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Thomas
Thomas, Solicitor
Category: UK Immigration Law
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Experience:  BA (Hons), PgDip, Practising Solicitor
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I am British, married to an Indian national with a spouse visa

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I am British, married to an Indian national with a spouse visa which expires end of this year. We have one baby. The marriage appears to be failing. Will my husband still be able to remain in the uk despite me not confirming his application. Will he have strong grounds to make a human rights application to remain on the basis that he wants to see his child in the uk?
Hi
Thanks for your question.

To enable me to answer your question could you please respond to the following:-
1. Who will have residence of the child in the future
2. Will he wish to be involved in the child’s welfare
3. How old is the chlid
Kind regards.

Tom
Customer: replied 4 years ago.
I will have residence of the child. I own my own property which is in my sole name. He states he wants to be involved with the child but I believe this is only to bring a case for him to remain in the uk. He does not generally have a general interest in e child's welfare. The child is one years old.
Last week he left the marital home after making up an excuse that he cannot live with me anymore. He stayed somewhere else and had no communication or contact whatsoever for 10 days despite me trying to get hold of him. He only came home yesterday after he was informed that it looks like he doesn't intend to continue with the marriage anymore. I am not not sure whether be only married me and had a child for the sole reason of getting a visa and having the child as a backup in case the marriage didn't work out. He also told me he got legal advice that even if I don't confirm the spouse application at the end of the term (4months) then he may make a human rights application and stay in the uk anyway under human rights in any case. I want to know whether this is something he can do and what criteria/ evidence he needs to prove this.
Thanks for your help.


Hi

Thanks for your question.

If a spouse is here on a spouse visa and their marriage breaks down then when the UKBA are informed in writing of this by either spouse they will curtail the spouse visa. At this point the leave to remain will be terminated and they will cease to have leave to remain and be illegally in the UK.

If the UK spouses does not support the application for ILR then the spouse cannot obtain ILR.

However, the situation is more complicated where there is a UK child of the marriage. In these circumstances it is very difficult for the UKBA to remove the spouse by successful removal directions (ie. deportation). In order to do so the spouse must effectively state that they do not wish to have any influence in the child’s upbringing. They can be proven to not be interested in the child but it is very very difficult because the burden of proof is so high.

Ultimately if the spouse says that they are to be involved in the child’s upbringing and either the UK spouse agrees or the non-uk spouse applies for a contact order (or residence order) under the Children’s Act then the UKBA will most likely have to grant the spouse further leave to remain.

They would have to prove their parentage obviously and make a detailed statement about their involvement with the child’s upbringing to date as well as providing a full plan of how they intend to support themselves and the extent of their involvement with the child in the future, but this is not a particularly high burden of proof. The burden of proof for proving that they have not and will not be involved with the child is much, much higher for example.

This is usually for a period of time which would take their total amount of time in the UK up to 5 years so that they can then apply for ILR once they have reached the 5 year period.

This is all based on the Human Right Article 8 Right to a family and private life, which can override most other considerations provided the right is genuine I’m afraid.


If the non-UK spouse does not make this argument, because they are unaware of it or because they do not instruct a solicitor then they will be removed from the UK because there would effectively be no argument made against the removal directions.

It’s an awful situation and you have my sympathies, but I think it’s better that you know they above (irrespective of how unpalatable it might be to read) so that you can prepare yourself for what might happen.

If this has been useful please kindly click accept so that I may be rewarded for my time. If you do not click accept your money stays with the site and I do not receive any credit for the time I have taken to answer your question. You will not be charged any further money for clicking accept.

If you wish for me to provide you with further guidance on any question you may have in the future then please submit a further question to the board requesting me either by my profile or by marking your question. “FAO Tom”.

Kind regards,


Tom
Customer: replied 4 years ago.
Hi, thanks for your response. Just have another query before I accept your answer.

Would I be able to use any text message material or voice recordings as evidence if it did come to that situation? During his period of no communication, my daughter was very ill and I needed to take her to a&e and I informed him but he didn't want to come to see her even then. Can this be used as evidence?

Also, if he did pursue to obtain a contact order, how long could this take and whilst this is pending, could the ukba theoretically allow him temporary leave pending the outcome of the contact order?

Many thanks again for your time.
Hi,

The text message evidence would be useful but far from conclusive I'm afraid. To effectively exclude someone from their child's life on the basis of evidence usually consists of a long chronology of behaviour backed up by extensive documentary evidence which means that the only conclusion that can be drawn is that they have no wish to be a part of the child's life.

He could claim he did not receive them, or that he was suffering personal problems and was "not himself" for example.

Children's act proceedings can take a very long time if you dispute them. If disputed at least three month and in some cases a year or more because contact is ordered. The UKBA would either grant temporary leave or simply choose not to issue removal directions.

Trust this clarifies, please click accept.

Kind regards,

Tom
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