Uk Visa For Widow And Son Of A Uk Passport Holder

[Colonel_Mustard]

A good friend of mine died last year in an accident in Thailand and left behind his wife (a Thai national) and a 4-year old son (joint British/Thai passport holder). She would now like to take the boy to live and attend school in the UK and stay with her dead husband's relatives.

I assume the boy wouldn't need any kid of visa to enter the UK as he has a British passport but does anyone know what kind of visa the boy's mum would be able to apply for?

[somtampet]

Would be a good idea to get a professional involved in this visa application.

good luck for her and son,a genuine case for sure

[theoldgit]

I agree with 'somtampet', if I were you I would make contact with Thai Visa Express via their advert at the side of this forum, I doubt if this will be a straight forward application and they will certainly be able to advise your friend.

[billd766]

That is an excellent question and one I wish I had thought of.

As I am retired I can just scrape in on the minimum income to get my wife to the UK.

Leaving aside of where they would stay how much income would the UK Government (spineless barstewards that they are) require my wife to have?

My son would obviously get to the UK as he has dual nationality and he would have to claim his Mum to help him but she may not be entitled to any benefits for him.

[ThaiVisaExpress]

This is not an easy one to answer. Well, in fact it is, but the answer(s) are not helpful. The child is British, but that doesn't give the mother any right to live in the UK at all. She probably cannot qualify for settlement in her own right under the immigration rules.

There are various "options" that people will probably tell you about :

1. If the child was living in the Uk, then the mother might be able to qualify for a visa if she has "access rights". This normally applies to a divorced parent living overseas. Here is some guidance :

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.

2. If the child was studying in the UK under the Tier 4 requirements ( at a fee paying independent school ) then the mother might qualify for visit visa for one year to visit her child. Some basic guidance says :

You can come to the UK as a parent of a child at school if your child is:

under 12 years old; and

attending an independent fee-paying day school under Tier 4 (Child) of the points-based system or under the student category that existed before 31 March 2009.

3. If mother and child were both in the UK ( maybe she entered with a visit visa), then the mother could possibly apply for leave to remain under "EX-1". This is where it might be decided that it is not in child's best interests for his parent to be removed from the UK ( basically, human rights). Very briefly :

Guidance on application of EX.1 – consideration of a child’s best interests under the family rules and in article 8 claims where the criminality thresholds in paragraph 399 of the rules do NOT apply.

The full guidance on EX-1 is in this attachment :

ex1-guidance-1.pdf

Edited May 20, 2013 by ThaiVisaExpress

[bobrussell]

Absolutely one for an expert consultant. There seems to be a big difference between cases where the child is already in the UK and those that are not.

The key passage is:

In the case of British citizen children

7. Save in cases involving criminality it will not be possible to take a decision in relation to the parent of a British citizen child where the effect of that decision would be to force the British citizen child to leave the EU – this is consistent with the ECJ judgement in Zambrano.

To do this would probably involve getting child and parent to the UK! Once here it should be difficult to justify forcing the parent back if this results in the child having to leave the UK.

Absolutely not one for the unqualified (such as me!) to give anything but suggestions - common sense says this should be possible (and hopefully will be). The Zambrano case has opened up a lot of possibilities that were not clear five years ago to protect the rights of the EU child to live in the EU!

[Colonel_Mustard]

Thanks for your replies. So basically it looks like the only realistic option would be for her to take her son on a visit visa and then apply under EX-1. It all seems a little dodgy for want of a better word.

It does seem a shame that the mother of a British citizen has no legal right to reside in the UK.

Any ideas on a legal expert who could help with this? Should it be one based here or in the UK would you think.

[bobrussell]

The site sponsors have a good reputation so I would start there!

In the UK you have a choice between an OISC regulated immigration adviser or a solicitor specialising in immigration work.

Perhaps a combination of a Thai end advisor to check on basic facts and a UK one later if necessary. I wonder if there may be an issue with getting a visit visa for the surviving parent if the ECO suspects an application is to be made in the UK. A catch 22 situation.

Talk to an expert before doing anything!

[billd766]

It looks like a can of worms that the UK government at the time would have to deal with on a case by case basis.