Access To A Child Resident In Uk.

[7by7]

A friend of my wife has a three year old daughter by an English man. The child was born in the UK and has joint Thai/British nationality. The mother and father were never married. The mother was in the UK with a 2 year spouse visa at the time, but she and her husband have since divorced for the obvious reason. Although the father wants to play a full part in his daughter's upbringing, he has no desire to marry or otherwise live with the girl's mother.

Shortly after the birth the mother returned to Thailand with her daughter, and has lived there for the last three years. The father has kept in contact and has provided financial support for the child and visited her in Thailand several times.

Mother and daughter are currently in the UK, the mother with a visit visa sponsored by the father, the daughter has a British passport.

As the child is approaching school age, they have decided that it would be in her best interests to live in the UK with her father and attend school here.

Obviously, the mother wants to see her daughter on a regular basis, and it appears that she can apply for 12 months leave to enter at first and then ILR on the basis of exercising her right to do so. (Immigration rules, part 7, paras 246 to 248)

VAT23 Parents with access rights to children in the UK gives guidance on what is needed for proof of custody, visitation rights etc.

However, no mention is made about maintenance and accommodation in the guidance or the rules except that the applicant must be able to maintain and accommodate themselves without recourse to public funds. She has a friend (not us) who will provide accommodation and some initial financial support, but cannot do so indefinitely; so the mother will need to work.

So, my questions are:

1) I am confused by Para 248A(vii)

248A. The requirements to be met by a person seeking leave to remain in the United Kingdom to exercise access rights to a child resident in the United Kingdom are that....

(vii) the applicant has limited leave to remain in the United Kingdom as the spouse, civil partner, unmarried partner or same-sex partner of a person present and settled in the United Kingdom who is the other parent of the child;

She wont have this LTR, as she would have entered with a visa based upon access to her child.

However, further down Para 248D is the rules for ILR, and no mention is made of entering as the spouse etc. of the other parent.

I think that Para 248A applies to someone in the UK with a spouse etc. visa who has had a child with their sponsor but separated from that sponsor before obtaining ILR.

Whereas Para 248D applies to those who entered under Para 246 or obtained LTR under para 248A.

Any thoughts?

2) As she will only have limited financial support, will she be able to work once she is in the UK? Visitors normally cannot work, but does this apply to entering as a visitor in this category?

The entry clearance endorsement is D: RIGHT OF ACCESS TO A CHILD LTE 12 MONTHS CODE 1 where a general visitor, for example, is C:.......CODE 3. Does CODE 1 mean she can work?

3) I see that all applications for LTE in this category have to be referred. Does anyone have any idea of how long this may take?

4) I can't find a specific form for this, should she use VAF1A and tick 'other' under type of visit, or is VAF1B (family visit) the right one?

5) Although she is willing to give custody to the father if necessary, is there anyway she could live in the UK with her daughter and retain custody herself?

Can replies please stick to the visa issues and not stray into comments on her past behaviour.

Thank you.

Edited October 31, 2009 by 7by7

[Eff1n2ret]

A reading of the relevant Paras suggests that she would not be able to apply under 248 whilst here as a visitor, but subject to providing the relevant proof of access she should be able to qualify under Para 246.

Para 246 does not preclude working, neither does a Code1 endorsement.

[7by7]

Thanks for that.

Being able to work is good news. The friend who is offerring her acommodation is also able to offer her job; albeit only working in his dad's pub. I'm not sure if it would be a good idea to mention this in the application or not. I'm 90% sure that it would be a good idea to do so, but for some reason have a small nagging doubt in my mind.

Any thoughts?

She's aware that she will have to return to Thailand to apply.

Edited November 1, 2009 by 7by7

[ThaiVisaExpress]

With most applications be totally honest about everything etc.

Are you preparing the application on his behalf ?

[7by7]

At the moment I'm gathering information for her, so she can gather the necessary documents etc. for the application.

One thing she needs to do is sort out a formal custody agreement with the father; although I see from the guidance that a sworn affidavit from him is enough so they don't need to go to court.

A further complication is that she has a 13 year old son from a previous marriage in Thailand. Obviously she doesn't want to be separated from either her son or her daughter, so she wants to bring him with her when/if she comes to live in the UK.

So, could he apply as a dependant when she applies? There doesn't seem to be any mention of other dependants in the relevant paragraphs of the rules or the guidance. Or should he apply for child settlement in the usual way?

[paully]

5) Although she is willing to give custody to the father if necessary, is there anyway she could live in the UK with her daughter and retain custody herself?

It's possible, but not straightforward. The application she would have to make whilst in the UK is under Section 8 of the Children's Act 1989 for a Residence Order and an order would only be made by the court if it was necessary to do so, ie: if no agreement between the parents could be reached. There is the question of funding for the application, possible to get legal funding (what used to be called 'legal aid'), eg if there was evidence that the father was not a suitable parent for the child to live with and the child could come to some harm. The father could, of course oppose the Residence Order application and then the issue of what right the mother has to remain in the UK - and perhaps her motives for applying for a Residence Order - might then become an issue. However, under the CA 1989, the welfare of the child (not either parent) is the court's first priority. A joint Residence Order for both parents is a possibility if it is a feasible option and the 2 parents still have a reasonable relationship.

[7by7]

Thanks, Paully.

Unfortunately, though, it looks to be a non starter at the moment as the mother has no settlement rights in the UK at present and as she is here with a visit visa cannot apply for any form of settlement until she has returned to Thailand.

Her only reason for living in the UK is so she can have access to her daughter. If she were to have legal custody then I fear that any application could be refused as the girl could live in Thailand with her mother with the father visiting her there, which has been the situation for the past three years.

I guess what I'm really asking is can the mother apply for settlement in the UK based upon her daughter being a British citizen, without the father being involved at all, or is the only course for the father to have custody and the mother to apply under Para 246?

The reason for asking is although things between the mother and father are civil at present, one or two things the father has said give the impression that once the mother is back in Thailand he could go back on his word and not help the mother return to the UK, i.e. not provide the sworn affidavit agreeing to custody and visitation. If he were to do so then I think trying to pursue him through the English courts from Thailand would be difficult for her, and even if she obtained custody through the Thai courts how could it be enforced when father and daughter are in England?

I should add that the current arrangement has been agreed between the parents with no involvement of lawyers or courts and no legally binding agreement.

[the scouser]

Were the parents married at the time of the child's birth? If not, the father is not considered to have parental responsibility for the child in the UK. He would be unable to undertake such routine tasks as consenting to medical treatment for the child and having her admitted to school. Ultimately, unwittingly, the child could end up in the care of local social services, there being no parent in the UK with lawful responsibility for the child.

On the assumption that the parents weren't married, the father may apply for a residence/responsibility order. At the same time, the judge can address contact and this order can then be used to support a visa application under para 246.

Scouse.

[paully]

Reading this thread again, it would appear that the parents were never married.

As Scouse suggests, the best way forward may be for the father to start court proceedings for a parental responsibility/residence/contact order within which the mother can make her cross-application for a residence/contact order. The father will need to be granted parental responsibility in order for him to have legal responsibility for the child and both mother and father need to have the issue of residence/contact sorted out especially if there are indications that contact may be broken off by the father should the mother return to Thailand. Arguably, court orders would be needed given the different nationalities of the parents which is a complicating factor here. Parental responsibility would not normally be denied to the father by the court, but the issue of parental responsibility is something he may not be aware of and he needs this to be formalised.

In my humble experience children issues normally start off as relatively amicable between the parties - and can initially be left to the parents to sort out informally by agreement -but get more tricky (sometimes even bitter) later on as one parent often attempts to 'use' the child as a weapon against the other. Naturally once lawyers get involved things also get more heated, but they are usually resolved by the court in the end one way or another. Residence/contact orders can be used to support a visa application for the mother, as Scouse suggests.

Edited November 2, 2009 by paully

[7by7]

Thanks, Scouse and Paully.

The parents were never married, and the parents and I were unaware hat this meant the father had to have parental responsibility granted to him by a court.

Best course of action for them now, I think, is to speak to a family lawyer and get this sorted out before the mother's current visit visa expires. Any ideas how long it takes, assuming both parents are in full agreement?

[cyb]

Thanks, Scouse and Paully.

The parents were never married, and the parents and I were unaware hat this meant the father had to have parental responsibility granted to him by a court.

Best course of action for them now, I think, is to speak to a family lawyer and get this sorted out before the mother's current visit visa expires. Any ideas how long it takes, assuming both parents are in full agreement?

After reading your original post 7by7 you say the child was born in the uk, Therefore she will have a uk birth certificate Correct?

If that is the case the fathers name will be included on it, That in it'self automatically gives him parental responsibility for the child as the biological father named on such a document.

[7by7]

Yes, he is named on the (UK) birth certificate as the father.

I, too, thought this meant that he automatically had parental responsibility; but Scouse and Paully seem to differ.

Better, now, I think that they sort this out formally; and as Scouse says a judgement granting the father custody can only help the mother's visa application when the time comes.

[cyb]

Yes, he is named on the (UK) birth certificate as the father.

I, too, thought this meant that he automatically had parental responsibility; but Scouse and Paully seem to differ.

Better, now, I think that they sort this out formally; and as Scouse says a judgement granting the father custody can only help the mother's visa application when the time comes.

I have being through it all 7by7, Had an affair in the uk 16 years ago fathered not one but triplets. Two boys and a girl.

Never had any problem with parental responsibility as i was named as the father on the certificate and i did not dispute it.

Only a sworn affadavit is required to give the father custody if it is not contested by either party.

Edited November 2, 2009 by cyb

[7by7]

Ok, Cyb, thanks for being candid.

I'll pass all the information gathered here onto the parents, it's now their decision how to proceed.

[the scouser]

It seems that such matters can drag on, even in instances where there is no dispute. In the one case I have been involved with, the mother was in Thailand and the father and child in the UK. However, it is likely that the district judge will make an interim order pending a full hearing. If this awards the mother contact with the child, then it can be used to support a visa application.

Scouse.

[paully]

you say the child was born in the uk, Therefore she will have a uk birth certificate Correct?

If that is the case the fathers name will be included on it, That in it'self automatically gives him parental responsibility for the child as the biological father named on such a document.

Not legal parental responsibility under the Children's Act, cyb. The mother always has legal parental responsibility for the child; the father automatically has it only if he was married to the mother at the time the child was born. Otherwise it is granted by court order or by formal written agreement. It is not usually a big deal for the father to get an order from the court, but I have known cases where the mother's solicitors effectively force the father to go for a DNA test. The law sounds rather old-fashioned and pro-marriage, but there it is.

Edited November 2, 2009 by paully

[cyb]

you say the child was born in the uk, Therefore she will have a uk birth certificate Correct?

If that is the case the fathers name will be included on it, That in it'self automatically gives him parental responsibility for the child as the biological father named on such a document.

Not legal parental responsibility under the Children's Act, cyb. The mother always has legal parental responsibility for the child; the father automatically has it only if he was married to the mother at the time the child was born. Otherwise it is granted by court order or by formal written agreement. Sounds old-fashioned, but there it is.

It never happened to me Paully 16 years ago unless the law has changed since then.

Maybe it has changed and i'm behind the times, Stopped fathering kids long time ago lol.

7 of them is enough for any man.

Edited November 2, 2009 by cyb

[paully]

7 of them is enough for any man.

That's got to be right

[cyb]

7 of them is enough for any man.

That's got to be right

Actually i unintentional lied it's 8 i was naughty in germany once, But lost contact when he was 5. Try as i did not seen hair nor hide of him or his mother he will be 34 later this month.

[paully]

That's a real shame, sorry to hear that.

[Talisman]

Just a few initial observations:

The solution should of course be reverse-engineered: A suitable contact agreement must be in place, prior to Mother making an application pursuant to s246: Part 7: The Immigration Rules. Mothers application must of course be made in Thailand.

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

Mother is indeed one of the childs parents: However: with whom does the child reside?

(ii) the parent or carer with whom the child permanently resides is resident in the United Kingdom; and

We are informed that: "A friend of my wife has a three year old daughter by an English man."Also:" As the child is approaching school age, they have decided that it would be in her best interests to live in the UK with her Father and attend school here."

Therefore, the child was born to an unmarried British Father during 2007: The D-O-B is important: The Adoption and Children Act 2002 came into force on 1st December 2003. Even though the natural Father is unmarried, as long as his name was registered on the birth certificate upon a date subsequent to 1-12-2003, he will automatically share "parental responsibility" with the childs birth Mother.

As the facts indicate that the child is both a British and Thai national: then Fathers name would have been registered on the BC post 1-12-2003: Father is therefore regarded both de facto and de jure as the childs natural Father, possessing full "parental responsibility" necessary to make important decisions concerning the childs day-to-day welfare.

I should mention briefly that this is a rebuttable presumption: the only time that a DNA test would be considered is if a relevant party wished to question Fathers parentage. In certain specific situations A relevant party could include Father, Mother,: The CSA or UK Borders Agency. As this appears unlikely to occur the point remains moot.

As Father is a parent resident within the United Kingdom, there is nothing to prevent Mother and Father making a private family decision that the child will permanently reside with Father in the UK, and that Mother will have contact whenever the parties decide it is mutually convenient.

Please note: there is no necessity for any state intervention of any description at this particular juncture. Now it starts to get a little complicated!

(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

In regard to (a)This is a massively complex area of law best thought of as Pandoras Box complete with many pitfalls. There is no neccessity at all, upon the available facts, for either party to formally apply for private Section 8 Orders in regard to Resdence-Contact or Parental Responsibility.

I could amplify my reasons for recommending why, upon the available facts, they should not ask for a court order at this stage, though the underlying reasons are complex indeed!

In regard to (b )Upon reading sub-paragraphs (a)&(b ) you will be aware that it is only necessary to satisfy either (a) or (b ) not both.

Paragraph (b ) is the obvious candidate upon the available facts. Mother with Fathers agreement, should employ a family law solicitor to prepare a joint parental-agreement, stating that Mother shall have full contact with her daughter, as and when reasonably convenient for both parents.

The parental-agreement document signed by both parties, shall state that Mother fully intends to maintain contact with the child, who is now residing in the UK with Father. The parental-agreement in the form of an attested affidavit, shall have full legal effect upon being signed by the court.

This being the case: Sub paragraph (iii) (b ) shall be satisfied. It is unimaginable that a court will refuse to endorse a joint parental agreement which gives effect to the parents wish that Mother will maintain contact with her three year old daughter. This formal agreement must be in Mothers possession before she leaves the UK.

(iv)the applicant intends to take an active role in the child's upbringing; and

My advice in regard to satisfying this paragraph, is that Mother should go completely OTT. Forget all about the civil standard of proof being upon the balance of probability or 51% probability: Simply endevour to remove any probability whatsoever that an ECO/ECM or UKIAT Tribunal may question Mothers intention to take an active role in the childs upbringing.

With Fathers specific agreement, the formal contact agreement itself should note the parents joint responsibility for the child.: That Father will not make any important decisions regarding the childs life without having first obtained Mothers express agreement.

Therefore Mother must agree to, at the very least: which school should the child attend, what faith if any is practiced, her diet, her clothes, her friends, her contact with other family members, medical and dental treatment etc etc.

During her return to Thailand Mother should then via email correspondence, evidence that she has indeed been consulted, and has actually made decisions in regard to these key matters.

(v) the child is under the age of 18; and

Satisfied: The little girl is 3 years old.

(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

If you are happy with the advice so far: we can now largely depart from Family Law, and consider the vital requirements of “adequacy of accomodation” and “adequacy of maintainance” as defined in UKIAT cases.

Alternatively, may I suggest that if you still have any further questions regarding Mothers compliance with any of the provisions of s246: The Immigration Rules, up to this point: that you frame them succinctly in regard to the general advice provided above: We can then provide a clear solution to each specific problem in turn.

(viii) the applicant holds a valid United Kingdom entry clearance for entry in this capacity.

Sub-paragraph (viii) shall be satisfied upon leave to enter being granted.

Edited November 3, 2009 by Talisman

[paully]

(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

In regard to (a)This is a massively complex area of law best thought of as Pandoras Box complete with many pitfalls. There is no neccessity at all, upon the available facts, for either party to formally apply for private Section 8 Orders in regard to Resdence-Contact or Parental Responsibility.

Very interesting, Talisman - but did you note this from 7by7 in one of his earlier posts:

"although things between the mother and father are civil at present, one or two things the father has said give the impression that once the mother is back in Thailand he could go back on his word and not help the mother return to the UK.."

It is for this reason (the potential for a rift in the relationship between the parents) - and the fact that the mother and father are from different nationalities and the mother (unlike the father) has no automatic right to remain in the UK - that a court order under Section 8 would, in my humble view, be entirely appropriate here. Section 8 applications are never straightforward, but I think it's stretching it a little far to describe it as 'a massively complex area of law'. But, that's just my opinion.

[Talisman]

Viewpoint –perspective- desired conclusion?

Viewpoint

At this point the initial viewpoint appears to be that Mother and Father have considered it best, that the little girl is raised in the UK by Father and that Mother shall have open access, she then obtains entry clearance to give effect to that purpose. Father does not require a Section 8 Residence agreement to achieve this aim. Mother does not require a Section 8 Contact Order to achieve this aim.

Perspective

Mother simply requires: a certificate issued by a district judge confirming the applicant's intention to maintain contact with the child.

Desired conclusion?

Mother satisfies S 246 (iii) (b ) The Immigration Rules.

In essence this approach gives effect to their initial wish that Child lives with Father in the UK, and Mother has open contact, requiring Entry Clearance pursuant with S 246.

Let us move several yards to the right, and check out another alternative viewpoint.

Viewpoint

"Although things between the mother and father are civil at present, one or two things the father has said give the impression that once the mother is back in Thailand he could go back on his word and not help the mother return to the UK."

Perspective

Now things get really complicated! The whole perspective changes, and we need to look at this from two angles!

What is the ideal solution! Is it obtainable! Lets just peek into the box!

Desired conclusion?

Father and Mother still hold that Child will live with Father, and that Mother shall have contact. However, Mother has a nagging doubt that “ once Mother is back in Thailand he could go back on his word and not help the mother return to the UK."

As you recall, I stated that the parental-agreement order must be in Mothers possession before she leaves the UK. Other than financial help, for the purposes of an application pursuant to S246, the last act we require from Father is to sign that parental agreement prior to ratification by the court, AND mother returning to Thailand.

Now in regard to the offer of financial help: I need to know precisely what he is offering, in regard to satisfying the requirements of adequacy of accommodation and maintenance of both mother and any dependants!

Noting that Mothers visa is expiring as we speak, allow me to précis just a few of my initial concerns.

Any s8 orders are going to be decided in accordance with the Children Act 89. The underlying ethos is that the Childs welfare is of paramount importance. The only rights that either parent has concern their rights and duties in regard to the child’s welfare.

The matter will be determined in accordance with the Welfare Checklist. The authorities indicate as a rudimentary point that, a three-year-old toddler should reside with Mother, and have as much contact as possible with Father.

There are problems with Mother satisfying the checklist criteria: Lets mention a few:

Mother has no secure accommodation on the radar at this point. Mother has no secure income at this point. Mothers status is that of a foreign national on a visitor’s visa. Mother will have no recourse to public funds: Child Benefit, child Tax Credit, Housing Benefit, Working Tax Credit or JSA.

In the alternative: I know nothing about Fathers details: Is there likely to be a problem in that the child may suffer Significant Harm. Significant means a real possibility and Harm in regard to a child includes matters such as arrested development, behavioural problems, cultural withdrawal etc.

Leaving aside the potential for the court to substitute S8 public orders ranging from EPO’s to Care Orders, there is a very real potential here for a no-order, in which case the child would return with Mother to Thailand.

If Mother, in the extremely unlikely event, and jurisdiction notwithstanding, obtained a residence order, she is unlikely to then satisfy s246 in regard to adequacy of accommodation and maintenance: I mention briefly that her income established on the balance of probability, and without recourse to public funds must at least match that of a notionally similar family unit in receipt of public funds, and that she cannot rely on third party support.

With mother having contact: the yardstick is lower – none of the child benefits on the other side of the equation. With mother having residence, the yardstick is far higher: her income alone would have to match that of a notional mother and child in receipt of full benefits.

Now if Mother simply left with the joint-parental agreement, and somehow we manage to satisfy the requirements of adequacy of accommodation and maintenance: then if it should be necessary upon her return – she then encounters a problem with Father denying access, she may make an application for open direct Contact, and she would undoubtedly get it.

If Father tried to block that contact order, he would be held in contempt of court. Mother at a suitable point may of course then apply for a residence order, or even a shared residence order: noting that upon eventually receiving her ILR, she may claim public funds – more settled – more secure – mother of a young daughter – very high chance of achieving a residence or shared-residence order.

Any order awarded at this stage is likely to be an interim order in any event: there is not likely to be a great deal of time before Mother returns to Thailand, and in any event: the court will need to monitor matters developing.

Anyway, If I can help: I shall.

I have approximately 60 mins free each evening to discuss this matter. If the OP is still around: time to get specific. I will check in again tomorrow.

[chanthas]

WOW, now thats what i call a great reply

[7by7]

Thanks for the very informative responses and the offer, Talisman.

I've passed everything onto the mother and now await her response.

[HRY2005]

Hi everyone and thanks to Talisman for the analysis of the Access to A Child in the UK issue. This case is exactly the same as mine with a little difference. I have been living in the UK for 4 years(illegaly), I also came in Illegally(deception), work illegally as well but stopped working for a while now and planning to return home.

I have a girlfriend(British), we've been together for about 2 years, have a child(Boy)together and we are seriously in love. We have got our Son a British Passport already, because he qualified from his mum.

On the advice of a solicitor, I have been advised to return home to apply for the Access to A child visa and everything is almost ready. We have got the following documents ready

1. A sworn affidavit attested by a legal officer(by my girlfriend)

2. My Son birth certificate(signed by the 2 of us) and my son's British passport

3. My friend offer to give me evidence of his accomodation(3 bedroom flat)

4. I have got some money in my bank account back home (£2000 equiv.) still planning to get some more.

5. Photographic evidence of my contact with my son right from the day he was born at the hospital, changing nappies, washing him etc. Invoices of baby materials bought from mothercare showing my name (even before he was born).

6. I planned to get a letter of support from my girlfriend with a copy of her british passport.

7. Another letter of support from son's grandparents (my girlfriend's parent). and whatever relevant stuffs, that I can get to support my application.

THE PROBLEM

I studied the general groung for refusal used by ECO's and caseworkers and despite the exceptions for my application's categories, I am still worried they might stopped me from coming back and my solicitor had warned as well, though she said I have a full right of appeal, which they would be ready to fight on my behalf.

I copied the following from the Immigration rules.

(7B) subject to paragraph 320(7C), where the applicant has previously breached the UK's immigration laws by:

(a) Overstaying;

( b ) breaching a condition attached to his leave;

( c )being an Illegal Entrant;

(d) using Deception in an application for entry clearance, leave to enter or remain (whether successful or not);

unless the applicant:

(i) Overstayed for 28 days or less and left the UK voluntarily, not at the expense (directly or indirectly) of the Secretary of State;

(ii) used Deception in an application for entry clearance more than 10 years ago;

(iii) left the UK voluntarily, not at the expense (directly or indirectly) of the Secretary of State, more than 12 months ago;

(iv) left the UK voluntarily, at the expense (directly or indirectly) of the Secretary of State, more than 5 years ago, or

(v) was removed or deported from the UK more than 10 years ago.

Where more than one breach of the UK's immigration laws has occurred, only the breach which leads to the longest period of absence from the UK will be relevant under this paragraph.

(7C) Paragraph 320(7B) shall not apply in the following circumstances:

(a) where the applicant is applying as:

(i) a spouse, civil partner or unmarried or same-sex partner under

paragraphs 281 or 295A,

(ii) a fiancé(e) or proposed civil partner under paragraph 290,

(iii) a parent, grandparent or other dependent relative under paragraph 317,

(iv) a person exercising rights of access to a child under paragraph 246, or

(v) a spouse, civil partner, unmarried or same-sex partner of a refugee or person with Humanitarian Protection under paragraphs 352A, 352AA, 352FA or 352FD; or

kindly give your support or advice, i will appreciate every bit of it.

Thanks very much.

[7by7]

As you have quoted, Para 320(7C)(a)(iv) says that Para 320(7B) does not apply if you are applying as "a person exercising rights of access to a child under paragraph 246," so you may be OK.

However, Para 320(11) says

Grounds on which entry clearance or leave to enter the United Kingdom should normally be refused

(11) where the applicant has previously contrived in a significant way to frustrate the intentions of these Rules. Guidance will be published giving examples of circumstances in which an applicant who has previously overstayed, breached a condition attached to his leave, been an Illegal Entrant or used Deception in an application for entry clearance, leave to enter or remain (whether successful or not) is likely to be considered as having contrived in a significant way to frustrate the intentions of these Rules.

Earlier this year a couple of members had their partner's settlement visas refused under this paragraph; both refusals were appealed, but the members concerned have not yet, as far as I know, had the appeals heard.

Good luck.

You say that you and the child's mother are in love. Have you considered marrying in Thailand and then applying as her spouse? Para 320 would still apply, but you may have a stronger case under the spouse category.

[paully]

This case is exactly the same as mine with a little difference. I have been living in the UK for 4 years(illegaly), I also came in Illegally(deception), work illegally as well

That's quite a big difference, I'm afraid, and one which will be taken very seriously.

As your solicitor and 7by7 have indicated, your application for entry will most likely be refused in the circumstances of your previous stay in the UK and it will take a successful appeal, not a quick or automatic process. If the appeals that 7by7 mentioned are successful they would be a useful precedent, but there may be some material differences to your case.

I'd also agree with 7by7 that marriage to your partner, the child's mother, would be a positive move - presupposing, of course, that you want to marry her.

Good luck, and hang in there for the long haul.

[HRY2005]

As you have quoted, Para 320(7C)(a)(iv) says that Para 320(7B) does not apply if you are applying as "a person exercising rights of access to a child under paragraph 246," so you may be OK.

However, Para 320(11) says

Grounds on which entry clearance or leave to enter the United Kingdom should normally be refused

(11) where the applicant has previously contrived in a significant way to frustrate the intentions of these Rules. Guidance will be published giving examples of circumstances in which an applicant who has previously overstayed, breached a condition attached to his leave, been an Illegal Entrant or used Deception in an application for entry clearance, leave to enter or remain (whether successful or not) is likely to be considered as having contrived in a significant way to frustrate the intentions of these Rules.

Earlier this year a couple of members had their partner's settlement visas refused under this paragraph; both refusals were appealed, but the members concerned have not yet, as far as I know, had the appeals heard.

Good luck.

You say that you and the child's mother are in love. Have you considered marrying in Thailand and then applying as her spouse? Para 320 would still apply, but you may have a stronger case under the spouse category.

Thank you so much for your response, we thought of the marriage avenue but the problem is my girlfriend is not 21 yet, and would be difficult to put in a spouse application.

[HRY2005]

However, Para 320(11) says

Grounds on which entry clearance or leave to enter the United Kingdom should normally be refused

(11) where the applicant has previously contrived in a significant way to frustrate the intentions of these Rules. Guidance will be published giving examples of circumstances in which an applicant who has previously overstayed, breached a condition attached to his leave, been an Illegal Entrant or used Deception in an application for entry clearance, leave to enter or remain (whether successful or not) is likely to be considered as having contrived in a significant way to frustrate the intentions of these Rules.

Earlier this year a couple of members had their partner's settlement visas refused under this paragraph; both refusals were appealed, but the members concerned have not yet, as far as I know, had the appeals heard.

I read the explanation of para 320(11) and it explained "contrived in a significant way to frustrate the intention of the rules" as some who had been as absconder, be a facilitator in committing another immgr. offence, used the NHS which they are not entitled, but said the offence will be considered against the case(if its justified to refuse an applicant considering the case). I am really worried about this as I want this to be sorted, so I can be the father that I suppose to be to my son. Some more advice would go a long way.

Thanks