Settlement Visa For Step Child.

[Lawnmower]

My wife and i are currently looking at the possibility of returning to the UK in the next few years to live and work. My wife has a son from a previous relationship.

A few questions.

1) If my wife is given a visa does the boy automatically get one ?

2) Would he have to attend the interviews ?

3) Would we need some kind of permission from the father ?

If anyone has any other information on this, please let me know.

Many Thanks.

Edited March 16, 2005 by Lawnmower

[dr_Pat_Pong]

My wife and i are currently looking at the possibility of returning to the UK in the next few years to live and work.  My wife has a son from a previous relationship.

A few questions.

1) If my wife is given a visa does the boy automatically get one ?

2) Would he have to attend the interviews ?

3) Would we need some kind of permission from the father ?

If anyone has any other information on this, please let me know.

Many Thanks.

<{POST_SNAPBACK}>

Scouse is your man Lawnmower. Australia would include the wife's child but I don't know about the UK. Good luck.

[the scouser]

Hi Lawnmower,

To take your questions in order:-

1. No. Your step-son would have to qualify in his own right. You/your wife would have to show that you can take care of him without assistance from the government purse (excluding education: by law, if under 16, he would have to attend school.) and that your wife has had sole responsibility for his upbringing. This does not mean that if he lives with his maternal grandmother, for example, that he wouldn't get the visa, as your wife would still be influencing the way in which he is being brought up. Basically, you would need an official letter from the amphur saying that your wife has custody of the child and it would aid matters if the father also wrote a letter confirming that he consents to the child going abroad. If the father's whereabouts are unknown then a simple statement to this effect should suffice (as well as the document from the amphur). It would also help if you could prove that your wife has been financially responsible for the child too.

2. Yes but he wouldn't be interviewed. The visa officer just needs to match a face to the passport photo. There is no point in interviewing the child as, for immigration purposes, evidentially a minor's word cannot be relied upon.

3. Possibly. See point 1.

Procedurally it is best to submit both your wife's and step-son's applications simultaneously. That way you only need supply the supporting documentation once. You should also include his birth certificate in order to prove the relationship to your wife.

For your guidance there follow the immigration rules which govern such an application:-

"301. The requirements to be met by a person seeking limited leave to enter or remain in the United Kingdom with a view to settlement as the child of a parent or parents given limited leave to enter or remain in the United Kingdom with a view to settlement are that he:

(i) is seeking leave to enter to accompany or join or remain with a parent or parents in one of the following circumstances:

(a) one parent is present and settled in the United Kingdom or being admitted on the same occasion for settlement and the other parent is being or has been given limited leave to enter or remain in the United Kingdom with a view to settlement; or

( one parent is being or has been given limited leave to enter or remain in the United Kingdom with a view to settlement and has had sole responsibility for the child's upbringing; or

© one parent is being or has been given limited leave to enter or remain in the United Kingdom with a view to 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

(ii) is under the age of 18; and

(iii) is not leading an independent life, is unmarried, and has not formed an independent family unit; and

(iv) can, and will, be accommodated adequately without recourse to public funds, in accommodation which the parent or parents own or occupy exclusively; and

(v) can, and will, be maintained adequately by the parent or parents without recourse to public funds."

Cheers,

Scouse.

Edited March 16, 2005 by the scouser

[GU22]

Just to expand on point 3, if I may.

You will need one of the following:-

The fathers death certificate, or;

Sole custody papers. These can be issued by an Ampur, but they will only do this if the natural father consents. If he doesn't, or if he is untraceable, then she will need to go to court to obtain these. This is what happened with my wife and step-daughter. Although we knew where the biological father was, he refused to co-operate and so the Ampur wouldn't issue any sole custody papers. Although the court did eventually issue them, it did involve several appearances as the case kept being adjourned to give the father a chance to appear, which he never did. If you do need to go to court, then I suggest you seek the advice of a qualified Thai lawyer.

(I know of some cases where the biological father has, shall we say, been 'financially persuaded' to sign the necessary documents.)

Provided she has one of the above and the child is under 18 then, as Scouse says, the procedure is fairly simple. Basically, if the mother gets her visa then so will the child.

[Lawnmower]

So the biological father must come to the amphur and sign the papers with my wife. Is that right ?

[the scouser]

It would help. If he plays silly buggers then you may have a bit of a bureaucratic nightmare unless, as GU22 said, he's prepared to take a sweetener to aid the process. With whom does the child currently live?

Scouse.

[Lawnmower]

The child lives with us. He's never lived with his father as my wife and him split when she was pregnant.

[the scouser]

Certainly that makes life easier as far as the British embassy is concerned because your wife has had day-to-day responsibility for her son since day 1. Logically it would make obtaining sole custody of the child easier too as, de facto, your wife has it already but some amphurs can be funny buggers. If you're not thinking about coming immediately to the UK perhaps you and your wife could approach the relevant amphur now and establish exactly what they would require in order to issue a sole custody document.

As far as obtaining a visa, however, a custody document and a simple statement that the father has not been on the scene since the child's birth will be sufficient.

Best of luck,

Scouse.

[the scouser]

Lawnmower,

I forgot to say, if you married outside of the UK and have lived abroad since, for in excess of 4 years then your wife/son can apply for a visa which will grant them indefinite leave to enter the UK. That way your don't have to go through the probationary process and all the cost that involves.

Cheers,

Scouse.

[GU22]

So the biological father must come to the amphur and sign the papers with my wife. Is that right ?

<{POST_SNAPBACK}>

That was our experience, and as he wouldn't the Ampur told us we had to get a court to grant sole custody. Others I have spoken to in a similar situation have also found this to be the case, although some have found that the biological father hasn't had to attend the Ampur, just sign the papers.

Some districts seem to apply the rules (if there are any hard rules) differently.

In one case I know of the sole custody was issued without any contact from the father, as no father was named on the child's birth certificate. Maybe Scouse can advise if custody papers would actualy be required by the embassy in such a situation?

Edited March 16, 2005 by GU22

[Lawnmower]

Cheers guys. We will go to the amphur at some stage and see what they need.

[GU22]

Take some tea money.

[the scouser]

Custody papers are advisable for the purposes of getting the visa but if for whatever reason it was nigh on impossible to get them and you could otherwise show that your wife has been responsible for the child's upbringing then, providing the circumstances were plausible, the embassy would still consider granting it.

Cheers,

Scouse.

[Pie Boy]

Lawnmower, Just for info - I was in a similar situation to you a few years ago and my wife and I managed to get a sole custody certificate from the local amphur without a signature from my wifes ex, even though his name appeared on the birth certificate.

Good luck, I'm sure all will be fine.

[the scouser]

Lawnmower,

In a moment of blinding inspiration a thought crossed my mind. (Consider yourself lucky as it doesn't happen too often. )

Article 8 of the Human Rights Act grants, inter alia, the right to a family life. Now, this is not an absolute right, but a qualified one. What this means is that the rights of the individual are secondary to those of the state and it is possible that the visa officer could argue that the government's right to maintain an effective immigration control is greater than your entitlement to family life and that you are, anyway, able to establish this right in Thailand.

However, if a situation arose whereby your wife got her visa but her son didn't, the visa officer would effectively be splitting up the family unit and it is this that, I would argue, breaches the provisions of article 8. Basically, being already established as a family unit in Thailand, the visa officer can't then break up that unit, and granting your wife a visa but not your step-son would effectively be doing just that.

Anyway, just a thought. It probably won't even come to that.

Cheers,

Scouse.

[Richard W]

Article 8 of the Human Rights Act grants, inter alia, the right to a family life. Now, this is not an absolute right, but a qualified one. What this means is that the rights of the individual are secondary to those of the state and it is possible that the visa officer could argue that the government's right to maintain an effective immigration control is greater than your entitlement to family life and that you are, anyway, able to establish this right in Thailand.

However, if a situation arose whereby your wife got her visa but her son didn't, the visa officer would effectively be splitting up the family unit and it is this that, I would argue, breaches the provisions of article 8. Basically, being already established as a family unit in Thailand, the visa officer can't then break up that unit, and granting your wife a visa but not your step-son would effectively be doing just that.

<{POST_SNAPBACK}>

While this argument may work in this case, be warned that Article 8 hasn't been working too well in immmigration appeals, as we know to our cost. My wife's daughter was turned down at 13.

She applied again at 15 arguing that my wife has had sole responsibility for nearly two years, and this time the ECO is finding it difficult to make a decision - the interview was seven weeks ago and still no decision! (However, the ECO was on leave for three of these weeks.) I rang again earlier this week and was assured that the application was still under consideration! Does this mean the case has been referred to the UK for an initial decision?

Richard.

Edited March 18, 2005 by Richard W

[the scouser]

Richard,

It may well have been referred to the "specialist" human rights caseworkers in Croydon for legal guidance. Either that or the ECO doesn't know what to do and the file is sitting in a corner mouldering away. Contact them again and specifically ask if the matter has been referred to the UK. If they say no, then ask them why it's taken the ECO 7 weeks to make his/her mind up.

Yes, my train of thought in my previous post does not constitute irrefutable legal advice but is solely a suggested course which might just work.

Cheers,

Scouse.

[GU22]

Lawnmower,

In a moment of blinding inspiration a thought crossed my mind. (Consider yourself lucky as it doesn't happen too often. )

Article 8 of the Human Rights Act grants, inter alia, the right to a family life. Now, this is not an absolute right, but a qualified one. What this means is that the rights of the individual are secondary to those of the state and it is possible that the visa officer could argue that the government's right to maintain an effective immigration control is greater than your entitlement to family life and that you are, anyway, able to establish this right in Thailand.

However, if a situation arose whereby your wife got her visa but her son didn't, the visa officer would effectively be splitting up the family unit and it is this that, I would argue, breaches the provisions of article 8. Basically, being already established as a family unit in Thailand, the visa officer can't then break up that unit, and granting your wife a visa but not your step-son would effectively be doing just that.

Anyway, just a thought. It probably won't even come to that.

Cheers,

Scouse.

<{POST_SNAPBACK}>

But the ECO would not be splitting the family up, the wife would by moving to the UK and leaving her child behind. As you say, Scouser, they would be able to have a family life in Thailand.

If, for some reason, the wife was forced to flee Thailand and seek asylum in the UK, then Article 8 may have relevance, but in cases where the move is a voluntary one, then it doesn't.

Richard, what were the grounds for your step-daughters refusal?

Edited March 18, 2005 by GU22

[Richard W]

Richard, what were the grounds for your step-daughters refusal?

<{POST_SNAPBACK}>

Insufficient hardship and insufficient contact between mother and daughter. Her father had had custody, but lost interest in her when his new wife bore him a son. My wife insisted on handling that application herself. She didn't heed my warnings about how difficult it would be, so now my stepdaughter is living with a maternal aunt in Bangkok, and a country girl has become a city girl. (My wife's family seems to be moving to Bangkok - they've been joined by her uncle, and a 15-year old cousin from the same tambon is due to move to Bangkok soon. I presume the cousin will be staying with her sister.)

My thoughts occasionally turn to murder, but killing my stepdaughter's father so she can get a settlement visa would be wrong.

Richard.

Edited March 18, 2005 by Richard W

[the scouser]

But the ECO would not be splitting the family up, the wife would by moving to the UK and leaving her child behind. As you say, Scouser, they would be able to have a family life in Thailand.

If, for some reason, the wife was forced to flee Thailand and seek asylum in the UK, then Article 8 may have relevance, but in cases where the move is a voluntary one, then it doesn't.

<{POST_SNAPBACK}>

Possibly, it largely depends upon the circumstances of the application, of which we are not fully aware.

Hypothetically, if she were to claim asylum then she'd be better relying upon Article 3, the right to not be subjected to torture and degrading treatment, which is absolute and cannot be derogated from.

Scouse.

[GU22]

Richard, what were the grounds for your step-daughters refusal?

<{POST_SNAPBACK}>

Insufficient hardship and insufficient contact between mother and daughter. Her father had had custody, but lost interest in her when his new wife bore him a son. My wife insisted on handling that application herself. She didn't heed my warnings about how difficult it would be, so now my stepdaughter is living with a maternal aunt in Bangkok, and a country girl has become a city girl. (My wife's family seems to be moving to Bangkok - they've been joined by her uncle, and a 15-year old cousin from the same tambon is due to move to Bangkok soon. I presume the cousin will be staying with her sister.)

My thoughts occasionally turn to murder, but killing my stepdaughter's father so she can get a settlement visa would be wrong.

Richard.

<{POST_SNAPBACK}>

So, basically, she was refused because the father had custody, or at least the mother didn't have sole custody. Once she has sole custody, then the daughter's visa should be a formality, provided you can satisfy the financial and accommodation requirements. So the rather extreme measure you propose should not be necessary!

Scouser, yes in the circumstances you mention then the mother would come under article 3, but unless the child was also fleeing torture etc. then the child would come under article 8, surely? Anyway, all hypothetical in Richard's situation.

[the scouser]

Yes, any attempt to unite the child with its mother would be governed by Article 8.

Scouse.

Edited March 18, 2005 by the scouser

[Richard W]

So, basically, she was refused because the father had custody, or at least the mother didn't have sole custody. Once she has sole custody, then the daughter's visa should be a formality, provided you can satisfy the financial and accommodation requirements. So the rather extreme measure you propose should not be necessary!

<{POST_SNAPBACK}>

No, we already had a court order transferring custody. The amphoe insisted on it, even though the transfer was done with full agreement of both parents.

A rub here is that the UK claims not to recognise Thai custody orders! In the case of Thailand, custody is supposed to be deduced from the facts. For this reason, I am surprised at all these sole custody papers being asked for. Possibly the argument is that the absence of one demonstrates a lack of sole custody. The only decisive document I am aware of in this matter is a parent's death certificate.