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UKSolicitorJA, Solicitor
Category: Law
Satisfied Customers: 4312
Experience:  English solicitor with over 12 years experience
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I am a British born national and my wife is Thai, we

Customer Question

Hi, I am a British born national and my wife is Thai, we have a 15 month old British born baby who now has dual British/Thai nationality. My wife is currently in the UK on the first tier of the marriage visa, which expires in mid February. Sadly, we are
going through difficulties in our marriage and I cant see them being resolved. She wants to get divorced in the UK, I in Thailand (we were married in Thailand but logged it with the UK embassy). I'm sure her friends have told her she will get a much better
settlement in the UK, even though I understand she ultimately wishes to return to Thailand. I also wish to move to Thailand. Therefore, my question is... What are my wife's rights to remain in the UK if I choose not to support/sponsor her next tier of the
marriage visa. Can she apply in her own right, as the mother of a UK born baby and what would be the criteria she would need to meet. She has only little savings and no income. Even if I were to agree to a UK divorce, there is no way it would be finalised
by mid February, thus she couldn't use her financial settlement/maintenance payments as proof of being able to support herself financially and not a burden on the state. Would she have to return back to Thailand in mid February and try to either divorce from
there or try to obtain another visa.? I look forward to hearing back from you. Anthony.
Submitted: 2 years ago.
Category: Law
Expert:  UKSolicitorJA replied 2 years ago.
Your spouse may in her own right apply for further leave to remain in the UK to access the child before her current leave to remain expires.
The requirements for such a visa are
The applicant must be the parent of a child who is resident here; and
The parent or carer with whom the child resides must be permanently resident in the UK;
The applicant must have evidence that they have rights of access to the child.
This can either be in the form of a Residence or Contact Order granted by a UK Court or a certificate issued by a district judge confirming that they intend to maintain contact with the child; and
The applicant must show that they intend to take an active role in the child’s upbringing; and
The child must be under the age of 18; and
There must be adequate accommodation for the applicant and any dependants in the UK without recourse to public funds in accommodation which you own or occupy exclusively; and
The applicant must show that they can also maintain themselves and any dependents without recourse to public funds.
If the applicant falls within this category the Home Office will accept a letter from the child’s other parent that the applicant is maintaining contact with the child as evidence that you have rights of access to your child in place of a Court Order.
If the application is successful permission to enter or remain in the UK will be granted for 12 months initially.
At the end of this period, before their leave expires, the applicant will be able to apply for indefinite leave to remain in the UK.
In order to qualify for Indefinite leave to remain the applicant will need to show that they have been, and still intend to, take an active role in the child’s upbringing, show that the child visits or stays with them on a frequent and regular basis and that this will continue.
The applicant also needs to show that they continue to have adequate accommodation and are able to maintain themselves and any dependents without recourse to public funds.
The child must also still be under 18.
She would stand a better chance if she applies for the above visa whilst still in the UK but she will need to show sufficient funds, depending on her individual needs.
Hope this helps