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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 a soldier in the United States Army. Im getting separated

Resolved Question:

I am a soldier in the United States Army. I'm getting separated within a month or two. I am currently married to a British citizen and I also have a child child with her. We are not divorced but we have not lived together in 3 years. When I get out of the military would I be able to stay in the country?
Submitted: 2 years ago.
Category: UK Immigration Law
Expert:  Awan-Legal replied 2 years ago.

Awan-Legal : Hi
Awan-Legal : What nationality is your child?
Customer:

Good evening, she is british

Awan-Legal : Evening - does she live in the uk with her mother?
Customer:

yes she does

Awan-Legal : Great, thanks for the further information. It would be difficult for you to obtain a visa to join your wife as the requirements for a spouse visa are that the marriage is still subsisting and that you have an intention to live together permanently. If this was the case, then you could apply for a two year spouse entry visa on this basis and then indefinite leave to remain before the expiry of that visa but would still need to meet these requirements at that stage. In your circumstances, however, you could apply for a visa on the basis of your child in the UK. Just bear with me while I provide further details for you:
Customer:

thank you.. i will be patient.

Awan-Legal : Thank you, XXXXX XXXXX is Zambrano and allows for the parent of British children to reside in the UK even where the other parent is in the UK looking after the child. You will need to show some form of dependancy such as financial and/or emotional. The guidance from the UKBA states as follows:
Awan-Legal : http://www.ukba.homeoffice.gov.uk/sitecontent/newsarticles/2011/september/48-british-carers
Customer:

I see

Customer:

Is this an expensive and drawn out process. I might be leaving in a month. Im thinking this is something that wont be resolved that fast

Awan-Legal : You cannot apply from abroad, however, so would need to come to visit initially. Financial dependancy alone is not sufficient according to the UKBA hence emotional needs/care is also required. You need to show why this dependancy cannot continue with you being in the US and why the child cannot join you there. For example, if there are needs of the child that only you can meet or her mother is unable to care for her at certain periods where only you are available. It may be advisable to get the help of a good lawyer to help you with this to ensure success.
Awan-Legal : Further ukba guidance can be found here:
Awan-Legal : http://www.whatdotheyknow.com/request/94745/response/235290/attach/3/FOI%2020867%20Response.pdf
Customer:

Wow. The UK is strict. My goodness.

Awan-Legal : Yes they are getting stricter unfortunately but there is also an alternative visa you can also apply for on the basis of your child, whereby the UKBA requires 'a sworn affidavit from the non-applicant parent, (that is, the U.K. resident parent or carer of the child), confirming that the applicant parent can have access to the child, and describing in detail the arrangements made to allow for this access, are taken as suitable evidence of access rights. (If contact is supervised, then the statement must be sworn by the supervisor)' amongst the following for you to gain access rights to your child with an initial 12 month visa:
Awan-Legal : http://www.ukba.homeoffice.gov.uk/policyandlaw/guidance/ecg/vat/vat23/
Awan-Legal : This visa can be obtained from the British Embassy in the US.
Awan-Legal : You can then apply for indefinite leave to remain/permanent stay prior to the expiry of this 12 month visa.
Customer:

This route sounds easier

Customer:

So the right to contact can be obtained through the divorce?

Awan-Legal : Not necessarily - a letter from your Wife will suffice as follows:
Awan-Legal : Taken from the link above:
Awan-Legal : VAT23.4 What evidence should the applicant provide to demonstrate that they have access rights to a child in the UK?They should show evidence from a UK court that they have access rights to the child. Residence orders or Contact orders granted by UK Courts, or a sworn affidavit from the non-applicant parent, (that is, the U.K. resident parent or carer of the child), confirming that the applicant parent can have access to the child, and describing in detail the arrangements made to allow for this access, are taken as suitable evidence of access rights. (If contact is supervised, then the statement must be sworn by the supervisor).Note: The Rule at Paragraph 246(iii)(b) continues to offer certificates issued by district judges confirming the applicant's intention to maintain contact with the child as an option, but legal advice is that this is now impossible. Therefore, until such time as the Rule can be amended, the sworn statement can be accepted instead. It is reasonable to expect parents to obtain such documents to prove that their intention is to enter the United Kingdom on the basis of exercising rights of access. This would confirm the commitment of the parent and prevent applicants from attempting to enter the United Kingdom under false pretences.
Awan-Legal : I would also add that with both options, there is an abundance of case law which sets out the best interests of the children being a primary factor in cases like yours, which is good news for you.
Customer:

So if i get the affidavit what are the steps to take after that

Customer:

Yes that is great news

Awan-Legal : I am just getting together the information for next steps.
Customer:

thank you :)

Awan-Legal : http://www.ukba.homeoffice.gov.uk/visas-immigration/visiting/family/
Awan-Legal : http://www.ukba.homeoffice.gov.uk/view/visa.form
Awan-Legal : How to apply and fees:
Awan-Legal : http://www.ukba.homeoffice.gov.uk/countries/usa/applying/?langname=UK%20English
Awan-Legal : The contact details for the British Embassy, US are as follows:
Awan-Legal : http://ukinusa.fco.gov.uk/en/about-us/other-locations/ny/about-our-consulate-general/contact/
Awan-Legal : There is no specified form for this - the ukba state vaf1b as linked above but it is advisable to contact the Embassy directly to confirm and make it clear on a cover letter that you are applying for an access to child visa.
Awan-Legal : Documents:
Awan-Legal : Your passport and child's copy passpory
Awan-Legal : Child's birth certificate
Awan-Legal : You can enclose your marriage certificate if you wish although not necessary
Awan-Legal : Your wife's sworn affidavit of course
Awan-Legal : Your wife's passport copy and evidence the child is living with her (eg doctor's letters etc)
Awan-Legal : A statement from you setting out how you intend to take an active role in the Hilda's upbringing
Awan-Legal : Sorry 'child's' upbringing (the I phone showed this as Hilda)
Customer:

its ok

Awan-Legal : Your 3 to 6 months bank statements showing you can support yourself and the child
Awan-Legal : Any potential job offer letter in the uk
Customer:

this is a ton of info. and a lot of leg work on my part.

Awan-Legal : Accommodation - tenancy or mortgage statement where you will be staying (permission from landlord/owner for you to stay at the property)
Awan-Legal : Yes I am afraid it is.
Awan-Legal : I have provided as much detail as possible to help you but my apologies if I have bombarded you
Customer:

lol.

Awan-Legal : You can get help with the application, documents and cover letter in the UK.
Customer:

you have a bit but i have a lot of info and i can choose an avenue of approach.

Awan-Legal : I can recommend a good lawyer if you wish.
Customer:

from who?

Customer:

that would be nice.

Awan-Legal : Yes certainly you have a couple of options which are good.
Awan-Legal : A registered lawyer in the UK to help you through the process.
Customer:

yes, please?

Awan-Legal : You can always request me also through here if you have any further questions - start the question by addressing for my attention.
Customer:

thats great

Customer:

you been a great help

Awan-Legal : Mrs Aline Loake at Proficient Visas on T.: (0)2075 867 020.
Awan-Legal : Thank you! Glad to be of assistance.
Customer:

i think i will have more questions later in the week.

Customer:

about divorce law

Awan-Legal : Take care and kindly leave positive feedback for me if you found this helpful. Thanks.
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

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