Access To Child Visa ?

[kobrien]

I have a wife and a 7month old baby in Bangkok,since I have come back from Thailand at the start of this year I have not had a lot of luck getting the settlement visa sorted quickly.

As a second option,a guy mentioned the other day that I could apply for a Access to child visa.

I was told that if I flew my baby over here and registered him with the local doctors and so on,I could then fly him back,apply for this decreasingly visa(Access to child)and the visa in certainty as long as there is no recourse for public funds,and if you did it via this route my wife would not have to sit the English test ?

Does this sound right to you guys ?

I will probably stick to the conventional Settlement but im just keeping my options open.

[craigt3365]

Let's try this over in the visa forum. OK?

[VisasPlus]

It is a possibility. Paragraph 246 of the immigration rules covers it. This says:

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.

You don't have to worry too much about producing evidence of access rights. Normally a letter from the UK resident parent granting access is sufficient. I believe there is some problem with the courts issuing evidence of access rights. As far as I am aware both you and the child should be living in the UK ( ie resident ). I don't think bringing the child back to Thailand to be with its mother while she applies for the visa is in the spirit of the rules, but I may be wrong.

You are right that your wife wouldn't have to take the English test, but she would need a TB test, and she would need to renew her leave to enter/ remain in the UK after 12 months until she passes the KOL test in order to qualify for ILR. Financially, I'm not sure if you save any money by doing it this way.

You will also have to fulfill all of the maintenance, accommodation and other requirements.

I have to admit that I am confused about this possible visa issue. When I look at the possible reasons for refusal of a visa under paragraph 246, the reasons include :

"....but I am not satisfied that you are either divorced or legally separated from the other parent of your child". and,

"....but I am not satisfied that you are seeking entry clearance for the purpose of exercising access rights to your child resident in the UK".

I don't see either of these requirements in the immigration rules, unless I'm missing them. The first reason above may, of course, lead to the conclusion given in the second reason, and that might be enough to refuse the visa. It's an interesting question.

Edited May 12, 2012 by VisasPlus

[7by7]

Tony, I'm confused.

You say " You don't have to worry too much about producing evidence of access rights. Normally a letter from the UK resident parent granting access is sufficient......" , yet Para 246 (iii) says

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

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

which suggests that more than such a letter is required.

Do you base your comment on previous experience, or have I missed something?

Edit:

Just read VAT23.4 What evidence should the applicant provide to demonstrate that they have access rights to a child in the UK?

They should show evidence from a UK court that they have access rights to the child. Residence orders or Contact orders granted by UK Courts, or a sworn affidavit from the non-applicant parent (that is, the U.K. 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 access, are taken as suitable evidence of access rights. (If contact is supervised, then the statement must be sworn by the supervisor).

Note: The Rule at Paragraph 246(iii)( b )continues to offer certificates issued by district judges confirming the applicant's intention to maintain contact with the child as an option, but legal advice is that this is now impossible. Therefore, until such time as the Rule can be amended, the sworn statement can be accepted instead. It is reasonable to expect parents to obtain such documents to prove that their intention is to enter the United Kingdom on the basis of exercising rights of access. This would confirm the commitment of the parent and prevent applicants from attempting to enter the United Kingdom under false pretences.

(my emphasis)

It is an appealing concept: an access to child visa is cheaper than a settlement visa and, provided all the requirements are met, the holder can obtain ILR after 1 year, not 2.

What it needs is a guinea pig to apply, be refused, appeal and if necessary take it all the way to the European court for a final decision; a lengthy and expensive route with no guarantee of success.

Edited May 12, 2012 by 7by7

[VisasPlus]

Tony, I'm confused.

You say " You don't have to worry too much about producing evidence of access rights. Normally a letter from the UK resident parent granting access is sufficient......" , yet Para 246 (iii) says

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

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

which suggests that more than such a letter is required.

Do you base your comment on previous experience, or have I missed something?

It is an appealing concept: an access to child visa is cheaper than a settlement visa and, provided all the requirements are met, the holder can obtain ILR after 1 year, not 2.

But I am not convinced it would work unless the UK resident parent has one of the documents mentioned in Para 246 (iii), and to get that the couple would surely need to be divorced or legally separated.

What it needs is a guinea pig to apply, be refused, appeal and if necessary take it all the way to the European court for a final decision; a lengthy and expensive route with no guarantee of success.

Sorry, 7x7, I should have given a longer explanation. This is guidance on that subject:

VAT23.4 What evidence should the applicant provide to demonstrate that they have access rights to a child in the UK?

They should show evidence from a UK court that they have access rights to the child. Residence orders or Contact orders granted by UK Courts, or a sworn affidavit from the non-applicant parent, (that is, the U.K. 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 access, are taken as suitable evidence of access rights. (If contact is supervised, then the statement must be sworn by the supervisor).

Note: The Rule at Paragraph 246(iii)(

continues to offer certificates issued by district judges confirming the applicant's intention to maintain contact with the child as an option, but legal advice is that this is now impossible. Therefore, until such time as the Rule can be amended, the sworn statement can be accepted instead. It is reasonable to expect parents to obtain such documents to prove that their intention is to enter the United Kingdom on the basis of exercising rights of access. This would confirm the commitment of the parent and prevent applicants from attempting to enter the United Kingdom under false pretences.

EDIT: You already found it

Edited May 12, 2012 by VisasPlus

[VisasPlus]

Tony, I'm confused.

You say " You don't have to worry too much about producing evidence of access rights. Normally a letter from the UK resident parent granting access is sufficient......" , yet Para 246 (iii) says

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

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

which suggests that more than such a letter is required.

Do you base your comment on previous experience, or have I missed something?

Edit:

Just read VAT23.4 What evidence should the applicant provide to demonstrate that they have access rights to a child in the UK?

They should show evidence from a UK court that they have access rights to the child. Residence orders or Contact orders granted by UK Courts, or a sworn affidavit from the non-applicant parent (that is, the U.K. 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 access, are taken as suitable evidence of access rights. (If contact is supervised, then the statement must be sworn by the supervisor).

Note: The Rule at Paragraph 246(iii)( b )continues to offer certificates issued by district judges confirming the applicant's intention to maintain contact with the child as an option, but legal advice is that this is now impossible. Therefore, until such time as the Rule can be amended, the sworn statement can be accepted instead. It is reasonable to expect parents to obtain such documents to prove that their intention is to enter the United Kingdom on the basis of exercising rights of access. This would confirm the commitment of the parent and prevent applicants from attempting to enter the United Kingdom under false pretences.

(my emphasis)

It is an appealing concept: an access to child visa is cheaper than a settlement visa and, provided all the requirements are met, the holder can obtain ILR after 1 year, not 2.

What it needs is a guinea pig to apply, be refused, appeal and if necessary take it all the way to the European court for a final decision; a lengthy and expensive route with no guarantee of success.

It is kind of hidden away in all of the guidance. Maybe UKBA don't want anyone to find it !

[7by7]

I found that guidance, and edited my post, while you were posting the above!

The last sentences are very interesting

It is reasonable to expect parents to obtain such documents to prove that their intention is to enter the United Kingdom on the basis of exercising rights of access. This would confirm the commitment of the parent and prevent applicants from attempting to enter the United Kingdom under false pretences.

A couple who are not divorced and do intend to live together once in the UK could be thought to be attempting to use this rule to enter the UK under false pretences, could they not?

Hence the reasons for refusal you quoted before.

[VisasPlus]

I found that guidance, and edited my post, while you were posting the above!

The last sentences are very interesting

It is reasonable to expect parents to obtain such documents to prove that their intention is to enter the United Kingdom on the basis of exercising rights of access. This would confirm the commitment of the parent and prevent applicants from attempting to enter the United Kingdom under false pretences.

A couple who are not divorced and do intend to live together once in the UK could be thought to be attempting to use this rule to enter the UK under false pretences, could they not?

Hence the reasons for refusal you quoted before.

I'm sure you are right, but refusal reasons are supposed to be for reasons included in the Immigration rules. You would think that, if the fact that a couple has to be separated or divorced was a requirement, then the rule would say so. Of course, the guidance does seem to assume that the couple are divorced or separated, but it is strange that it is not a requirement. It would indeed be interesting if , as you say, an application went to appeal. In fact, the whole category ( child access visa) is strange. It obviously allows the applicant to remain in the UK in a settlement category. I would have thought that it would have made more sense for it to be "special" visitor category.

[bobrussell]

From memory it is a requirement that an applicant can demonstrate the ability to support him or herself as there is no access to public funds. The applicant can work (again from memory) but if the OP is still in a relationship (marriage etc) there is not much difference to settlement visa requirements.

This was something we explored for my sister-in-law but she was granted ILR on grounds of abuse (took the UKBA seven days to process!!).

Better to go with the system than to fight it generally IMO!

[7by7]

I think it is classed as a visitor, that's where I found the guidance.

But, as I understand it, because it allows 12 months in the UK, it can be converted to ILR at the end of that time.

It would make more sense, I think, for it to be classed as settlement, not visitor, as I would have thought someone following this route is doing so because they want to live in the UK where their child is. Also, as bobrussell says, holders can work, which normal visitors cannot do.

A parent who lives abroad and simply wants regular visits with their child would fall under the family visit rules, would they not?

[VisasPlus]

I think it is classed as a visitor, that's where I found the guidance.

But, as I understand it, because it allows 12 months in the UK, it can be converted to ILR at the end of that time.

It would make more sense, I think, for it to be classed as settlement, not visitor, as I would have thought someone following this route is doing so because they want to live in the UK where their child is. Also, as bobrussell says, holders can work, which normal visitors cannot do.

A parent who lives abroad and simply wants regular visits with their child would fall under the family visit rules, would they not?

Yes, but as a family visitor they would presumably be restricted to 6 months, with no extensions. I have no real feelings either way, but it seems strange that a visit category, giving 12 months LTE, can lead to settlement on the basis of a child living in the UK, but the Zambrano judgment doesn't allow applications from overseas. Saying that, I guess this is almost Zambrano like ?

[7by7]

I was thinking that given the circumstances the parent should be able to get a 5, maybe even 10 year family visit visa. Then they wouldn't be tied to living in the UK, which I think an access to a child visa does do, at least until they have ILR.

Zambrano would only apply if the British parent had abandoned the child and the foreign parent was the child's only means of support; would it not?

Edit:

Off topic comment and question deleted and moved elsewhere.

Edited May 12, 2012 by 7by7

[kobrien]

Thanks for your thoughts guys,the person I spoke to has told me as the discretional visa (Access to child) is discretional it should take no more than 2 months,and its always granted as long as there is no recourse for public funding.

In reality,it would be very hard on my wife to spend a day without our baby, if I was to bring him here for a holiday to register him then at the local authorities,this is really my second and last option.

If there was a way I could register him here without having to bring him here I would do it in a shot,but I guess I would breaking rather than bending the rules then.

Edited May 12, 2012 by kobrien