Uk Visa Problems...Fiance Under 21

[Djetou]

Hi my girlfriend is currently in the UK on a six month tourist visa, prior to this we lived in Thailand together for around 2 1/2 years. Once we arrived in the UK i landed myself a good job within a week and wish to stay on living here, we have an 18 month old son together who is also with us in the UK.

Problem is my girlfriend is 19 (I am 27) and UK spouse visa states that non eu partners need to be at least 21 to apply to remain in the UK for a further 2 years. Obviously this will cause major problems for our family for the next couple of years as my fiance will only be able to stay 6 months of the year in the UK and the rest back in Thailand. Then what would happen with our son? i work full time and would have to get a full time carer or he would have to go back to Thailand with my fiance.

We have already done some research and seems like we would have a case under the 'human rights act' as it will be splitting up a family and causing major problems for us all.

Can anyone offer any adivce? any contact details etc. Problem is i dont want to apply for an extention yet as i know it will be refused because of her age so im trying to get as much info as i can first.

[7by7]

Firstly, if she is in the UK as a visitor she cannot apply for any sort of extension or settlement in the UK; she will have to return to Thailand to apply.

Secondly, I'm afraid the rules are very clear. For settlement as a spouse, partner or fiance both parties must be over 21. Whether human rights considerations would be a way round this I doubt. However, you should seek professional advice on this. For an OISC adviser in your area, see Adviser Finder, or speak to a solicitor who is experienced in immigration and/or human rights matters. Your local CAB may be able to guide you too.

[stament]

Good luck. Don't think it's going to be easy, if at all possible from the little I know and have read on here.

I'm sure someone on here will know. Can't believe its never happened before.

[7by7]

Thinking about it, your son is presumably a British citizen. If so, I think she may be able to apply for settlement on the basis that her son is living in the UK. There was a court ruling on this, but I can't remember the details. If this is possible, she will still have to return to Thailand to apply.

There is a type of visa to allow a parent access to a child who is resident with their other parent in the UK; but for her to qualify for this the two of you would need to be separated and she would have to show that you have legal custody of the child.

Again, you should seek professional advice.

Please, whatever you do, don't be tempted to just have her overstay. The problems this will store up for the future simply means it's not worth it.

[Djetou]

Thanks, indeed we will have to seek legal advice on this. Yes the child is a british citizen and plans to now be settled in the UK. My fiance still has 4 months left on her visa and no way will we risk going onto overstay as it may harm our future. I know as she is on a visitor visa she will have to return to Thailand to apply for a settlement, if she has to return for a month or two then that will have to be done but 6 months will be very hard to deal with.

I might mention to a solicitor about her applying for access to her child, though not keen on the idea of having to say we are seperated. I believe this under 21 law has been brought in recently to try and stop some of the forced marriages (many from india) but i dont believe its right to reject all under 21 marriages based on this.

[ThaiVisaExpress]

Have you any family whom are Irish or Eu as you may qualify for an EU family permit if you was married under this category she does not need to be 21.

[Djetou]

My grandmother was irish so from my mothers side of the family. Would this mean we would have to marry in Ireland and reside over there for a period of time?

[7by7]

Are you entitled to Irish citizenship? If so then you could get an Irish passport.

She could then apply for an EEA family permit to live with you in the UK as the spouse/partner of an EEA citizen exercising his treaty right to live and work in the UK.

Alternatively, if you were to live and work in another EEA state as a British citizen for a period she could apply for a family permit to join you there and then apply for another one to live in the UK with you when you returned. It wouldn't matter how long you had lived there for or if the sole purpose of you doing so was to obtain a family permit for your partner to live in the UK; as long as you were working, employed or self employed, while living there.

The EEA family permit is not available to fiances. It is, though, available to unmarried partners. However, each member state is allowed to use it's own definition of an unmarried partner. For the UK it is living together in a relationship akin to marriage for at least the last two years; which you seem to have done. I don't know what it is for the RoI or other states; it may be easier were you to marry.

Remember, if you were to move to another member state for a while she would need to apply to the embassy of that state, following their procedures. However, the rules are the same throughout the EEA, as is the fee: zero!

See EEA Family Permits

(*For the benefit of the pedants; I am aware that other member states each call it something else, but to keep things simple I am using the UK phraseology throughout.)

I said earlier

Thinking about it, your son is presumably a British citizen. If so, I think she may be able to apply for settlement on the basis that her son is living in the UK. There was a court ruling on this, but I can't remember the details

What I was thinking of was the Chen case. But I'm not sure that it will help you here as the application and appeal were made under EEA regulations, not the UK immigration rules.

[Djetou]

Thanks 7by7, moving to another country would not be easy. Would have to quit my current job, then rent out my property in the UK. Then finding a job abroad and having to apply for my partner and son to join me, then after all that we would still need to apply for an UK visa to get my partner into the UK.

Making a move abroad is not easy, as is finding work there etc and moving a whole family around. Its crazy considering i am from the UK and our son holds a british passport that my partner would not be able to join us.

[7by7]

I believe this under 21 law has been brought in recently to try and stop some of the forced marriages (many from india) but i dont believe its right to reject all under 21 marriages based on this.

You are correct; the age limit was brought in as a measure against child/forced marriages. One of the basic principles of British law is that the same law should apply to all; although at times it doesn't seem that it does. Were this rule to be applied only to applicants from South Asia, then it would very soon be challenged and overturned by the courts.

Unfortunately, people in your position have also fallen foul of this increase in the age limit.

As it is not possible for you to move, even for a brief period, to another EEA state to work, then unless you can claim Irish citizenship through your grandmother, I'm afraid your only choice, other than living apart until she is 21, is to try the human rights route.

I cannot advise you on this, as I know almost nothing about it; other than many try, and most fail. This will be a long and expensive road, with no guarantee of success, you may even find that your fiance reaches 21 before it is over! Obviously, you must speak to a lawyer who specialises in this area.

I wish you and your family the best of luck.

[Mercury]

As stated, the legal route may well take longer than she does to reach 21. However, you can cut some costs. She would have to pass KOL anyway so get her to do that now. Then , when she eventually requests settlement, she will get ILE and you will not have to pay for ILR.

Is study an option ?

If she has 6 months in the UK each year, then if she is 19.6 (taking the mid way point and with the decimals representing months, not tenths), then as she has 4 months left, she will be 19.10 and will have to leave. When she is 20.4 she can return until she is 20.10, return for 2 months until 21 and apply for settlement.

If you could visit her in Thailand during her 6 months back there for a holiday then you'd only have periods of a couple of months apart at a time.

I know this is not perfect but before you head off on a potentially fruitless and expensive legal case, it might be worth considering as it is a viable, though not ideal alternative. In any case, when she applies for settlement, she will have to be in Thailand for around 3 months anyway as she waits for her visa.

[7by7]

As stated, the legal route may well take longer than she does to reach 21. However, you can cut some costs. She would have to pass KOL anyway so get her to do that now. Then , when she eventually requests settlement, she will get ILE and you will not have to pay for ILR.

Whilst it is a good idea to take her LitUK test while in the UK as a visitor, if her English is good enough, I'm afraid that she would not qualify for ILE. To qualify for ILE a couple need to have been living together outside the UK for at least the 4 years prior to applying.

[Djetou]

Well i will need to decide after speaking to a solicitor, i dont have the money to throw £1000's into legal proceedings and quite rightly once its finished she could have turned 21 by then. Seeking an Irish passport is an option (if i qualify) but whatever route seems to be time consuming, expensive and hard work. Why has members of the armed forces been excluded in this law and there partners can be 18?

[7by7]

There are other rules as well where different criteria apply to members of the armed forces, and the diplomatic service.

Why? Maybe it's because such people are abroad in the service of their country; but that's just conjecture on my part. For a full answer one would need to ask Parliament via one's MP. It is Parliament that sets these rules.

[steve187]

Here is a link to 'Who is Eligible for Irish Citizenship' - http://www.movetoireland.com/movepag/pascitzn.htm

[Mercury]

Whilst it is a good idea to take her LitUK test while in the UK as a visitor, if her English is good enough, I'm afraid that she would not qualify for ILE. To qualify for ILE a couple need to have been living together outside the UK for at least the 4 years prior to applying.

Sorry, I forgot he was not going back to Thailand or they would have reached 4 years by the time she was 21.

Best get married then to reduce the 4 years qualifying period, still do the test as the rules change in November 2010 and presumably someone passing before then does not have to go through the same rigmarole ? the fact that they would have to wait 18 months until she is 21 is hardly their fault and as such, I don't see how any such delay could be used against them in their belated settlement application.

Tough call but given the fact that money is tight, I'd probably spend that cash on the baby and supporting her and trying to get over to Thailand as often as possible whilst still having her over to the UK for 6 months every year in any case. Once the baby was in the UK, he would be able to claim benefits permanently though via a convoluted arrangement. I'll explain.

When the baby arrives, he can claim for the 3 months before the baby arrived. He can obviously claim for the 6 months the baby is in the UK. He can also claim for the 3 months after the baby leave the UK. Then the cycle starts again. He could of course not inform the authorities that the baby was outside the UK but there is not need to lie as the system will provide him with assistance for 12 months each year though not in a uniform manner.

[the scouser]

I would ask that you bear in mind that the law prohibits those under 21 from seeking spousal settlement visas, but it doesn't prevent you and your girlfriend from marrying, if that is what you wish to do.

Notwithstanding the above, there is no requirement in law that you and your girlfriend be separated for her to benefit from the provisions regarding rights of access to a child resident in the UK. Indeed, such would beg the question of how you could be separated when you've never been married to each other. The Immigration Rules state:-

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

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

(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

( a certificate issued by a district judge confirming the applicant's intention to maintain contact with the child; and

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

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

(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

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

Focussing on sub-section (iii), your girlfriend would need only to obtain either a residence order, contact order, or a district judge's certificate. Perhaps speak to your local county court about how such is obtained. Once your girlfriend has one of these documents, and on the assumption that the other requirements of the Rules are met, she can return to Thailand and seek a visa to enter in this capacity.

In addition, I do not see why, anyway, an in-country application based on your having lived together for in excess of 2 years would not succeed. This could include human rights grounds.

Scouse.

[7by7]

Scouse, are you saying that

1) As they have been living together for over 2 years that the normal rule about not applying for settlement whilst in the UK as a visitor does not apply?

and

2) That the 'over 21 rule' doesn't apply to unmarried partners?

Thanks for the clarification on the child access.

[The Philosopher]

Firstly, if she is in the UK as a visitor she cannot apply for any sort of extension or settlement in the UK; she will have to return to Thailand to apply.

Secondly, I'm afraid the rules are very clear. For settlement as a spouse, partner or fiance both parties must be over 21. Whether human rights considerations would be a way round this I doubt. However, you should seek professional advice on this. For an OISC adviser in your area, see Adviser Finder, or speak to a solicitor who is experienced in immigration and/or human rights matters. Your local CAB may be able to guide you too.

Quite right human rights and UK Immigration Law are contridications thank goodness - as any personal situation can be given a human rights slant. That is why the rules are there, and when applied evenly mitigate inconsistancy.