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    • Ithaca
    • By Ithaca 4th Mar 18, 11:41 PM
    • 236Posts
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    Ithaca
    Any immigration experts able to advise?
    • #1
    • 4th Mar 18, 11:41 PM
    Any immigration experts able to advise? 4th Mar 18 at 11:41 PM
    I would appreciate any advice re. an immigration question my wife's family is dealing with.

    Here's the position as best I understand it (it's all a bit unclear, so I appreciate giving proper advice if details are missing will be hard... please let me know if so and I shall go back and ask).

    TL;DR: Brother-in-law's partner of less than a year is pregnant but has to return to her own country in South America before the birth as her visa will run out; they don't earn lots of money and he has absolutely no connection with South America so him moving there would be a massive challenge. Is there any way she can legally stay in the UK to have the baby (and then remain afterwards)?

    Situation in summary is:
    - Wife's brother is mid-20s and is a British citizen (from birth)
    - His partner, also early- to mid-20s, is from South America and is in the UK on a short-term work visa; she has been working in the EU for a couple of years as an au pair with regular trips back to her home country (I assume to renew work visas).
    - They have been together for approx. 1 year; they are not married (and have no plans to get married) and only started living together 4-5 weeks ago.
    - She is pregnant and is due in summer 2018 (first child).
    - Wife's brother has never been to South America and wouldn't know where to start if he moved there.
    - Her visa runs out in a couple of months and she would need to return to South America before her due date.
    - I don't believe he earns more than £18k/year but ought to get able to find something that pays over £20k/year if he pulls his finger out; she doesn't currently work at all.

    From my reading around so far I believe that because they have been together less than two years, have no firm plans to marry, and probably don't earn over £18,600/year between them she will struggle to qualify for a family visa?

    Couple of immediate questions:
    1) I did read a statement that there can be an exception to the two year rule if "there would be very significant difficulties for you and your partner if you lived together as a couple outside the UK that couldn’t be overcome". Would his having absolutely no connection with South America or marketable skills to find work over there qualify for this?

    2) Could she return home, re-apply for a short-stay visa and have the child in the UK (assuming processing times allow)? Does the two-year "living together" rule allow for breaks to re-apply for a visa (i.e. is the two years cumulative or consecutive, and if the latter what is the maximum reasonable break allowed)? Seems like a catch-22 if not.

    3) Am I also right to assume that the child, even if born in South America, would be a British citizen by descent (assuming no issues with confirmation of paternity)?

    4) And finally is there an option for other family members (e.g. wife's parents) to "sponsor" or act as guarantors in lieu of them meeting the earnings threshold?

    Thanks for reading this far - wife's family are from a small valley village in South Wales so this is very uncharted territory for them, and we are trying to work out what steps to take first.
Page 1
    • miriamac
    • By miriamac 5th Mar 18, 12:15 AM
    • 288 Posts
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    miriamac
    • #2
    • 5th Mar 18, 12:15 AM
    • #2
    • 5th Mar 18, 12:15 AM
    You/he/they need to get specialist advice to cover your questions on

    - immigration/visas/staying here/ leaving and trying to come back

    - nationality

    - access to the NHS

    The individual issues are complex enough. Put them all together and you really need to talk to a specialist to get your answers.
    • Savvy_Sue
    • By Savvy_Sue 5th Mar 18, 1:52 AM
    • 38,486 Posts
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    Savvy_Sue
    • #3
    • 5th Mar 18, 1:52 AM
    • #3
    • 5th Mar 18, 1:52 AM
    Plus I believe it's an offence to give immigration advice if you're not suitably qualified to do so.
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    • jetplane
    • By jetplane 5th Mar 18, 6:00 AM
    • 1,531 Posts
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    jetplane
    • #4
    • 5th Mar 18, 6:00 AM
    • #4
    • 5th Mar 18, 6:00 AM
    Savvy_Sue is correct you need a licence / registration to give immigration advice... and all of the facts and evidence, not hearsay. Any misleading advice, however well intentioned can jeopardise a case.
    The most potent weapon of the oppressor is the mind of the oppressed. Steve Biko
    • chesky
    • By chesky 5th Mar 18, 6:41 AM
    • 996 Posts
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    chesky
    • #5
    • 5th Mar 18, 6:41 AM
    • #5
    • 5th Mar 18, 6:41 AM
    They will definitely need a solicitor specialising in immigration law. If they don't know of one, their local CAB should be able to refer them to one who will give them free initial advice.
    • silvercar
    • By silvercar 5th Mar 18, 9:28 AM
    • 37,225 Posts
    • 156,854 Thanks
    silvercar
    • #6
    • 5th Mar 18, 9:28 AM
    • #6
    • 5th Mar 18, 9:28 AM
    On the face of it -

    short term relationship

    visa running out

    no plans to marry

    the only long term connection is that she is having his kid.
    • Ithaca
    • By Ithaca 5th Mar 18, 10:50 AM
    • 236 Posts
    • 253 Thanks
    Ithaca
    • #7
    • 5th Mar 18, 10:50 AM
    • #7
    • 5th Mar 18, 10:50 AM
    Thanks all. As per Silvercar's point, on the surface it's a great example of exactly what the rules are there to scrutinise (short-term relationship, not financially stable etc).

    It sounds like an initial consultation with an immigration lawyer is the most sensible next step so we will encourage them down that path.
    • pinkshoes
    • By pinkshoes 5th Mar 18, 11:22 AM
    • 15,721 Posts
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    pinkshoes
    • #8
    • 5th Mar 18, 11:22 AM
    • #8
    • 5th Mar 18, 11:22 AM
    A friend of mine had a similar situation except that they were married. She was also pregnant.

    She had to return to her native country to renew her visa and had it declined!!!

    It cost them a small fortune to get the decision overturned and prove the whole thing wasn't a set up for a uk visa. Pregnancy snd marriage wasn't sufficient!

    They are still together 12 years later with two kids and living in the uk.
    Should've = Should HAVE (not 'of')
    Would've = Would HAVE (not 'of')

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    • Comms69
    • By Comms69 5th Mar 18, 1:40 PM
    • 2,970 Posts
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    Comms69
    • #9
    • 5th Mar 18, 1:40 PM
    • #9
    • 5th Mar 18, 1:40 PM
    Plus I believe it's an offence to give immigration advice if you're not suitably qualified to do so.
    Originally posted by Savvy_Sue
    presumably paid advice, anyone can still say whatever they like as an individual.
    • BorisThomson
    • By BorisThomson 5th Mar 18, 1:48 PM
    • 1,586 Posts
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    BorisThomson
    presumably paid advice, anyone can still say whatever they like as an individual.
    Originally posted by Comms69
    Not just paid advice, the limitations apply to the voluntary sector also.
    • Comms69
    • By Comms69 5th Mar 18, 1:49 PM
    • 2,970 Posts
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    Comms69
    Not just paid advice, the limitations apply to the voluntary sector also.
    Originally posted by BorisThomson
    Fair enough, I guess 'professional' would be more apt
    • TBagpuss
    • By TBagpuss 5th Mar 18, 3:33 PM
    • 6,487 Posts
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    TBagpuss
    Yes, anyone can give you advice, but its a regulated sector so I think the issues are if someone holds themselves out as qualified to give advice that there is an issue.

    OP, I think your brother needs to get proper, professional advice.

    I would be surprised if the 'significant difficulties' exception were to apply, simply because of a lack of language skills and connections. - also the wording refers to difficulties which 'couldn't be overcome' whereas lack of familiarity etc are things which could be overcome, your brother could learn a second language or retrain to give himself marketable skills, to overcome his current difficulties (it might not be easy, but it would be possible)

    The government website suggests that your brother would have to show his income was over £22,400, not £18,600 p.a. because of the baby.

    I'd suggest going to the 'find a solicitor' section of the law society website and look for a specialist solicitor, and pay for some initial, professional advice, and then follow it.
    • Comms69
    • By Comms69 5th Mar 18, 3:40 PM
    • 2,970 Posts
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    Comms69
    Yes, anyone can give you advice, but its a regulated sector so I think the issues are if someone holds themselves out as qualified to give advice that there is an issue.

    OP, I think your brother needs to get proper, professional advice.

    I would be surprised if the 'significant difficulties' exception were to apply, simply because of a lack of language skills and connections. - also the wording refers to difficulties which 'couldn't be overcome' whereas lack of familiarity etc are things which could be overcome, your brother could learn a second language or retrain to give himself marketable skills, to overcome his current difficulties (it might not be easy, but it would be possible)

    The government website suggests that your brother would have to show his income was over £22,400, not £18,600 p.a. because of the baby.

    I'd suggest going to the 'find a solicitor' section of the law society website and look for a specialist solicitor, and pay for some initial, professional advice, and then follow it.
    Originally posted by TBagpuss
    I wonder if that would include child benefit? it would make up some of the difference
    • OhWow
    • By OhWow 6th Mar 18, 6:38 PM
    • 79 Posts
    • 82 Thanks
    OhWow
    NHS and who can use it bill free, is on the government's site.

    As you can see from the government's site - she would need to pay for her birth. If she is on a visa of 6 months of more, she would have paid the Immigration Health Surcharge to be able to use the NHS bill free, but that bill free use of the NHS ends when her visa does. However if she has a visa 6 months or less, then she must pay to use the NHS anyway, unless that service if is free. 50% is added to the bill if there is no insurance to pay. Immigration Act 2014.

    "Visitor visas and short-term visas

    You don!!!8217;t need to pay the surcharge or get an IHS reference number if you!!!8217;re applying for a:
    You will need to pay for any NHS care you get at the point you use it - unless it!!!8217;s a service that!!!8217;s free."
    https://www.gov.uk/healthcare-immigration-application/who-needs-pay


    https://www.gov.uk/guidance/nhs-entitlements-migrant-health-guide
    Last edited by OhWow; 06-03-2018 at 8:02 PM.
    • OhWow
    • By OhWow 6th Mar 18, 6:57 PM
    • 79 Posts
    • 82 Thanks
    OhWow
    I wonder if that would include child benefit? it would make up some of the difference
    Originally posted by Comms69
    I can't see that listed.

    What counts as income
    https://www.gov.uk/uk-family-visa/proof-income
    Last edited by OhWow; 06-03-2018 at 7:32 PM.
    • OhWow
    • By OhWow 6th Mar 18, 7:17 PM
    • 79 Posts
    • 82 Thanks
    OhWow
    Y
    The government website suggests that your brother would have to show his income was over £22,400, not £18,600 p.a. because of the baby.
    Originally posted by TBagpuss
    Not if the baby is a British citizen
    https://www.gov.uk/check-british-citizen

    Who can apply for a spouse or partner visa
    https://www.gov.uk/uk-family-visa/partner-spouse

    As said, not wanting to marry the mother of his child and haven't lived together for 2 years "akin to marriage" for a partner visa = perhaps needs legal advice from a good immigration solicitor/advisor with a proven track record in this type of case, to see if there is anything the mother can apply for to live in the UK.
    Last edited by OhWow; 06-03-2018 at 7:57 PM.
    • Ithaca
    • By Ithaca 7th Mar 18, 10:58 AM
    • 236 Posts
    • 253 Thanks
    Ithaca
    Thank you for the additional details. From my initial reading it looks like the marriage route would be their best option for a partner visa as there are no other obvious qualifying criteria (subject to them meeting the income requirements). We will explore this with them alongside professional legal advice, although that will bring its own challenges I suspect.
    • LilElvis
    • By LilElvis 7th Mar 18, 11:10 AM
    • 3,558 Posts
    • 9,799 Thanks
    LilElvis
    You've said that she is in the UK on a working visa which expires in a few months, but you've also said that she isn't working. She may therefore be in breach of her visa conditions.
    • Candyapple
    • By Candyapple 7th Mar 18, 2:06 PM
    • 2,866 Posts
    • 2,191 Thanks
    Candyapple
    - She is pregnant and is due in summer 2018 (first child).

    - Her visa runs out in a couple of months and she would need to return to South America before her due date.
    Originally posted by Ithaca
    Assuming she's due circa July, then she'd be 4 months already?

    Don't forget that after week 28 of the pregnancy, most airlines require a letter from your midwife or GP and most airlines will not allow you to travel after week 36 of pregnancy.

    11-12 hour flight whilst heavily pregnant, I don't envy her.
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    • sheramber
    • By sheramber 7th Mar 18, 3:28 PM
    • 4,682 Posts
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    sheramber
    Thank you for the additional details. From my initial reading it looks like the marriage route would be their best option for a partner visa as there are no other obvious qualifying criteria (subject to them meeting the income requirements). We will explore this with them alongside professional legal advice, although that will bring its own challenges I suspect.
    Originally posted by Ithaca
    Being married doesn't automatically give the right to come to the UK.

    It took months and a lot of red tape before the husband of a work colleague- who was British and lived in Britain all her life- was able to join her in this country. That was before the tightening of the rules in recent years.

    You need to get professional advice before you do anything.
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