Returning to the UK with family

[ulike]

Good Morning,

I am a Thai national, my name is Tukda and I am married to a British man and I also have British nationality and passport. I live in Oman at the moment. I wish to return to England as soon as possible with my husband and 'daughter'.

However, my 'daughter' is really my Thai niece. I have been supporting her financially and emotionally since she was born, on the part time arrangement. She was cared for by her Grandmama and Grandpapa until 3 months ago. I would pay for all her life expenses and also visit her often. She also visited me in the UK and later Oman.

Now, due to ill health of her Grandmama, I consultanted a Thai lawyer and petitioned the family provincial court, I was awarded the sole custody. I later gave power of attorney (stamped and approved by the Thai embassy) for her care also to her 'Daddy' (my British husband). She has an Oman residency (granted one month ago after some visa extensions whilst the Oman authority reviewed the casework) and a 2 year Oman dependent visa. She also attends International school in Oman now too.

She also has a UK visit visa (multiple), this is the second time of granted visa issuance.

I now want to go home to the UK with her, full time and not as a visitor. I would like her to go to school there and settle for consistency to her life. My husband will also go home. Our intentions are to work in the UK (I am a self employed architect, he an Educationalist.

I would appreciate any input on what visa to apply for her, there is nothing on the UKBA website and my local council in the UK has declined to offer help on visas other than we should seek legal advice to apply for her current visa to be 'enforceable' as a 'residence order' via the High court.,.....this is confusing. On our return they have said we will undergo application for overseas adoption with their help.

Thank you

Tukda

[7by7]

She needs a settlement visa to accompany/join her parents; but:-

The definition of a parent under the rules, in your case, is

( d ) an adoptive parent, where a child was adopted in accordance with a decision taken by the competent administrative authority or court in a country whose adoption orders are recognised by the United Kingdom or where a child is the subject of a de facto adoption in accordance with the requirements of paragraph 309A of these Rules (except that an adopted child or a child who is the subject of a de facto adoption may not make an application for leave to enter or remain in order to accompany, join or remain with an adoptive parent under paragraphs 297-303)

Inter country adoption is a complex matter; and the fact that you have sole custody issued by a Thai court and have given power of attorney to your husband for her care does not mean that she will automatically be recognised by the UK as being formally adopted by you.

Neither will her being granted residency in Oman.

Also, I don't think she has lived with you for long enough for this to be considered a de facto adoption; see Para 309A.

Having previously been granted a UK visit visa will also not be of much help; visiting the UK with one's aunt and uncle is a lot different to being taken by them to live there.

Have a read from SET7.18 How do adopted children qualify for settlement? onwards, and you will see how complicated it can be.

(The designated list is currently under review and unavailable and I'm not sure if either Thailand or Oman are on it.)

Intercountry adoption from the Dept. of Education may also provide some useful information.

As you can see, this is a complicated matter. I strongly urge you to seek competent, professional advice from an immigration advisor or solicitor experienced in this area; which, to be frank, you are unlikely to be able to find outside the UK.

Edited October 26, 2013 by 7by7

[ulike]

Thank you 7by7. I will read this information carefully now and respond later today. I can tell you now that Thailand is on that list but Oman and other Arab countries are not as you cannot adopt under the rules of Islamic law.

Another question:

Can any of the readers recommend an immigration advisor or solicitor who specialises in adoption of family members?

Thank you kindly.

[7by7]

One part I missed:

SET7.18.4 The effect of overseas adoptions in UK law

Overseas adoptions do not confer British citizenship. The exceptions are adoptions under the terms of the Hague Convention which have been completed abroad and where the final Adoption Order has been issued by the courts in the child's originating country.

In this case, if at least one of the adoptive parents was a British citizen at the time the adoption order was made and the adopting parent; or in the case of a joint adoption, both adopting parents, was (were) habitually resident in the UK at the time of the final adoption order, then the child will automatically become a British citizen. In such cases a British passport can be issued to the child rather than an entry clearance.

But three points.

1) You and your husband currently live in Oman, so would you be considered as habitually resident in the UK? I'm afraid I don't know; I surmise it depends on how long you have been out of the UK for and why.

2) You say you have been granted sole custody by the Thai courts; is this the same as a formal adoption?

3) Both these may be moot, as although Thailand is a non member contracting state of the Hague convention and has ratified the Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption, this page suggests that they have not yet actually signed it.

Hopefully someone more knowledgeable than I may be able to clarify this and the other areas.

Edited October 26, 2013 by 7by7

[7by7]

This is a recent topic from someone in a similar situation to you; it may prove useful.

[steady]

I brought my niece to the UK in 2012 and got a settlement visa for her. We went down the defacto adoption route but we had been living together as a family in Thailand for a couple of years and could prove it. It seems to me that your issue, if you do decide that the defacto route is for you is that you have not been together for long enough as a family. Is there any way that you can stay in Oman for another year or so? If your niece is in an international school then she won't be missing out on education and it may be the best long term answer.

You may well be throwing good money away if you employ an immigration advisor or solicitor who specialises in adoption of family members when you already know that you cannot meet the regulations. The input that you have had so far from 7by7 is probably as good as it gets, whether you pay money or get it free. There may be others who can add more and will contribute shortly.

From what you say it seems to me that everything can be done, but probably not to your desired timescales. I think that after some time you could easily prove (to the satisfaction of the regs) that you had adopted your niece in a defacto fashion but right now it seems to me that the 3 months together is much too short. However if you accept this then you can still live together and travel to the UK for holidays whilst preparing for your application. Good luck.

[Arkady]

You may need to look at options for putting your niece into a private school in the UK and obtaining a study visa for her, if your move back to the UK is urgent.

[ulike]

Hello

First, thank you for all your kind responses.

I would like to answer each one of you.

But before I do so, I would like to update on news from my local council in the UK. They have just suggested that I might be able to get the 'custody order' fro the Thai provincial family court (which they call 'residency order') which I have for my niece enforced in the UK by the High Court. But tell me to get a competency solicitor to assist. This, they profess, will allow my niece entry to the UK for me us to under an assessment by the local adoption team for inter-country adoption. This is very surprising when I read in the conjunction by comparison of the UKBA literature on the website.

Good Morning 7by - I reviewed everything you sent and more. I have a better idea now but it took me some time. Henceforth, the reasoning for the delay in my response. I read SET7.18 it is complicated and it does not seem like we can do the de-facto as previously my care, love and attention was remotely part time and some face to face but part time equation then meaning full time. But, I get your point, it is not a match to the rules of law.

I think we can be considered habitually resident in the UK as we have been here 10 months only and plan to return to UK, we also still keep our house and pay all bills AND we are there often. We also plan to return and have told the council this many times.

Sole custody is not the same as adoption, no. If it was I think we would be fine as I have a letter from Brit embassy in Oman saying if we adopt and if all documents are in order, she would be granted a visa.

Thailand IS a member of hague convention and this was confirmed by the overseas adoption agency in BKK to me via verbally communication. Oman, is not. And this also confirmed by Thai embassy as well as Omani family agencies. Adoption is unislamic in Hague meaning.

Thank you for the recent topic.

[ulike]

Hello Steady.

This sounds like a perfect outcome for your family. 'Kor Sadeng Kwarm de yin dee Duay ka' to you all :-).

Your post is very informative - we can stay in Oman BUT I hate is here and I want to return to work in the UK and I do not like the standard of education she gets here. The international school is OK but I want her to study more down to earth systems like in the UK. I had a hoity toity education in Bangkok and is does not help for life in Britain. And, I just want to go home to my house to :-( I do not like the Arabic culture here.

I see what you mean about wasting money on lawyers but what the council said about the High Court could mean we fast track?

Thank you again, Steady.

[ulike]

Arkady, thank you.

I thought that little at her age cannot get a study visa for UK?

[ulike]

This is what the local council said:

The Residence Order is a UK term which would give you parental permission in the UK, the Legal Advice was that you could seek to have the Defacto converted to have legal standing in the UK i.e. have it converted to a Residence Order but you would obviously need some legal advice in how this could be achieved.

[7by7]

De facto adoption is not an option for you; she must have actually lived with you for at least 12 months to come under the de facto rules.

The UK rules re formal adoption apply to the country where the formal adoption took place and the child lives, not the country where the adoptive parents live.

So if you formally adopt her in Thailand and an adoption in Thailand is completed under the terms of the Hague Convention and if you are deemed habitually resident in the UK then she will be British once you have formally adopted her and so can apply for a British passport. In which case a visa will be unnecessary; although maybe quicker to obtain.

However, I would seek confirmation of a Thai adoption coming under the Hague Convention from an official Thai or British government source were I you and not rely on the word of an adoption agency.

Children aged between 4 and 15 can obtain student visas to study at an independent, fee paying school in the UK via the points based system. See Child Students - Tier 4 (Child) and the relevant links from there plus Para 245ZZ, Tier 4 (Child) Student in the Immigration Rules (It's the last category, so you'll need to scroll down almost to the bottom of the page.)

However, I don't think this would suit your long term needs as I am not sure if she could convert this visa to settlement once in the UK. But I suppose it could be used to gain her entry to the UK where you could then start formal adoption proceedings.

I still think you should speak to a UK solicitor experienced in these matters. I'm sorry I cannot recommend one for you, but as your local council in the UK seem to be doing their best to help you, maybe they can.

[ulike]

Hello again.

Its a shame that Defacto rules don't apply as by the UKBA links but after what the Council said, I wonder if the rule is different for a High court order because they know how long we have been together (and have copy of the custody order), it was advice from the legal departmental people.

There has been no formal adoption. I have court appointed custody.

We cannot adopt her in Thailand as we do not live there. If we wanted to, we would have to return and work there. My husband would also have to work fro 12 months before he could apply. This is information from the Thai adoption service (part of the Thai government).

Good point re: the student visa.

The council declinded to offer a referral :-(

Thanks again Sir

[7by7]

The rules on de facto adoptions are very clear;

309A. For the purposes of adoption under paragraphs 310-316C a de facto adoption shall be regarded as having taken place if:

(a) at the time immediately preceding the making of the application for entry clearance under these Rules the adoptive parent or parents have been living abroad (in applications involving two parents both must have lived abroad together) for at least a period of time equal to the first period mentioned in sub-paragraph ( b )(i) and must have cared for the child for at least a period of time equal to the second period material in that sub-paragraph; and

( b ) during their time abroad, the adoptive parent or parents have:

(i) 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

(ii) 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.

This may seem harsh for genuine couples such as yourselves; but it needs to be remembered that these rules are in place for the protection of the child; which I'm sure you agree is paramount.

I'm sorry, but unless you and your husband can extend your stay in Oman for another 12 months and have the child live with you there for that time or unless you and your husband can live with the child in Thailand for the next 12 months, I can see no way forward other than a formal adoption. Which you say will also involve you and your husband living in Thailand.

But I am no expert in this matter, which is why I feel you need professional advice.

Maybe The Law Society can help you there.

[ulike]

Thank you and I am following this up and will pay legal expenses. Thank you for your input. My regards to your family.

Tukda

[bobrussell]

I am not able to help with specifics but it is important that any application emphasises the 'best needs of the child'. If there is no viable option with the child being cared for in Thailand then this element must be taken into account by the ECO.

The UKBA were taken to task quite recently by the Chief Inspector of Borders & Immigration for lack of consideration of children's best interests. The link below is not directly related to your case but he has made it clear that the child should be considered in all cases.

http://icinspector.independent.gov.uk/decisions-in-marriage-applications-are-reasonable-but-chief-inspector-raises-concerns-about-backlogs-and-a-lack-of-consideration-of-the-best-interests-of-children/

A good UK based immigration solicitor would be a wise investment IMO. Much of the work they do is based on paperwork so direct face-to-face contact is not always necessary.

[ulike]

Hi

There is no option of the child being cared for in Thailand at all. This noted by the Thai court and why they granted custody and the judge noted how much she loved me and how much I loved her. Her best interest is with me and her new daddy. She is learning 'we wish you a merry christmas' sing in school and she sang at the end, and 'a happy new meeeeeee' she knows where she wants to be but I am so sad about all of this.

Anyone reading this with any contacts for solicitors is welcomed.

I did thing about just going back with her and as a Brit refusing to leave again (she has a visit visa) would the UKBA really come to my home, take her away from us and deport her? To where? To Whom?

[steady]

From our own experience I think that you may find that you have problems with a formal adoption in the UK without having settlement status for your niece in the first instance. Presently we are going through an adoption for our niece and the Sheriff (Judge in Scotland) is being exceptionally careful concerning his view that an "Adoption with a Foreign Element" was taking place. We have had to get a letter from the Government saying that they are happy that no foreign aspect arises because of the settlement status on our niece's visa. However if that were not the case I'm pretty certain that we would not be allowed to proceed.

This led the Sheriff to comment that our situation appears to be ahead of legislation and he is assessing things at each stage of the adoption process. Very few people go down this route and so there is very little legal framework to adhere to. This works both ways, if you get a Judge who is happy to proceed then there should be no barriers to getting the adoption completed. However should the Judge (as in our case) want to take things carefully then not only will it more than double the cost it also extends the timescales.

We started the process over a year ago and have had social work reports, school reports and mother's consent all done (last December). Now we have to get court reporting officer's reports done and the court wants further consent from the mother and even then the Sheriff openly admits that he will have to re-assess things at every stage because of what he sees as the complexity of the case. I see the case as an open and shut UK adoption!

As it is we are moving forward very slowly but lack of legislation to cover all cases certainly should not be ignored as a problem.

[ulike]

Hi Steady

That was a good posting, thank you. I have been away for a little bit, so sorry for not responding. It seems like its tough in Scotland but she is with you and your lovely family, so that is a positive equalling.

We do need to get settlement status and we are advised by our local council that we can go to the high court in London and possibly have the Thai custody order made enforceable as a residency order which means she could enter for the purpose of adoption. I guess this would mean a settlement.

We are in contact with another council which has runs one of the UK government adoption agencies. They are prepared to help us and have given some dates that we must all go to the UK to start an assessment. The people there understand we have a right to return home and she has a right to a family life and if we return on visit visa if they remove her, they are removing that right for us all.

I hope it all goes ok, we go back in one month to see the start of the processing.

Fingers, toes, lips and teeth crossed!!!!!!!!!

[ulike]

Hi

For those people interested, we got a date !!!!!!!!

[7by7]

My apologies; I've been concentrating so much on adoption that I forgot

I am not able to help with specifics but it is important that any application emphasises the 'best needs of the child'. If there is no viable option with the child being cared for in Thailand then this element must be taken into account by the ECO.

The UKBA were taken to task quite recently by the Chief Inspector of Borders & Immigration for lack of consideration of children's best interests. The link below is not directly related to your case but he has made it clear that the child should be considered in all cases.

http://icinspector.independent.gov.uk/decisions-in-marriage-applications-are-reasonable-but-chief-inspector-raises-concerns-about-backlogs-and-a-lack-of-consideration-of-the-best-interests-of-children/

Paragraph 297(I)(f) of the immigration rules

297. The requirements to be met by a person seeking indefinite leave to enter the United Kingdom as the child of a parent, parents or a relative present and settled or being admitted for settlement in the United Kingdom are that he:
(i) is seeking leave to enter to accompany or join a parent, parents or a relative in one of the following circumstances:
(f) one parent or a relative is present and settled in the United Kingdom or being admitted on the same occasion 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
(My emphasis)

As you are now a British citizen your niece would be eligible for Indefinite Leave to Enter, which is the same as Indefinite Leave to Remain, but issued outside the UK, not in.

This had skipped my mind because it is not an option unless the relative is present and settled in the UK, e.g. holds ILR. As you have lived in the UK long enough to have been naturalised as British, then it does apply to you.

This would be a simpler route than trying to show a de facto adoption, and certainly simpler than bringing her to the UK as a visitor and then fighting in the courts for her to remain.

However, you would need to show that there was absolutely no one in Thailand able to care for her. You say that her grand parents (your parents, I trust) are getting to old and infirm to do so; but what about other relatives, especially her mother or father?

That she would have a better standard of living and education in the UK would not be viewed as a serious and compelling reasons for her being granted leave to live in the UK with you, her aunt. You need more.

Again, that is how I see it, but I feel you need professional advice on this.

I see you have an appointment with someone (an immigration or international adoption lawyer?) so it may be worth mentioning this point to them for their advice.

Edited November 19, 2013 by 7by7

[ulike]

7by7 - you have made me cry with this. I will post again in a bit. I think its possible to prove. Bless you. I will reply in a bit when I called my husband.

[7by7]

Remember, it is only a possibility and the onus will be on you to prove that there are serious and compelling reasons why she needs to live in the UK with you.

You should seek professional advice on how to go about proving that.

Best of luck.

[Jay Sata]

If I was in your shoes I would not be going back to Thailand to sort this out.

Oman has an excellent British Embassy and they have a very small workload compared to somewhere like Thailand.

Have you approached them?

https://www.gov.uk/government/world/organisations/british-embassy-muscat

The other key organisation is http://international.lawsociety.org.uk/node/12702

Quite frankly you'll be better off trying to sort you problem out where you live now in Oman. You'll find a much better lawyer there than in Bangkok. It appears to me that a local lawyer there can resolve this for you. The visa for schooling in the UK can be issued in Oman if you suggest you are travelling for careers.

I hope you have abandoned the idea of running around Europe with your niece.

[steady]

Looking at when this thread started and how long you had been acting as a parent already means that you've only got between 6 and 7 months left and then you can go down the defacto adoption route. I'm sure that you feel like that is a long time but by getting a visitors visa for a while not only means that you can go to the UK as a family it also helps build your case that you are actually taking care of the child. Just something else to consider.

[7by7]

If I was in your shoes I would not be going back to Thailand to sort this out.

Oman has an excellent British Embassy and they have a very small workload compared to somewhere like Thailand.

UK visas should be applied for in the applicant's country of residence; which, of course, may not be their country of nationality.

If she is resident in Oman, and has the appropriate visa/paperwork to show hat she is, then she should apply in Oman.

If she is in Oman as a non resident then I'm afraid she'll have to return to Thailand to apply.

[paully]

Hi Steady

We do need to get settlement status and we are advised by our local council that we can go to the high court in London and possibly have the Thai custody order made enforceable as a residency order which means she could enter for the purpose of adoption. I guess this would mean a settlement.

Yes, the key point here for you is to get her admitted to the UK in order to finalise the formal adoption, which takes some time of course.

The council appear to be referring to obtaining a Residence Order under Section 8 of the Children Act 1989 as evidence that the child is to live with you and using this for her immigration purposes.

An application for a residence order can indeed be applied for in the High Court in London (the Principal Registry of the Family Division of the High Court at First Avenue House, 42-49 High Holborn, London WC1V 6NP) that the child live with you and you could contact any reputable family lawyer to do this (you can look at solicitors on the Children Panel via the Law Society link given earlier). A High Court application can proceed much quicker than a local County Court application.

However, the child should normally be in the UK when you make the application even if you are trying to 'convert' a Thai custody order into a UK court order.

Edited November 20, 2013 by paully

[ulike]

My apologies; I've been concentrating so much on adoption that I forgot

I am not able to help with specifics but it is important that any application emphasises the 'best needs of the child'. If there is no viable option with the child being cared for in Thailand then this element must be taken into account by the ECO.

The UKBA were taken to task quite recently by the Chief Inspector of Borders & Immigration for lack of consideration of children's best interests. The link below is not directly related to your case but he has made it clear that the child should be considered in all cases.

http://icinspector.independent.gov.uk/decisions-in-marriage-applications-are-reasonable-but-chief-inspector-raises-concerns-about-backlogs-and-a-lack-of-consideration-of-the-best-interests-of-children/

Paragraph 297(I)(f) of the immigration rules

297. The requirements to be met by a person seeking indefinite leave to enter the United Kingdom as the child of a parent, parents or a relative present and settled or being admitted for settlement in the United Kingdom are that he:

(i) is seeking leave to enter to accompany or join a parent, parents or a relative in one of the following circumstances:

(f) one parent or a relative is present and settled in the United Kingdom or being admitted on the same occasion 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

(My emphasis)

As you are now a British citizen your niece would be eligible for Indefinite Leave to Enter, which is the same as Indefinite Leave to Remain, but issued outside the UK, not in.

This had skipped my mind because it is not an option unless the relative is present and settled in the UK, e.g. holds ILR. As you have lived in the UK long enough to have been naturalised as British, then it does apply to you.

This would be a simpler route than trying to show a de facto adoption, and certainly simpler than bringing her to the UK as a visitor and then fighting in the courts for her to remain.

However, you would need to show that there was absolutely no one in Thailand able to care for her. You say that her grand parents (your parents, I trust) are getting to old and infirm to do so; but what about other relatives, especially her mother or father?

That she would have a better standard of living and education in the UK would not be viewed as a serious and compelling reasons for her being granted leave to live in the UK with you, her aunt. You need more.

Again, that is how I see it, but I feel you need professional advice on this.

I see you have an appointment with someone (an immigration or international adoption lawyer?) so it may be worth mentioning this point to them for their advice.

Good Afternoon,

I am now fully composed :-)

My daughter's (niece) best interest must be with me and her Uncle (Daddy). So, I have called my Thai Lawyer and am having him anuthor a letter for signature by my Brother. It will include that he is estranged from my sister, has not seen her for a long time, and having three children of his own he has no interest whatsoever in taking care of her child. He will also state he does not care for his sister at all and has had no contact with her child (which is true). The Lawyer will then issue this letter with his own covering letter and have it stamped by the MoFA in Thailand and I will have it attested by the Thai embassy here.

This is clear in that I have full legal custody from the Thai family court, and my daughter has two survive relative in Thailand and one is too sick to handle the child (Grand mama), as state in the Thai Court custody document. I think that will cover the issues of interest of the child and I will seek legal advice when I have sourced a good UK immigration lawyer.

Her mother has disappeared and the father never had anything at all to do with the child - he didn't even marry my sister!!!!!!!!! Such shame.

The court documents s details her love for me and her mother's poor ways as reason to remove her parental rights. It also shows that I and my mummy are the only ones to ever taken care of her.

Suitable elements for her care are that she already has a place offering at a UK Catholic school when formalities of visa etc are complete. And we have enough money to take care of her. Although we don't have jobs in the UK we are both professionals with full work histories and no real long leaves from working.

I can show we are present in UK as my husbands work hitches mean he is present in the UK a lot and we have paid all our council taxations and bills every month to prove it.

My meeting is with the UK gov adoption agency who says will help in our case by assessing us as suitable for adoption (which will be easy).

Thank you again, I have a lot of hope now. Instead of tears I have energy. I will get her a Indefinite leave to enter visa. And when I do I am going to make a donation of my time to my friends orphanage in Thailand when I next visit towards you and your family's good karma.

[ulike]

If I was in your shoes I would not be going back to Thailand to sort this out.

Oman has an excellent British Embassy and they have a very small workload compared to somewhere like Thailand.

Have you approached them?

https://www.gov.uk/government/world/organisations/british-embassy-muscat

The other key organisation is http://international.lawsociety.org.uk/node/12702

Quite frankly you'll be better off trying to sort you problem out where you live now in Oman. You'll find a much better lawyer there than in Bangkok. It appears to me that a local lawyer there can resolve this for you. The visa for schooling in the UK can be issued in Oman if you suggest you are travelling for careers.

I hope you have abandoned the idea of running around Europe with your niece.

Hi

Yes, we know the embassy but have not approached them until we have exactly the correct approach organised. I don't agree about the Lawyers here.

The Europe idea was only so we are together as my husband really does not care for Thailand.

[ulike]

If I was in your shoes I would not be going back to Thailand to sort this out.

Oman has an excellent British Embassy and they have a very small workload compared to somewhere like Thailand.

UK visas should be applied for in the applicant's country of residence; which, of course, may not be their country of nationality.

If she is resident in Oman, and has the appropriate visa/paperwork to show hat she is, then she should apply in Oman.

If she is in Oman as a non resident then I'm afraid she'll have to return to Thailand to apply.

Hi

we are in Oman and we all hold residency. Getting here hear was easier as Oman is a place where its who you know....