FLR FP insurmontable obstacles and unduly harsh consequences

[ZUzu_fly]

Hi all

I am an EU citizen settled in UK, have been living here for 14 years. I have a good career and a child from a previous marriage who is British. My current partner is an overstayer, having entered on visitor visa and then got Covid and could not return due to having no funds left. We have been together for 2 years and cohabiting for 1.2 years. We have a 6 month baby together who is a British citizen.

I suffer with low mood and big memory problems +anxiety as I lost both my parents within the space of 2 years after long period of illness due to cancer. I rely heavily on my parter to help me remember things. My condition is medicated and I have my medical records and prescriptions to show this. I have proof the children live with us, their passports and birth certificates. I have some bills in both our names and my partner is on the council tax bill but financially he doesn't have liability for anything as he doesn't have the right to work. I am his sponsor and earn well above the threshold required. Now, my daughter form previous marriage is 7 and she cannot legally travel outside the country because I do not havea child arrangement order in place from the courts. I simply don't have the means to get this as I do not have unlimited funds. Thus the question on the family unit relocating to my partner s african country is out of the question. Also, my daughter has no contact with bio father, my partner is her de facto father and does school runs with her. We have drawings and cards and pictures to proce parental relatinlonship with her. My son is obviously a baby and needs his father so separating us would be unduly harsh as: 1) my mental health would deteriorate even more and I couldn't cope , 2) my partner looks after the baby while I work full time, him being gone will plunge me into poverty as I can't afford massive childcare bill, 3) my daughter will lose the only father she has. Also, I could not be outside of the UK for more than 5 years, even if I could hypothetically relocate, as I would lose my settles status and right to NHS for which I pay. It seems u justifiably harsh to unravel our whole lives just because my partner overstayed.

Do you think given the above, my partner has a chance to get visa on 10 year route ?

Thanks a lot

[Frontier Mole]

Insurmountable obstacles and unduly harsh are massively difficult criteria to meet and the threshold that it is measured against should always be clearly set against Article 8. Your case in my option does not meet the threshold as you have an option to return to your home country and regularise your marriage and life in your country on origin.

That said I don’t think you should focus of those points and look at possible options for your partner. You have given a lot of information but it is as if you are trying to mix and match a whole miss mash of routes. Partner, parent of a U.K. child and spouse are all separate routes and the rules for each route has to be met. Bits met from one route do not impact of the other routes.

From the information given I would suggest you stick with the parent of a UK child route. It is more manageable and less onerous and has a clearly defined path that it would appear your partner meets.

No matter what your partner will fall foul of the Home Office immediately an application is made, prepare for that and take appropriate advice.

[ZUzu_fly]

Thank you for the reply. I hear what you say but I thought the parent route is only for single parents? We are in a genuine relationship and I sponsor him so how can he apply as a parent? Or do you mean that we should focus on the argument that separating him from his child would be unduly harsh and that the childcannot be reasonably expected to leave the UK?

Many thanks

[ZUzu_fly]

I cannot really return to my country with the children as I do not have a court order to allow me to do that for my daughter. As her British father features on the birth certificate, i am not sure a court would grant me permission to permanently relocate abroad, taking away her father s right to ever see her.

[Frontier Mole]

For clarity- you are not married nor do you qualify for the partner route. You are not his sponsor as there is nothing to sponsor, they are not here as your dependent. You are cohabiting and you have a child together.

No matter what, the issue is your partners overstaying, nothing can overcome that fact. Until they can regularise their stay there will remain a risk that they will be removed. Essentially you are trying to skip round the normal partner / spouse routes to allow your partner to remain. The only obstacle is your belief / claim that the British father will object to their child moving overseas. Has this been tested, has the father been approached, has a court order been sought? If those actions have not been undertaken then there are no insurmountable obstacles.

As for returning to your home country and the name of the British father on the birth certificate. That is not that meaningful particularly if the father is not involved in the care of the child. Yes you would need the father’s written approval or a court order but as I have stated above that is not insurmountable. Your ability to fund this is not something that is considered.

You are right the parent of a British child is not the appropriate route given your relationship. Given the circumstances it is possibly the only viable option given in my opinion they do not meet the family life requirements be it 5 or 10 years route. Will it be successful- unlikely to maybe at best.

Hence the best and safest way is to return to Romania or their home country and get married and apply for a spouse visa to return. If that is not something you are willing to do you then your other option is to marry in the U.K. That will being the Home Office straight into the equation and they can stop the marriage. If marriage is not being considered then it is possibly a waiting game until the two years cohabitation and partner evidence is established. I am unsure if the partner route eligibility will be met given their stay in the U.K. has been achieved as an overstayer.

[secret.simon]

As an EU citizen, can you not relocate with your partner and relevant children to Ireland?

I suspect that EU citizens and their partners would fail to meet the insurmountable obstacles test, because EU law on freedom of movement is all about removing all obstacles, never mind just the insurmountable ones.

[ZUzu_fly]

Thank you both for replying. I will contact a lawyer