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Breach of Non Molesation order and applying for visa

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mrgsingh
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Breach of Non Molesation order and applying for visa

Post by mrgsingh » Fri Oct 25, 2013 2:13 pm

Hi

I am looking for get some advise regarding my friend who's married to a British Citizen. He's currently on a spouse visa until next month. His daughter was born in Jan13 and since then they have some family issues so they decided to split up. She's now leaving with her parents. She filed few cases against him and he was arrested however he wasn't charged for anything as there were no evidence. He has also been given a letter from the court that he's not been charged. His wife took non molestation order in Jun however he texted his wife asking not to go through divorce process. Now his wife has reported it to the Police. He plead guilty in the court and he's been given another date.

The question is...he's in the process of applying his visa however as he has plead guilty recently it means it will be a criminal offence I believe. Will it affect on his visa application. He managed to get contract order from the court and bears all the expenses for his daughter. He didn't have any other offences.
I look forward to hear your advise/suggestions.

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Amber
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Post by Amber » Fri Oct 25, 2013 6:18 pm

What leave is he applying for? He cannot apply for SET(M) if the relationship has ended.
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mrgsingh
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Post by mrgsingh » Sat Oct 26, 2013 6:44 pm

D4109125 wrote:What leave is he applying for? He cannot apply for SET(M) if the relationship has ended.
Hi Amber....He's been told that he can apply for further leave to remain on the basis of his family as he has a daughter

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Post by Amber » Sun Oct 27, 2013 6:45 am

Does he have any contact with the child?
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Post by Obie » Sun Oct 27, 2013 12:56 pm

In most of these cases, there are no direct contact with children, due to the non-molestation order in place. If he arranges a supervised contact, that would be fine.
Due to the cost involved, most parents tend to involuntarily opt out of contact.

In any event he will need a court order, as I cant see the wife willing to assist.
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Post by Amber » Sun Oct 27, 2013 2:09 pm

Indeed, and without a genuine and subsisting parental relationship exception 1 will fail.
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Post by mrgsingh » Mon Oct 28, 2013 7:32 pm

D4109125 wrote:Indeed, and without a genuine and subsisting parental relationship exception 1 will fail.
Yes..he still has contacts with the child under the supervision. He pays some sort of fee on every visit...

He's little bit anxious about his visa as he's been told by his solicitor that he will not get it as he's breeched non-molestation order.

However some people said he will get it as he still has contacts with his child.

Any thought

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Post by Amber » Mon Oct 28, 2013 9:44 pm

Section 1 of the Domestic Violence, Crime and Victims Act 2004 ('DVCVA') amended section 42A of the Family Law Act 1996 by creating a criminal offence of breach of a civil non-molestation order.

See the Guidance including:
Guidance on application of EX.1 wrote:Parent being returned to country outside of EU

11. In cases where the decision being taken in respect of the person with parental
responsibility would require that person to return to a country outside of the EU then
the case must always be assessed on the basis that it would be unreasonable for the
child to leave the UK with their parent. In such cases it will usually be the case that
the person with parental responsibility will be allowed to stay in the UK with the child
provided that there is satisfactory evidence of a genuine and subsisting relationship.
It may however be appropriate to refuse to grant leave where the conduct of one of
the parents gives rise to considerations of such weight as to justify separation, if the
British Citizen child could otherwise stay with another parent or primary carer in the
UK. The circumstances envisaged could cover amongst others:

-minor criminality falling below the thresholds set out in paragraph 398;
-a poor immigration history.


12. In considering whether refusal may be appropriate you would need to
consider the impact on the child of any separation.
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Post by Obie » Mon Oct 28, 2013 9:52 pm

Consideration would have to be given to the fact that the non molestation order itself is not a criminal offense, but breach of it.

It authority would have to take account of the extent of the breach.

Would akso need to bear in mind that notwithstanding the breach of the order, it is in the child's best interest for the father to be on tge UK .

A man might be a hopeless and vile husband but an excellent father.

The two concept are not mutually exclusive.
Judge not, and you will not be judged.

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