Uk Settlement Visa For Niece

[steady]

I'm hoping someone with more experience and wisdom can help me. My family - wife, 2 children (UK citizens) and my niece are relocating back to the UK. Both my wife and niece are Thai and have had visitors visas to the UK previously without any problems and I don't foresee any problems getting my wife a settlement visa now. However when I read the UK rules on bringing children as part of the family I feel that my neice doesn't fit in any of their 'boxes'.

My neice lives with us as part of our family and has done so for a few years now, she is fully supported by us and is really just considered as a big sister to our 2 children. Her mother has signed the paper giving me and my wife sole responsibility for my niece at the local amphur office. But appartantly the UK wants only legally adopted children if they are not family but only appears to count family as children not neices. Every other condition relating to our situation can easily be satisfied. It appears that legally adopting can take years so that's not really an option - but if anyone knows different let me know. In Thailand the signed paper from the amphur office appears to be considered as all that's needed for our niece to be considerd as part of our family.

Has anyone been through this situation before? Any useful advice will be graciously received. Thanks.

Steady

[VisasPlus]

With respect, you cannot decide whether legal adoption is an option or not. It is an option, and it may well be the option insisted on by the ECO if you wish to take your niece to the UK for settlement. I would have to say that, on the information you have given, the chances of success are virtually nil. The alternative to a legal adoption is a de facto adoption, where there has been a genuine transfer of responsibility, but no actual legal adoption. It is extremely difficult to prove, especially where the adopted child is a family member. The immigration rules are designed to specifically stop people taking family members to the UK in the guise of adopted children. Here is an extract from the guidance on visa applications for adopted children:

Adopted children who qualify for indefinite leave

The ECO must be satisfied that the child is seeking to accompany or join an adoptive parent / parents under one of the following circumstances:

·

both parents are settled in the UK; or

·

both parents are to be admitted for settlement on the same occasion as the child; or

·

one parent is settled and the other is to be admitted for settlement on the same occasion as the child; or

·

one parent is dead and the other is settled / to be admitted for settlement; or

·

one parent has had sole responsibility for the child's up-bringing and is settled / to be admitted for settlement; or

·

one parent is settled / to be admitted for settlement and there are serious and compelling family or other considerations which make exclusion of the child undesirable and suitable arrangements have been made for the child's care.

In addition the adoptive parent(s) must show that the child:

·

is under the age of 18;

·

is not leading an independent life, is not married / in a civil partnership and has not formed an independent family unit;

·

will be maintained and accommodated adequately without recourse to public funds in accommodation which the adoptive parent(s) own or occupy exclusively;

·

was adopted in a country designated in the Adoption Order 1973 and at a time when either both adoptive parents were resident together overseas or an adoptive parent was settled in the UK;

·

has the same rights as any other child of the marriage;

·

was adopted due to the inability of original parent(s) or current carer(s) to care for him/her and there has been a genuine transfer of responsibility to the adoptive parents and has lost or broken ties with the original family;

·

has not been adopted merely to facilitate entry to the UK.

The guidance above pretty much follows the immigration rules for children and adopted children who are seeking settlement in the UK. The last sentence is the one that the visa officer will be looking at very closely.

In addition, in a de facto adoption the ECO will be looking at the following :

Circumstances in which a de facto adoption may arise

There may be occasions where a person or a couple, living abroad for a substantial period of time, take charge of a child whom they later wish to bring here to live. This would not normally pose any problem if they have formally adopted the child in a 'designated' country:

The Designated Countries List

(The list is currently being reviewed by the Department for Education, under the provisions of the Adoptions and Children Act 2002. Further information on the progress of the review will appear on the Department for Education website.)

However, the situation may arise where:

• the country in which they have adopted the child is one whose adoption orders the United Kingdom does not recognise as valid, (a non-Hague, 'non-designated' country); or,
  
• they are caring for a child in a country which does not recognise adoption, such as a Muslim country. (Under Islamic law there is no legally recognisable adoption process but a child may, nevertheless, have been raised as part of a family and been treated as a natural child of that family); or,
  
• despite the country in which they are living and working being a 'Hague Convention' or 'designated' country, they are unable to adopt there, because, for example, they are not able to satisfy that country's particular requirements, for example, to be a national of that country.
  In considering cases, it is important to distinguish between:
  
• those where the adoptive parent(s) are living and / or working abroad for a substantial period of time; and,
  
• those where they have perhaps only been abroad for a limited period, for example, for an extended holiday.
  

In instances where the adoptive parent(s) are only abroad for a short time and therefore will only have been caring for the child for a limited period before seeking to bring him or her to the United Kingdom, the application for entry clearance should be considered under the "for adoption" procedure (

Paragraph 316 of the Rules and SET7.22 refer).

SET7.23.3 How is the existence of a de facto adoption established?

A de-facto adoption should only be considered as having taken place where at the time immediately preceding the making of the application for entry clearance the adoptive parent(s):

• have been living abroad (in applications involving two parents both must have lived abroad together) for at least 18 months and,
  
  • have lived together for a minimum period of 18 months, of which the 12 months immediately preceding the application for entry clearance must have been spent living together with the child; and
    
  • have assumed the role of the child's parents, since the beginning of the 18 month period, so that there has been a genuine transfer of parental responsibility.
    

Note: The requirement for the adoptive parents to have lived together for a minimum period of 18 months, of which the 12 months immediately preceding the application for entry clearance must have been spent living with the child should be interpreted flexibly where one of the parents has had to be away from the family home for some of the 12 months immediately prior to the application. So long as during the 18 month period he / she has spent an aggregate period of 12 months living together as a family with the child, the essential requirement, that is, that both parents have bonded with the child, will have been met.

The onus to establish a de-facto adoption is on those who allege it. This will be very difficult to achieve where there is an absence of some legal formality or a long standing relationship.

Again, the last sentence is worth bearing in mind.

[steady]

Many thanks for the very full and informative post. I feel that I can meet the de facto adoption requirements because we have proof of us all living as a family in the form of school fees, 2 previous visas, medical insurance and photos, so you have given me a bit of confidence. Thanks for that.

[VisasPlus]

Many thanks for the very full and informative post. I feel that I can meet the de facto adoption requirements because we have proof of us all living as a family in the form of school fees, 2 previous visas, medical insurance and photos, so you have given me a bit of confidence. Thanks for that.

My post is fairly superficial. There is a lot to consider before making an application. You should look at all of the available guidance, the immigration rules themselves, and take any advice that you can get ( as long as it is good advice, of course ).

If we can help, in an official capacity, then please contact us via our website.

[7by7]

Unjustified accusation removed.

[steady]

An open question to anyone but I expect that the more knowledgeable and experienced posters can give the answer. My application for 2 settlement visas went in on the 22nd of May, I did expect a delay because one is for the wife (straight forward I hope) but the other one is for my neice who has been adopted by us in a de facto manner and so I expected a lot more scrutiny. She has lived with us full time for two and a half years and had 2 visitors visas to the UK in that time. However last week the embassy conducted telephone interviews with my wife and my neice's natural mother and concluded by saying that more checks need to take place. What checks are we talking about?

Steady

[7by7]

An open question to anyone but I expect that the more knowledgeable and experienced posters can give the answer. My application for 2 settlement visas went in on the 22nd of May, I did expect a delay because one is for the wife (straight forward I hope) but the other one is for my neice who has been adopted by us in a de facto manner and so I expected a lot more scrutiny. She has lived with us full time for two and a half years and had 2 visitors visas to the UK in that time. However last week the embassy conducted telephone interviews with my wife and my neice's natural mother and concluded by saying that more checks need to take place. What checks are we talking about?

Steady

I can't answer your question directly.

However, you may find the Entry Clearance Guidance for ECOs helpful.

SET7.23 Consideration of de facto adoption

[VisasPlus]

An open question to anyone but I expect that the more knowledgeable and experienced posters can give the answer. My application for 2 settlement visas went in on the 22nd of May, I did expect a delay because one is for the wife (straight forward I hope) but the other one is for my neice who has been adopted by us in a de facto manner and so I expected a lot more scrutiny. She has lived with us full time for two and a half years and had 2 visitors visas to the UK in that time. However last week the embassy conducted telephone interviews with my wife and my neice's natural mother and concluded by saying that more checks need to take place. What checks are we talking about?

Steady

There ECO will probably looking to see if there has been a genuine transfer of parental responsibility from the natural parent(s) to the adoptive parents. It is not good enough just to say that there has been a de facto adoption. That could mean as little as your wife's niece staying with you because her mother is working away from home. That would not be an adoption. The ECO will be trying to see what contact there is between your niece and her parent(s), how far apart they live, who makes decisions in the child's life, etc. There is a big difference between adopting a child de facto and merely taking care of her for someone else.

[steady]

An open question to anyone but I expect that the more knowledgeable and experienced posters can give the answer. My application for 2 settlement visas went in on the 22nd of May, I did expect a delay because one is for the wife (straight forward I hope) but the other one is for my neice who has been adopted by us in a de facto manner and so I expected a lot more scrutiny. She has lived with us full time for two and a half years and had 2 visitors visas to the UK in that time. However last week the embassy conducted telephone interviews with my wife and my neice's natural mother and concluded by saying that more checks need to take place. What checks are we talking about?

Steady

I can't answer your question directly.

However, you may find the Entry Clearance Guidance for ECOs helpful.

SET7.23 Consideration of de facto adoption

Did the reading of that guidance along with everything else I could find before the application. It looks like I'll not find out what the checks are. My concern is that I don't know of anyone or any establishment which can provide any more relevant facts than have already been provided. We will do what we have done all along - just wait and see!

[steady]

An open question to anyone but I expect that the more knowledgeable and experienced posters can give the answer. My application for 2 settlement visas went in on the 22nd of May, I did expect a delay because one is for the wife (straight forward I hope) but the other one is for my neice who has been adopted by us in a de facto manner and so I expected a lot more scrutiny. She has lived with us full time for two and a half years and had 2 visitors visas to the UK in that time. However last week the embassy conducted telephone interviews with my wife and my neice's natural mother and concluded by saying that more checks need to take place. What checks are we talking about?

Steady

There ECO will probably looking to see if there has been a genuine transfer of parental responsibility from the natural parent(s) to the adoptive parents. It is not good enough just to say that there has been a de facto adoption. That could mean as little as your wife's niece staying with you because her mother is working away from home. That would not be an adoption. The ECO will be trying to see what contact there is between your niece and her parent(s), how far apart they live, who makes decisions in the child's life, etc. There is a big difference between adopting a child de facto and merely taking care of her for someone else.

I agree with all of that. My concern is that I don't know of anyone else, establishment or individual, who can have a valid input. If they said they wanted to interview our neice or other children or any family member that's understandable, but no one else that I can think of could make a relevant input. I know that I did a lot of research before the application went in and you gave me lots of good advice - all of which I took to the best of my ability! Thanks again for your input. I did feel that I had put in a good application addressing all of the points that you have highlighted but the concept of 'sole responsibility' isn't the easiest to prove in an application. As I said in another reply I suppose we just wait and see.

[steady]

Applied for 2 visas on 22nd May, they have managed to issue the wrong one to my wife just last week - one week short of 3 months and say that they cannot make a decision on my niece's application until they take further guidance, and they don't know when that will arrive!!! Less than impressed.

[7by7]

What visa did your wife apply for, and what has she been issued? Why do you think it's the wrong one? Have you contacted the embassy to have it changed?

Inconvenient for you as the delay in your niece's application may be, I am sure you will agree that there are some vile people out there whose intentions toward children are not as genuine and honourable as yours.

Surely a delay in the application in a genuine case is better than an innocent child falling into the clutches of such people?

[steady]

What visa did your wife apply for, and what has she been issued? Why do you think it's the wrong one? Have you contacted the embassy to have it changed?

Inconvenient for you as the delay in your niece's application may be, I am sure you will agree that there are some vile people out there whose intentions toward children are not as genuine and honourable as yours.

Surely a delay in the application in a genuine case is better than an innocent child falling into the clutches of such people?

She got a standard 27 month settlement visa when she should have got the ILE subject to KOL and it was the embasy that phoned us before the passport arrived to say it was the wrong one. That is a good point but the difficulty in getting any information from the UKBA is very frustrating and just getting told that they are taking guidance after 3 months isn't the most helpful. I've already complained to them about things that have happened in our case, but no reply yet. I'll save that for another thread.

Your other points are valid, however I have previously taken my niece back to the UK twice on visitor's visas. Does that mean that if I am a tourist I can get through 'the net'. The UKBA's rules also let me traffic and mistreat my own children with impunity, and there are many cases of parents mistreating children around the world.

I feel very unhappy about the way things are working out but feel that there is no point of contact that can get things sorted. All I want to know is what guidance is required. I only found out why things were delayed after sending them an email querying the delay on the decision after my wife's (wrong) visa was delivered. In the email I pointed out which parts of the UKBA legislation I had addressed in the application and why I thought that it was straightforward. I have read all of their guidance notes and I have a suspicion that they are applying them. However I believe that if we are told that we must meet the rules the guidance notes should complement them, not be a mismatch for them.

[steady]

7by7,

I missed a point in your email. I talked about guidance and you are talking about checks. I understand what you are talking about but why wouldn't these checks be carried out on all of the step fathers of children being brought to the UK. If they are being done it doesn't delay their applications. My issue is that they have told me that they need guidance without saying why, or where the guidance is coming from, internal or external? And most importantly how long will it take to arrive?

I have visions of them waiting for guidance from the sun god or trying to get the ECM to read the entrails of a newt!!

[7by7]

You're the third person in as many weeks whose reported that their spouse has been given a standard settlement visa when they should have been given ILE (subject to KOL or not)! Good work, visa section!

At least in your case they noticed and contacted you to change it.

As for the situation regarding your niece, if they have issued visit visas to her to accompany you to the UK they are, presumably, satisfied as to your bona fides. But a visit with a child's uncle and aunt is not the same as settlement with adoptive parents.

Maybe they are seeking guidance from an agency in the UK such as social services? Maybe they want guidance on the legal ramifications from the Thai authorities? Maybe they are simply seeking guidance on whether a de facto adoption has actually taken place?

I refer you to VisaPlus' replies above. It is not enough, as he says, for you to simply say that a de facto adoption has taken place. That you want her to live with you and so does her mother (and father?) is not enough.

You are seeking a better life for your niece, and while I understand your frustration I am sure that in a few years time when you are all, hopefully, settled together in the UK this waiting period will seem a minor irritation.

Step parents are, of course, an entirely different matter as the child is not so much seeking entrance to the UK to live with their British step parent but with their Thai natural parent.

Your are, unfortunately, correct that some natural parents abuse and traffic their children; but a British child does not need a visa to enter the UK and so would not come to the attention, or be any concern, of the UKBA.

[steady]

I can't believe that I'm the first person trying to take someone to the UK by the 'de facto adoption' route. So I assume that the UKBA know what they are doing. Perhaps I'm being over optimistic. We are now into the fourth month of waiting and the only information that we have received from the UKBA is that they are awaiting guidance. Sadly this one line answer was in reply to a page long email which queried a number of issues and identified rules within the legislation which I believe we have satisfied. It is communication but perhaps I should have asked for meaningful communication. Additionally at the same time my wife was being given conflicting information verbally by a Thai UKBA employee. I have chosen to believe the written word!

I'm quite happy that the UKBA feel the need to make checks with the aim of protecting the child. However if anyone reads the UKBA documentation it can easily be seen that the ECO is doing what is required to protect their job and it's just a bonus that the child is protected too. This can easily be highlighted by the fact that our niece has spent 3 months previously in the UK in 2 visits with the same people who are trying to take her this time. We got the visitor visas in under a week each time.

Anyway I'm getting off my soap box now and getting back into 'being stuck in limbo' mode. Just another day waiting......

[7by7]

I can't believe that I'm the first person trying to take someone to the UK by the 'de facto adoption' route. So I assume that the UKBA know what they are doing.

You are no doubt correct, though I suspect it's not very common. Even so, this is not a simple situation; each case is different.

I'm quite happy that the UKBA feel the need to make checks with the aim of protecting the child. However if anyone reads the UKBA documentation it can easily be seen that the ECO is doing what is required to protect their job and it's just a bonus that the child is protected too. This can easily be highlighted by the fact that our niece has spent 3 months previously in the UK in 2 visits with the same people who are trying to take her this time. We got the visitor visas in under a week each time.

As I've already said, there is a world of difference between a child visiting the UK with an aunt and uncle and a child being taken away from their parent(s) to live there permanently with an aunt and uncle. Surely, even in your frustration, you must be able to see this?

To say that the ECO is primarily protecting their job is harsh, and certainly cannot be "easily seen!" They are trying to do their job properly, in the best interests of the child.

I agree that it does seem odd that the ECO wont tell you what 'guidance' they are awaiting. But there may be a valid reason for this; confidentiality of the source, perhaps, if said source is known to you.

You have begun this topic by saying "I'm hoping someone with more experience and wisdom can help me." The person with the most experience and wisdom in this matter is VisaPlus and he said back in April

With respect, you cannot decide whether legal adoption is an option or not. It is an option, and it may well be the option insisted on by the ECO if you wish to take your niece to the UK for settlement. I would have to say that, on the information you have given, the chances of success are virtually nil. The alternative to a legal adoption is a de facto adoption, where there has been a genuine transfer of responsibility, but no actual legal adoption. It is extremely difficult to prove, especially where the adopted child is a family member. The immigration rules are designed to specifically stop people taking family members to the UK in the guise of adopted children............

So you knew from the start that it was going to be a lengthy process with no guarantee of success.

[bobrussell]

Out of interest would you mind saying when the document transferring sole-responsibility to you was completed? If it was a full 18 months ago then I would think you have a fair chance of getting the visa.

If it was shortly before the visa application then it might not look so good!

I hope things go well for you as my daughter and her cousins were brought up as sisters and it was very tough when they were separated. They all live in relative harmony in the UK now (with us) although the house feels very, very small now!

Good luck!

Edited August 24, 2012 by bobrussell

[steady]

We actually did 2 documents where the mother transferred full responsibility for her daughter to us. The first one was in our local amphur office in Sattahip but when asked why it was happening at that time (almost 2 years ago) our niece's mother said so that her daughter could go on holiday to the UK with us as well as her inability to care for her. The amphur employee said that because it was not the mother's local amphur, that's in Phetchabun, she would only write that we had full responsibility for our niece and the reason for the document was so that we could holiday in the UK - not for travel anywhere. This document was good enough to get our niece her first visitor's visa.

A few months later we got her mother to go to Phetchabun amphur office to get the wording strengthened saying that we can go anywhere as a family with the wife and me as the responsible adults. We used that in addition to the first document for our niece's second visitor visa.

Hopefully it will be good enough for a settlement visa too.

[VisasPlus]

We actually did 2 documents where the mother transferred full responsibility for her daughter to us. The first one was in our local amphur office in Sattahip but when asked why it was happening at that time (almost 2 years ago) our niece's mother said so that her daughter could go on holiday to the UK with us as well as her inability to care for her. The amphur employee said that because it was not the mother's local amphur, that's in Phetchabun, she would only write that we had full responsibility for our niece and the reason for the document was so that we could holiday in the UK - not for travel anywhere. This document was good enough to get our niece her first visitor's visa.

A few months later we got her mother to go to Phetchabun amphur office to get the wording strengthened saying that we can go anywhere as a family with the wife and me as the responsible adults. We used that in addition to the first document for our niece's second visitor visa.

Hopefully it will be good enough for a settlement visa too.

UKBA may well be deliberating the natural parents inability to care for the child. Was this demonstrated in any way in the documents from the amphur, or in any of the visa applications, including the current one ? The immigration rules also require that the child has " lost or broken his ties with his family of origin". If there is anything in the applications that shows that there is, or has been, contact between the child and her natural parent(s), then it could be a problem. The fact that the child's mother was involved in obtaining documentation from the amphur a year so ago shows that there were ties at that time. It may well depend on what ties, if any, there are now.

[steady]

I've been critical of the UKBA staff recently and have to say that they did phone the natural mother and I was worried about the 'broken ties' aspect because our niece's mother is still considered to be the daughter in law, sister in law and aunt to my wife's family. I also know, because of these links that she said during the interview that she would love to keep in contact with her daughter and hoped to get phonecalls. She also said that she accepted that the mother-daughter link was broken too, we and other family members in earlier years have been looking after her daughter for too many years for a normal link to be present.

Today we received the 2 visas and we're very happy but I think praise should be given to a common sense approach by the ECO. He or she could have just took what was said on face value and rejected the visa but they understood that the ties were broken, either because of distance or time apart and the fact that the rest of my wife's family see my niece's mother as family has no bearing on the " lost or broken his ties with his family of origin" aspects. Maybe they just understood that in our case the family of origin is still the present family and took a pragmatic approach. Either way I think that they made the right call and should be praised.

And on a positive note I would like to thank Visas Plus again for the critical and comprehensive advice way back at the beginning of the process, it was that which got me focussed and motivated. Thanks again. All other posters who gave support and general advice also kept us going. It's difficult to wait for a decision when people who applied 7 weeks later are already back in the UK with their families. But anyway a happy ending and the hard work starts now.

Steady

[VisasPlus]

I've been critical of the UKBA staff recently and have to say that they did phone the natural mother and I was worried about the 'broken ties' aspect because our niece's mother is still considered to be the daughter in law, sister in law and aunt to my wife's family. I also know, because of these links that she said during the interview that she would love to keep in contact with her daughter and hoped to get phonecalls. She also said that she accepted that the mother-daughter link was broken too, we and other family members in earlier years have been looking after her daughter for too many years for a normal link to be present.

Today we received the 2 visas and we're very happy but I think praise should be given to a common sense approach by the ECO. He or she could have just took what was said on face value and rejected the visa but they understood that the ties were broken, either because of distance or time apart and the fact that the rest of my wife's family see my niece's mother as family has no bearing on the " lost or broken his ties with his family of origin" aspects. Maybe they just understood that in our case the family of origin is still the present family and took a pragmatic approach. Either way I think that they made the right call and should be praised.

And on a positive note I would like to thank Visas Plus again for the critical and comprehensive advice way back at the beginning of the process, it was that which got me focussed and motivated. Thanks again. All other posters who gave support and general advice also kept us going. It's difficult to wait for a decision when people who applied 7 weeks later are already back in the UK with their families. But anyway a happy ending and the hard work starts now.

Steady

Good for you, Steady. And good that you give credit to the visa officer in this case. Thanks for the kind words, but I have to say that I had some doubts about the visa being issued.

[hakanyeter]

I need UK Citizenship Application platform.

Edited January 3, 2023 by hakanyeter

[brewsterbudgen]

13 minutes ago, hakanyeter said:

I need UK Citizenship Application platform.

Best to start your own thread, not re-open one from 2012!

 

That said, did the OP ever get a Settlement visa for his niece?

[Rimmer]

Ten year old topic.

 

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