Urgent advice please! Derivative Residence refused

I am a British Citizen from birth, my husband is from Pakistan. As we don't meet the spouse visa requirements due to the income shortage my husbands lawyer applied for a Derivative Residence Card for my husband as a primary carer of a British Citizen child. However this has now been refused and we obviously intend to appeal. The reason for refusal is that the child is a British citizen as the mother is, therefore the child could continue living in the UK with his mother.

Our circumstance:

I was previously married but the marriage broke and was divorced in 2009. I have two children from my previous marriage. Therefore as a single mother I have only worked part time on the minimum wage and have been claiming benefits.

I have known my husband for a few years now and got pregnant with his child in 2014. It was unplanned (so no one can say we did this for husbands visa !) Anyway there was no looking back, we both wanted the child and were really happy about this. He was born in May this year making him currently 5 months old. My husband is on the baby's birth certificate.

We have had a Islamic marriage but not a UK registered marriage as of yet as we was not planning to get married so soon. But we performed a nikaah (Islamic marriage) as I was pregnant and religiously didn't want to do anything wrong further.

We started living together before the baby was born but only made it official after the baby was born.

What I want to know is after reading a few posts already here related to Derivative Residence Card, please correct me if I'm wrong but I have learnt that the Derivative Residence Card is only given to single parents with full responsibility of a British Citizen child. So:

1. Does this means our lawyer submitted the wrong form? And really she should've applied for my husband under family life (form FLR (P) ?

2. If it was meant to be form FLR (P) so would my husband apply as family life as a partner or parent route?

3. Now that the Derivative Residence has been refused how likely is it that the appeal will succeed?

4. If the appeal gets rejected will he have rights to re apply under FLR?

5. If the current application is wrong in itself then instead of wasting time appealing this would it be best to just re apply under Family Life?

Please kindly answer all my questions if possible as I am so confused and panicking at the moment. I don't want to lose my husband and neither want my child to have to live without his father.

Sorry for the long post, but I urgently need help as our lawyer is asking for more fees to appeal. We don't mind paying her as long as we are 100% sure now that she is actually doing the right thing as from what I've read here I don't think my husband qualified for a Derivative Residence card anyway.

Your solicitor submitted an invalid application under EEA regulations. Neither of you are classified as EEA nationals. Also see below:
Primary carer
You’re eligible for a derivative residence card if you’re the primary carer of someone who would have to leave the UK if you left.
The person you care for must be one of the following:
a British child who’d have to leave the EEA if you left the UK
a British dependent adult who’d have to leave the EEA if you left the UK
a child from the EEA who’s financially independent with full health insurance (‘self-sufficient’)

Precisely. I just don't understand why some lawyers do this.

This is the second person in the last few month that come with the same problem.

Both the application and appeal are doomed to fail.

That lawyer does not know what he is doing , or he is seeking to milk you.

Quit before it is too late.

FLR (FP)may be the most appropriate form.

I advised This person it all ended in tear for him, when he did not listen.

Thank you Casa and Obie for your time to reply. So I guess I was right!

@Obie Hi Obie actually they were the posts I read and got me worried that maybe my lawyer is also doing the wrong thing! So thanks to you as it was your answers on those posts that got me all questioning.

I have a couple of questions and would be really thankful if either Casa or Obie or anyone else with knowledge regarding this could answer them so I can rectify our situation with confidence.

1. Can you please tell me can we put in a new application now that the Derivative Residence card has been refused? As from what you've already said it's going to be pointless to appeal.

2. If my husband was to apply through flr, would it be as a partner or parent? I assume partner as we live together and have a child together?

Many thanks in advance

You partner us unlikely to succeed under the partner route as you marriage is not recognised in English law and you don't seem to have been in a relationship akin to marriage for 2 years.

Obie, thanks so he would apply through parent route? If not then can you please tell me if you know what else can we do?

Parent route is also tricky, as the rules precludes circumstances where the applicant is in a relationship with the other parent who is British or settled.

The lawyer will need to assess you circumstances and decide how to proceed . However I know the direction he is going is fundamentally flawed.

Can you please tell me what is the 5 year route and 10 year route and if we was to try on the parent route would we go for 5 or 10 year route.

Coming to the partner route, I don't think we need to be married?

Kolfizz wrote:Can you please tell me what is the 5 year route and 10 year route and if we was to try on the parent route would we go for 5 or 10 year route.

Coming to the partner route, I don't think we need to be married?

How long have you been living together in a relationship 'akin to marriage', with the documented evidence to support this?

Obie wrote:Parent route is also tricky, as the rules precludes circumstances where the applicant is in a relationship with the other parent who is British or settled.

The lawyer will need to assess you circumstances and decide how to proceed . However I know the direction he is going is fundamentally flawed.

Obie hi, please please reply back to me as I'm really worried and wondering if you would know anything in regards to this. Basically so I called the HO Enquiries line, and they have also advised me that the application our solicitor did for my husband for a derivative is wrong and instead should have applied for FLR FP.

The problem now is I called them three times just to see if I get the same response from the advisors, but the only difference I got on my third call is that this advise says that as we applied for a derivative which comes under eea regulations, therefore we cannot make a new application for FLR FP. The only way to do that is if my husband goes back to Pakistan, then he could apply from there.

Can you kindly please shed some light if you can, as I am so stressed out and worried sick that he'll have to go back and apply from back home which will take years because the processing time over there is far too slow.

Casa wrote:

Kolfizz wrote:Can you please tell me what is the 5 year route and 10 year route and if we was to try on the parent route would we go for 5 or 10 year route.

Coming to the partner route, I don't think we need to be married?

How long have you been living together in a relationship 'akin to marriage', with the documented evidence to support this?

Hi Casa, thanks for your reply. I have been with my partner for over two years but we only started living together from last five months. I already spoke to the HO enquiry line who say the parent route would be the best option for us although he still qualifies to apply through the partner route too as we don't need to be living together for two years, but we should be able to prove we was in a relationship for at least 2 years which we have been.

So this is clarified anyway but I was wondering if you could help me in this sticky situation, I'm really worried and wondering if you would know anything in regards to this. Basically so I called the HO Enquiries line, and they have also advised me that the application our solicitor did for my husband for a derivative is wrong and instead should have applied for FLR FP.

The problem now is I called them three times just to see if I get the same response from all the advisors, but the only difference I got on my third call is that this advise says that as we applied for a derivative which comes under eea regulations, therefore we cannot make a new application for FLR FP. The only way to do that is if my husband goes back to Pakistan, then he could apply from there.

Can you kindly please shed some light if you can, as I am so stressed out and worried sick that he'll have to go back and apply from back home which will take years because the processing time over there is far too slow.

My concern is that you have not been in a relationship akin to marriage of a period of 2 years.

You have only been living together for 5 months, and to qualify you will need to have been cohabiting as a common law partner for a period of 2 years.

You advice you were given range from a spectrum of confusion to inaccuracies and plainly wrong.

You cannot qualify under the parent route unless your husband can show you are not in a relationship, and I am confident that without proper thought, an FLR (FP ) will fail.

You can give notice to get married in the UK . They may investigate the marriage, but I believe it will be fine.

If he goes to Pakistan, you can kiss goodbye to being reunited anytime soon, unless you can find and instant job that pays 18600, and even at that, he may have to be there for at least 6 months, provided of course, they don't decide to invoke 320 (11) afterwards .