How do I apply under A(280) 304-309 from outside the UK?

[paige]

Hi All,

I'm on a Tier 2 Visa, and last July had a baby in the UK. I elected to spend maternity leave with family in the US, and it's time to return to work.

I attempted to make an application for her as a Tier 2 dependent, thinking that A(280) 304-309 would apply because she was born in the UK. The application was denied because I did not establish sole responsibility (which is not required under the rules above). I did not specify which rules should be followed, because I mistakenly believed that the ECOs would not need my help in properly following their own instructions (Nov 09 IDI Chapter 8 Section 4A).

In a contact with the home office, I was told that A(280)-304-309 would be applied only if I used form FLR(O). I can't use this form, however, because A). I'm not in the country and B). I'm a PBS migrant. I was told that if I used the Tier 2 dependent form, I would be held to the standards of sole responsibility, rather than to those standards laid out in A(280)-304-309. I have had sole responsibility for the baby since her birth and will continue to have it while she is in the UK. However, the bar for proving sole responsibility appears to be unreasonably high and the ECO was evidently unconvinced that removing a 10 month old from were mother would have undesirable or harsh emotional consequences for either of us.

I am currently appealing the case (on the grounds that the rules were improperly applied and that I do have sole responsibility), but this may not be resolved before I'm faced with the choice of losing my job or leaving my 10 month old behind. She clearly qualifies for entry under A280 304-309. If I were to make a new application, what form would the moderators suggest?

[CR001]

Where is the childs father?

[paige]

The child's father lives in the US and cannot immigrate at this time. I note that under A(280) 304-309, only one parent is required. I have an affidavit from the child's father acknowledging my sole responsibility and agreeing that the child should be in the UK with me. Her birth certificate lists us as unmarried and living on different continents.

[CR001]

If the father is named on the birth certificate, you will unfortunately need to prove sole responsibility, see point Set7.8 in the link below to understand HO requirement for sole responsibility.

https://www.gov.uk/government/publicati ... onsibility

Unless the father applies at the same time, it is unlikely that you will be successful. It would probably have been easier to apply for the childs visa within the UK before you traveled to the USA.

[paige]

A(280) 304-309 applies to entry clearance, as does the ECO insturctions I posted above. Can you explain why these do not apply to my daughter? Vinny, can you provide any clarification?

[CR001]

The current rules applicable to you are below in the link.

Read 319F to 319H of the 'Family members of relevant Point Based System Migrants' section (click). In particular read 319H(f) (i) & (ii).

[paige]

I am able to read the section on PBS migrants, thank you. Vinny refers frequently to A(280) 304-309 -- and no where can I find any place that says that these rules do not apply to all children born in the UK. The ECO instructions that I quoted say that they are to be applied if other rules fail. Can you tell me where it says that these rules do not apply to the children of PBS migrants?

[vinny]

Some ECOs appear to be unfamiliar with these rules.

[paige]

Hi Vinny-- my appeal lists these rules as the first reason to overturn, and claims "sole responsibility" as the second. Any chance the reviewing ECM will understand that according to their instructions, the "born in the uk" rules are to be applied even when other rules fail? Or will this end up in front of a judge (and take FOREVER). If I referred to these rules on a new Tier 2 dependent application, would it make any difference?

[vinny]

Rama.b apparently got the refusal overturned. So, there is hope.

These rules still exist, but their implementation is obscure.

[paige]

Thanks. I'll keep you posted. Also planning to badger my MP daily.