lida56 wrote: ↑Fri Sep 11, 2020 10:11 pm
Hi CR001, forney ,
My son is a British citizen adult, living in the UK. I'm a single mother and for years I frequently traveled to the UK on visit visas to take care of him, due to his mental problems (autism) he needs my care and is so dependent to me emotionally and physically. Once, I applied for DRC which took one year to be decided which was refused simply because I did not send them my son original birth certificate. Later to enter the UK my visit visa was refused, but my appeal was allowed, when in the UK I applied for the EU settlement and still waiting in limbo. As you kindly advised the only resort is to send the PAP letter to the HO and then write to PHSO, though it takes ages while my son health condition is getting worse. Yes, a real tragedy as forney said. Thanks for your attention and advice again.
Hi
Your case is just one of it that there should have been a compassionate grounds to expedite it with days. But as usual HO is always having their own ride.
There two things I would like you to look at which could help you back. Read them/it and if you do understand fine but if you want further explanation then we can tell you the pros and cons then you will go to to a solicitor to assess both for you.
1. Access to Child Visa Appendix FM Route - Entry Clearance
A parent whose child resides in the UK can apply for an Access to Child visa which gives permission to enter or remain in the UK in order for them to have contact with their child.
The following requirements must be met:
The applicant must be the parent of a child who is resident here;
The parent or carer with whom the child resides must be permanently resident in the UK;
The applicant must have evidence that they have access rights to the child.
For the purposes of an access to child visa, 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 the parent intends to maintain contact with the child. Other requirements include:
The applicant must show that they intend to take an active role in the child’s upbringing;
The child must be under the age of 18;
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 dependants without recourse to public funds.
To get an access to child visa, the applicant will need to apply for entry clearance from a British Embassy or High Commission abroad unless they were previously granted and still have limited permission to remain here as the spouse or an unmarried partner of a person present and settled in the UK. This person must be the child’s other parent.
The applicant must show that they have not remained here in breach of the Immigration Rules and that they meet all of the other requirements listed above. 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 your access to child visa 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 ILR, 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 dependants without recourse to public funds. The child must also still be under 18.
Look into this route which most people in your shoes should of explored long time.
2. EEA Family Permit under Zambrano.
It is a crazy advise but the eu law doesn't stop you to do such an application.
Zambrano entry clearance – a window of opportunity or the route of last resort for the parents of a British child.
Entry clearance options for the parents of British citizen children with a focal point on Zambrano parents.
There is another route still available until 31 December 2020 under the EEA Regulations 2016 – a Zambrano family permit. It is open to primary carers of British citizen children where the child would be compelled to stay outside the UK if the carer is not granted entry clearance.
The complexity of a Zambrano entry clearance application is foiled by the relative simplicity of the Regulations: Regulation 11, paragraph 5(e), provides for the right of admission to a person accompanying a British citizen to, or joining a British citizen in, the United Kingdom, if, once in the UK, they would meet the requirements of Regulation 16(5). The relevant requirement of Regulation 16 is that the person is a primary carer of a British citizen child who “would be unable to reside in the United Kingdom or another EEA State” if the primary carer left the United Kingdom for an indefinite period of time. They should not have leave to enter or remain under another part of the immigration rules
Zambrano entry clearance – a window of opportunity or the route of last resort for the parents of a British child June 17, 2020
Zambrano entry clearance – a window of opportunity or the route of last resort for the parents of a British child
Family immigration
The standard route for families, with our without children, is the partner visa or spouse visa under Appendix FM of the immigration rules. Those who have parental responsibility for a British child but do not live together with the other parent of the child may apply for a visa under the parent route, but the child has to be in the UK first.
There is another route still available until 31 December 2020 under the EEA Regulations 2016 – a Zambrano family permit. It is open to primary carers of British citizen children where the child would be compelled to stay outside the UK if the carer is not granted entry clearance.
The complexity of a Zambrano entry clearance application is foiled by the relative simplicity of the Regulations: Regulation 11, paragraph 5(e), provides for the right of admission to a person accompanying a British citizen to, or joining a British citizen in, the United Kingdom, if, once in the UK, they would meet the requirements of Regulation 16(5). The relevant requirement of Regulation 16 is that the person is a primary carer of a British citizen child who “would be unable to reside in the United Kingdom or another EEA State” if the primary carer left the United Kingdom for an indefinite period of time. They should not have leave to enter or remain under another part of the Immigration Rules.
Primary carer is defined in paragraph 8 of the same Regulation as a person who is a direct relative or a legal guardian of the child and either has primary responsibility for the child’s care or shares equally the responsibility with one other person. Paragraph 9 helpfully states that where the role of primary carer is shared by two people any reference to the carer should be read as “both primary carers”.
A serious amendment in the definition of “primary carer” was made in July 2018 – it deleted an exclusion in accordance with which a Zambrano primary carer could not share parental responsibility with a British citizen. Only parents who equally lacked immigration status in the UK could be joint Zambrano carers before the amendment. This excluded the majority of families with British children as most often at least one parent of a British child would be a British citizen.
Thus, on the face of it the amendment opened the door to all families resident abroad with British kids.
There are serious advantages of applying for a family permit under the Regulations rather than a partner visa under the Immigration Rules:
Here is a summary of the main “complexity” points:
Hostility of the Home Office policy
The Home Office guidance on family permits does not deal with Zambrano applicants in any detail. However, the guidance on derivative rights of residence has a section on Zambrano cases in the context of applications made in the UK. It sets the tone and shows an attitude by far more inimical to the applicant than the Regulations. For instance the guidance explicitly states that the Zambrano route is only open where the applicant does not have other means to remain lawfully in the UK. According to the guidance, it is only if the application failed under the immigration rules and all rights of appeal are exhausted that the Home Office officials are required to consider whether a derived right of residence exists.
The Guidance makes Zambrano and other derivative rights the route of last resort for those who have no chance to make a successful application under other parts of the rules.
There are no legal provisions to back up this policy, but nevertheless the policy exists. It blatantly contradicts the Regulations.
It may sound pedantic, but as a lawyer I have to flag it up that the guidance is not the law and does not have precedence over the Regulations which are the law. The relevant provisions of the Regulations are sufficiently clear to be interpreted without reference to the Guidance.
Complexity of case law
Patel v Secretary of State for the Home Department [2019] UKSC 59 is the most recent case from the Supreme Court addressing the Zambrano right of residence. The case was decided in December 2019 but had to apply the Regulations as they were prior to the amendment, at the time of the original decision was made. This is an obvious point, but it may easily be overlooked.
It also doesn’t help that the Court of Appeal which dealt with the case before it went to the Supreme Court, made some terse remarks of the sort “The Zambrano principle cannot be regarded as a back-door route to residence”. These remarks were immediately adopted by the Home Office as tag-lines. The fact that the law has since changed is not reflected in the Guidance and is most likely ignored in practice.
The rule of law in immigration context could be stronger, and somewhat more stable
Read these 2 options, post 1 and 2 then go and see a good solicitor to aid you.
