Can She Stay ?

[darrylcfc]

hi all, me and my wife are in england and she is on a multi entry tourist visa that runs out on the 16th august 2011.she will not be 21 until june 2012 so i cannot apply for a spouse visa. she is 16 weeks pregnant with our baby and need some advice on what rights she has to stay in england with the baby.so....

if she has the baby in thailand can she then return to england with the baby?

if she has the baby in england will she be sent back to thailand after shes given birth?

can she stay in england for more than 6 months out of the year?

thanks darryl

[LM09]

No she can not stay. You must wait until she's 21, then you can apply for a spousal visa. Having a baby does not give her any rights to stay in England. So her rights are the same: 6 months out of one year if she can get it. Sorry.

[Thongkorn]

Be carefull you do not get a bill for the baby if its born in the UK.

[7by7]

Having a child who is a British citizen does not grant her any rights to enter or remain in the UK.

However, the 'maximum 6 months out of 12 as a visitor' is not a rule, it is more of a convention. Depending upon the circumstances, visitors can spend more time in the UK than this; although they are restricted to a maximum of 6 months per visit.

In your circumstances?

In this post you said

i have considered both options and it was a hard call but i think mentioning the baby will be 4 the best. weve got a doctors letter stating she will have to return to thailand to have the baby and also reccomends she returns the middle of june for it to be safe to fly whilst pregnant. good idea about giving the name of the hospital....i hope all thses little things will be taken into consideration

And in this one you said

ill be travelling a month after her to save a bit more money before the baby comes.(also chelsea are playing thailand in bangkok so i have to come back]lol......but seriously, ill be back 3-4 weeks before the babys due.....ill be taking your advice and detailing this all in the sponsors letter

Both posts dated 22nd Jan, so in just over 6 weeks, less than that since the visa was issued on the 17th Feb, you have changed your minds about just visiting the UK and now want to live here!?

She must leave the UK on or before 16th August, otherwise she will be in the UK illegally.

Most airlines will not carry a pregnant woman after the 28th week, so she really needs to leave before then.

Obviously the UK authorities are not going to kick her out if she is medically unfit to travel; but it will be on record that in her application she said that she intended to leave the UK before this became an issue. Overstaying in such circumstances could come under para 320(11) of the Immigration Rules; which could mean that she is effectively banned from ever entering the UK again.

The 'over 21 rule' for spouses and partner settlement applicants is unfair, I agree: brought in as a knee jerk 'we must be seen to be doing something about child brides' reaction typical of the last Labour government. Unfortunately. though, it is a rule and will remain so unless (until?) this government changes it.

In my opinion your best (only?) course of action is to stick with your original stated intentions and return to Thailand for the birth. Once she is 21 she can then apply for settlement in the UK.

Even if this means you effectively commuting between the UK and Thailand until then it's better than living in the UK in fear of her being removed as an overstayer and possibly never being allowed back into the UK again.

Something you seem to have accepted when you made this post on 8th Feb.

[Kadafi]

Im in a similar situation, my partner is under 21 and is here in the UK with our 2 year old son. We have decided to get a solicitor involved and if needed take our case to the high court to stop them separating our family by sending my sons mother back to Thailand.

Good luck to you, the under 21 rule is unfair i know.

[stenfred]

If you have a bit of backbone, there's a new ruling in from Brussels that says if your child has citizenship of a European country, you have a right to stay and work in that country, EVEN if none of the child's parents have Leave to Remain in the EU.

LINK

To keep it simple, get her to pop the sprog as soon as possible while finding excuses and get extensions for her to stay, then when the baby is born and UK citizenship has been given, she goes to the front of the line and gets the same rights as dependents of EU citizens who are working in the UK (virtually unlimited, AFAIU).

[bangkockney]

The under 21 rule has already been successfully challenged in court. If you can show you are in a genuine marriage then you have a case.

The Government (sadly) has already lodged an appeal with the Supreme Court.

The appellants however have now received entry clearance/LTR.

If you're thinking of challenging the 21 law ask your solicitor about the implications of Quila v SSHD (2009). If they don't know, find new representation.

Edited March 9, 2011 by bangkockney

[7by7]

In both Darrylcfc and Kadafi's situations the main problem is that their partner's entered the UK as visitors. Both gave solid reasons why they would not be staying in the UK longer than stated in their application.

Kadafi's wife has already applied for an extension of her stay and been refused because she is in the UK as a visitor. From what he posted elsewhere she is under notice to leave.

Had they applied for settlement in Thailand and been refused due to being under 21 then an appeal as suggested by Bangkokney may have been successful, but they didn't, they applied for, and were given, visit visas.

The visit rules clearly state, and have for many years, that visit visas cannot be extended beyond 6 months (12 months if accompanying an academic visitor) except in extreme circumstances.

Kadafi may have a case due to his son's hospital treatment; although the UKBA may well argue that as his condition was known about and being treated in Thailand before the visit there is no reason why treatment cannot continue there.

Darrylcfc I don't see as having any case for an extension; his partner specifically stated in her application that she would be returning to Thailand well before the baby is due and giving birth there.

I haven't had time to read Stenfred's link fully, but it appears to confirm the Chen ruling and so would not help in these two cases. As the children are and will be British citizens and the parent wants to remain in the UK then UK immigration law applies, not EU regulations on free movement.

I would dearly love to be proven wrong in my assessment of their chances; unfortunately I don't think I will be.

[ThaiVisaExpress]

just to add the applicant may apply 2 months before he/she is 21 years old & the visa will be issued valid from the applicants birthday.

[Kadafi]

Kadafi's wife has already applied for an extension of her stay and been refused because she is in the UK as a visitor. From what he posted elsewhere she is under notice to leave.

She has been given the right to appeal the decision, if a visit visa could not be extended then I guess they would have given no right to appeal. The refusal letter states we could easily continue our family life together back in Thailand, which is untrue as I work, own a property in England and thats the only way I can support them. Maybe your right and the appeal will get turned down but I believe theres hope yet.

[rixalex]

The refusal letter states we could easily continue our family life together back in Thailand, which is untrue as I work, own a property in England and thats the only way I can support them.

How exactly does owning property in England make you less able to continue family life in Thailand than someone who doesn't?

[Kadafi]

The refusal letter states we could easily continue our family life together back in Thailand, which is untrue as I work, own a property in England and thats the only way I can support them.

How exactly does owning property in England make you less able to continue family life in Thailand than someone who doesn't?

My property is what is giving us somewhere to live, something we wont have in Thailand if i was to quit my job and move over there.

[rixalex]

My property is what is giving us somewhere to live, something we wont have in Thailand if i was to quit my job and move over there.

I understand that your property gives you somewhere to live, i don't understand how owning property makes you less able to move to Thailand than someone who was say for example renting. At least if you own property you can rent it out or sell it and use those funds to start your new life.

[Hawkinschris]

its people like these two that make it difficult for genuine people to get visas!

they come on a tourist visa when all the time they have no intention to leave...!

go back to thailand and do it properly, like everyone else has to do!

[Kadafi]

its people like these two that make it difficult for genuine people to get visas!

they come on a tourist visa when all the time they have no intention to leave...!

go back to thailand and do it properly, like everyone else has to do!

she is not on overstay we submitted for an extension until our sons second operation is carried out, if they were to serve a notice to leave with no appeal then we would have no choice...currently we have been given an option to appeal which means she is not on overstay and her visa is valid.

[7by7]

The refusal letter states we could easily continue our family life together back in Thailand, which is untrue as I work, own a property in England and thats the only way I can support them.

Which is not what you said here

We stated on my (sic) visa application that i would be working in England for a period of 3-4 months until an air conditioning contract finished

[bangkockney]

its people like these two that make it difficult for genuine people to get visas!

they come on a tourist visa when all the time they have no intention to leave...!

go back to thailand and do it properly, like everyone else has to do!

she is not on overstay we submitted for an extension until our sons second operation is carried out, if they were to serve a notice to leave with no appeal then we would have no choice...currently we have been given an option to appeal which means she is not on overstay and her visa is valid.

If this is true, then you must appeal. I'd strongly suggest you take representation and ask them if it's possible to construct an Article 8 defence in your circumstances.

I would have thought no judge in the land who would deny a young child access to their mother during hospital treatment.

Why exactly was she refused? What type of visit visa does she have? How long was her initial entry clearance? How much entry clearance was left when you applied? Can you reproduce the refusal notice?

[Kadafi]

its people like these two that make it difficult for genuine people to get visas!

they come on a tourist visa when all the time they have no intention to leave...!

go back to thailand and do it properly, like everyone else has to do!

she is not on overstay we submitted for an extension until our sons second operation is carried out, if they were to serve a notice to leave with no appeal then we would have no choice...currently we have been given an option to appeal which means she is not on overstay and her visa is valid.

If this is true, then you must appeal. I'd strongly suggest you take representation and ask them if it's possible to construct an Article 8 defence in your circumstances.

I would have thought no judge in the land who would deny a young child access to their mother during hospital treatment.

Why exactly was she refused? What type of visit visa does she have? How long was her initial entry clearance? How much entry clearance was left when you applied? Can you reproduce the refusal notice?

She came in on a 6 month visit visa, after 4 months of being in england our son had his eye operation, afterwards we were told that a second operation would be required within the next 6 months and he would require hospital checkups every 6-8 weeks for the next 2 years.

We applied for the extension with 1 month remaining on the visa as it states it could be refused if submitted before that date. We received a letter from the UK boarder agency 6 weeks after our application was submitted asking for more information from the surgeon. We sent the surgeons letter back via recorded mail but received no acknowledgment that they received it and when our documents were sent back this was not included! at the 4 month stage we received the letter refusing FLR.

The refusal letter just states that my partner has more family ties back in Thailand and the friends/my family she has met in England she could keep in touch with via email/phone calls etc and visit again in the future. It then goes on to say our family unit (me,my partner and son) could continue family life back in Thailand with minimal hardship and do not need to be in England to continue our family life together.

Currently we have a solicitor dealing with the case and believes we have grounds on humans rights.

[darrylcfc]

its people like these two that make it difficult for genuine people to get visas!

they come on a tourist visa when all the time they have no intention to leave...!

go back to thailand and do it properly, like everyone else has to do!

wait a minute before you start judging me....dont you dare say that me and my family are not genuine,we intended to have my wife fly back to thailand to have the baby but due to my current financial predicament it will be near on impossible to pay for flights for my wife and a return flight to the uk for me.also taking time off from work will cost me alot of money....plus i really dont want to be seperated from my wife and new born baby for such along time.

think before you judge people so harshly...this is my first child and im simply looking for solutions to keep my family together....

[darrylcfc]

i have been advised by my friend from who works at immigration to apply for an flr o before my wifes visa runs out in august...this seems a little odd as on the ukba website it clearly states the maximum stay is 6 months from 1 year. im unsure of taking this advice is its likely the flr will be refused.

will she be classed as an overstay if we do apply for the flr before her visit visa runs out?

we have every intention of her going back to thailand and applying for a spouse visa in june when she is 21.im simply looking for possible ways for her and the baby to stay with me in england for a few months after the birth as i cant really afford to go to thailand and take time off work.

also do we have to wait 6 months to re apply from the date she left england or the date her visa expires?

thanks darryl