Thai Step-daughter Visa Prospects

[Deano1000]

Dear Members, I am new to the site, so please forgive me if this topic has been raised before.

My wife has recently been successful in her spouse visa application to join me in the UK.

She has a 9-year old daughter from a previous Thai marriage. The marriage was dissolved in 2011, and my wife has had sole responsibility since then. However, the Por Kor 14 (that may be wrong) provides for joint responsibility.

My wife's ex-husband has not supported his daughter since the divorce, but once he was aware that our intention was for his daughter to settle in the UK, he stated that my wife must settle first (6-12 months) and be satisfied she would stay before he would allow his daughter to emigrate. Furthermore, he insisted his daughter lived with him and his new wife during this period. They have no children, and I don't think his wife is particularly pleased with the arrangement.

Now, having read Part 8 Rule 297 of the Immigration Rules and the various case law, it would appear that the above arrangement would prejudice my wife's attempt to satisfy the ECO that she had had 'sole responsibility' for her daughter. Am I correct in my assumption that it would actually prove fatal to any subsequent visa application for her daughter.

The other alternative is that her daughter goes to live with my wife's parents in Tak Province, during which time my wife and I will provide financial support and my wife will have regular contact and take an active part in her daughter's well-being, health, education, etc.

Your opinions and advice would be greatly appreciated. Our moment of utter joy with the success of her visa application has been dampened slightly by the thought of her daughter being refused entrance to the UK.

Thanks in advance.

Dean

Edited February 5, 2015 by Deano1000

[Basil B]

If his wife is not in total agreement suspect this is a bluff by him...

But much depends on actual legal agreement, joint responsibility, but the daughter is living with the mother does she have sole custody, re the daughter going to live with the grandmother may the farther have right to custody?

My assumption is that she would be refused a visa as there is provision for her to stay in Thailand.

[Deano1000]

If his wife is not in total agreement suspect this is a bluff by him...

But much depends on actual legal agreement, joint responsibility, but the daughter is living with the mother does she have sole custody, re the daughter going to live with the grandmother may the farther have right to custody?

My assumption is that she would be refused a visa as there is provision for her to stay in Thailand.

He may indeed be calling her bluff, but the divorce papers provided for joint responsibility, as opposed to sole.

I am not too concerned with that issue, as the case law is quite clear, in that the English Court decisions (which bind the ECOs) did not look to the legal strictness of what a Thai divorce document said, but rather who actually had sole responsibility in real life.

There are plenty of cases in which child visas were granted when the child had lived with its maternal grandparents whilst the mother settled in the UK. Provided financial support was provided, regular contact was maintained, and important decisions were made by the mother, the mother was deemed to have had 'sole responsibility' at the time of the application, irrespective of the child living with Grandad and Grandma.

I also understand that the ECOs now have to take into consideration the wishes of the child, pursuant to the UN Charter of the Rights of Children, when exercising discretion as to whether to admit a child pursuant to Rule 297 (i) (f) of the Immigration Rules.

I am not sure my step-daughter's father is really that concerned. Maybe his ego has taken a bash? Who knows.

Does anyone know if it is possible for my wife to obtain a Por Kor 14 from the local amphur giving her sole responsibility in the absence of the father?

I think to stand any chance, my step-daughter will need to live with her grandparents.

We intend to make her application within 12 months of my wife arriving in the UK. She should be with her mother, with whom she has been since birth.

[7by7]

You seem to be well aware of the rules, but this is what the entry clearance guidance has to say on sole responsibility:

SET7.8 What is sole responsibility?
A sponsoring parent (see SET7.2) must be able to show that he/she has been solely responsible for exercising parental care over the child for a substantial period. If the sponsoring parent and child are separated, the child will normally be expected to have been in the care of the sponsoring parent’s relatives rather than the relatives of the other parent. An application should normally be refused if the child has been in the care of the other parent’s relatives and the other parent lives nearby and takes an active interest in the child’s welfare.

The following factors should be considered in assessing sole responsibility:
•Are the parents married / in a civil partnership?
•If the parents’ marriage / civil partnership is dissolved, which parent was awarded legal custody, which includes assumption of responsibility for the child?
•Where there is a custody order the ECO should take care to ensure that the issue of a settlement entry clearance to the child will not contravene the terms of the custody order. See list for countries whose custody orders can be recognised as valid in UK (copy is available on this guidance page).
•Does the marriage / civil partnership subsist, but the parents do not live together?
•If the sponsoring parent migrated to the UK, how long has the sponsoring parent been separated from the child?
•If the sponsoring parent migrated to the UK, what were the arrangements for the care of the child before and after the sponsoring parent migrated?
•If the sponsoring parent migrated to the UK, what has been / what is the sponsoring parent’s relationship with the child?
•Has the sponsoring parent consistently supported the child, either by:direct personal care; or by regular and substantial financial remittances?
•By whom, and in what proportions, is the cost of the child’s maintenance borne?
•Who takes the important decisions about the child’s upbringing, for example where the child lives, the choice of school, religious practice etc?

From what you have said, I see two main issues.

1) Who has legal custody of the child?

If the father does, or if it is joint, then this will be a definite stumbling block and could result in refusal.

So if the father has custody or it is joint, your wife will need to get that changed. This can be done by both parents visiting the ampur; if the father is willing.

In my step daughter's case, he wasn't. So my wife had to go to court to have the custody order changed to give her sole custody. This took nearly a year as the hearing kept being adjourned due to the father's non attendance; in the end the case was heard in his absence and my wife given sole custody.

As you say, a Thai custody order is not legal in the UK; but the ECOs will take any such document into account when making their decision.

A PK 14 is not a legal custody document; it is more of a sworn statement made at an ampur giving a brief history of the child's life and who has been caring for the child.

It is certainly possible for your wife to obtain a KP 14 from her local ampur; but whilst the ECO will take it into consideration along with other evidence of sole responsibility, s/he will not treat it as definite proof of your wife exercising that sole responsibility.

Especially if the PK 14 is obtained now but the child doesn't apply for settlement until some time in the future after she and her mother have been living apart.

Your wife will also need to supply evidence of contact with her daughter and her daughter's carers, that she has been making all the important decisions regarding her daughter and of monies sent to support her daughter.

2) You say that the child currently lives with her maternal grandparents; good.

But as you can see, if the father lives nearby and takes an active interest in her welfare then this could also be grounds for refusal.

If she leaves her maternal grand parents and lives with her father, then I think a settlement application to join her mother will be definitely refused.

That is my opinion; but I am not a professional.

[Deano1000]

Thanks 7by7.

In response to 1) The divorce settlement provided for joint custody. However, my step-daughter has lived solely with my wife (and her brother's family) since the separation.

On that basis, I am hoping that, should he resist and not be willing to assist, my wife could obtain an amended custody order without his agreement.

In response to 2) my step-daughter currently still lives with her mother (my wife). My wife is coming to the UK in May, and her daughter will then go to live with her maternal grandparents. They live in Tak Province, which is far far away from the Province in which my step-daughter's father lives. He will not take an active role in her life.

[tonyk]

Custody is not the issue here. The test is sole responsibility and from the information you have provided this is clearly not satisfied at the moment. For the child to live with the maternal grandparents for a time would be beneficial and your wife can build up proof of sole responsibility and making important decisions in the life of the child. It is OK for the grandparents to make the day to day decisions such as what to eat, wear etcetera.

[Deano1000]

Tonyk, thanks for your response. When you say that sole responsibility is not satisfied at the moment, in what way do you mean?

Since the divorce, my step-daughter has lived with her mother (my wife) and been supported financially by her.

Her father has not played a role; he was simply named on the Custody Order as having joint custody.

As it evident from the binding English Court of Appeal cases, English Law does not recognise this Order (and the fact he has joint custody), but looks to the reality of who has been actually raising and supporting the child. That has always been my wife.

I am confident that my step-daughter living with her maternal grandparents is the way to go, with my wife keeping evidence of financial support and the control of her daughter's life, whilst she settles in the UK.

I think the easiest way around this would be for my wife to plead with her ex-husband's better nature and ask him to consent to amending the Custody Order solely in favour of my wife.

Does that sound like the way to go?

Thanks, Dean

[tonyk]

Deano letting the child stay with maternal relatives is the way to go as the Rules require that if staying with paternal relatives the visa should be refused. Changing the Custody Order will make no difference.

[Deano1000]

Deano letting the child stay with maternal relatives is the way to go as the Rules require that if staying with paternal relatives the visa should be refused. Changing the Custody Order will make no difference.

Thanks Tony. I still feel slightly torn because, as 7by7 says, although a Thai Custody Order is not recognised in English law, there is a risk that an ECO could still take it into consideration. Perhaps a simple letter from my step-daughter's father stating that he has no objections to his daughter moving to England may help? That way, the risk of taking into consideration the Custody Order may be circumvented by his willingness to let her go?

[Tony M]

The guidance to ECO's, when a child is living with paternal relatives, says :

If it is established that the child is being cared for by the relatives of the father but it is the mother who has applied for the child to join her in this country (or vice versa), the application should normally be refused.If it is established that the child is being cared for by the relatives of the father but it is the mother who has applied for the child to join her in this country (or vice versa), the application should normally be refused.

Note that it says " should normally be refused". That means that it is not mandatory to refuse. There could be scenarios when the mother can still demonstrate sole responsibility under such circumstances, but it will be mightily difficult.

[Deano1000]

The guidance to ECO's, when a child is living with paternal relatives, says :

If it is established that the child is being cared for by the relatives of the father but it is the mother who has applied for the child to join her in this country (or vice versa), the application should normally be refused.If it is established that the child is being cared for by the relatives of the father but it is the mother who has applied for the child to join her in this country (or vice versa), the application should normally be refused.

Note that it says " should normally be refused". That means that it is not mandatory to refuse. There could be scenarios when the mother can still demonstrate sole responsibility under such circumstances, but it will be mightily difficult.

Thanks Tony, but do you think a letter from my step-daughter's father stating that he has no objections to his daughter moving to England may help? That, coupled with her living with her maternal grandparents, should be sufficient for the ECO not to refuse?

[Tony M]

The guidance to ECO's, when a child is living with paternal relatives, says :

If it is established that the child is being cared for by the relatives of the father but it is the mother who has applied for the child to join her in this country (or vice versa), the application should normally be refused.If it is established that the child is being cared for by the relatives of the father but it is the mother who has applied for the child to join her in this country (or vice versa), the application should normally be refused.

Note that it says " should normally be refused". That means that it is not mandatory to refuse. There could be scenarios when the mother can still demonstrate sole responsibility under such circumstances, but it will be mightily difficult.

Thanks Tony, but do you think a letter from my step-daughter's father stating that he has no objections to his daughter moving to England may help? That, coupled with her living with her maternal grandparents, should be sufficient for the ECO not to refuse?

That's a difficult question to answer, as there are different schools of thought on that. Some will say it can help. Others will say that it shows that the child's father still has some say in the child's life, and therefore the mother doesn't have sole responsibility ( on the grounds that the father has made a major decision that affects the child's life). It would certainly show that there is still some "contact" with the child's father, and that may not be a good thing when trying to demonstrate that the father is no longer a part of the child's life.

[Deano1000]

The guidance to ECO's, when a child is living with paternal relatives, says :

If it is established that the child is being cared for by the relatives of the father but it is the mother who has applied for the child to join her in this country (or vice versa), the application should normally be refused.If it is established that the child is being cared for by the relatives of the father but it is the mother who has applied for the child to join her in this country (or vice versa), the application should normally be refused.

Note that it says " should normally be refused". That means that it is not mandatory to refuse. There could be scenarios when the mother can still demonstrate sole responsibility under such circumstances, but it will be mightily difficult.

Thanks Tony, but do you think a letter from my step-daughter's father stating that he has no objections to his daughter moving to England may help? That, coupled with her living with her maternal grandparents, should be sufficient for the ECO not to refuse?

That's a difficult question to answer, as there are different schools of thought on that. Some will say it can help. Others will say that it shows that the child's father still has some say in the child's life, and therefore the mother doesn't have sole responsibility ( on the grounds that the father has made a major decision that affects the child's life). It would certainly show that there is still some "contact" with the child's father, and that may not be a good thing when trying to demonstrate that the father is no longer a part of the child's life.

Yes, you are correct. I have heard conflicting views on this. Perhaps we simply forget a 'permission' letter and trust that the ECO does not take into consideration an unrecognisable Thai Custody Order?

[Tony M]

The guidance to ECO's, when a child is living with paternal relatives, says :

If it is established that the child is being cared for by the relatives of the father but it is the mother who has applied for the child to join her in this country (or vice versa), the application should normally be refused.If it is established that the child is being cared for by the relatives of the father but it is the mother who has applied for the child to join her in this country (or vice versa), the application should normally be refused.

Note that it says " should normally be refused". That means that it is not mandatory to refuse. There could be scenarios when the mother can still demonstrate sole responsibility under such circumstances, but it will be mightily difficult.

Thanks Tony, but do you think a letter from my step-daughter's father stating that he has no objections to his daughter moving to England may help? That, coupled with her living with her maternal grandparents, should be sufficient for the ECO not to refuse?

That's a difficult question to answer, as there are different schools of thought on that. Some will say it can help. Others will say that it shows that the child's father still has some say in the child's life, and therefore the mother doesn't have sole responsibility ( on the grounds that the father has made a major decision that affects the child's life). It would certainly show that there is still some "contact" with the child's father, and that may not be a good thing when trying to demonstrate that the father is no longer a part of the child's life.

Yes, you are correct. I have heard conflicting views on this. Perhaps we simply forget a 'permission' letter and trust that the ECO does not take into consideration an unrecognisable Thai Custody Order?

As you may have read, or seen, somewhere, the matter of "sole responsibility" is a factual matter. It has to be established and, in theory, a custody order means very little if sole responsibility can be established by the UK parent. But, the Embassy usually insists that there is a custody order ( normally a Por Khor 14, or a court order) before making a decision. So, you will need a PK 14 showing that the mother has custody. That should, in theory be enough, as long as sole responsibility is also demonstrated. The ECO should accept that the original custody order wasn't changed earlier, as long as the rest of the application stands up.

[Deano1000]

Thanks Tony.

[Deano1000]

I've just read this on a barrister's blog:

Most people, including UKBA officials, recommend that a visitors visa should be applied for, and the ILR application made while the child is within the UK. That might seem dishonest, as it did to me, but there are no prizes handed out by the UKBA or the Tribunal for being so honest in such cases.

What does anyone make of that?

[7by7]

Visit visas cannot be converted into settlement inside the UK.

As far as I am aware, there is no exception to this in the case of a child who is visiting a UK resident parent.

I await response from one of the Tonys with interest.

With regard to the custody order; we did get it changed, as explained before, partly because my wife wanted the father to be completely out of the picture, partly to ensure custody would not be an issue when it came to her daughter's visa.

But both Tonys know far more about this than I.

[bobrussell]

I've just read this on a barrister's blog:

Most people, including UKBA officials, recommend that a visitors visa should be applied for, and the ILR application made while the child is within the UK. That might seem dishonest, as it did to me, but there are no prizes handed out by the UKBA or the Tribunal for being so honest in such cases.

What does anyone make of that?

A very big step to take and very high risk IMO. Officially it is not possible to change a visit visa to leave to remain within the UK. I would suspect you would have to rely on the 'best interests of the child' and go through the UK legal system.

If you are even contemplating action outside the usual channels I would suggest you take independent legal advice and not rely on comments from any website blog.

If it was that simple many people would take this route.

My (non-legal) opinion is that you need to argue the sole-responsibility route. Demonstrate that the father does not play an active role in the childs life. If it is the case that he is entering the picture only through sour grapes and to interfere, obstruct and control, can you demonstrate that?

A parent that takes no part in a childs life until they suddenly find they have power over an ex-partner could be considered abusive. The difficulty is proving this! Any assistance offered (financial or otherwise) could easily provide an ECO with reasons to reject an application.

The courts and tribunals are full of cases where people are fighting the immigration system. These can take years and cost the earth. Do you really feel you can cope with that?

Edited February 7, 2015 by bobrussell

[Deano1000]

bobrussell, thanks for your comments. We will go the 'sole responsibility' route. I hadn't even thought about the potential positive implications of the father being obstructive and exercising custody rights now he knows his daughter wishes to come to the UK. At the end of the day, my wife has been her daughter's carer since her birth and sole carer since the divorce in 2011.

[tonyk]

Deano it is perfectly permissible for a child visitor to apply for settlement from within the UK using the application form SET(F). This is an application allowed outside the normal rules that a visitor cannot switch their visa status.

[Tony M]

What percentage of these applications are issued, Tony ? Does sole responsibility still apply ? It's no wonder that the UKVI try to refuse child visit visa applications. They must suspect that an FLR application will be forthcoming.

[Deano1000]

Deano it is perfectly permissible for a child visitor to apply for settlement from within the UK using the application form SET(F). This is an application allowed outside the normal rules that a visitor cannot switch their visa status.

Tonyk, I have just perused Form SET(F). I note that the Guidance Notes state that to qualify for ILR the requirements in Part 8 Section 2 of the Immigration Rules must be satisfied. Therefore, I take it that the same documentary evidence of 'sole responsibility' would be required?

[Deano1000]

I've also just read a thread on another site and a member uploaded a version of a Por Khor 14, which the British Embassy / UKBA provided to his wife because the version she obtained was insufficient. Apparently, when she took it to the amphur, they kept a copy so they could use it in the future. I have just sent it to my wife.

Edited February 8, 2015 by Deano1000

[7by7]

Visit visas cannot be converted into settlement inside the UK.

As far as I am aware, there is no exception to this in the case of a child who is visiting a UK resident parent.

I await response from one of the Tonys with interest.

Deano it is perfectly permissible for a child visitor to apply for settlement from within the UK using the application form SET(F). This is an application allowed outside the normal rules that a visitor cannot switch their visa status.

Thanks for the correction, tonyk.

In addition to Tony M and Deano's questions, may I ask; can any child who is visiting a UK resident parent apply or only in certain circumstances?

Does the UK resident parent's immigration status matter; i.e. can the parent be in the UK with their initial visa or FLR; or do they need to have ILR themselves?

Edited February 8, 2015 by 7by7

[Deano1000]

Guys, I have just been talking to my wife and she has told me that her daughter has stayed with her father on occasion since the divorce in 2011. However, her daughter says that he is often drunk and becomes abusive (verbally) to his new wife.

My wife has also advised me that, even when she was married, they lived in Bangkok, but he worked in another Province, only coming home at the weekends. Unbeknownst to her (until 2009) he was having affairs. It was then in 2009 that she discovered he was having an affair with his new wife. He then stopped coming back at all. In fact, he had been living with her during the whole time. My wife was very naive.

Because my wife and step-daughter were living alone in Bangkok, my wife's family demanded that she move to Chonburi to live with her brother and his family. My wife spent from 2009 to 2011 securing a divorce from him.

As I said before, my wife only conceded to her daughter living with him whilst she settles in the UK because he threatened her with the Por Khor 6, which provides for joint custody. Furthermore, when the affair came to light, his new wife threatened to kill my wife and step-daughter if he chose them over her. This is another reason why my wife's parents demanded her and her daughter move to Chonburi and why they want their grand-daughter to live with them whilst my wife settles in the UK; because they remember the threats which were made by her father's new wife. My wife's mother's words were, "His wife may be ok with your daughter for a short period of time, but if she stays for too long, she will get jealous. She will think her husband loves his daughter more than her. We cannot risk her being like this because we don't know how she will be with our grand-daughter. We know what she was like before; angry and threatening".

Do any of you think that this is information which should be included in any sponsorship letter from my wife when we apply for her daughter to join us? Should we include a detailed chronology of events so that the ECO can see that, not only is sole responsibility satisfied, but that it would not be in the interests of the child to suggest she can stay with her father?

Edited February 8, 2015 by Deano1000

[tonyk]

To apply in the UK the sponsoring parent of the child must have ILR or ILE.

As the child is in the UK and living with the parent that parent obviously has sole responsibility.

It is worth noting that the Immigration Rules do not require sole responsibility to have been exercised for any specific time only that it has and is being exercised.

Deano a chronology would be beneficial.

It seems to be a sad fact that very few ECOs seem to understand what sole responsibility actually is and many child settlement visas are refused only to be won on appeal.

[Deano1000]

To apply in the UK the sponsoring parent of the child must have ILR or ILE.

As the child is in the UK and living with the parent that parent obviously has sole responsibility.

It is worth noting that the Immigration Rules do not require sole responsibility to have been exercised for any specific time only that it has and is being exercised.

Deano a chronology would be beneficial.

It seems to be a sad fact that very few ECOs seem to understand what sole responsibility actually is and many child settlement visas are refused only to be won on appeal.

tonyk, thanks again. My wife and I have discussed this some more, and she is suggesting that we apply for her daughter's visa NOW. I know that sounds a little odd, what with successfully obtaining my wife's visa only 2 weeks ago. However, surely that would remedy any possible doubt regarding sole responsibility.

My wife has 3 months from 9 April 2015 to enter the UK, so she has enough time to get the relevant documents.

With regards the Por Khor 6, her ex-husband has quite literally overnight had a change of heart and confirmed he is willing to sign off on having the Por Khor 6 converted to sole responsibility, thus abdicating any legal responsibility. He will even sign off on a Por Khor 14 as well, if his endorsement is necessary.

Will the above improve our chances of success?

Thanks, Deano

Edited February 9, 2015 by Deano1000

[Basil B]

I would suggest your wife points out that originally your ex husband was refusing to allow your daughter to go to England insisting she stay with him, now he has changed his mind and will not let her live with him, or more to the point his new wife will not.

My wife has also advised me that, even when she was married, they lived in Bangkok, but he worked in another Province, only coming home at the weekends. Unbeknownst to her (until 2009) he was having affairs. It was then in 2009 that she discovered he was having an affair with his new wife. He then stopped coming back at all. In fact, he had been living with her during the whole time. My wife was very naive.

As for your wife being naive, this hanky-panky when husbands are working a way from home is not unique to Thailand, I would say a lot of British MP's wives are naive too.

[Deano1000]

Basil B, thanks. We will definitely need to do that because, rather unfortunately, and in total ignorance at the time, my wife and I admitted in our supporting letters for her visa application that her daughter would be living with her father whilst my wife settled in the UK (fatal to the sole responsibility issue). However, this was done under duress. Now he has changed his mind, I hope that if we explain the above and also state that he does not want her to live with him (nor his wife), the prospects of the ECO granting a visa for my step-daughter should be good. My wife has had sole responsibility since the divorce. I am still unsure as to whether my wife should obtain a Por Khor 6 AND a Por Khor 14, or whether the Por Khor 14 alone will suffice?

[7by7]

To apply in the UK the sponsoring parent of the child must have ILR or ILE.

Thanks for that, Tony.

Unfortunately this would not apply in Deano's case as his wife has only just been issued with her initial settlement visa.