Right of access to child

voodoogsx · Post by **voodoogsx** » Sat May 14, 2011 2:09 pm

Hi All,

Need some advice and some clarification from those who know a bit more.

I came to the UK in 2003 as a spouse of someone with ancestry, we split up a few years ago and have just got divorced. I have been made aware that I need to change my visa now as the relationship is no longer valid and so neither is my visa. We have a 6 year old daughter which I was seeing every second weekend and a new partner who I live with who is British.

I have been told that I will need to leave the UK and apply to come back as the parent of dependant excercising the right of access to a child. In order to do this I will have to have proof of access to said child. In the divorce papers we agreed and made it known that I would have her every second weekend and this has a court stamp on it.....will this suffice as the proof required ? I also have many pictures and proof of payment of maintenance CSA etc. I have always worked and always paid everything on time etc.

So my questions are...

Will the fact I have overstayed affect my application even though I am leaving and applying through the correct channels, I did not overstay intentionally but assumed it was until a divorce decree had been issued that marks the end of the relationship.

Does the fact the details of our agreement in the divorce papers qualify as proof of access ? I have asked the ex for a letter stating I have the child every other weekend but she is not willing to help.

I will be retuning to Zimbabwe and applying from there but what form do I use for a parent applying for access rights to a child, I cant seem to find any indication of which one to use but plenty of advice on the requirements ie the whole 248 section of the immigration laws.

I have a driving conviction from 2006 which although minor is classed as a conviction, non custodial but there was a fine and a ban so will I fail on the application automatically?

Any advice greatly appreciated.

joh118 · Post by **joh118** » Sat May 14, 2011 2:13 pm

Please see CHAPTER 7 SECTION 1
PERSONS EXERCISING RIGHTS OF ACCESS TO A CHILD RESIDENT IN THE UNITED KINGDOM

please do not spam the board with multiple threads.

voodoogsx · Post by **voodoogsx** » Sat May 14, 2011 2:23 pm

John,

I have read through this several times and it does not answer my questions. Does a divorce including the child agreements act as proof.

Pasting a link to immigration laws Ive already read and sited is not helpful.

If you would like to clarify which group you think it fits in Ill happily remove the other one.....

Kitty · Post by **Kitty** » Sat May 14, 2011 4:29 pm

What kind of leave do you have at the moment? If you have been here since 2003, did you and your ex not get ILR?

voodoogsx · Post by **voodoogsx** » Sat May 14, 2011 5:24 pm

Hi kitty,

We arrived late 2003 with her on an ancestry and me with a right to accompany spouse visa. That was valid for 5 years but just not enough to apply for ILR. We renewed our visas and I was given a residence permit (limited leave to remain). We were starting to apply for ILR in 2008 but started having issues around this time. We started living separately but continued to try work things out. She was reluctant to apply with us being at different addresses. We then ended permanently and she has applied with our child in their own right. I know now I should have left then but had assumed it was on the grounds of the divorce being issued.

geriatrix · Post by **geriatrix** » Sat May 14, 2011 5:44 pm

If UKBA has not curtailed your leave and the leave grnated in 2008 has not yet expired, then you have the legal right to remain in the UK (until the expiry date on the visa). In such case, you should be able to apply for leave to remain (i.e. - apply from within the UK) under right of access to a child.

voodoogsx · Post by **voodoogsx** » Sat May 14, 2011 6:01 pm

How do you mean by the UKBA has curtailed the visa ? I have not been contacted or advised and she has made them aware we have split up.

geriatrix · Post by **geriatrix** » Sat May 14, 2011 6:35 pm

If you read my response carefully you'll note that I did not state "UKBA has curtailed your visa" but that "If UKBA has not curtailed your leave ....". Instead, my response was to suggest that the following may be incorrect:

I have been told that I will need to leave the UK and apply to come back as the parent of dependant excercising the right of access to a child.

Are you staying at the same address as you were when you made the application in 2008? If not, have you advised UKBA of your new address? Are you sure that if a letter sent by UKBA to an address that you are no longer staying at will be forwarded to you or that you'll be made aware of such a letter by anyone receiving that letter.

Again, I am not suggesting that your leave has been curtailed ..... just exploring "I have not been contacted or advised ....".

voodoogsx · Post by **voodoogsx** » Sat May 14, 2011 6:45 pm

We are getting confused here. I asked what you meant by they have curtailed the visa. Meaning what would that entail or involve rather than saying categorically that they have.

They may have sent such a letter but i have not register anything so it is an unknown situation at present. However she has advised a change of status of the relationship along with whatever other details they required which may have been an address.

I am confused as to why my first entry visa stated "To accompany spouse" and the current valid one states nothing other than residence permit and limited leave to remain. Are they different by chance ?

voodoogsx · Post by **voodoogsx** » Sat May 14, 2011 6:50 pm

I can only think then that the person who has advised me of this had assumed that the renewed visa was the same as the original (I don't know if they are or aren't ? ) but that it had become invalid at the time the relationship broke down.

Greenie · Post by **Greenie** » Sun May 15, 2011 1:40 pm

sushdmehta wrote:If UKBA has not curtailed your leave and the leave grnated in 2008 has not yet expired, then you have the legal right to remain in the UK (until the expiry date on the visa). In such case, you should be able to apply for leave to remain (i.e. - apply from within the UK) under right of access to a child.

Unless he has limited leave to remain as the spouse of a settled person who is the other parent of the child he will not qualify for leave to remain under the access to a child rule he would have to apply for leave to enter. See 248A v ii

Kitty · Post by **Kitty** » Sun May 15, 2011 7:38 pm

voodoogsx, what is your home country/nationality?

The alternative to leaving the country and applying for a new visa is to apply for discretionary leave to remain in the UK. As long as you apply for it before your current leave expires, you will be legally in the UK while your application is being processed. However, the process may take a long time and there is no guarantee that you will get it.

Things to consider:

1. The access to a child visa currently leads to settlement (ILR) after only one year. Discretionary leave may be granted for 3 years, and currently only leads to settlement after 6 years.

2. How long do visas take to process in your home country, and how fairly are they assessed?

3. Are there any reasons why you might not be able to interrupt contact with your daughter for the time it would take to sort out a visa?

4. Do you have a job/place to live in the UK and will you be able to keep them if you have to leave to get a new visa?

geriatrix · Post by **geriatrix** » Sun May 15, 2011 8:50 pm

Greenie wrote:
sushdmehta wrote:If UKBA has not curtailed your leave and the leave grnated in 2008 has not yet expired, then you have the legal right to remain in the UK (until the expiry date on the visa). In such case, you should be able to apply for leave to remain (i.e. - apply from within the UK) under right of access to a child.
Unless he has limited leave to remain as the spouse of a settled person who is the other parent of the child he will not qualify for leave to remain under the access to a child rule he would have to apply for leave to enter. See 248A v ii

My bad! (248A(vii)).

Apologies OP, it seems you have been advised correctly.

HRY2005 · Post by **HRY2005** » Wed May 18, 2011 7:21 pm

I will support Kitty's idea. The OP has got a DLR for 3 years after the first entry clearance. Why not apply for another DLR and based the application on the right of access to a child?

It doesn't matter if he's got a leave as a spouse of a settled partner or not, the application will be considered outside the rules anyway. Alternatively, he could consider returning home for a 12 months access rights entry clearance, which is a quick route to settlement.

Good luck.

geriatrix · Post by **geriatrix** » Wed May 18, 2011 7:37 pm

From what has been posted, it appears that the OP current leave is that a dependant of (ancestry) migrant ... and not discretionary leave. So settlement through this route may still be 6(+) years away.

voodoogsx wrote:We arrived late 2003 with her on an ancestry and me with a right to accompany spouse visa. That was valid for 5 years but just not enough to apply for ILR. We renewed our visas and I was given a residence permit (limited leave to remain).

I guess the renewal referred to in here is "leave to remain as persons with UK ancestry".

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Right of access to child

Right of access to child