Dad on Spousal Visa, intent is to separate from wife, has son who is UK Citizen

What are my options? I've tried looking through threads here to no avail and I humbly apologise if this has been answered elsewhere. Advice from friends (we all know how good that is) says I have more options that I thought possible. It has been my intention to await my ILR this November and then proceed with a separation but I've been told that I can apply for residency as an unmarried father to a british child. Does that mean I don't have to wait for my ILR and can I follow a different course?

Thanks for any and all advice, if there are any questions please do ask.

I think you really need to stop discussing this with your friends. Actually, I think you should probably not discuss this with anyone who might know you and who is not your representative. Because if you end up going for your ILR you are opening yourself up to being seriously screwed by a friend who might not be so positively inclined towards you in the future.

If you don't understand what I mean, I suggest you read Section 11 of the SET(M) application that both you and your wife need to sign.

It has been my intention to await my ILR this November and then proceed with a divorce

If you proceed down that route, do be aware that you, and also possibly your wife, would be committing a criminal act, on signing the declaration on the form SET(M), effectively certifying that there is an intention for the two of you to stay together.

Your declaration on the form SET(M) includes :-

I hereby apply for indefinite leave to remain in the UK for myself and any dependent children listed in this form on the basis of my marriage to ......... the person who has signed the declaration below. I declare that we are still married, that we are living together as husband and wife and intend to do so permanently, .......... . The information I have given in this form is complete and is true to the best of my knowledge.

-: and it goes on to mention :-

I am aware that it is an offence under the Immigration Act 1971, as amended by the Immigration and Asylum Act 1999 and the Nationality, Immigration and Asylum Act 2002, to make to a person acting in execution of any of those Acts a statement or representation which I know to be false or do not believe to be true, or to obtain or to seek to obtain leave to remain in the UK by means which include deception.

-: and given that you have already mentioned the D word, you cannot possibly sign that declaration, can you!

But if you have a Court Order, or agreement, giving you access to your child, then indeed it is possible to get a visa on that basis.

That is precisely the kind of thing I was looking for. I had read that before but it just did not click. Thank you muchly for the explanation.

I would be interested in knowing about the court order visa and will investigate that. Thank you again.

http://londonelegance.com/transpondia/singleparent/

http://www.bia.homeoffice.gov.uk/policyandlaw/immigrationlaw/immigrationrules/part7/

Here's a couple of links to get you started with the basic information.

Single Parent visas fall outside of the rules, so you should really seek professional advice.  They are difficult to obtain and as other have pointed out, if the marriage breaks down you might have a lot of personal and friend relationships.

I suspect if you send Garry a personal message he might be able to refer you to someone who specialises in this or you can always look into our resident Vicky and MediVisas who might have experience in this part of immigration (though I don't know for sure).

Kitson, I totally agree that professional advice should be sought, but the application is actually within the rules, specifically as from para 246 of the Immigration Rules .... click here.

Indeed para 248A lists the requirements .... where the applicant is already in the UK. KelBo .... worth a read!

Notice the subtle difference between 246 and 248A, insofar as 248A has a (iii)(c) ..... "a statement from the child's other parent (or, if contact is supervised, from the supervisor) that the applicant is maintaining contact with the child" ..... whereas 246 does not contain that option.

The leading practitioner in single parent visas is DJ WEBB & CO (despite an appalling web site).  They are on Commercial Road in the East End.  They also take up other difficult family immigration practice areas.  Highly recommended.

Kitson, I totally agree that professional advice should be sought, but the application is actually within the rules, specifically as from para 246 of the Immigration Rules .... click here.

Fair point, but from what I remember about it, there isn't a "box" to tick when applying for an ILR based on a single parent, which led to my comment that it falls "outside the rules".  I should have stated "falls outside normal settlement procedures".

Fair point, but from what I remember about it, there isn't a "box" to tick when applying for an ILR based on a single parent

That does not surprise me! Whoever designs the forms at UKBA should have been sacked years ago. Clearly the form design procedure is inadequate.

I digress but the design of the EEA4 form is totally inadequate to cope with the circumstance where the non-EEA spouse has got divorced from their EEA spouse. And the design of the EEA2 does not cope with the EEA spouse being unemployed but seeking work. etc etc

Thankfully inadequate form design does not detract from the rights given to people, under the terms of the legislation.

I do indeed have experience with these applications.  From within the UK, if you have been here on a spousal visa, these are usually relatively straight forward - it is the out of country applications which are more complicated and which always get referred.

I'd be happy to help if you wanted to contact me.

Vicky