Thai Mother Of British Citizen

[selavy59]

I am currently living in the UK with my Thai/Brit son. When I separated from his mum, his mum insisted that I take him to the UK.

I know she misses him a lot and gets on the web cam to say hello to him. I know she would like to come here to help look after him - is this possible?

She works in the care industry in Bangkok, looking after terminally ill old people (Thai people - not falang). I'm sure she could find work in the care homes in the UK.

Is it possible to obtain a visa for her so she can be part of her son's life?

Regards

Simon.

[7by7]

Yes, she would first apply as a visitor exercising a right of access to her child. See VAT23 Parents with access rights to children in the UK. The key requirements are in Para 23.4

In addition to the requirements which all visitors must meet, applicants applying to exercise their right of access to a child resident in the UK must also show:

• that they are a parent of a child resident in the UK and intend to enter in order to exercise rights of access;
• that the parent or carer with whom the child permanently resides is resident in the UK;
• that the child is under 18; and
• evidence from a UK court that they have access rights to the child; or a sworn affidavit (ie sworn and attested by a legal officer) from the non-applicant parent (ie the UK resident parent or carer of the child), confirming that the applicant parent can have access to the child, and describing in detail the arrangements made to allow for this. If contact is supervised, then the statement must be made by the supervisor.

This will allow her to remain in the UK for 12 months, and she can then apply for indefinite leave to remain. See Immigration Rules Paras 246 to 248.

[ExpatArchie]

No she does not qualify under the circunstances you describe. You imply she wishes to come to the UK and support herself by working,She may not work. You however can support her.

[7by7]

If she meets the requirements of the relevant paragraphs of the rules, then she will qualify.

The entry clearance endorsement will be D: RIGHT OF ACCESS TO A CHILD LTE 12 MONTHS CODE 1. Code 1 means that she will be able to work.

Thanks to Eff1n2ret who supplied me with that information in this topic

Posted 2009-11-01 09:49

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

Although, obviously, she will need to show that she can be maintained and accommodated, either from her own resources, those of a friend/family member or a combination of these, until she can find work and support herself.

[ExpatArchie]

I have every sympathy with the mother and wish her success should she apply.

I assert the accuracy of my pervious post

Chapter 26 Annex 2 Part 7

Wording for refusals: Section….35

35. Persons exercising rights of access to children resident in the United Kingdom

"...but I am not satisfied that you do not intend to take employment in the United Kingdom."

"...but I am not satisfied that you will maintain and accommodate yourself (and any dependants) adequately out of resources available to you without recourse to public funds or taking employment; or will (with and dependants) be maintained and accommodated adequately by relatives or friends."

A prospective employer, examining the visa to satisfy himself under the law of the right of the holder to be employed would be satisfied. But in the particular circumstances of this case the Visa will not be issued.

Of course the Immigration Rules do not state that employment is prohibited but by virtue of the above it is implicit. . In addition to Paras 246 to 248 and normal immigration rules ECOs are required to the additonal guidance, which confers the right of access only to a divorced or legally separated parent. I know the former is not the case and assume she is not legally seperated.

I am certain that unusually a LAW was placed before parliament specifically prohibiting employment of persons exercising this right of access but I do not know if it was passed. I will continue to search OPSI.

[ExpatArchie]

In addition to Paras 246 to 248 and normal immigration rules ECOs are required to the additonal guidance, which confers the right of access only to a divorced or legally separated parent. I know the former is not the case and assume she is not legally seperated.

I have been informed the above statement is wrong. Rules were amended in 2000.The right to access is NOT restricted to those divorced or legally seperated.

[7by7]

Looking at Wording for refusals: Sections 31-35 it appears that much of the refusal wording is out of date and does not reflect the current rules; like the wording for a refusal because the parents are not divorced or legally separated which you have mentioned no longer applies.

The immigration rules Para 246 (vii) says

the applicant will be able to maintain himself and any dependents adequately without recourse to public funds

There is no mention that employment is prohibited; as there is in the rules for general visitors for example: Para 41(iii)

does not intend to take employment in the United Kingdom;

As said previously, this would be a Code 1 endorsement on the entry clearance, not a Code 3. If you look at Entry Clearance Codes and Conditions attached (page 5 of the document) you will see that Code 1 means no recourse to public funds, whereas Code 3 means no work and recourse to public funds.

All of which seems to confirm that she will be able to work.

[ExpatArchie]

Looking at Wording for refusals: Sections 31-35 it appears that much of the refusal wording is out of date and does not reflect the current rules; like the wording for a refusal because the parents are not divorced or legally separated which you have mentioned no longer applies.

The immigration rules Para 246 (vii) says

the applicant will be able to maintain himself and any dependents adequately without recourse to public funds

There is no mention that employment is prohibited; as there is in the rules for general visitors for example: Para 41(iii)

does not intend to take employment in the United Kingdom;

As said previously, this would be a Code 1 endorsement on the entry clearance, not a Code 3. If you look at Entry Clearance Codes and Conditions attached (page 5 of the document) you will see that Code 1 means no recourse to public funds, whereas Code 3 means no work and recourse to public funds.

All of which seems to confirm that she will be able to work.

I accept once issued the visa permits working. I have stated that an employer would not be breaking the law by employing her. But in the particular circumstances describe by the OP it cannot, I suggest, be issued.

To obtain the visa she must demonstrate she can maintain herself. She cannot claim she can do this by getting a job because there is no guarantee of getting work, Therefore the visa must be refused.

If she had access to reasonable funds (which it appears she doesn't) the visa would be granted. I concede that on entry she could take up employment because if she subsequently lost the job she would not become destitute.

I am 100% positive that when the govt were forced to allow right to child access the rules, as laid before parliament, specified employment was prohitbited. I accept that the current consolidated rules make no mention of this. So either the rule has been revoked or quietly forgotten.

It is of note that the rules do not specifically say working is allowed, unlike spouse settlement.

I suspect there is unpublished guidance, or possibly such visa applications are automatically referred to the Home Ofice.

I will not post further on this issue and will allow you the last word.

[7by7]

It is of note that the rules do not specifically say working is allowed, unlike spouse settlement.

The rules for spouse settlement do not specifically say that working is allowed; in fact they make no mention of employment. See Immigration Rules, Paras 277 to 289. As the rules do not say employment is prohibited, it is allowed.

I suspect there is unpublished guidance, or possibly such visa applications are automatically referred to the Home Ofice.

From VAT23 Parents with access rights to children in the UK

VAT23.3 Do I need to refer these applications?

You must refer all of these applications to the Referred Casework Unit (RCU) using the referrals pro forma and send all relevant supporting documentation with the ECO’s assessment of the case.

Selavy59,

Be assured that your wife will be allowed to work in the UK. Obviously she will need to show that she will be supported and accommodated adequately until she finds work. The part of the guidance I quoted in my first post covers this: "In addition to the requirements which all visitors must meet.........." If it is possible for her to arrange employment for when she arrives, and have this confirmed by the prospective employer, this will help her to show she has the finances to support herself.

[ExpatArchie]

Correction: The right for spouses on settlement visas to work is asserted in the Home Office guidance to applicants but NOT in the guidance for child access applicants. My point remains valid.

I recall I said I will post no more in this thread BUT it is a fascinating issue......……….

There are apparent contradictions between the immigration rules and the wording of refusals. It appears the wording is out of date. But is that credible? Of course not: they will have been out of date for 10 YEARS.

You have to consider intention and purpose of policy/law makers.

The right of access to a child was conceded in the 1990s with the principal intention of allowing a parent who was required to involuntarily leave the UK following divorce or legal separation to remain or return in order to contribute to the upbringing of their child. In 2000 the rules were relaxed and seemingly anyone with a child in the UK can apply. Was it the intention in 2000 to extend the right to a person voluntarily separated from their child. I suggest not.

Consider:

In a recent thread an Irish passport holder living in the UK with his Thai wife wishes to obtain an EEA family permit for her child who has been raised by Thai grandparents for the past 6 years. Apparently she can do this do this without agreement or knowledge of the biological father. Let us assume the biological father is Thai (it is not stated). The father will be involuntarily separated. Would it have been the intention that the father should have a right to access his child. I suggest, YES.

The permit was refused because as evidence of legal custody was not submitted

A Thai man goes on holiday to UK, has an affair, fathers a child. Was it the intention to extend a right of access to him? I suggest NO: he voluntarily did what he did in the knowledge he had no right of residence.

Now consider the OP's situation. A Thai mother separates from her husband (OP) and insists he takes their child to the UK. She is voluntarily separated from the child. Time passes. She now (possibly) has a change of heart and wants to be part of the child's life. Would she be granted a visa? I suggest NO, because it was not intended there be a remedy for voluntary separation. So how will it be refused? She would conveniently be viewed, on consideration and on balance, as an economic migrant and refused on the basis of her intention to work. If her husband agreed to maintain her temporarily she would be refused on the basis the rules do not permit work. One could argue the rules make no mention of work, or the visa conditions, once issued, permit work. Semantics. The Home Office would simply dig in it's heels in the knowledge the average Thai would not have the means nor wherewithal to take the matter further. There is also a public interest consideration: what would be the view of a Sun or Daily Mail reader if the visa was issued and the story got out (rhetoric).

I suggest policy is to grant visas to those involuntarily separated from their child.

I suggest unless the applicant is of independent means general policy is to refuse visas to those who have been voluntarily separated and, whether lawful or not, use intention to work as grounds. If you need to work you won't get in; if you don't need to work you will get a visa which permits you to work. There will of course be exceptions where, for example, a person can demonstrate they gave agreement to the removal of a child under duress or mental stress.

The retention of refusing applications on grounds that evidence of divorce/legal separation has not been provided is related to the question of voluntary repatriation. He may become homesick and leave the UK, his wife and child. He has a change of heart after the visa expires. To deceive the Home Office into believing he left involuntarily he lies about being divorced/separated.

Wild suppostion or inspired insight?

Edited June 16, 2010 by ExpatArchie

[7by7]

Pointless hypothesising; unless you can come up with links to UKBA or other government documents to support your argument.

The guidance to applicants, I assume you mean leaflet INF 4, is just that; guidance to applicants. It is not a statement of the rules, and will include things they can do as well as things they cant.

As already said, if the OP's wife satisfies the criteria for the visa, and shows that she does, then she will get the visa. Paras 246 to 248 clearly state what these criteria are (246 for the initial visa, 248 for ILR; 247 doesn't apply in this case as she is not currently in the UK with limited leave to remain).

If she does get her visa, then she can work once she is in the UK and there is no reason why, if possible, she cannot arrange such employment while still in Thailand and before applying.

[ExpatArchie]

Pointless hypothesising; unless you can come up with links to UKBA or other government documents to support your argument.

The guidance to applicants, I assume you mean leaflet INF 4, is just that; guidance to applicants. It is not a statement of the rules, and will include things they can do as well as things they cant.

As already said, if the OP's wife satisfies the criteria for the visa, and shows that she does, then she will get the visa. Paras 246 to 248 clearly state what these criteria are (246 for the initial visa, 248 for ILR; 247 doesn't apply in this case as she is not currently in the UK with limited leave to remain).

If she does get her visa, then she can work once she is in the UK and there is no reason why, if possible, she cannot arrange such employment while still in Thailand and before applying.

Firstly, there has to be unsdisclosed criteria, evidenced by the 3 apparently unjustifiable reasons for refusal. How do you expalin that?. Oh, they must be out of date - by 10 years. Revision dates are published, the last was the end of 2009. I have a low opinion of civil servants but you obviously think they are utterly incompetent.

Secondly, why must all the applications be referred to the UK? - even the most dimwitted ECO can decide if the published criteria are met.

[7by7]

I have no idea why those "reasons for refusal" are in the ECGs.

I do know that there is no bar to employment in the relevant paragraphs of the immigration rules.

I do know that the entry clearance endorsement is code 1 and that code 1 allows employment.

I do not know why all applications need to be referred, possibly due to the legal implications etc. discussed in the topic I linked to previously. (Have you read that? If so, you will see that none of the qualified legal opinion disputes Eff1n2ret's confirmation that people in this category can work.)

I really do not know what point you are trying to make. You said in post 16

I accept once issued the visa permits working. I have stated that an employer would not be breaking the law by employing her

She will, as I'd already said, need to be able to support herself until she finds work, but if she can show that she has a job already available to her when she arrives then this will not be in breach of any rules and can only help her meet the maintenance requirement.

She may not need a job anyway; for all we know she has sufficient funds already!

I will allow you one more post in which to repond, than I'm closing this as it's going round in circles.

[the scouser]

...I will allow you one more post in which to repond, than I'm closing this as it's going round in circles.

Whilst I don't necessarily dispute your reasons, one can't help but think, referring back to the "old days" of GU22, Topfield and that weird bloke from Brighton, it's a case of "plus ca change..."

Scouse.

[7by7]

Don't know what you mean

Nevertheless, Scouse, would you be kind enough to answer the following?

1) Will she be able to work immediately she is in the UK?

2) Would saying she tends to seek employment once in the UK be a reason to refuse, or cause any other problems with the application?

3) If she were able to obtain a firm job offer in the UK to include with the application, would this be a help or a hindrance?

I am sure I know what the answers will be, but having it confirmed or denied by a well qualified professional such as yourself will clear up any doubts people may have.

Thanks.

[the scouser]

If the application were to be made under the terms of para 246 of the Immigration Rules, then:-

1. Yes;

2. No, and in fact saying so could add "value" to the application; and

3. A help.

However, as a starter, the foreign parent will need to initiate an application to the county court for a residence/contact order.

Scouse.

[7by7]

Thanks for that.

[selavy59]

Wow! Thanks for all your replies.

I now have an affidavit (with regards access) in place ready to be signed.

With regards work, I am going to state that if she were to come here then myself and my mother can support her for 12 months. Finding work would be a bonus. She is not lazy, she hates lazy people! I know she will do her damndest to find work.

I found this on another board, apparently someone asked ukvisas about work and rights of access. Here is the reply:

Employment is permitted in this category, but VAF1A is still appropriate as it is a Special visit Visa. If the applicant wishes to take up employment in the UK I suggest he or she clarifies this in the "Additional Information" Section of the VAF.

Again thanks for all your replies. I am rather expecting the application to be turned down and having to appeal. If it's not initially turned down then it's a bonus!

Simon.

[7by7]

Good luck; although from what you have said I cannot see any reason why it would be refused.

[7by7]

Off topic rant and response to it deleted.

[Brigante7]

I'm confused, if the op's ex wife wants to apply for a visa to visit her son and wants to work. She's not allowed to work until she gets a visa but might need a job to prove she can keep herself and thus obtain said visa, surely if anybody offers her a job then they are breaking the law as at the time of her applying for said job she isn't allowed to work, no?

Brigante7.

[ExpatArchie]

I'm confused, if the op's ex wife wants to apply for a visa to visit her son and wants to work. She's not allowed to work until she gets a visa but might need a job to prove she can keep herself and thus obtain said visa, surely if anybody offers her a job then they are breaking the law as at the time of her applying for said job she isn't allowed to work, no?

Brigante7.

7by7, I note, respect and will comply with your decision to allow ME this one last and final post. I ask you not to close the thread to others in the hope the OP can keep us informed of developments.

I regret my contributions have given Scouser cause to consider me a Troll.

Brigante7,

An employer can make a provisional offer of a job to whoever he pleases. He is committing an offence if he subsequently employs a person holding a visa which does not permit employment. In this instance the childs mother is entitled to work once in possession of the visa. That is not in dispute..

I include the following simply in response to a criticism that I do not quote sources.

Source UK National Archives

Statement Of Changes In Immigration Rules (HC395)

Laid before Parliament on 23 May 1994 under Section 3(2) of the Immigration Act 1971

PART 7: OTHER CATEGORIES

PERSONS EXERCISING RIGHTS OF ACCESS TO A CHILD RESIDENT IN THE UNITED KINGDOM

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 to exercise access rights to a child resident in the United Kingdom are that he:

(v) does not intend to take employment in the United Kingdom

Clearly at some point clause (v) was removed - probably in 2000 (I have searched the archives unsuccessfully to confirm the date)

Nonetheless ECOs still have the apparent right to refuse on grounds of intent to seek work.

Edited to add "at" after "clearly"

Edited June 20, 2010 by ExpatArchie

[7by7]

I'm confused, if the op's ex wife wants to apply for a visa to visit her son and wants to work. She's not allowed to work until she gets a visa but might need a job to prove she can keep herself and thus obtain said visa, surely if anybody offers her a job then they are breaking the law as at the time of her applying for said job she isn't allowed to work, no?

Brigante7,

Do not be confused by ExpatArchie's musings.

This application would be under Para 246 of the immigration rules, which does not prohibit employment.

The visa endorsement would be Code 1, which does not prohibit employment.

Scouse, who is a highly qualified OISC adviser, has confirmed that an application under Para 246 does not prohibit employment; and that saying she intends to seek employment once in the UK may 'add value' to the application; also that any firm offer of employment will help the application.

The OP has seen confirmation from UK visas that employment is permitted.

Obviously the applicant would be unable to take up any offer of employment until she has her visa and is in the UK, and any such job offer would implicitly be conditional on this happening. Therefore the potential employer would not be breaking any law.

ExpatArchie,

You are correct in one thing. Clearly Para 246(v) did prohibit employment. But, as you say, at some point since 1994 this clause was removed; and to be frank I cannot be bothered to search the archives to find out when. The situation now is what is important, not what it was at some point in the past!

Nonetheless ECOs still have the apparent right to refuse on grounds of intent to seek work.

That the wording for a refusal on employment grounds is still in the Entry Clearance Guidance does not mean that they have any such right. The ECGs are merely guidance; the Immigration Rules are a statement of the law and so override anything in the ECGs.

As I have already said, looking at Wording for refusals: Sections 31-35 it appears that much of the refusal wording is out of date and does not reflect the current rules. Why this has not been updated, I do not know; but as it is no longer possible to refuse in this category on employment grounds this refusal wording is clearly now redundant.

I will keep the topic open for now so that anyone who wishes to post may do so; unless it starts to go round in circles again.