Immigration Rules Part 7, Section 248a Help Please

[mercedes1954]

I saw a post relating to Section 7 of the immigration rules, and more specifically paragraph 248A relating to leave to remain as a parent with access to a child resident in the UK. Forgive me, as this is not about Thailand, but I believe the circumstances are of wider interest.

A Korean woman, a friend of mine met a UK national whilst in London as a student in 2004. On completing her course she returned to Korea. The UK national later went to Korea to work and the relationship continued there.

In 2006 she became pregnant, and had a boy in August of that year. Throughout the pregnancy and at the time of the birth her boyfriend didn't visit her and was unhappy to be a father. However, after the birth he did see them and this resulted in their marriage in Seoul In September 2006. He returned to England some time later to a new job. My friend remained in Korea as she was able to live with her mother who helped during the day whilst my friend did a part-time job.

In early 2009 the husband travelled to Korea and arranged for his son to obtain a British passport and made application for my friend to travel to the UK as his spouse. The visa with 2-year probationary period was issued in April 2009 and they returned to the UK with their son.

In June 2009 she again found she was expecting a baby. Her husband was very unhappy about it and wanted the pregnancy terminated. She did not want to terminate it. He made some verbal threat to her about "getting rid of it" himself if she didn't. She was frightened by this and returned to Korea for a month. When she returned she decided to stay with my family in another town (where she was also a student some years before) until the baby was born. The husband did make one visit to see son, and his parents did visit (not a short journey) to see their grandson.

Nearer the birth my friend was able to rent a flat as she felt to have a small child and a baby was unfair to my family. She was being supported by her own money earned whilst working in Korea and also with help from her mother.

She had hoped that after the birth of their new baby - a girl - her husband would reconcile with her and she would move back to their flat they occupied when she arrived in April 2009.

She has now received just a text from him saying he is filing for divorce. I advised her that if it's not their intention to remain married or live tgether long-term she must make an application to the Home Office as she would otherwise be in breach of the spousal visa.

I've looked around the internet and I first thought of an out of rules application on form FLR(O) requesting ILR on compassionate grounds. She is now looking after both his children. The latest child is a British citizen, with no current Korean status - the father doesn't contest paternity - now only two months old.

I fould a previous thread on this forum entitled "Access to a Child Resident in the UK", but whilst similarities exist there are major differences.

How can she apply under section 248A when it states:

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

She is the person who cares for the two children. She doesn't have "access", she lives with them, alone, and gets no help from their father.

Suggestions would be welcome as to how she can apply for ILR in her circumstances.

[7by7]

This is a complicated area, and to be honest it may be best if she sought professional advice; or at least talked to the CAB or Immigration Advisory Service.

He made some verbal threat to her about "getting rid of it" himself if she didn't. She was frightened by this and returned to Korea for a month.

It is possible to apply for ILR as the victim of domestic violence (see here); but unless she has evidence (a witness at least, a police report would be better) this will be difficult. Again, she should speak to the CAB or IAS.

[tripplejjj]

Well, I don't know any thing about the UK laws, but for the sake of the children, I make sure the wife asks for child support and spousal support and 50% of his assets. The A-hole husband deserves nothing.

[mercedes1954]

Thank you for the responses. Yes, I was aware that ILR can be obtained if there is domestic violence, but as you say there is need of a police or medical report that wasn't obtained. She was frightened and just left. I think in the circumstances legal help with this application is needed.

She is filing a CSA claim for maintenance. When the latest child was born she was given a Child Benefit form and on registration was given the short-form certificate that the registrar said she should use for Child Benefit application; but even there she's on shaky ground because she is not entitled to public funds. CB is benefit for the child, but it seems if my friend applies she gets a problem. I have friends, British husband and Japanese wife where the wife applied for Child Benefit - happy marriage and no problems - and the Home Office wrote to her saying she had to leave the UK because she had sought public funds thereby breaching her visa conditions. Our MP was apalled and took it up with the HO. Reply was that the husband should have claimed it, so my Korean friend - not on speaking terms with hubby - has a problem, even though the baby surely has the right to CB.

Anyway, thanks again.

[7by7]

Unfortunately child benefit is on the list of proscribed public funds, so your friend cannot claim it until she has ILR. Doing so would be a breach of her visa conditions; as your Japanese friend found out the hard way!

Her husband can claim it, and presumably this will be taken into account by the CSA when they assess any maintenance order. (Your Japanese friend would not have had a problem had her husband claimed it instead of her.)

She should talk to the CSA about this.

[the scouser]

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

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

Scouse.