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Awan-Legal
Awan-Legal, Solicitor
Category: UK Immigration Law
Satisfied Customers: 128
Experience:  Specialist in immigration law with the highest level of accreditation in this area and with many years experience.
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I am in a long distance relationship with a woman in the UK.

Customer Question

I am in a long distance relationship with a woman in the UK. She has come to visit me in the US and I have been to the UK to see her. During the past year we have fallen in love. I would like to come to the UK to live and I would like to apply for a fiance visa as I have asked her to marry me. I also would like to bring my daughter (who is 12 years old) with me and I would like to apply for her visa at the same time. I currently have shared custody with my ex wife and she has stated that she would grant me sole custody for my daughter to live with me in the UK. I was told that there has to be serious compelling family or other considerations why my daughter should come to the UK. What do I need to do to ensure my daughter is granted a visa?
Submitted: 2 years ago.
Category: UK Immigration Law
Expert:  Awan-Legal replied 2 years ago.

Customer: Hi
Customer: That is correct, you must show that you have sole responsibility of your child and that there are serious reasons why she must come with you as follows:
Customer: The UKBA states:By 'child' we mean someone who is under 18 years old.Children cannot normally come to settle in the UK unless both parents are settled here or have been given permission to settle here. The only exceptions are where:1 parent is dead and the other is settled or coming to settle here; orthe parent who is settled or coming to settle in the UK has had sole responsibility for the child's upbringing; or1 parent is settled or coming to settle in the UK and there there are serious reasons why the child must be allowed to come here.
Customer: Your child must show that they:are not leading an independent life;are not married or in a civil partnership;have not formed an independent family unit; andare aged under 18.
Customer: The letter from your ex wife will certainly help but she will need to clearly state why she is relinquishing responsibility and you must give strong reasons why she cannot remain behind with your wife in the meantime (set out the circumstances in full together with as much supporting evidence as possible).
Customer: The UKBA sets out the following as a guide to serious compelling circumstances and sole responsibility;
Customer: 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 can be downloaded under 'Related documents' on the right side of this 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?back to topSET7.9 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.
Customer: SET7.16 Is there provision for children of fiance(e)s / proposed civil partners?Entry clearance with a view to settlement may be granted to a minor dependent child of a parent who has been admitted, or is seeking admission, as a fiancé(e) under paragraphs 290 to 295 of the Rules provided the following additional requirements are met:the child is under the age of 18, is unmarried and is not leading an independent life nor formed an independent family unit;the child can and will be maintained and accommodated adequately without recourse to public funds with the parent admitted or being admitted as a fiancé(e) or proposed civil partner;there are serious and compelling family or other considerations which make the child's exclusion undesirable;that suitable arrangements for the child's care have been made;there is no other person outside the UK who could be reasonably expected to care for the child;the terms of any custody order relating to the child do not prevent the child being taken to another country with a view to settlement there.In assessing whether there are serious and compelling considerations (see SET7.9) it would normally be undesirable to exclude a child who had largely been cared for by the 'fiancé(e) / proposed civil partner parent'. With regard to another person being able to look after the child, this would include a close family member if there had been a genuine transfer of responsibility prior to the application. The age and health of the present carer will need to be taken into account in determining whether that person could be reasonably expected to continue caring for the child.
Customer: The specific link to these is as follows:
Customer: http://www.ukba.homeoffice.gov.uk/policyandlaw/guidance/ecg/set/set7/#header16
Customer :

So the UKBA thinks it's better that a mother has NOTHING to do with her child than to be a part of her life?

Customer :

that's insane

Customer: I would also advise getting a letter from your daughter setting out her wishes and why she wants to accompany you to the uk and the impact of separation on her.
Customer: I agree that the rules are very impractical and can be ridiculous at times. The custody order will of course also be taken into account but you may be able to argue on human rights and your child's best interests. The case to rely on is as follows:
Customer: http://www.bailii.org/uk/cases/UKUT/IAC/2011/00483_ukut_iac_2011_t_jamaica.html
Customer: I would suggest getting a good lawyer to assist you with your daughter's a case as
Customer: I would advise getting the help of a good lawyer with your daughter's case as it is by no means straightforward and to optimise your chances of success.
Customer: Best of luck with the application. Please click accept on my answer and let me know if you have any further questions arising from the above.
Customer :

Not quite the answer I was hoping for, but I appreciate your honesty

Customer: Ps another option is for her to enter as a child visitor as the requirements are less strenuous although you would then need to satisfy her intention to return abroad. She should be issued this visa to attend the wedding etc and you can apply under the human rights basis and under the above rules for her to remain here with you in the UK as you do not then have to worry about her being stuck abroad while her case is being considered etc and if this goes to appeal (although technically it is outside the rules to switch and she would have to have an intention to return when she comes into the UK initially).
Customer: On the above facts though, given that you have shared custody and considering the best interests of your child, I think you would still have a chance of her coming to the UK as your dependant if her mother is still involved in her life but you show compelling circumstances why she cannot continue to take care of her and would rather she relocate with you.
Customer: Good luck and please click accept on my answer. Kind regards.
Customer: Hi, please click accept on my answer so that I may be rewarded for my time, thanks.
Customer :

what your thoughts on my daughter coming with me on the fiancé visa? I.E. dependent visa?

Customer: I think you certainly have a chance of success on human rights based on the letter from your wife, a letter from our daughter as above and giving the evidence above. The court of appeal has ruled that a child's best interests/human rights are very important in a case such as this.
Customer :

do you think we have a greater than 50% chance?

Customer: I would enlist the help of a solicitor or immigration lawyer though I go through the custody paperwork and to prepare the legal arguments for you - to avoid the matter going to an appeal.
Customer: What are the reasons that your daughter will be joining you in the uk rather than staying with her mother?
Customer :

My daughter would prefer to live with me, she would have a more stable home life and she would have access to greater educational opportunities.

Customer: You would need to have the paperwork looked at to determine the percentage as it is difficult to say without looking at the papers.
Customer: did the court say anything in this regard about her stability/your financial circumstances when granting custody?
Customer: These factors are certainly important when determining her best interests.
Customer :

no, it was agreed between my ex wife and I that we have shared custody at the time

Customer :

The courts here like to see both parents involved in their lives

Customer: That is fine - the letters from your daughter and her mother should state why it is important that she joins you in the uk and how it is crucial to her emotional needs, financial needs and development.
Customer: Please kindly click accept on my answer, thanks.
Customer :

The fact is her mother will not write a letter saying that my daughter can no longer live with her. How can we prove necessity if we don't have that letter.

Customer :

I don't really understand "compelling reasons". I can get a letter from my ex wife stating that she will give me custody and that she is happy for her to live in the UK with me.

Customer :

The position we are in is that my ex wife is willing to change the custody from joint to sole, both physical and legal and write a letter to say she is OK with my daughter moving to the UK. I can also get a letter from my daughter saying she is excited about moving to the UK, a letter from my fiancée saying she will support my daughter and a letter from the school that my daughter would attend in the UK. What we don't have is a letter from my ex wife saying Ashlee can no longer live with her, as it is not true. One solicitor has said this means we are not proving necessity, which is a requirement for my daughter's visa. What are your thoughts on this?

Customer: I think as long as you have the letter from your ex confirming that she will give you full custody and that she will live with you in the UK, you do not need to specify the living arrangements with her mother. The letter from your daughter should also state how she relies on you and cannot stay without you, she wants to join you in the UK and as you say that she is very excited at the prospect of moving to the uk.
Customer: The authorities define the following as sole responsibility and compelling circumstances through case law and will hopefully give you a better understanding:
Customer: Sole Responsibility: That the parent the child is joining has had sole responsibility for the child’s upbringing. The term ‘sole responsibility’ is interpreted broadly, acknowledging that some delegation of responsibility must have occurred as a result of physical separation. Factors such protracted financial support, regular contact and genuine interest and affection, as well as regular consultation between the settled parent and the overseas carer and an ultimate control as to matters of schooling and upbringing are taken into account. The IDIs state that sole responsibility must be exercised for a protracted period of time. The Court of Appeal, however, in the case of Nmaju v ECO (2000) decided that sole responsibility could be exercised for a short period but factors such as the quality of control involved and the period of time over which this quality of control have been exercised should be taken into account. That there are serious and compelling reasons for making the child’s exclusion from the UK undesirable. This criteria and strict and in discharging the burden factors such as evidence of the incapacity or unwillingness of the carer overseas to continue to look after the child, the child’s living conditions, the particular vulnerability of younger children and the importance of maintaining family unity are taken into consideration: Hardward v SSHD (2000).
Customer: I think that even if you have issues with the necessity point this should be balanced with her needs and wishes (she prefers to live with you) and as above you can rely on the above linked case.
Customer: I hope that answers your question.
Customer :

Apologies, we are struggling a bit with all the information we are getting back; with what we've got, (my ex wife signing over sole physical and legal custody) and letters, are we able and likely to be granted a visa for my daughter? If so, what backing documentation should we be looking to provide? Our concerns have been comments people have made regarding necessity and have had sole custody (ours has been joint up to now).

Customer: With regards XXXXX XXXXX it can be for a short time even as established by case law. It should exist before the application is made - if the mother is conferring sole physical and legal responSibility then you can also show that exclusion of your daughter would be undesirable (I.e her mother is unwilling to take care of her in your absence as she is relinquishing responsibility to you) and also as above he maintenance of the child will also be an important factor.
Customer: The answer is therefore yes you do stand a chance of being granted a visa but as stated earlier this is by no means straightforward and should ideally be looked over and prepared by an immigration lawyer or solicitor.
Customer: Please accept my answer and relist another question for the supporting documents, thank you.
Awan-Legal, Solicitor
Satisfied Customers: 128
Experience: Specialist in immigration law with the highest level of accreditation in this area and with many years experience.
Awan-Legal and 2 other UK Immigration Law Specialists are ready to help you
Customer: replied 2 years ago.
Please let me know what supporting docements I will need for my previous question
Customer: replied 2 years ago.
Hello?
Expert:  Awan-Legal replied 2 years ago.
HiThe supporting documents list is a separate question as the original question was about what to do in terms of the compelling and compassionate circumstances/necessity. I believe I answered the question in significant detail as well as clarify the legal position on these as you did not understand what was meant by these terms. I am happy to help and answer the above question on documents if you bear with me as i have a meeting shortly. I would appreciate it if you could retrieve your negative feedback. At the end of my answer, I am required as part of the site to ask you to accept my answer. As above, I still continued to engage in the answer. Thank you for the accept.If you could relist the question again in the same way as above so that I can answer it within the same payment. Thanks.
Expert:  Awan-Legal replied 2 years ago.
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