Complicated family setup (applying for spouse Visa / UK Court for Leave to remove)

[lebourvellec]

I would also get advice if you will require consent from the father of your wife's children to be removed from the UK to Australia. I know that they are Australian citizens and he is also in Australia but have read in the past on the forum that this was required.

[Racmac]

You need to attend mediation before you can apply for an application for leave to remove from the jurisdiction.

So 1. Talk to mum - if she agrees then you can get an order approved by the Court with very little effort and you have an order to satisfy everyone

2. Attend mediation - google mediators in your local area

3. Issue C100 application and the process will take probably 6 months. You will need to provide detailed evidence of plans, eg schooling, medical care, housing etc etc and very important - how you will facilitate contact in the future

[LaddermanUS]

Thank you Racmac, that is precisely what I am going to do.

 

I am preparing a letter for my ex giving a brief overview of our plans. I intend to meet, discuss and give letter. If agreement cannot be sought (and in all honesty i dont think it will) I will attend me mediation appointment. Infact I arranged that today for 4 weeks time.

 

I will then complete c100 and send off for our visa's at the same time.

 

Thank you

 

You need to attend mediation before you can apply for an application for leave to remove from the jurisdiction.

So 1. Talk to mum - if she agrees then you can get an order approved by the Court with very little effort and you have an order to satisfy everyone

2. Attend mediation - google mediators in your local area

3. Issue C100 application and the process will take probably 6 months. You will need to provide detailed evidence of plans, eg schooling, medical care, housing etc etc and very important - how you will facilitate contact in the future

[Racmac]

I don't think you can apply for the visa without permission to leave being granted

[LaddermanUS]

Racmac can I just ask you a couple of questions if you dont mind? I understand you a re very knowledgable about these things?

 

1. What form is used if we DO agree outside of court?

 

2. Would you suggest applying for leave to remove and visa at the same time ? The court will be satisfied that we are in the 'process' of applying for the visa ?

 

3. There is almost zero contact between mother and my two children. Its a very long storey but she does not contact them or see them at all. Last April she was told by the judge to write to the children on a regular basis to rebuild her relationship with them, she has only sent one letter in 9 months! I have genuinley tried to facilitate contact but she is just not motivated to put any effort in. Is there anything else I should do do you think on this matter?

 

Thank you

[LaddermanUS]

Thanks Racmac, but what you have said has confused me a little.

 

I don't think you can apply for the visa without permission to leave being granted

 

It contradicts what some others on this forum have told me to do (which is to apply for ALL the visas at same time as c100). I spoke to a solicitor online yesterday and they also said it would be fine for the visa to have been applied for but not granted at the time of the court making a decision. She said "Courts will and do make rulings based on your plans along with evidence"

 

Can you clarify this at all?

 

My original plan was to apply for MY visa on its own and the once i had the court order apply for my two children. Australia house said I could to that, but it obviously makes the hole process a lot longer

[Racmac]

Racmac can I just ask you a couple of questions if you dont mind? I understand you a re very knowledgable about these things?

 

1. What form is used if we DO agree outside of court?

 

2. Would you suggest applying for leave to remove and visa at the same time ? The court will be satisfied that we are in the 'process' of applying for the visa ?

 

3. There is almost zero contact between mother and my two children. Its a very long storey but she does not contact them or see them at all. Last April she was told by the judge to write to the children on a regular basis to rebuild her relationship with them, she has only sent one letter in 9 months! I have genuinley tried to facilitate contact but she is just not motivated to put any effort in. Is there anything else I should do do you think on this matter?

 

Thank you

 

1. Google CAP04 - final order - this is a template document and you would need to delete large amounts but you can make it fit your circumstances. You would both sign and submit to Court and ask them to approve. They may list it for a hearing particularly if you are unrepresented.

 

2. Get your application into Court ASAP, please be aware the Court is not a quick process. I would get mediation apt next week, they will offer an initial appointment and decide if its suitable or not. I suspect they will say no because you really need a Court order. You will need the form from the mediator to go with the C100. I don't think you can apply for visa unless you have the court order - but that is immigration advice you need really.

 

3. If there is no contact then you are likely to be successful in your application but you still need to provide evidence of your plans (in great detail) Google Payne v Payne for things that they need to consider although this is not the leading case anymore but its still helpful.

You need to put in a statement things such as - In order to keep her updated as to the children's progress I propose to send an email once every two months which will include a general update as to the schooling, health and general welfare etc. I am also happy to facilitate skype contact etc etc

Provide evidence of everything you have done.

 

You will need at some point to provide a statement detailing all of this but not yet.

[Racmac]

Thanks Racmac, but what you have said has confused me a little.

 

 

 

It contradicts what some others on this forum have told me to do (which is to apply for ALL the visas at same time as c100). I spoke to a solicitor online yesterday and they also said it would be fine for the visa to have been applied for but not granted at the time of the court making a decision. She said "Courts will and do make rulings based on your plans along with evidence"

 

Can you clarify this at all?

 

My original plan was to apply for MY visa on its own and the once i had the court order apply for my two children. Australia house said I could to that, but it obviously makes the hole process a lot longer

 

This is not my area and I would be interested to know. But my understanding is that you cannot apply for EOI or visa unless you have permission to go? I understood that they would ask if you have permission- you cannot say yes unless you have that Order. But maybe this needs to be clarified. I'm not sure why you would apply for your visa without having permission - surely if the court refuse you permission you wouldn't be going? Its going to cost to make the visa application?

[LaddermanUS]

This is not my area and I would be interested to know. But my understanding is that you cannot apply for EOI or visa unless you have permission to go? I understood that they would ask if you have permission- you cannot say yes unless you have that Order. But maybe this needs to be clarified. I'm not sure why you would apply for your visa without having permission - surely if the court refuse you permission you wouldn't be going? Its going to cost to make the visa application?

 

 

That makes sense Racmac and I totally understand what you say. I wonder if there is anyone else who has had a similar situation and can advise?

[Racmac]

That makes sense Racmac and I totally understand what you say. I wonder if there is anyone else who has had a similar situation and can advise?

 

May be worth speaking to a migration agent?

[LaddermanUS]

Are there any on this forum that would provide that kind of advice?

 

May be worth speaking to a migration agent?

[Racmac]

Are there any on this forum that would provide that kind of advice?

 

I spoke to Mike Brean at Destination Oz the other day about something else, he appeared to be quite knowledgeable and maybe worth a call

[lebourvellec]

This is not my area and I would be interested to know. But my understanding is that you cannot apply for EOI or visa unless you have permission to go? I understood that they would ask if you have permission- you cannot say yes unless you have that Order. But maybe this needs to be clarified. I'm not sure why you would apply for your visa without having permission - surely if the court refuse you permission you wouldn't be going? Its going to cost to make the visa application?

The OP will not be applying through Skillselect or lodging EOI, as they will be going down the Partner visa route which has processing times of over 12 months after visa is lodged, hopefully one the visa is lodged this will give you enough time to get the court order, but if the order was refused the op would likely lose tha application fee costs.

[NicF]

It's a while since I did my partner visa application but if I remember correctly you have to list all dependants and state whether they are migrating with you or not. If they are then you have to have permission to remove them from the country. I think this is one of those situations where advice from a MARA registered migration agent would be invaluable.

[Nemesis]

This is not my area and I would be interested to know. But my understanding is that you cannot apply for EOI or visa unless you have permission to go? I understood that they would ask if you have permission- you cannot say yes unless you have that Order. But maybe this needs to be clarified. I'm not sure why you would apply for your visa without having permission - surely if the court refuse you permission you wouldn't be going? Its going to cost to make the visa application?

 

He doesn't need to do an EOI. He is applying for a Spouse Visa. As the children are his dependents he therefore has to include them on his Spouse Visa application either as migrating or non-migrating dependents. Clearly they fall under the heading of migrating.

Therefore they go on his Spouse Visa as dependents.

 

Major Tom is in the same situation as regards needing the visa and the removal, I'd be reading his previous posts to see how the process has panned out timewise, and get professional advice from an agent -NOT from Australia House.

Edited January 15, 2016 by Nemesis

[LaddermanUS]

He doesn't need to do an EOI. He is applying for a Spouse Visa. As the children are his dependents he therefore has to include them on his Spouse Visa application either as migrating or non-migrating dependents. Clearly they fall under the heading of migrating.

Therefore they go on his Spouse Visa as dependents.

 

Major Tom is in the same situation as regards needing the visa and the removal, I'd be reading his previous posts to see how the process has panned out timewise, and get professional advice from an agent -NOT from Australia House.

 

Thank you Nemesis.

 

An update for all those interested :

 

I have spoken to a MARA agent this morning. What is clear is that the Visa application WILL require proof that I am allowed to remove the children from the UK (obviously). I wont have proof until i have the Court order. So I HAVE to go to Court first and perhaps apply for the VISA at the same time.

 

One other point to consider is that apparently as and when your Case Officer requests information/documents (such as a court order) you will have 28 days to provide it, if you fail to provide info/documents within the 28 days the CO may make a decision on the visa (which would in this case result in refusal!).

 

The other point to consider is that the visa will insist you enter Auz 12 months from the date of the police/medial checks.

 

So I will be going to Court and will apply for visa shorlty afterwards and in my C100 specify that I am applying for the Visa. It has been a 'chicken and egg' question for (which one do I do first) but now i think I am clear.

 

Thanks very much for all those contributed, its what makes this forum really an amazingly helpful thing.

 

Thank you

[rammygirl]

Permission from the other parent is enough you should not also need a court order. As for the 28 days as long as you action things then you will be OK people have had visas on hold for such things for many months. After all things are out of your control, in some countries police checks can take several months so beyond the 28 day deadline but as long as you have applied then the CO will wait, just keep them informed.

 

Medicals and and police checks have a 12 month expiry so don't do them until requested. If they expire before first entry then they must be re done.

 

if you want a court order as well then fine but permission is enough for the visa.

[CaptainC]

Permission from the other parent is enough you should not also need a court order. As for the 28 days as long as you action things then you will be OK people have had visas on hold for such things for many months. After all things are out of your control, in some countries police checks can take several months so beyond the 28 day deadline but as long as you have applied then the CO will wait, just keep them informed.

 

Medicals and and police checks have a 12 month expiry so don't do them until requested. If they expire before first entry then they must be re done.

 

if you want a court order as well then fine but permission is enough for the visa.

 

The OP indicated that his current court order does not allow the children to be removed from jurisdiction, so he does need a new court order.

Edited January 15, 2016 by CaptainC

[LaddermanUS]

The OP indicated that his current court order does not allow the children to be removed from jurisdiction, so he does need a new court order.

 

My current Child Arrangements Order has the standard wording about being able to remove from UK for up to 28 days without permission. If an agreement with ex is sought It still has to be ratified in Court I understand. I would feel more comfortable with this anyway to be honest. Last thing I need is 3 months after being in Auz someone claiming I forced them to sign the agreement or something similar. I want to go knowing for 100% sure I have done everything right and proper

[rammygirl]

Fair enough I stand corrected, but the info re the 28 days still stands. We booked our health checks within the 28 days but didn't do the medicals until after this time limit ( no slots available) and the results were certainly not provided within 28 days. We kept the CO informed and it was fine.

 

What they don't want is for you not to try to comply and sort things as soon as possible.

 

 

tbh many COs are not that well informed they tend to consider Aus law which is not actually the deciding factor and it is the law in the resident country that applies, people have in the past been asked for permission to take 18 year olds out of the U.K. a and have had to question the CO and prove this wasn't required. I kid you not look at some past posts!

 

Still nice to see that someone is doing it right. Although I would still get permission first then take that to the court as a formality.

[CaptainC]

Fair enough I stand corrected, but the info re the 28 days still stands. We booked our health checks within the 28 days but didn't do the medicals until after this time limit ( no slots available) and the results were certainly not provided within 28 days. We kept the CO informed and it was fine.

 

What they don't want is for you not to try to comply and sort things as soon as possible.

 

 

tbh many COs are not that well informed they tend to consider Aus law which is not actually the deciding factor and it is the law in the resident country that applies, people have in the past been asked for permission to take 18 year olds out of the U.K. a and have had to question the CO and prove this wasn't required. I kid you not look at some past posts!

 

Still nice to see that someone is doing it right. Although I would still get permission first then take that to the court as a formality.

 

Absolutely right and this is where it does get complicated.

 

An applicant still has to adhere to UK law as well as trying to satisfy Aus Migration Law. I bet there is more than just a couple of legally speaking (UK Law) 'abducted' children living overseas. But there is no complaint or case to answer because form 1229 has been signed by the other parent and the other parent agreed.

 

This is generally only the case when an order has been made in respect of residence for a child. If it was a mutual agreement (no court order) that the child/children would reside with either mum or dad after they split up, and then a subsequent request is made to the other party to sign 1229 to allow the child to migrate. In that case the migration can go ahead unhindered as far as UK law in concerned.

 

 

I attached a section of the court order for my son.

[LaddermanUS]

I just wanted to keep this thread updated (for anyone else who is in or about to enter a Leave to Remove case). I have written a letter to my ex with a detailed report on the reasons why we want to relocate and why its good for the children. All my reasons are very genuine and I am utterly convinced it would be an excellent move for our family. The letter was sent Royal Mail Special and has been signed for but not with the surname it should have been (having checked on the RM track and trace page). My ex lives on her own in a one bedroom flat so pretty sure she has it, however sending a copy today with new covering letter 'to make sure she received it'.

 

Have attended my first mediation appointment and they will be inviting my ex by letter.

 

Have instructed a Barrister via the direct access route and i am meeting with them in early Feb. Have agreed a fix fee for Barrister (who has leave to remove experience) to review paperwork, assist with C100 and review my First Witness Statement which I have already began drafting.

 

Intending to submit c100 around second week of Feb.

[CaptainC]

I just wanted to keep this thread updated (for anyone else who is in or about to enter a Leave to Remove case). I have written a letter to my ex with a detailed report on the reasons why we want to relocate and why its good for the children. All my reasons are very genuine and I am utterly convinced it would be an excellent move for our family. The letter was sent Royal Mail Special and has been signed for but not with the surname it should have been (having checked on the RM track and trace page). My ex lives on her own in a one bedroom flat so pretty sure she has it, however sending a copy today with new covering letter 'to make sure she received it'.

 

Have attended my first mediation appointment and they will be inviting my ex by letter.

 

Have instructed a Barrister via the direct access route and i am meeting with them in early Feb. Have agreed a fix fee for Barrister (who has leave to remove experience) to review paperwork, assist with C100 and review my First Witness Statement which I have already began drafting.

 

Intending to submit c100 around second week of Feb.

 

Looks like it's progressing fairly well.

[LaddermanUS]

Thank you CaptainC. I am getting pretty worried about our chances, because I am the father applying. Seems most cases are where the mother applies. I know it shouldn't make any difference but cant help feeling that I may be at a disadvantage before i even say anything. I believe we have a very good case and I am doing this with the childrens best intentions at heart, but I am worried.

[Racmac]

Thank you CaptainC. I am getting pretty worried about our chances, because I am the father applying. Seems most cases are where the mother applies. I know it shouldn't make any difference but cant help feeling that I may be at a disadvantage before i even say anything. I believe we have a very good case and I am doing this with the childrens best intentions at heart, but I am worried.

 

It wont make a difference because you are the dad. The same considerations apply - look at welfare checklist and think about your case and strengths and how you can best present them and by the same token consider the negatives and have answers ready