UK Child dependent visa

[Kukie25]

Hello all,

 

I have just chanced upon this forum after looking for ways to prove sole responsibility for my daughter. Although, we are not Thais, I am of the belief your guidance and opinions can help us.

 

Our daughter who is 7 years old got her settlement visa refused whilst mine was approved. We applied together and the only reason for refusal was for sole responsibility. We have appealed the case and waiting for a hearing date but at the same time we would be reapplying too as it’s difficult for us to wait. Since we have to leave Qatar upon cancellation of our Qatar residence visas

 

My daughter lives together with I and my husband and our newborn baby (British citizen) since 2018. My daughter’s biological father has not been involved in her welfare since 2018, he does not provide for her upkeep or has any contact with her because my child let us know she was physically abused and neglected by her father.

 

Now to reapply, we have finally being able to secure a legal document which states “the father has not been involved in her life since beginning of 2018 and it’s i the mother who has solely being and still continues to be responsible for the daughter’s welfare and upbringing”. Additionally, We have evidences in form of school letters, school emails, sport club mails all addressed to me, school invoices all addressed to my husband as he pays the tuition fees, medical reports from the psychologist attending to my daughter’s mental welfare due to the trauma of the abuse and neglect she endured from her biological father, photos, proof that my child lives with us, affidavit from family members confirming the abuse took place and that was the reason why we took her away from her father in 2018 and since then she lives together with my husband and I.

 

note: we didn’t submit these evidences before as we were over confident that, my daughter has been to UK for visits several times (no visit visa refusal) with our passport numbers on her visas, and so she would get the visa. But it turns out, we were wrong, please help us.

 

thank you

[Tony M]

You are in minefield with child settlement visa applications.  I'll try to simplify. You made your child's application under the "sole responsibility" (paragraph ( 297(e)) of the immigration rules. Whilst you currently have custody, and possibly sole responsibility, the ECO wasn't satisfied that this is so. The refusal notice might explain the ECO's reasoning (if you wish to post that refusal notice, please remove all personal info before doing so).  In my opinion, you would be better off applying under paragraph 297(e) AND 297(f) which states:

 

 one parent or a relative is present and settled in the United Kingdom or being admitted on the same occasion for settlement and there are serious and compelling family or other considerations which make exclusion of the child undesirable and suitable arrangements have been made for the child’s care; and...........

 

The documentation that you didn't submit might well have been considered under this paragraph rather than the sole responsibility paragraph. That is the way I would go, but, as I said above, it's a minefield ?   You might wish to consider using an agent who has some experience in these applications.

 

Your appeal could take up to a year to be heard. The UKVI are supposed to review appeals within 6 weeks, but I'm not sure that they are actually doing that.

 

[Kukie25]

Hi Tony,

 

Thanks for your response which is appreciated. We are both appealing and reapplying again. Please note that, we did not submit the new evidence with our previous application, we will be submitting it with the current application and emphasize on paragraph 297(f) for the compelling circumstances too as we have medical evidence for this. 

 

Please see below the refusal letter from the ECO. Yes, we were at fault for adding a consent letter from the biological father as we thought that was useful but apparently that sabotaged the application.

 

”I note you have submitted a letter dated in 2017 from your biological father stating he has no objection of you relocating to Qatar and other countries. This letter therefore implies that your mother has no sole responsibility over you. I acknowledge the school letters, emails, current UK visit visas which shows your mother has been and is involved with your upbringing. Based on the letter of consent from your biological father, I am therefore not satisfied you have satisfactorily demonstrate your mother has sole responsibility over you. Therefore your application is refused under paragraph EC-C 1.1(d) of Appendix FM of the immigration rules(E-ECC 1.6)

 

Although you may have a family life with the sponsor, I am satisfied the decision is proportionate under Article 8(2) of ECHR

 

All other requirements were satisfied.

[Tony M]

I have seen this refusal reason before, and I have also seen applications that have been successful even when a letter from the biological father has been submitted (as in your application). I don't accept that submitting such a letter automatically means that the father has some responsibility in the child's life. Why should it ? This is an "easy" refusal for the ECO, who clearly has nothing else to give substance to the decision. I don't see why sole responsibility cannot have started in 2017 and continued since then. If you can argue at appeal that the biological father plays no part in the child's life (and you do live in different countries), then you might win the appeal, although it might be difficult as you say that this has only been the situation for a year or so. I believe that current UKVI guidance still states (my underscoring) :

 

 "Home Office guidance states that evidence to demonstrate this responsibility can include custody/guardianship orders, or if this is not available, any additional evidence which shows:

• that the child lives with the primary carer(s) or spends the majority of
• their time there;
• that the primary carer(s) makes the day to day decisions for that child,
• for example decisions relating to their education or health; and
• that the primary carer(s) has financial responsibility for that child.

How this is evidenced will vary depending on the facts of the case, but the primary carer(s) may submit letters from the child’s school, GP or from a solicitor to demonstrate primary/shared responsibility

Sole parental responsibility having regard to Appendix FM may need to  be interpreted in line with the definition within  the Guidance relating  to  the 5year and 10year route to settlement. According to  the  Home Office,  sole responsibility means that one parent has abdicated or abandoned parental responsibility and the remaining parent is exercising sole control in setting and providing the day-to-day direction for the child’s welfare.  A parent who claims to have sole responsibility must provide evidence they have exercised this role since the other parent abdicated or abandoned their parental role. This may be over a period of several years or may be several months before an application. Some day-to-day responsibility (or decision-making) for the child’s welfare may be shared with others, for example, relatives or friends, for practical reasons.  As long as the applicant is ultimately responsible and answerable for the welfare of the child, this does not prevent the applicant from being a parent with sole responsibility within the meaning of the Immigration Rules. The  Guidance however warns that decision makers must not make a decision that would have the effect of denying a parent who has not abdicated or abandoned parental responsibility contact with that child. The decision maker must carefully consider each application and on a case by case basis. The burden of proof is on the applicant to provide satisfactory evidence that they meet the Rules."

 

  However, you should be okay in a new application if you have the evidence to back up the abuse.  Good luck, and if you need any help, let us know.

[Kukie25]

Thanks once again Tony.

 

indeed, the appeal has been lodged and we used a UK immigration solicitor for the appeal, who shares the exact sentiments as you. Basically, they believe the Eco didn't have any grounds to refuse the visa as on previous U.K. visits visas trip, all applications were done by me in which the visas have been accompanied visas with I and my husbands passport in them. Even her current UK visit visa is still valid till 2024 and shows our details annotated in them. All documents used for the visit visas were provided by me and my husband, same as the settlement visas. Guess the Eco's bad day affected my child's visa.

 

just a question please, we received the IHS payment link with a deadline for the first visa application for my child, which stated we were to pay the IHS fee and the visa granted would be LLTR. So the application was kept on hold waiting for the payment, after it was paid before the deadline, we got the refusal within 5 days. Is it possible to get the child's IHS payment link and still get visa refused becaus those who don't receive the link in child visa cases get refused automatically?

 

Accordingly we read a case where the judge held that 2 months of a mother being solely responsible for her child's welfare was enough to satisfy this requirement.

 

[Tony M]

43 minutes ago, Kukie25 said:

Thanks once again Tony.

 

indeed, the appeal has been lodged and we used a UK immigration solicitor for the appeal, who shares the exact sentiments as you. Basically, they believe the Eco didn't have any grounds to refuse the visa as on previous U.K. visits visas trip, all applications were done by me in which the visas have been accompanied visas with I and my husbands passport in them. Even her current UK visit visa is still valid till 2024 and shows our details annotated in them. All documents used for the visit visas were provided by me and my husband, same as the settlement visas. Guess the Eco's bad day affected my child's visa.

 

just a question please, we received the IHS payment link with a deadline for the first visa application for my child, which stated we were to pay the IHS fee and the visa granted would be LLTR. So the application was kept on hold waiting for the payment, after it was paid before the deadline, we got the refusal within 5 days. Is it possible to get the child's IHS payment link and still get visa refused becaus those who don't receive the link in child visa cases get refused automatically?

 

Accordingly we read a case where the judge held that 2 months of a mother being solely responsible for her child's welfare was enough to satisfy this requirement.

 

That's unusual. I have never heard of an application for child settlement being refused after they had asked for the IHS payment. It's also totally illogical. Why ask for the IHS payment of you are going to refuse the application, and then have to refund it ? That's just plain stupid.  It sounds like something must have happened, or come up, between the ECO deciding to issue a visa, and the actual final decision. I've no idea what that could be.

[Kukie25]

Thanks for your assistance, I will definitely keep you posted on the outcome of the new visa application. We hope it turns out positive. 

 

if you don’t mind please, when the ECO is processing this new visa application, Will they know that the first refusal has been appealed and waiting for a hearing date? If yes, will it have any bearing on the new visa application? I mean will it prompt the ECO to pay more attention to the new visa application?

 

Sorry for the bother and I must acknowledge the home office guidance you have directed us to, is really helpful as our cover letter will certainly emphasize that too as well the child living in a different country to that of her father.

[Tony M]

10 hours ago, Kukie25 said:

Thanks for your assistance, I will definitely keep you posted on the outcome of the new visa application. We hope it turns out positive. 

 

if you don’t mind please, when the ECO is processing this new visa application, Will they know that the first refusal has been appealed and waiting for a hearing date? If yes, will it have any bearing on the new visa application? I mean will it prompt the ECO to pay more attention to the new visa application?

 

Sorry for the bother and I must acknowledge the home office guidance you have directed us to, is really helpful as our cover letter will certainly emphasize that too as well the child living in a different country to that of her father.

Yes, the ECO should be aware that there is an outstanding appeal. It should not make any difference to the new application, but if the new application is issued, then they will ask you to withdraw the appeal. But they won't refund the appeal fee !!  I'm pretty sure that the ECO will take extra care over a new application.  He will be aware that if he refuses again, and the appeal for the first refusal is allowed, then his decision could well be wrong.

[Kukie25]

On 7/26/2019 at 5:25 AM, Tony M said:

Yes, the ECO should be aware that there is an outstanding appeal. It should not make any difference to the new application, but if the new application is issued, then they will ask you to withdraw the appeal. But they won't refund the appeal fee !!  I'm pretty sure that the ECO will take extra care over a new application.  He will be aware that if he refuses again, and the appeal for the first refusal is allowed, then his decision could well be wrong.

Hi Tony,

I’m pleased to say my daughter’s visa has been approved after the second application. Although we paid priority, it took about 45 days but it was all worth the wait as the news is positive. Thank you very much for your advice too. Indeed sole responsibility is no joke as we submitted over 400 pages of documents compared to the first application. We have also withdrawn the appeal.

[Tony M]

2 hours ago, Kukie25 said:

Hi Tony,

I’m pleased to say my daughter’s visa has been approved after the second application. Although we paid priority, it took about 45 days but it was all worth the wait as the news is positive. Thank you very much for your advice too. Indeed sole responsibility is no joke as we submitted over 400 pages of documents compared to the first application. We have also withdrawn the appeal.

 

I am very pleased to hear this. Well done.

 

Just to show how "difficult" it can be (if not plain stupid), I saw a recent child settlement refusal where the application had stated that the child had no contact with her natural father ever. He disappeared before she was born, and she had never met him or even seen him.  The refusal said that she had not provided any evidence to confirm that she had never met him, so the ECO said he could not be satisfied that this was true ! 

 

Enjoy your family life !