UK visa British Son - Husband has left

[grankboy]

My wife's friend had a British husband and have a 4 year old son together, she is Thai but has lived in the UK for 3 years but no current visa, there living in Bangkok now. Her husband has left her and his son about 4 months ago.

She wants to bring up her son back in the UK he has a British passport but not sure if she can get a visa to allow her to go back to look after her British son, she can stay with the sons grand parents until something else can be sorted out.

Any help would be great.

Thanks

[7by7]

Her son, as a British citizen, has the right to live in the UK; but presently cannot do so as his primary carer, his mother, has no visa to enter or leave to remain in the UK.

Therefore her son is being deprived of his right to live in the UK.

So his mother can apply for a derivative right of residence using the European court judgement in the Zambrano case.

But she can only do this from inside the UK.

So first she has to enter the UK; which, because this is a matter of EU law, not UK law, she can do by applying for an EEA family permit as someone with Derivative rights of residence.

What effect Brexit will have on this, and when, we will have to wait and see.

[grankboy]

Great never heard of that before how hard is it to apply for a derivative right of residence?

The knowledge of you guys is very helpful

[bobrussell]

The links are in 7by7's post.

"Zambrano" was a case that went to the Court of Justice of the EU. Put very simplistically a non-EU parent should be allowed to be resident in an EU country in situations where the EU citizen would otherwise not be able to use his or her right to reside. An example would be a British child unable to live in the UK without his or her non-EU parent living there to support him or her.

If you can show this to be the case then it is fairly straight forward and relatively inexpensive. The key bit is to put forward a suitable argument for this.

It is worthwhile doing research for yourself but my suggestion would be to get advice from a specialist immigration advisor or knowledgable solicitor. not really a DIY job IMO!

I am not up to date with the latest thinking by the Home Office but they were being somewhat obstructive last time I looked!

Edited July 12, 2016 by bobrussell

[Chapelroad]

Maybe, she should have thought ahead ?

[billd766]

Maybe, she should have thought ahead ?

Her husband left her and their 4 year old son and you think that that she should have thought ahead?

How long? a week, month, 6 months, 1 year, 2, 3, 4, 5, 10 years?

Are you really that simple?

[transam]

Why did he leave this lady.......?

I have my reasons for asking..........

[grankboy]

Found another woman I understand but that does not really matter now.

[bobrussell]

Don't get drawn into discussions with wind up merchants! It is none of our business why she is in this situation.

Here to be helpful with ideas!

if you Google Zambrano latest, you can access the latest on the Home Office's position on benefits for the carer. Freemovement does have quite a lot of information but is not totally independent so it is worthwhile doing further research or getting specialist advice!

Edited July 13, 2016 by bobrussell

[Richard W]

So his mother can apply for a derivative right of residence using the European court judgement in the Zambrano case.

But she can only do this from inside the UK.

Worse, the derivative right of residence only exists if the child is 'residing in the UK'.

[robertthebruce]

I would of,thought she would of preferred to stay in Thailand, so at least she has the support from her family and friends....

[grankboy]

Is there any other visa she can get as I understand she can't get citizenship with a derivative right of resistance visa.

[bobrussell]

She will be able to apply for ILR on grounds of long residence after the required period. Citizenship can be applied for then.

I was under the impression that the child was the priority and not the availability of citizenship for the mother.

The child is entitled to be considered resident in the UK when his or her feet touch the ground at the airport. He or she does not need to have a history of actual residence. There may be logistical issues but the child can enter freely. Similar to the situation where a British Citizen chooses to settle with his or her non-EU partner, they apply as the partner of someone settled in the UK. Even if they arrive on the same flight. The trick is getting a visa for the mother so she can enter the UK.

These are cases where I believe expert advice should be sought and followed but there is no legal reason why the child and mother should not reside here. Key thing is to be able to get the right paperwork for the mother.

"(4A) P satisfies the criteria in this paragraph if—

(a) P is the primary carer of a British citizen (“the relevant British citizen”);

(b ) the relevant British citizen is residing in the United Kingdom; and

(c ) the relevant British citizen would be unable to reside in the UK or in another EEA State if P were required to leave."

Edited July 16, 2016 by bobrussell

[7by7]

So his mother can apply for a derivative right of residence using the European court judgement in the Zambrano case.

But she can only do this from inside the UK.

Worse, the derivative right of residence only exists if the child is 'residing in the UK'.

In the part of my post you haven't quoted I provided a link which you have chosen to ignore; in which it says

5. Derivative rights of residence

You can apply for an EEA family permit if you have a ‘derivative right of residence’ as the.....primary carer of a British child......

So, I believe, this means that as she is the child's primary carer the mother can apply for an EEA family permit in order to accompany her British child when he moves to the UK to take up his lawful residence and once here she then applies for her derivative right of residence.

But, as Bob says, this is a complicated area and professional advice is recommended.

As I said to you elsewhere, maybe one day you will offer some useful advice to an OP instead of merely naysaying what others have said.

Have you any to offer here?

[Richard W]

So his mother can apply for a derivative right of residence using the European court judgement in the Zambrano case.

But she can only do this from inside the UK.

Worse, the derivative right of residence only exists if the child is 'residing in the UK'.

In the part of my post you haven't quoted I provided a link which you have chosen to ignore; in which it says

5. Derivative rights of residence

You can apply for an EEA family permit if you have a ‘derivative right of residence’ as the.....primary carer of a British child......

So, I believe, this means that as she is the child's primary carer the mother can apply for an EEA family permit in order to accompany her British child when he moves to the UK to take up his lawful residence and once here she then applies for her derivative right of residence.

But, as Bob says, this is a complicated area and professional advice is recommended.

As I said to you elsewhere, maybe one day you will offer some useful advice to an OP instead of merely naysaying what others have said.

Have you any to offer here?

There is a problem with the conflicting terminology of our sources. I prefer to work from the law, in this case the EEA Regulations as they are known as. According to these regulations, the derivative right only exists if the child is residing in the UK. However, the law on admission to the UK is not based on having a derivative right of residence, but rather is based seemingly independently on the bases for such a right.

In particular, the key article in the regulations is the seeming odds and sods Regulation 11(5), and in particular Regulation 11(5)(e):

"P is accompanying a British citizen to, or joining a British citizen in, the United Kingdom and P would be entitled to reside in the United Kingdom pursuant to regulation 15A(4A) were P and the British citizen both in the United Kingdom."

The mother meets the requirements of Regulation 15A(4A), quoted by BobRussell earlier in this thread. Your preferred source uses a subtly different definition of 'derivative right'.

The good news is that we can now cite chapter and verse for the right of mother and child to come to the UK together.

[Richard W]

She will be able to apply for ILR on grounds of long residence after the required period.

While I believe you, I have been pooh-poohed when I have put forward that claim. (I presume you are talking of 10 years rather than 20 years). Do you have a good source for this statement? I have seen claims, not backed by evidence, that (a) lawful presence under the EEA regulations does not count, and ( the Immigration Rules are not available to some one with an EEA right of entry except where the Rules so state - Immigration Rule 5.

[7by7]

Richard, my 'preferred source' is the actual guidance given by UKVI to potential applicants on their website.

I used it as it cuts out most of the legalise jargon in the regulations.

The OP's friend wants to know if she move to and live in the UK with her son.

The guidance I linked to clearly says she can and how to go about it. There is no need to confuse matters by quoting chapter and verse from the actual regulations!

Still, it's good to see that you do now accept that this woman can use Zambrano come to the UK with her son and once here apply for residence; despite your ealier attempt to say that she couldn't as the child is not resident here!

Shame that you wont also acknowledge that you were originaly wrong; but I suppose that's too much to hope for.

[Richard W]

So first she has to enter the UK; which, because this is a matter of EU law, not UK law, she can do by applying for an EEA family permit as someone with Derivative rights of residence.

This uses the terminology of the guidance; by the Regulations, she does not have a derivative right of residence.

Worse, the derivative right of residence only exists if the child is 'residing in the UK'.

This is correct by the wording of the Regulations.

Shame that you wont also acknowledge that you were originaly wrong; but I suppose that's too much to hope for.

OK, I was wrong to believe what you wrote. Happy?

The correct nuance, which the UKVI advice doesn't employ, is "she can do by applying for an EEA family permit as someone who would have Derivative rights of residence." (That may be overly inclusive - I haven't checked all the interactions of Regulations 11(5) and 15A.) However, that link and what it references don't actually mention the possibility of non-EEA parent(s) and citizen child entering together - you have to read Regulation 11(5)(e) to find that. Another link raises hope with 'may' - but that 'may' also covers cases where there is no right.

I still can't completely dismiss the argument that the child could live with its British grandparents, and therefore there is no need for its primary carer to live with it if it is to be in the UK. Paragraphs 24 to 26 of EOPN 21/2012 bother me in this regard. Do you think I am worrying too much?

[7by7]

You stated, or at least strongly implied, that she could not use Zambrano because her son is not currently residing in the UK; this is what you got wrong.

My purpose was to answer the OP's question; which was basically if there is any way his friend can move to and live in the UK with her British son.

The answer to which is yes; as the guidance I linked to clearly shows.

As you obviously have a problem with the terminology used in that guidance, I suggest that you take it up with UKVI.

Whether or not she meets all the requirements is a different matter, and we do not have sufficient details of her and her child's circumstances to offer an opinion.

I know from personal experience how complex a Zambrano application can be and how reluctant UKVI can be to approve them. The one I helped a friend prepare a few years ago was refused because she included her son's short form birth certificate, not his long form one; so they refused because there was no proof he was a British citizen. We did get it sorted in the end, though, after advice and help from CAB.

This complexity and the importance of getting everything absolutely right is why I agree with Bob that professional advice is required.

Although as, in this case, the child has a British passport, proving his British citizenship should be a formality.

[grankboy]

So could she get a tourist visa travel to the UK with her son then apply for a settlement visa to look after her son.

[Richard W]

So could she get a tourist visa travel to the UK with her son then apply for a settlement visa to look after her son.

Dodgy at best. We know that the visa would have been obtained by concealing her true intention.

If she did use a tourist visa to obtain carriage to the UK, she could actually ask to be admitted on the basis of the derivative right that would arise once they entered the UK.

[7by7]

She does not apply for a visit visa.

As it says in the first link in my original response

You can’t apply (for a derivative residence card) if you’re outside the UK - apply for an EEA family permit instead.

Edited July 22, 2016 by 7by7

[bobrussell]

The 10 yr long term residence rules are there on the following link. I cannot see any reason why those using Zambrano would be unable to claim legal residence and therefore ILR. Clearly I am no expert but a legal resident is a legal resident!

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/488265/Long_Residence_v13.0_EXT.pdf

page 2:

Settlement can be granted under paragraphs 276A-276D of the Immigration Rules after a period of 10 years continuous lawful residence.