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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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My sons is married to a Filipino and they have a 14 mth old

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My sons is married to a Filipino and they have a 14 mth old son. They have been in this relationship for 4 years. She came on a student visa which expires end of November. My son is suffering from depression and anxiety. She has been told that she will have to return to the Philipines and as my son isn't well she will either have to take their child with her or have him adopted as,because of his illness he won't have custody of his son. They are saying that she could apply to come back again but she thinks that will take forever if it happens at all.
Submitted: 2 years ago.
Category: UK Immigration Law
Expert:  Thomas replied 2 years ago.
Hi,

Where was the son born please?

Is your son British by birth having been born in the UK to British parents?

What income does your son have? there is a salary threshold..

Tom
Customer: replied 2 years ago.

He was born in the uk to british parents. Because of the drepession he is currenlt unable to work.

Expert:  Thomas replied 2 years ago.
Drafting your answer now. 5 mins. It may be difficult reading though.

Tom
Expert:  Thomas replied 2 years ago.
Hi

Thanks for your patience.

If she is still studying then she should look at extending her student visa, obviously.

As the spouse of a UK national she could (in theory) make an application from within the UK. However the eligibility criteria is a problem for them:-
http://www.ukba.homeoffice.gov.uk/visas-immigration/partners-families/citizens-settled/spouse-cp/can-you-apply/

You will see that there is a financial requirement, which effectively a threshold:-
http://www.ukba.homeoffice.gov.uk/visas-immigration/partners-families/citizens-settled/spouse-cp/can-you-apply/financial/

You will see that he would have to have an income of £18, 600.00 in order for her to be eligible to apply.

The financial requirement would not apply however if your son was receiving any of the following benefits:-
-Disability Living Allowance.
• Severe Disablement Allowance.
• Industrial Injuries Disablement Benefit.
• Attendance Allowance.
Which you will see is confirmed here at 6:-
http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/IDIs/chp8-annex/section-FM-1.7.pdf?view=Binary
I don’t know if he does claim these benefits but if he does then she can probably apply. If he can’t apply under an exemption then he will have to wait until he either earns that amount of money or until the requirement is found not to be enforceable – it has only just come in and it will probably be overturned in time but it will take at least 18 months.

If she leaves the UK after her visa expires then she would be classed as an overstayer which is a general ground for refusal for most visas, however the UKBA cannot refuse an application for a spouse visa on this ground alone. So, if she did overstay then when she applied in the future for a spouse visa the UKBA would not be able to reject on because she overstayed as the sole reason.

With respect of the child if she was willing to let the child remain in the UK with him then they could do this. I assume the child was born in the UK and that your son is named on the birth certificate, this means that the child is entitled to British Citizenship automatically under the British Nationality Act 1981. They can simply apply for a passport for her.

I am very sorry that I could not have better news for you. It’s tremendously difficult situation for them to be in. I don’t agree with the salary threshold, which is the main barrier here and they have my deep sympathies for their position. I am sure they consider it grossly unfair


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Kind regards,


Tom
Thomas, Solicitor
Satisfied Customers: 6517
Experience: BA (Hons), PgDip, Practising Solicitor
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Customer: replied 2 years ago.

Thanks for the reply. Not what I wanted to hear but it was what I was expecting.

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