Pregnant Thai Woman With Uk Spouse Visa, Marriage Over.

[7by7]

This one is complicated!

Some of you may remember this old topic.

Unfortunately the woman concerned ignored the advice to obtain a child access visa in Thailand and then, once qualified, apply for ILR.

Instead she married an Englishman and entered with a spouse visa.

She has been here just over 1 year and is 5 months pregnant by her husband.

However, the marriage has now broken down; her husband has not been violent towards her but has told her to get out and that he has no interest in the child; saying that she can go back to Thailand and have an abortion for all he cares (her side of the story; I haven't spoken to the husband). She is currently staying with various friends, including us.

As I said, he has not been violent towards her and she has not reported the verbal abuse to anyone; so I don't think that she can apply to remain as a victim of domestic violence.

I believe that at present she is under no obligation to leave the UK until her spouse visa expires next year; by which time the child will have been born.

Para 248A of the immigration rules say

Requirements for leave to remain in the United Kingdom as a person exercising rights of access to a child resident in the United Kingdom;

(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

but the rest of the rules seem to say that the other parent has to have custody of the child and the applicant has access rights to the child. This isn't going to happen unless the father has a complete change of heart; unlikely.

So, my questions.

1) Can she remain in the UK until her spouse visa expires?

2) Assuming the answer to 1) is 'Yes,' once the child is born can she then apply for ILR on the basis that she has limited leave to remain as a spouse and now has a British child with that spouse; even though the marriage has now broken down?

3) Would the fact that she already has a daughter by another man who is living in the UK with her father have any bearing? If so, positive or negative?

4) Considering her history, if she is unable to apply to remain, or such an application is refused, and she were to return to Thailand, before or after the birth, and then apply for a visa in order to exercise her access rights to her daughter, would her history count against her?

As before, can I ask respondents to stick to the immigration questions and not pass judgment on the woman's behaviour.

[bellboy86]

7by7 my wife's friend was I'n the same situation, she contacted the local woman's aid, and the help they gave her was amazing, got het sorted with accommodation, also gave her allowance every week and helped her access visa lawyer for free, and they supported her I'n her visa process and guess what she now had ilr. So maybe if you pm me your number we can get them talking to fond out the pros and cons, then who knows. I would also add there's so much help out there for woman and men with broken marriage issues, good luck mate

[bobrussell]

I am not in the situation to give legal advice on this one but I will keep you informed about the situation with my sister-in-law who has left what I would consider an emotionally abusive relationship (but it is going to be very difficult to prove to UKBA, I fear). I am not convinced she will be in a situation to provide adequate 'proof' and at present seems happy to let it 'sort itself out' now she is away from her husband.

I will be asking an immigration specialist about the Zambrano case which seems to say that an EU citizen has the right to 'enjoy' the benefits of living in the EU and if a parent or parents from non-EU countries are 'necessary' for this to happen they should be given the right to live and work in the EU. If the husband refuses to be involved with the upbringing of the child this should strengthen the mothers case. I have not been able to find any response from the UK government to this decision in the European court

I know this has been discussed on a couple of threads but it seems almost to good to be true for mothers of EU citizen children. I am not sure what time scale it will be before we hear an opinion from the expert!

I may be quoting your own advice back at you (in which case I apologise!) but I was under the impression that while legal (ie divorce/child custody issues) processes are on-going the UKBA guidance recommends no action until visa renewal.

If there is anyone out there with more concrete information about this situation I too would be grateful!

[bellboy86]

Just to add to my post, the woman's aid was a good source for her as they were basically her voice and backing, remember it's not public funds they are a charity and there bloody good.

[bobrussell]

I am not in the position to give legal advice on this one but I will keep you informed about the situation with my sister-in-law who has left what I would consider an emotionally abusive relationship (but it is going to be very difficult to prove to UKBA, I fear). I am not convinced she will be in a situation to provide adequate 'proof' and at present seems happy to let it 'sort itself out' now she is away from her husband.

I will be asking an immigration specialist about the Zambrano case which seems to say that an EU citizen has the right to 'enjoy' the benefits of living in the EU and if a parent or parents from non-EU countries are 'necessary' for this to happen they should be given the right to live and work in the EU. If the husband refuses to be involved with the upbringing of the child this should strengthen the mothers case. I have not been able to find any response from the UK government to this decision in the European court

I know this has been discussed on a couple of threads but it seems almost to good to be true for mothers of EU citizen children. I am not sure what time scale it will be before we hear an opinion from the expert!

I may be quoting your own advice back at you (in which case I apologise!) but I was under the impression that while legal (ie divorce/child custody issues) processes are on-going the UKBA guidance recommends no action until visa renewal.

If there is anyone out there with more concrete information about this situation I too would be grateful!

[bobrussell]

Just to add to my post, the woman's aid was a good source for her as they were basically her voice and backing, remember it's not public funds they are a charity and there bloody good.

I spoke to Women's Aid a few months ago and they were great. When my sister in law 'escaped' I was with my family in Thailand and her ex-husband got the Police involved claiming they had gone missing (despite messages establishing they were safe).

I spoke to them more recently and they have recommended a more local group to their 'safe house'.

In the case of this pregnant Thai woman discretionary leave to remain an option. I presume there is going to be a divorce, if this is done in the UK the visa status appears to go on hold!

Once again 7by7 I hope I am not quoting your good advice back to you!!

[bangkockney]

As with many things, "it depends".

Can't apply for ILR based on marriage.

How much acces does she have with the other child? Is there a contact order?

Regardless, she should not resolve this outside the UK in my opinion.

Dependant on access to the other child (and subject to proof), she could inform the HO of a change of circumstances and apply for access visa under rule 247. Reference to Articles 6 and 8 EHR would be useful too.

If succesfull and 12 month visa will be issued and ILR can be applied for afterwards.

As a last resort, should the applicant fail at any point they can appeal to AIT, claiming Article 8 and referencing Chwimba v SSHD (no need to leave UK and apply for entry clearance if you already have a private life in UK).

Something to consider, with some ifs and buts.

[bobrussell]

Zambrano may have major implications for this lady and is probably more relevant to her than my sister in law. I have another link related to the case:

h**p://eudo-citizenship.eu/citizenship-news/449-the-zambrano-case-relying-on-union-citizenship-rights-in-internal-situations.

This judgement may have major implications particularly if the child is born in the UK.

[bangkockney]

ZH is more relevant really; when comparing the two, ZH is about children, Zambrano, nationality.

The difficulty, again, is the level of contact with the other child.

Zambrano may have major implications for this lady and is probably more relevant to her than my sister in law. I have another link related to the case:

h**p://eudo-citizenship.eu/citizenship-news/449-the-zambrano-case-relying-on-union-citizenship-rights-in-internal-situations.

This judgement may have major implications particularly if the child is born in the UK.

[bobrussell]

From what I understand it is the rights of the child that are considered in the judgement not the parent(s). This is very different to the rights of the parent under the dreaded Human Rights Act!

An EU child has the right to enjoy the benefits of EU citizenship and if it is only possible by a non-EU parent caring for that child the parent should be given the right to reside and provide for that child (by working or claiming benefits).

As a non-lawyer this is based on what I have read and I am sure there will be a lot of resistance to its introduction. The other side of it is that it may make EU citizenship more difficult to get for for some.

I am unenthusiastic about some of the implications for additional immigration and abuse of pregnancy as a short cut to EU residence but IMO British children should have easy access to parents irrespective of nationality. A British child should be allowed to live in the UK with one or both parents with minimal state intervention.

Discretionary leave to remain probably covers most cases but by definition these are not a right and are to some extent issued on the whim of a politician.

Edited May 23, 2011 by bobrussell

[bobrussell]

Sorry if I am causing confusion as other posts (a lot more knowledgeable than mine, I suspect) have been written while I wrote mine.

My only point was that if the child is born in the UK and has a British father Zambrano may be applicable to this child. As I am in way over my head when dealing with immigration laws I will bow out now!

Edited May 23, 2011 by bobrussell

[7by7]

Thanks for the advice so far.

Womens aid is a good idea, I'll try and get her to contact her local group.

She originally left her daughter with the father and returned to Thailand. The intention was to follow the earlier advice and apply under Para 247, but she was worried about the maintenance and accommodation issues. Meeting and then marrying her current husband seemed, to her, the easier way; despite warnings from us and other friends that she hadn't known him long enough and shouldn't marry him just to get a visa!

When she came back to the UK she went to court to try and get custody of her daughter, but the father was granted custody by the court and she was granted access. She has care of her every other weekend, so an application under para 247 may be possible, but I thought that this had to be made outside the UK?

Maintenance issues should be OK, as she now has a job; but accommodation may be a problem; she is currently sleeping on various friend's sofas!

I had thought of Zambrano, but was unsure if this has been clarified yet, the author on Free Movement certainly seems puzzled by the ruling!

Human rights issues certainly play a part. Presumably she would need to make an application and then, if refuse, appeal on HR grounds?

[bangkockney]

Like I said 7by7, she can make a change of circumstance request to HO. If refused and leave is curtailed she has full rights of appeal against deportation (the same is true if husband has informed UKBA that the marriage is over).

She has a contact order so she should have no problem obtaining 1 yr in-country child access visa. ILR can be applied for after.

Should the HO refuse, she can cite Chwimba.

Edited May 24, 2011 by bangkockney

[7by7]

Thanks.

[paully]

she can make a change of circumstance request to HO

Yes. Arguably she should do this before the second child is born, so that she is not seen to have deliberately delayed the process. The contact order can be used as evidence that she should be allowed to stay in the country to exercise it and see the other child every other weekend. She has a job and so can support herself in the UK, I'm sure accommodation will be sorted in due course. What she needs is a decent immigration solicitor to put the application in the best light.

[bellboy86]

That's where woman's aid could help, find her a immigration solicitor, the done it for my wife's friend and the support she got through the whole process was tremendous I would get the ball rolling with them ASAP. Goodluck I hate seeing coupled breaking up everybody gets hurt it's sad but part of life.