonable and is covered by the regulations.

However, I am not a legal professional, and could be completely wrong. Which is why, for the benefit of future members in this situation, it would be greatly appreciated if Scouse, or some other professional, could explain exactly what Regulation 21 Para 4(b ) does mean.