Returning to the UK with family

[ulike]

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.

Hi

We have got a bit longer than that before the de facto route. She has a two year UK visit and we will go there shortly for a visit. She has also been before.

[7by7]

Good luck; please let us know how you get on.

A UK solicitor who specialises in immigration should be able to help you; but it may be better, and cheaper, to use an OISC registered advisor; see How to find and choose a Regulated Immigration Adviser.

[ulike]

[ulike]

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.

Hi

Yes it is very important we get her into the UK ASAP. I didn't know that about the Residence order (still looking for an immigration lawyer). Thank you for the info, you are very knowledgably.

[Jay Sata]

The other point I'd make is if you just bring her to the UK on the existing visa any High Court proceedings will be held at your local Crown Court and not in London. I'd be playing your UK cards and avoid going back to Thailand.

Circumstances can change on long journeys or working assignments where someone is looking after a child while a parent is sick/infirm and the situation develops to the point you are now at.

The system has discretion for cases such as yours.

[ulike]

Yes, we are learning that. Immigration lawyers nearly engage. And I am sending all paperwork to two for me and husband to select the final one. Looking good.

You Boys are brilliant. Such human kindness.

With the very best regards,

[paully]

if you just bring her to the UK on the existing visa any High Court proceedings will be held at your local Crown Court and not in London.

Not at the Crown Court, Jay. A High Court family case could be transferred to the local County Court or Magistrates' Court but if it starts in the High Court Family Division it usually stays there. Crown Courts are for criminal cases only.

[Jay Sata]

if you just bring her to the UK on the existing visa any High Court proceedings will be held at your local Crown Court and not in London.

Not at the Crown Court, Jay. A High Court family case could be transferred to the local County Court or Magistrates' Court but if it starts in the High Court Family Division it usually stays there. Crown Courts are for criminal cases only.

Forgive me I meant at the local court complex. Many people think that High Court cases are all heard in London which is not the case.

I've been down this route many years ago with my ex wife.

[ulike]

Thanks.

When (fingers crossed and toes) we get a court date, I will inform the thread.

[7by7]

Have you decided to bring her to the UK as a visitor in the hope that you'll be able to get permission for her to stay; or are you (or to be precise; is she) submitting a settlement application in Oman under Para 297 of the Immigration Rules?

The second option will be, I think, the quicker and easier one. Indeed, I'm not totally convinced that the first option is possible; visitors cannot usually convert to settlement inside the UK, and I have not found anything to suggest that a child in your niece's situation will be able to.

However, if I have read the adoption procedures correctly, then as both you and your husband are British citizens and habitually resident in the UK then once you have adopted her and that adoption is recognised in the UK she will herself become British. But all this could take longer than the 6 months she'd be allowed in the UK as a visitor.

But, this is not a situation I, or any of us here if we're being honest, have often come across. So I'd be interested to hear the opinion of your immigration advisor.

[steady]

I hope I'm wrong but my thoughts are that the time taken to go through the courts in the UK will exceed waiting until the family have lived together for a year and then go down the defacto adoption route. I would expect the cost to be higher too. As the OP already has a 2 year visitor visa in place for her niece I feel that the smart money should just be on a 6 month 'holiday' in the UK then return to whichever embassy is suitable (the 1 year should be up by then) and apply for the defacto adoption settlement visa.

The reason that I believe the timescales will be extended is because of my own experience. After bringing our niece to the UK we have decided that a British adoption is the next step to protect her welfare and future but so far we are 13 months into the process and I'll be surprised if the adoption completes before March next year. Anything that is a little different has all the legal bods running off to check things and ask for more paperwork - and it all takes time and money! Just something else to think about as you negotiate the minefield of immigration and adoption.

[ulike]

Hi

I was told on Friday by the UK gov adoption people we could maybe apply for an ILE visa now as exceptional circumstances and as I have legal court custody and I am British. This is what 7by7 said also.

As for immigration lawyer, the two I had source have been terrible responding so again I am looking for another one with the help of my husband's family solicitor.

Thanks

[ulike]

Well, all Thai court custody papers now submitted to the adoption service my local council purchases from another city council......awaiting feedback. Also awaiting feedback from Lawyer regards turning the Thai court order into a resident order....

Finger's crossed. She's happily dressing the Christmas tree and eating bacon and eggs :-)

[Jay Sata]

I'm sure it will all go well for you and it appears 2014 will see your problems resolved.

Good luck.

[evadgib]

Related link seen yesterday:

http://www.theguardian.com/commentisfree/2013/dec/15/uk-immigration-policy-britons-spouses-trauma

[ulike]

Hello

We all went to the adoption people couple of days ago in the UK and its a real issue for us to do any international adoption. One reason is me and my husband should be in the UK for most of the time. And the second main reason is that because I now have custody via Thai family court is that we are now outside the normal Hague convention on international adoption (EG how can you internally adopt a child you already have custody of and are living with?)

So, they think that although all of the above, we could still do it if we split up......which we cannot do as she has no one to care for her in Thailand.

They think we can do a local adoption when we get her to the UK with residency through local courts and with help from local authority BUT we need to get her to UK full time first. Another issue is I had to stop using two family lawyers, one could not understand my case and another is very unreliable to contact, get back to me etc.

I understand the de facto route but that is worst case for me as we need to get back to UK ASAP (husband's job is ending shortly).

7by7 can you help me out a little more about this point where she could apply for ILE visa, I don't really understand that.....if you could tell me how that's different from de facto, that would help cause I cant see it.

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

I think another option is Paullys' suggestion about making the Thai court ruling into residency order to support immigration BUT what visa would she apply for if we got that done by the High Court Of London? Paully can you add offer more info?

Thank you and so sorry to be a painful poster!

[7by7]

It is difficult, I'm afraid, to give you a precise answer to your question.

The entry clearance guidance says:

SET7.9 What are 'Serious and compelling family or other reasons'?

The ECO should consider all the evidence as a whole, deciding each application on its merits:

• Are the circumstances surrounding the child exceptional in relation to those of other children living in that same country?
• Are there emotional and / or physical factors relating to the sponsoring parent in the UK?
• Are there mental and / or physical factors relating to the non-sponsoring parent?
• Where the physical / mental incapability of the non-sponsoring parent has been established, an entry clearance should normally be granted.

But not considered acceptable as a 'serious and compelling' reason under this provision:

• that the UK offers a higher standard of living than in the child's own country.

Note that although the guidance says 'parent' that this applies to other relatives as well.

So basically, as I see it, you need to establish to the ECO's satisfaction that neither parent is capable of looking after the child, that there is no other relative in Thailand capable of doing so either and you and your husband are the only relatives who can do so.

Part 1 Para 1 of this document gives more details; Para 1.2 where the sponsor is not one of the child's parents.

I know that you say you have been unhappy with the professional advice you have received so far; but I do really believe that a complex application such as this does require competent help and advice in it's preparation.

[steady]

As I said in an earlier post, the fact that the child is 'settled' in the UK seems to be of paramount importance to the legal establishment when considering adoption. In our case (which is still running and running) everyone initially checked our niece's visa to ensure that it was a settlement visa. Then they discussed the way forward.

My own view is that finding legal advice and competent solicitors to go forward with an adoption could (should?) be put on hold and just look at all of the options available to get your niece a settlement visa. You know that if you wait for about another 5 or 6 months you can apply for a settlement visa using the defacto adoption route, in the meantime come to the UK as a family on your niece's 2 year visitor visa. You know that it will mean that you have to have a break in another country in about 6 months but at least you are building a case and living as a family in the meantime. You may think that this is added expense, however you may find that your adoption case costs a lot more than the average because of the perceived complexities (as seen from the solicitors view). In my case, which I see as straight forward I am already 2,500 pounds down and won't be surprised when that figure rises even higher.

Take a step back and ask why an adoption is so important to you. The first thing to do is get your niece a settlement visa, look at how to do that without her being legally adopted and put your efforts into going down that route.

[ulike]

It is difficult, I'm afraid, to give you a precise answer to your question.

The entry clearance guidance says:

SET7.9 What are 'Serious and compelling family or other reasons'?

The ECO should consider all the evidence as a whole, deciding each application on its merits:

• Are the circumstances surrounding the child exceptional in relation to those of other children living in that same country?
• Are there emotional and / or physical factors relating to the sponsoring parent in the UK?
• Are there mental and / or physical factors relating to the non-sponsoring parent?
• Where the physical / mental incapability of the non-sponsoring parent has been established, an entry clearance should normally be granted.

But not considered acceptable as a 'serious and compelling' reason under this provision:

• that the UK offers a higher standard of living than in the child's own country.

Note that although the guidance says 'parent' that this applies to other relatives as well.

So basically, as I see it, you need to establish to the ECO's satisfaction that neither parent is capable of looking after the child, that there is no other relative in Thailand capable of doing so either and you and your husband are the only relatives who can do so.

Part 1 Para 1 of this document gives more details; Para 1.2 where the sponsor is not one of the child's parents.

I know that you say you have been unhappy with the professional advice you have received so far; but I do really believe that a complex application such as this does require competent help and advice in it's preparation.

Thank you 7by7 - my main job now between now and new year is to source a lawyer (3rd time lucky). We will then try and go down this planned way. Our Thai lawyer is working on cover letters to show the father was never part of it (mother and he were just young) and she had sole custody. Also on why Grandmother cannot care (which was established by Thai social services that she was to ill and this was accepted by Thai family court before giving me sole custody). And also I have a letter from my vile brother saying he has no interest in me, her or any of family and has 3 of his own kids (hes a shit and always was).

Will will try and satisfy and show I am sole carer which is what the Thai court rules.

Thanks again.

[ulike]

As I said in an earlier post, the fact that the child is 'settled' in the UK seems to be of paramount importance to the legal establishment when considering adoption. In our case (which is still running and running) everyone initially checked our niece's visa to ensure that it was a settlement visa. Then they discussed the way forward.

My own view is that finding legal advice and competent solicitors to go forward with an adoption could (should?) be put on hold and just look at all of the options available to get your niece a settlement visa. You know that if you wait for about another 5 or 6 months you can apply for a settlement visa using the defacto adoption route, in the meantime come to the UK as a family on your niece's 2 year visitor visa. You know that it will mean that you have to have a break in another country in about 6 months but at least you are building a case and living as a family in the meantime. You may think that this is added expense, however you may find that your adoption case costs a lot more than the average because of the perceived complexities (as seen from the solicitors view). In my case, which I see as straight forward I am already 2,500 pounds down and won't be surprised when that figure rises even higher.

Take a step back and ask why an adoption is so important to you. The first thing to do is get your niece a settlement visa, look at how to do that without her being legally adopted and put your efforts into going down that route.

Steady you are so correct. Adoption is not my main concern, all we want is us all to be together as a family. That comes later. We just want her in England. We visited my husband's old school and explained the whole story and they offered her a place, so we have an offer letter there too.

Agreed, we can do a local adoption BUT like you said she must be settled.

It is my understanding that to go with the de facto route we must have spent 12 months together OUTSIDE the UK so time spent in the UK, as you suggesting, would not count. Am I wrong on this? Can anyone suggest more? I don't care about expenses on this, I'd eat kow tom for my whole life if needs be to stay with my daughter (niece)

Thank you

[7by7]

Indeed, I'm afraid that for a de facto adoption you and your husband must have lived together outside the UK for at least 18 months prior to the application and the child have lived with you outside the UK for at least 12 months prior to the application (Immigration rules, Para 309A).

If she applies under the serious and compelling circumstances rule (Para 297(I)(f)), then there is no requirement for her to have lived with you at all; though obviously it will help her case if she has been doing so.

[steady]

Indeed, I'm afraid that for a de facto adoption you and your husband must have lived together outside the UK for at least 18 months prior to the application and the child have lived with you outside the UK for at least 12 months prior to the application (Immigration rules, Para 309A).

If she applies under the serious and compelling circumstances rule (Para 297(I)(f)), then there is no requirement for her to have lived with you at all; though obviously it will help her case if she has been doing so.

For what it's worth I read the Immigration Rules differently. I do not believe that it says that you must have lived together outside of the UK for 18 months continually. By that I mean that I can say, " I have lived outside the UK for 18 months with my wife and family, however we did have 2 holidays as a family in that time inside of the UK", and still meet the requirements. We were still resident in that other country and we still had the child living with us.

Should my understanding be correct (which I admit should be checked) then it makes the defacto route the favoured option again. Any comments?

[7by7]

By 'living abroad' the rules mean resident outside the UK. Obviously holidays etc. to the UK during this period are acceptable.

But living in the UK for 6 months whilst the child is living with them as a visitor and then applying? I can't see that being acceptable.

Which is why an application under Para 297(i)(f) would, in my opinion, be better.

However, as has been said; this is a complex matter, which is why I believe competent, professional advice should be sought.

[steady]

7by7 I can see why you propose that option but I can't see why Ulike has not just tried for that already - over to the OP for an answer! If her niece has a visitor's visa and tries for your favoured approach does the visitor's visa get cancelled if she's unsuccessful? I can't see too much wrong with a strategy of applying as per your suggestion and keeping the defacto route as fall back as long as the visitor's visa remains should she be unsuccessful in her application. That way any concerns for a legal adoption can be held back until it can be done as a routine adoption.

In my experience a lot of work needs to be done to be successful in the visa application. However finding competent, trustworthy, knowledgeable and professional advice is a lot more difficult and this is said whilst I try to push an elephant up the stairs as we progress our adoption.

[ulike]

By 'living abroad' the rules mean resident outside the UK. Obviously holidays etc. to the UK during this period are acceptable.

But living in the UK for 6 months whilst the child is living with them as a visitor and then applying? I can't see that being acceptable.

Which is why an application under Para 297(i)(f) would, in my opinion, be better.

However, as has been said; this is a complex matter, which is why I believe competent, professional advice should be sought.

That was what my understanding was.I didn't think we could move there for 6 months (and also she could not go to school in that case!)

We are looking for a Lawyer today to see if Para 297 is possible (which it looks like if the prove is correct and clear).

[ulike]

7by7 I can see why you propose that option but I can't see why Ulike has not just tried for that already - over to the OP for an answer! If her niece has a visitor's visa and tries for your favoured approach does the visitor's visa get cancelled if she's unsuccessful? I can't see too much wrong with a strategy of applying as per your suggestion and keeping the defacto route as fall back as long as the visitor's visa remains should she be unsuccessful in her application. That way any concerns for a legal adoption can be held back until it can be done as a routine adoption.

In my experience a lot of work needs to be done to be successful in the visa application. However finding competent, trustworthy, knowledgeable and professional advice is a lot more difficult and this is said whilst I try to push an elephant up the stairs as we progress our adoption.

I didn't know about it until you Guys started talking about it. I have since the start of this post tried to gather all info here (and legal info) and will be starting the process just when we re 100% and have a good lawyer.

I would also like to know if the visitor's visa stays valid as that is essential to us. And also having de facto to fall back on if needs be would be good ( but it looks like we cant come back to UK until the 12 months is finished).

The good think is you got your little one in UK and in school....anything else is bonus, right?

[7by7]

As far as I am aware, her visit visa will remain valid, even if the settlement visa is refused.

However:-

Her passport will remain with the embassy whilst her settlement application is being processed; so she will obviously be unable to leave Oman during that time.

If her settlement application is refused that refusal will be on record and could be called up by an Immigration Officer when she next tries to enter the UK. This may cause the IO to suspect that she has no intention of leaving the UK once her visit is over and so could result in her being refused entry. But that's very much a worst case scenario and I'd like to see the opinion of more experienced members on this point.

I don't recall you saying what the term of her visit visa is. If it's a standard six month one then that six months started when the visa was issued, so it could very well have expired by the time her settlement decision has been made.

Edited December 21, 2013 by 7by7

[steady]

_{At this point I would like to add that although no one would argue with the desire to have a competent, knowledgeable and professional lawyer on your side you should not consider yourself too much of a novice. From all the input added to this thread you will know more than most professionals about your own case and you obviously have the ability to read the immigration regulations and fully understand what they mean. Perhaps starting the preparation yourself would not hamper your case at all. From what I've read I think that you could easily prepare a solid case for a visa for your niece. I struggle to see what else could be added to strengthen your case which has not been discussed on this thread.}

_{7by7's advice about trying to get good advice is sound but in my experience you may spend lots of time and money trying to find good professional advice and even then nothing is added to what has been contributed here. That said I do understand your feelings that getting professional help is the answer.}

_{Again, in my experience (and only my experience) the faceless ECOs dealing with my family's earlier visa applications acted in a manner that I found reasonable. I have found that if the case is clearly stated and laid out with the relevant clauses and arguments identified then there is no reason to expect an unsuccessful outcome. (Make sure that the proof is included.)}

_{Although I say all of this I do remember how important it is to get that successful outcome so if you feel that this post doesn't fit with your present thinking and is best ignored I won't be offended.}

Edited December 21, 2013 by steady

[theoldgit]

Totally off topic post removed, please desist from constant references to the remote chance of Irish ancestry.

People come here for straightforward advice.

[bobrussell]

I would tend to agree that proper legal advice is very difficult to get as immigration is a very specific area of law and the cynic in me suspects many needing help may not have deep enough pockets to keep more than a few of the brightest solicitors interested!

My sister in law was very lucky to find a good immigration solicitor fairly locally but it was still up to me to help present the information she required to apply for ILR. Sadly that practice seems to have disappeared as well!

Careful preparation will make life much easier for a solicitor but I suspect the UKV&I are more likely to respond effectively to a legal representative.

It is very sad that immigration law expertise is so limited which makes this site all the more important.