Leave to remain when relationship has ended

Used4Passport · Post by **Used4Passport** » Sat Jun 18, 2011 8:51 am

Non-European married to a British citizen.
Currently on an extension to stay marriage visa.
Marriage has broken down during 2-year probationary period.
Divorce proceedings not in place yet.
British citizen has informed Home Office about end of relationship.
Question is:
What are the chances of them being granted leave to remain or being granted a change in visa? I do know that they cannot apply for leave to remain under the current visa as the British citizen has ended sponsorship.

Post by **Greenie** » Sat Jun 18, 2011 9:30 am

Whether the person is granted leave to remain depends on whether he or she qualifies for leave under any other category of the rules or whether there are grounds for discretionary leave.

Used4Passport · Post by **Used4Passport** » Sat Jun 18, 2011 9:35 am

Not sure would qualify under any other categories but there is a child (British citizen) involved. Although, they are not named on the Birth Certificate and have little or no contact.

Post by **Greenie** » Sat Jun 18, 2011 10:01 am

Used4Passport wrote:Not sure would qualify under any other categories but there is a child (British citizen) involved. Although, they are not named on the Birth Certificate and have little or no contact.

Well then he may qualify for leave under the access to a child rule particularly if contact is increased. If the couple were married at the time of the birth then parentage would be assumed and father will have parental responsibility even if not named on birth certificate.

Used4Passport · Post by **Used4Passport** » Sat Jun 18, 2011 10:10 am

Wasn't in UK until child was two and has extremely little contact.

Post by **Casa** » Sat Jun 18, 2011 11:07 am

He may not have entered the UK until the child was 2 years old...but he was obviously involved in the conception...and therefore has rights as a father as Greenie has advised.
How long have the couple been separated?

Used4Passport · Post by **Used4Passport** » Sat Jun 18, 2011 11:15 am

Separated for a year. If not on birth certificate and not married at time of birth, then they do not have parental responsibility.

http://www.direct.gov.uk/en/Parents/Par ... DG_4002954

But this still isn't really answering my original question.

Post by **Casa** » Sat Jun 18, 2011 11:27 am

With respect, Greenie has answered your original question by advising that although the person in question won't qualify for ILR as a spouse, he may qualify under another category or DL. As you are, I assume, posting on behalf of a 3rd party there's no way we can be aware of all the facts.

Used4Passport · Post by **Used4Passport** » Sat Jun 18, 2011 11:33 am

OK, I know all the facts. What do you need to know?

He probably can't switch visas as doesn't/wouldn't fit into any other category. So, I suppose my question is, how does discretionary leave work. That is something that is not written in detail on the UKBA website.

Post by **Casa** » Sat Jun 18, 2011 11:41 am

It's not written on the UKBA website because as Discretionary Leave it's granted outside of the standard Regulations. There are multitude of reasons why DL may be granted.
Are you attempting to advise the husband or the wife who sponsored the application? I assume she mentioned the child they have together in the original spouse application?

Used4Passport · Post by **Used4Passport** » Sat Jun 18, 2011 5:47 pm

The child was mentioned on the original application. The genetic paternal parentage is not the issue; nor in any doubt. The fact that the father is not named on the birth certificate and has little contact - how would that affect any application for LTR? It is not as though they share as the mother has sole responsibility. Therefore, the father has no input on child's life, financially nor mentally.

Used4Passport · Post by **Used4Passport** » Sat Jun 18, 2011 5:55 pm

I meant to say, has no input emotionally (not mentally!) nor financially.

Post by **Casa** » Sat Jun 18, 2011 7:26 pm

As far as the UKBA are concerned, the wife has stated they have a child together on the application, which means that this will be taken into consideration if he applies for Discretionary Leave. Greenie has already mentioned that he may ask to increase/resume the contact with his child.
The fact that he's not on the birth certificate from an immigration point of view is irrelevant. If the mother had not acknowledged his parentage on the spouse application the situation may be viewed differently.
The recent Zambrano ruling may strengthen his rights to remain, assuming his child has British Citizenship.

Used4Passport · Post by **Used4Passport** » Sat Jun 18, 2011 7:40 pm

The birth certificate may well be irrelevant but is the fact there is no financial/emotional input also irrelevant - and the fact that contact is extremely rare? The wife is the only one trying to maintain contact for the child's sake.

Can you please enlighten me about the Zambrano ruling?

Used4Passport · Post by **Used4Passport** » Sat Jun 18, 2011 7:47 pm

I have just searched for the Zambrano ruling and I have taken this quote, "The ruling demonstrates that it is a violation of EU law if a member country rejects residence and work permits for foreign nationals who support a child who has EU citizenship."

Correct me if this is wrong, but it would not apply to my query, as this ruling is referring to foreign nationals who support a child.

Post by **Casa** » Sat Jun 18, 2011 7:48 pm

Google it and you'll see several reports on the ruling. It applies to all EU states, including the UK and gives the right to a non-EU parent to reside/or return to live (if they have been excluded) in an EU country where their British child is living.

Used4Passport · Post by **Used4Passport** » Sat Jun 18, 2011 7:49 pm

I should also add here (as stated in my original post), he is not an EU citizen.

Post by **Casa** » Sat Jun 18, 2011 7:51 pm

I had assumed he wasn't an EU Citizen. If he was, you wouldn't be asking how he could be allowed to remain here on LTR.
Zambrano Judgement Quote:
"In Chen the child was living in the UK but was an Irish national and had independent means of support not involving the parent working in the UK. Zambrano extends the principle to, for example, a British child living in Britain and with no independent means of support."
Also in theory, the father may not be financially supporting his child now, but he could begin to do so before he applied for Discretionary Leave.

Used4Passport · Post by **Used4Passport** » Sat Jun 18, 2011 7:54 pm

Ah ok thanks. I am not familiar with this ruling. So are you saying that even if a man does not contribute to his child and is living away from the family home, he would still be entitled to apply for LTR in a discretionary category, just because he is the genetic paternal parent? If that is so, God help a lot of cases.

Post by **Casa** » Sat Jun 18, 2011 7:56 pm

Our posts are crossing at present. You'll see I've covered this in my previous post.

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Leave to remain when relationship has ended

Leave to remain when relationship has ended