Access Right to a child refused

[calebobo]

Made an application for the above as relationship between me and my ex wife didn't work out, we have a 4 yr old daughter together and since I couldn't renew my status under the spouse route anymore I decide to change my status to access right.

Couple of weeks after submitting my application, the case owner contacted me and asked for an original uk passport of my ex wife and my little girl - I asked my ex for them but she wouldn't give it to me.

I sent a letter explaining why I hv been unable to provide that information, and pointed to the fact I did including an original uk birth certificate of my daughter and a photocopy of her mums birth certificate and passport with the application

I have today receive a refusal letter stating I've been refused because I was unable to prove my little girl is British.

Am going to Appeal but I've been and asked her mum again and she still wouldn't give me even a photocopy of my daughters passport, do I hv a chance of a successful appeal? Was the uk birth certificate not enough to prove she is British? And could the home office not verify her identity that she is British themselves?


Any help or advise will be appreciated

Thanks

[Obie]

What year was the mother born.

In any event, any decision will have to take the best interest of child.

[calebobo]

What year was the mother born.

In any event, any decision will have to take the best interest of child.

She was born in 1984, she's very bitter about it all and even though I hv access to my child, she vowed not to get involved in my personal life or anything to do with my immigration status.

The home office didn't return any of the docs I submitted with the application not even my passport, so I will hv to just fill out the appeals form without any supporting documents as I don't have any, am really confused that even dnt I submitted a uk birth certificate they are still saying I hvnt provided sufficient evidence my child is British

[calebobo]

Sorry said 1994 before but it's actually 84

[vinny]

To prove that your daughter is British, it's sufficient to show that her mother was settled or British when your daughter was born.

If her mother was born prior to 1983, then her mother is automatically British, unless her mother's parent was a foreign diplomat.

If her mother was born in 1983 or after, then her mother is automatically British if one of her mother's parents was settled or British at the time of her mother's birth.

[calebobo]

To prove that your daughter is British, it's sufficient to show that her mother was settled or British when your daughter was born.

If her mother was born prior to 1983, then her mother is automatically British, unless her mother's parent was a foreign diplomat.

If her mother was born in 1983 or after, then her mother is automatically British if one of her mother's parents was settled or British at the time of her mother's birth.

Thanks for your responds, both my daughter and her mum are British from birth, they also both have uk passport, it's just proving it Ukba which is the problem, obvious I've done with an original birth cert for my daughter but can't for the mother but at the appeal will they not be able to verify this information through the IPS?

[vinny]

The birth certificates were insufficient because they do not show that your daughter's mother was British or settled at the time of your daughter's birth.

[calebobo]

The birth certificates were insufficient because they do not show that your daughter's mother was British or settled at the time of your daughter's birth.

Oh ok! Can u please help me with what I can say on the appeal form?

This is what it also said on the reasons of refusal letter besides

"You have not provided sufficient evidence that your child is a British citizen "

" we have carefully considered whether EX.1 applies to your application, however whilst we acknowledge that you have a genuine and subsisting parental relationship with child in the uk, your application falls for refusal under the eligibility requirements of the immigration rules as set out above, these are mandatory requirements which apply to all applicants regardless of whether the EX.1 criteria are met. As you have failed to meet those eligibility requirements, you cannot benefit from the criteria set out at EX.1

Can I just argue on the appeal that they should be able to verify my ex wife's and daughters British citizenship and that by removing me from the uk they will be in breach of the European convention on human rights article 8?

[vinny]

Yes. They should have been able to verify that your daughter is British. You can also try to get her mother's parents' UK birth certificates.

Get the long versions of all the Birth certificates.

[calebobo]

Yes. They should have been able to verify that your daughter is British. You can also try to get her mother's parents' UK birth certificates.

Get the long versions of all the Birth certificates.

I will just have to hope the appeal courts verifies the identities cuz I will not have access to any documentational evidence to send with the appeal

[Obie]

Vinny has already dealt with the reason why I asked the DOB of your baby's mother

Dont worry about the HO documents held, they will provide it with the bundle when they respond to your appeal.

They are required in certain circumstances, to make enquiries about your child's citizenship as part of their section 55 duties, as confirmed by the court.

In circumstances involving the best interest of children, they are required to use their best endeavour to act in his or her best interest. You could also request that your baby's mum be summoned to court.

[calebobo]

Vinny has already dealt with the reason why I asked the DOB of your baby's mother

Dont worry about the HO documents held, they will provide it with the bundle when they respond to your appeal.

They are required in certain circumstances, to make enquiries about your child's citizenship as part of their section 55 duties, as confirmed by the court.

In circumstances involving the best interest of children, they are required to use their best endeavour to act in his or her best interest. You could also request that your baby's mum be summoned to court.

That's good to know, I intend to option in for a paper decision instead ov a hearing, but will put on the appeal form that as am unable to provide documental evidence they should summon her to provide my daughters and her British passport to court.

[Obie]

In the circumstances of your case, a paper appeal will not be a wise step.

Lots of issues in law will need to be addressed .

[calebobo]

In the circumstances of your case, a paper appeal will not be a wise step.

Lots of issues in law will need to be addressed .

Ok thanks for that information but if am going for a hearing, I don't have a legal representive I will be there on my own. I dnt think I can afford legal representive at the moment, and I hv till the 18th June to log my appeal, any further advise on that?

[Obie]

Notwithstanding the fact that you may not have a legal rep with you, i believe it will boost your chances of success significantly if you appeared iin person.

If you fail to attend and explain your position, and a judge dismiss your appeal, for failure to satisfy requirement, you may find it hard to argue that there has been an error of law, and yu will then need to get someone to assist with UPPER TRIBUNAL application.

[calebobo]

Notwithstanding the fact that you may not have a legal rep with you, i believe it will boost your chances of success significantly if you appeared iin person.

If you fail to attend and explain your position, and a judge dismiss your appeal, for failure to satisfy requirement, you may find it hard to argue that there has been an error of law, and yu will then need to get someone to assist with UPPER TRIBUNAL application.

I don't mind going in on my own, however what would u advise I say I regards to an error in the law? Besides the fact I can provide the evidence they are asking for due to the fact that am not on talking terms with my ex and she's refusing to give me the necessary documentation. All am asking is for the home office to use their resources to confirm my child and her mother are both British! As I can't provide the evidence they need. I can't see how that's an error in the law?

[calebobo]

Can any1 please help me with a statement I could use with this appeal covering all the essential that needs to be covered regarding the reasons for refusal that I've stated above pleaseeeee

Thanks

[Obie]

When you obtained your spouse visa, you must have provided evidence of the partners nationality, why don't you make a subject access request to get this.

In any event, the secretary of state is duty bound to make enquiries of what is in the child's best interest, and in this circumstance, ought to make enquiries of his/her nationality, something she is able to do.

[calebobo]

When you obtained your spouse visa, you must have provided evidence of the partners nationality, why don't you make a subject access request to get this.

In any event, the secretary of state is duty bound to make enquiries of what is in the child's best interest, and in this circumstance, ought to make enquiries of his/her nationality, something she is able to do.

We made the spouse visa application from my home country, that's what am thinking, the decision should be in the child's best interest and they themselves hv stated as per the above that they hv acknowledged a genuine relationship Btwn me n my daughter n they should make enquiries about her nationality, why hv they refused me then? It dnt make sense?

[Obie]

There seem to be a bit of a procedural history in your case, First Tier Tribunal, Upper Tribunal, having to go overseas to secure entry clearance.

I believe the Tribunal, will at some point in the past, have made a finding on the situation of your case in regards to wife and children.

Perhaps you should make a Subject access request.

You need to work on getting this right, or you may be in serious trouble, if you blow your chances with the Tribunal.

[calebobo]

There seem to be a bit of a procedural history in your case, First Tier Tribunal, Upper Tribunal, having to go overseas to secure entry clearance.

I believe the Tribunal, will at some point in the past, have made a finding on the situation of your case in regards to wife and children.

Perhaps you should make a Subject access request.

You need to work on getting this right, or you may be in serious trouble, if you blow your chances with the Tribunal.

From what have just read, it can take 40 days to get A subject access request, yes my case was a bit complicated to start with, I was an overstayer, got arrested, applied for assylum which was refused and went to tribunal and the judge recommended since I had a genuine rship with my ex and my kid to go back home and apply for spouse visa which we did n been together only up until steptember 2012, when we split up, and hence why I went down the access right to a child route.

Their only reason for refusal though is the fact that I've been unable to provide evidence my child is British (info they should already have ) so does that mean that if that prove is established and verified, should they not then grant my leave to remain? Will they be able to refuse me on any other grounds besides what they've stated in the refusal letter?

[Obie]

It may take over 40 days before your appeal will be heard, so it is still fine to apply for SAR.

In the Upper Tribunal and FTT hearing, was there anytime when findings were made by the tribunal judge as to the nationality of your wife and children. I sure a primary findings would have been made in the past on this aspect.

It is noteworthy that the burden in a civil claim is on a balance of probabilities.

If you dont succeed in these appeal, and you loose section 3D rights, you will find it extremely hard to get an appeal rights again, or make a successful leave to remain application, except if the UK decide to make a removal decision in your case.

The will be very reluctant to do this.

[calebobo]

It may take over 40 days before your appeal will be heard, so it is still fine to apply for SAR.

In the Upper Tribunal and FTT hearing, was there anytime when findings were made by the tribunal judge as to the nationality of your wife and children. I sure a primary findings would have been made in the past on this aspect.

It is noteworthy that the burden in a civil claim is on a balance of probabilities.

If you dont succeed in these appeal, and you loose section 3D rights, you will find it extremely hard to get an appeal rights again, or make a successful leave to remain application, except if the UK decide to make a removal decision in your case.

The will be very reluctant to do this.

No I don't ever remember a time where they asked or enquirer about their nationalities, this is all very confusing cuz as far as confusing this is just a simple case of my daughters nationality which the court and Ukba shd both be able to very easily get that info without effort at all. But anyway will wait and see I guess! All I want is to hv a life with my daughter

[Obie]

Also see Section 50 Asylum and Immigration Tribunal (Procedure) Rules 2005

[calebobo]

Also see Section 50 Asylum and Immigration Tribunal (Procedure) Rules 2005

That's very good information, I will opt for a hearing and request that my ex be summoned and be made to produce documentation regarding the evidence they need. This is great news for me. Thanks a bunch