Bringing My Girlfriends Child To The Uk

[VisasPlus]

I'm not sure that I understand what you mean by "switching". People cannot switch between sections of the law that are more favourable to them, at least not in this matter, although it would indeed be favourable to them !.

Well, there may be people granted a fiancée visa under the old rules who could switch by letting the visa lapse and applying for a new one. Spouses could fail to apply for ILR. (Old ILR would take two years to lose.) As far as I am aware, it is not as tricky as trying to upgrade from British citizenship by descent to a British citizenship by naturalisation. None of these methods are appealing, and the Surinder Singh route would probably be better.

I fear the question you posed might be considered ambiguous - the mother could have been granted indefinite leave to enter. My reading of the rules is as follows. If custody of the child is actively shared between the biological parents, one is settled in the UK and the other is resident in Thailand, then the sole responsibility rule of Paragraph 297 still applies, in virtue of Paragraph A280(. However, if one has been admitted under the new rules to the UK with a view to settlement and the other is resident in Thailand, then Appendix FM Section EC-C applies and sole responsibility is irrelevant!

Whether ECOs, adjudicators and judges will agree that this is what Parliament intended is another matter. (Personally, I don't believe Parliament gave any thought to the matter.) It would also be consistent with an intent to abolish sole responsibility except for applications under the old rules, except that through exceptional circumstances (e.g. bereavement), indefinite leave might conceivably already have been granted under the new rules!

I thought the scenario I put to UKBA was simple . It said :

The applicant wishes to join his mother in the UK. His mother applied for, and was granted a visa ( and leave to enter ) after 9^th July 2012. The child applicant will therefore fall to be considered under Appendix FM. Is sole responsibility a consideration ?

So, it was clear that the mother had not been granted ILE or ILR under the old rules.

[VisasPlus]

I'm being informed by a lawyer on another forum that my assessment above is wrong, and that "sole responsibility" still applies. Presumably that means that the UKBA response is also wrong. I have asked for a fuller explanation of how and why sole responsibility still applies in the scenario described. I will keep the post updated.

I think I've found your discussion, and that's not quite what he said. He pointed out that Paragraph A280(d) keeps Paragraph 301 alive for families of members of HM Forces. Also, as I said in my previous post, Paragraph 297 (for parents settled in the UK) still has a sole responsibility clause.

He's also advising against trusting the Immigration Directorate Instructions. The current version was written before A280(f) was added, which resuscitated Paragraph 301 for children of parents who got limited leave to remain under the old rules.

I'm not sure that you are correct. He understands exactly what I was saying, but he doesn't agree with it, even though UKBA do.

[bkk_mike]

Back to the OP's point.

My only suggestion is to apply for the child's visa at the same time as the mother as the proof of responsibity in the child's care will obviously be investigated more for the cases where the child application is done later (as it's obvious the child wasn't staying with the mother),.

Sole responsibility should be covered by the same documentation she needed to get the child a passport in the absence of a father, and assuming mother and child are in the same house book, there would be no significant issue in proving sole responsibility.

[Richard W]

And I would strongly recommend including the father's death certificate, even if it wasn't used when getting the daughter's passport or demonstrating freedom to marry.

As I read the regulations, it would be difficult (but not impossible) to bring the daughter over with the mother if the mother arrived as a fiancée.