my Fear

[lovety23]

hi to every one wonderful forum God bless both the creators ,moderators and helpful members by guarding people ontheir ordeal time.

I am a non EU maried to EU partner we have maried for five years and live together in the uk for more than one year I have RC valid up to 2018 but sad to say the relationship does not work he move out and went to live with another woman my self left the house and I met a B ritish man with one child whom he is claiming child benefit, child tax credit and child care he has a full time job. Recently we are bless with a bouncing baby boy.

This is what he intend to do : he want to claim child benefit and child tax credit for our baby he also want to add me to the child tax credit as we are curently living together. Am fear as a non EU not entitle to benefit and stil not divorce to my EU husband we only seperated no divorce yet that this may affect me

This is my question plz help me :

1, if this guy claim child benefit and child tax credit and add my name to the child tax credit wil this affect me when I apply for R.O.R or permanent residence?

2 If my EU husband refuse to corporatet with the divorce can I apply for permanent residence on 2018 after completing five years of residence .

3 my health visitor gave me a form to fill so i can entitle to free precription base on having a child under 1 one year of age is this ok to do . note am not working at the moment but i wil be back to work after three or six months coz my baby is too young though my partner has a child care. i was working through agency but i stop when i got pregnant but they told me after the baby any time i want to work again let me give them a cal they wil give me work. Thanks in advance .

[Richard W]

1, if this guy claim child benefit and child tax credit and add my name to the child tax credit wil this affect me when I apply for R.O.R or permanent residence?

No, until you claim to be self-sufficient or a student.

2 If my EU husband refuse to corporatet with the divorce can I apply for permanent residence on 2018 after completing five years of residence.

Yes, if he remains in the UK and also he becomes a permanent resident or remains a qualified person (e.g. by continuing to work). However, you need to watch for a change in the regulations. It is quite possible that it is you who may have to be the worker (etc.), not from when the divorce happens, but from when the law changes as a result of the UK voting to remain in the EU. It has been promised that the definition of a 'marriage of convenience' will change to include failed marriages that are maintained to give the non-EEA spouse an immigration advantage.

3 my health visitor gave me a form to fill so i can entitle to free precription base on having a child under 1 one year of age is this ok to do.

Not a problem.

Are you aware that your son is not British? For him to acquire British nationality, you will have to register him as British using form UKF. Under British nationality law, your husband is his father, but form UKF allows him to be registered as British because his natural (= biological) father is British. There is no time limit or residence qualification for this registration. While I believe your son is presently considered a family member of your husband because he is your son, it is possible that this will change if the legal definition of marriages of conveniences changes to include failed marriages. This could make his immigration status difficult, even if he is securely an EEA citizen.

[lovety23]

Thank u very much Richard W for quick reply .So though his biological father is British he cannot apply for him for British pasport is that what u mean am not going to apply for him he is the one going to apply for him in the future wil they refuse his son a british passport
becauce of me still maried to EU citizen ? once again thank u God bless u.plz any one on forum with past experince

[Richard W]

So though his biological father is British he cannot apply for him for British pasport is that what u mean?

That is a consequence, but not the one I had in mind.

My understanding is that if your husband were to permanently return to his home country tomorrow, you and your son would cease to have any right to be in the United Kingdom. The only way I can think of for you two to remain would be to use the 'family route', applying under form FLR(M) (which stands for 'Further Leave to Remain on the basis of Marriage'). That costs £822 (fee) + £500 (NHS surcharge) + £19.20 (Biometric application fee) for you, and either £822 for your son if he is an EEA citizen or the same as you if he is not an EEA citizen. It is cheaper and the 10-year route is easier if your son is British.

If you want the 5-year family route, you also have to prove your competence in English (unless you have other evidence, such a degree taught in English or country of origin) and show you meet the income requirement - which must be done using your new partner's income alone if you lose your right to be in the UK. Furthermore, you must not have overstayed by more than 28 days.

For the 10-year route, you do not have to meet the income requirement, but you will have to satisfy Immigration Rule EX.1. You would have to show either that there are "very significant difficulties which would be faced by the applicant or their partner in continuing their family life together outside the UK and which could not be overcome or would entail very serious hardship for the applicant or their partner" or that you have "a genuine and subsisting parental relationship with a child who ... is a British Citizen or has lived in the UK continuously for at least the 7 years immediately preceding the date of application ;and it would not be reasonable to expect the child to leave the UK." While you may qualify with your new partner's child, you would definitely qualify with your son if he became a British citizen.

For your son, registration as British may be cheaper than a residence card for him if you can do everything yourself. I am assuming that his biological father is recorded on his birth certificate, and that the Home Office will not insist on a DNA test, as they might if his birth was registered on or after 10 September 2015.

[Casa]

So though his biological father is British he cannot apply for him for British pasport is that what u mean?

That is a consequence, but not the one I had in mind.

My understanding is that if your husband were to permanently return to his home country tomorrow, you and your son would cease to have any right to be in the United Kingdom. The only way I can think of for you two to remain would be to use the 'family route', applying under form FLR(M) (which stands for 'Further Leave to Remain on the basis of Marriage'). That costs £822 (fee) + £500 (NHS surcharge) + £19.20 (Biometric application fee) for you, and either £822 for your son if he is an EEA citizen or the same as you if he is not an EEA citizen. It is cheaper and the 10-year route is easier if your son is British.

If you want the 5-year family route, you also have to prove your competence in English (unless you have other evidence, such a degree taught in English or country of origin) and show you meet the income requirement - which must be done using your new partner's income alone if you lose your right to be in the UK. Furthermore, you must not have overstayed by more than 28 days.

For the 10-year route, you do not have to meet the income requirement, but you will have to satisfy Immigration Rule EX.1. You would have to show either that there are "very significant difficulties which would be faced by the applicant or their partner in continuing their family life together outside the UK and which could not be overcome or would entail very serious hardship for the applicant or their partner" or that you have "a genuine and subsisting parental relationship with a child who ... is a British Citizen or has lived in the UK continuously for at least the 7 years immediately preceding the date of application ;and it would not be reasonable to expect the child to leave the UK." While you may qualify with your new partner's child, you would definitely qualify with your son if he became a British citizen.

For your son, registration as British may be cheaper than a residence card for him if you can do everything yourself. I am assuming that his biological father is recorded on his birth certificate, and that the Home Office will not insist on a DNA test, as they might if his birth was registered on or after 10 September 2015.

How do you envisage a FLR(M) application being valid? Her husband is an EU national and she isn't married to her new British partner...and wouldn't at present qualify as an unmarried partner. She holds no category of visa under UK Regulations which would enable her to switch to 'Further Leave'.
Not that it makes a great deal of difference, but just for the record the postal fee for a FLR(M) application is £811

[lovety23]

So though his biological father is British he cannot apply for him for British pasport is that what u mean?

That is a consequence, but not the one I had in mind.

My understanding is that if your husband were to permanently return to his home country tomorrow, you and your son would cease to have any right to be in the United Kingdom. The only way I can think of for you two to remain would be to use the 'family route', applying under form FLR(M) (which stands for 'Further Leave to Remain on the basis of Marriage'). That costs £822 (fee) + £500 (NHS surcharge) + £19.20 (Biometric application fee) for you, and either £822 for your son if he is an EEA citizen or the same as you if he is not an EEA citizen. It is cheaper and the 10-year route is easier if your son is British.

If you want the 5-year family route, you also have to prove your competence in English (unless you have other evidence, such a degree taught in English or country of origin) and show you meet the income requirement - which must be done using your new partner's income alone if you lose your right to be in the UK. Furthermore, you must not have overstayed by more than 28 days.

For the 10-year route, you do not have to meet the income requirement, but you will have to satisfy Immigration Rule EX.1. You would have to show either that there are "very significant difficulties which would be faced by the applicant or their partner in continuing their family life together outside the UK and which could not be overcome or would entail very serious hardship for the applicant or their partner" or that you have "a genuine and subsisting parental relationship with a child who ... is a British Citizen or has lived in the UK continuously for at least the 7 years immediately preceding the date of application ;and it would not be reasonable to expect the child to leave the UK." While you may qualify with your new partner's child, you would definitely qualify with your son if he became a British citizen.

For your son, registration as British may be cheaper than a residence card for him if you can do everything yourself. I am assuming that his biological father is recorded on his birth certificate, and that the Home Office will not insist on a DNA test, as they might if his birth was registered on or after 10 September 2015.

How do you envisage a FLR(M) application being valid? Her husband is an EU national and she isn't married to her new British partner...and wouldn't at present qualify as an unmarried partner. She holds no category of visa under UK Regulations which would enable her to switch to 'Further Leave'.
Not that it makes a great deal of difference, but just for the record the postal fee for a FLR(M) application is £811

Thank u for wonderful help. Please I dont seem to understand the last paragraph, "for ur son registration as british may be cheaper than a residence card for him if i can do every for my self
1, what do u mean if I can do every for my self?

2,And that home office will not insist on a DNA test, as they might if his birth was registered on or after 10 September 2015. Do u mean they will carry DNA test on my currrent partner to confirm if he is the biological father?

3,If the DNA confirm he is the biological father what will they do will that has a consequense on my side ? plz help me for this three question stated .once again thank u for ur prompt reply God richly bless u .

[Richard W]

How do you envisage a FLR(M) application being valid? Her husband is an EU national and she isn't married to her new British partner...and wouldn't at present qualify as an unmarried partner.

I'm assuming that it will be easy to demonstrate that the previous marriage has broken down irretrievably.

Why do you think the new partners don't/won't qualify as unmarried partners? Are you suggesting that there is a problem because they aren't being treated as a couple for benefit matters? There's enough room in the time line for 2 years to have elapsed already. The plan is to go for a retained right of residence following the divorce, and I view FLR(M) as an emergency plan. An emergency plan might be needed as late as 2018. Do you know a better emergency plan?

She holds no category of visa under UK Regulations which would enable her to switch to 'Further Leave'.

Does she need a visa? I believe the relevant rules (both in Appendix FM) are:

Immigration status requirements

E-LTRP.2.1. The applicant must not be in the UK-

(a) as a visitor; or
(b) with valid leave granted for a period of 6 months or less, unless that leave is as a fiancé(e) or proposed civil partner, or was granted pending the outcome of family court or divorce proceedings

E-LTRP.2.2. The applicant must not be in the UK –

(a) on temporary admission or temporary release, unless:
(i) the Secretary of State is satisfied that the applicant arrived in the UK more than 6 months prior to the date of application; and
(ii) paragraph EX.1. applies; or
(b) in breach of immigration laws (disregarding any period of overstaying for a period of 28 days or less), unless paragraph EX.1. applies.

Lovety23, so far as we are aware, does not have leave to be in the UK but is instead has the EEA exemption. Now, if this exemption suddenly disappears without warning, she might be able to put in an application before the overstay reaches 28 days, but if not, she will rely on Paragraph EX.1, specifically, the bond with a British citizen child.

Not that it makes a great deal of difference, but just for the record the postal fee for a FLR(M) application is £811

I think I got confused with the £1622 for mother and son. Perhaps I should just have said "c. £1,000".

[Casa]

The challenges I see are:
1. The OP is here as a family member of an EU national.
2. If she now claims that she has not been residing here under EEA Regulations but has been clocking up 2 years of co-habitation 'akin to marriage'
with a British national, one or the other will not be valid.
3. You can't pick and mix EEA regulations with EU Rules. FLR(M) is for a visa extension under UK Immigration Rules. The OP doesn't currently hold a visa.
4. A spouse or unmarried partner visa application can't be submitted from within the UK, if not switching from valid leave.
5. I don't believe the HO will accept an application as an unmarried partner if she is not divorced from the husband.

I agree that it's a complex case. FLR(FP) under the 10 year partner route may be an option but I would prefer to see further advice from others more qualified. Confirmation on the length of the new relationship needs to be confirmed.

[Richard W]

Please I dont seem to understand the last paragraph, "for ur son registration as british may be cheaper than a residence card for him if i can do every for my self
1, what do u mean if I can do every for my self?

It seems that some people get professional help to submit a naturalisation application. That increases the cost. Actually, I think my arithmetic is wrong. I forgot the cost of the Nationality Checking Service (NCS) is around £40, and for UKF applications you just pay the cost of the ceremony. I am now thoroughly confused myself! Is form UKF only for adults? The guidance claims the form is only for those born in 2006 or earlier; they've overlooked cases such as your son. It could be that registration as British is free in this case.

2,And that home office will not insist on a DNA test, as they might if his birth was registered on or after 10 September 2015. Do u mean they will carry DNA test on my currrent partner to confirm if he is the biological father?

They could. You would have to pay. The guidance notes for UKF says a birth certificate will be accepted. I haven't heard of British birth certificates as composed within one year of birth being rejected as evidence of paternity, but in some countries the mother's statement as to who the father is is reportedly accepted. If the birth certificate records the true father, there should be no problems.

3,If the DNA confirm he is the biological father what will they do will that has a consequense on my side ?

Your only problem will be if the current birth certificate is dishonest. If the birth certificate records your husband as the father, I don't know what will happen.

[CR001]

Actually, I think my arithmetic is wrong. I forgot the cost of the Nationality Checking Service (NCS) is around £40, and for UKF applications you just pay the cost of the ceremony. I am now thoroughly confused myself! Is form UKF only for adults? The guidance claims the form is only for those born in 2006 or earlier; they've overlooked cases such as your son. It could be that registration as British is free in this case.

NCS cannot be used for UKF or UKM forms as HO requires ALL original documents for verification and authentication checks.

The nationality rules changed in 2006 in that children born to unmarried parents where the father is British means the child will be British automatically. This was not the case prior to this change and a British father not married to the childs mother could not pass on his nationality automatically.

HMPO have however introduced the requirement of DNA for unmarried fathers whose children apply for British passports.

[Richard W]

The challenges I see are:
1. The OP is here as a family member of an EU national.
2. If she now claims that she has not been residing here under EEA Regulations but has been clocking up 2 years of co-habitation 'akin to marriage' with a British national, one or the other will not be valid.

No, she entered the UK with her husband. The marriage failed in the UK; it lasted over a year here, and reportedly lasted for a total of five years. Now, by the Diatta case, as this was not a marriage of convenience, and, moreover, subsisted in the UK, she counts for the EEA regulations as her husband's family member until the divorce is finalised. We have not been told whether proceedings have started. It might be more convenient for the OP if the marriage were already terminated.

Now, under the Immigration Rules, a marriage that has irretrievable broken down no longer counts as a marriage. For the Immigration Rules, the only relationship of the OP's that counts is with the boyfriend.

Weirdly, under the EEA Regulations the OP appears to have both a 'spouse' and a 'durable partner' - having a 'spouse' only stops one acquiring a 'durable partner' if the first relationship is subsisting. However, the apparent durable partner is of no use under the EEA Regulations, as he's British.

3. You can't pick and mix EEA regulations with EU Rules. FLR(M) is for a visa extension under UK Immigration Rules. The OP doesn't currently hold a visa.
4. A spouse or unmarried partner visa application can't be submitted from within the UK, if not switching from valid leave.
5. I don't believe the HO will accept an application as an unmarried partner if she is not divorced from the husband.

I agree that it's a complex case. FLR(FP) under the 10 year partner route may be an option but I would prefer to see further advice from others more qualified. Confirmation on the length of the new relationship needs to be confirmed.

I disagree with your numbered points, but it will be helpful to have another opinion.

[Richard W]

NCS cannot be used for UKF or UKM forms as HO requires ALL original documents for verification and authentication checks.

Do they not check that the application is complete?

The nationality rules changed in 2006 in that children born to unmarried parents where the father is British means the child will be British automatically.

Lovety23 is married. Under British nationality law, the mother's husband is the child's father. This is no longer a presumption, but an irrefutable fact by definition. However, Section 4G of the Nationality Act allows a person born since 1983 to register as British if his natural father is British and the person would have been British if his natural father were his father. The problem is that the guidance for UKF implies that applicants will have been born in 2006 or earlier.

[lovety23]

once again thanks every one for ur wonderful input to this complex case.

Please note the birth certificate records my current partner as the father of the child .Before we thought as he is a british citizen he wil be able to apply for his son for a british passport. we have done DNA test and confirm that he is the biological father . Note we have not started any divorce preceeding with my Husband as he is not corporating at the moment . my fear now in case one day he left his job and locate to another country what wil be my status I was having the feeling that i could able to secure to stay through my child .But that hope has now put aside for the fact that u guys said my current british partner cannot apply for passport for our son that make my case more complex.

1 , what right steps to take now ?

2, should I start divorce precceeding my other fear to this am not back to work yet as some people said i have to be working before and after the divorce is that true?

3 ,should I wait until 2018 and apply straight for permanent residence after completing five years in the UK just want to get my self wel prepare ahead. Once again thanks to every one given me this vital information as i have no knowledge which route to take so stress he hurt me and now am in dilema .

[CR001]

NCS cannot be used for UKF or UKM forms as HO requires ALL original documents for verification and authentication checks.

Do they not check that the application is complete? No they don't. UKF is only for children born before 1st July 2006 so would not be the appropriate form either for the reason I have already stated.

[Casa]

This cogent article explains the ROR/divorce clearly:
https://www.freemovement.org.uk/eu-righ ... fficiency/

In addition where a non-EEA spouse is married to an EEA national and the relationship has broken down, the non-EEA spouse only has a right to continue living in the UK if the EEA spouse continues in employment, self employment or otherwise remains a ‘qualified person.

Do you know whether your husband is continuing to 'exercise his Treaty Rights' by fulfilling the above conditions? Also, can you confirm how long you have been living with the father of your child?

[Richard W]

NCS cannot be used for UKF or UKM forms as HO requires ALL original documents for verification and authentication checks.

Do they not check that the application is complete? No they don't. UKF is only for children born before 1st July 2006 so would not be the appropriate form either for the reason I have already stated.

The problem with UKF is worse than I thought. I'd overlooked Section 4E(a), which restricts the scope to those born before 1st July 2006. Consequently, Lovety23's son would have to be registered at discretion under form MN1, which has a fee of £936. The case is covered under Paragraph 9.9.5 of the Nationality Instructions. If he avoids long stays (> 90 days) abroad, he will be entitled to be registered as British when he reaches the age of 10, for the same fee. I don't know what to advise. Is the son an EEA citizen? Ultimately, he should be registered before he reaches the age of 18.

[Richard W]

The Free Movement article Casa linked to seems to offer good advice.

1 , what right steps to take now ?

Check that your husband is in the UK and still working. It's good news for you that the crucial date is the service of the divorce papers, not the decree absolute. It makes an emergency resort to FLR(M) much less likely.

2, should I start divorce precceeding my other fear to this am not back to work yet as some people said i have to be working before and after the divorce is that true?

You have to count as a 'worker', unless by staying at home you enable your boyfriend to earn enough that the four of you (a) get no benefits and (b) can afford Comprehensive Sickness Insurance for at least you and your son. So, basically, you have to be working. Once the divorce happens, your right to reside depends on your 'exercising the treating rights', and being a student does not count.

The common advice seems to be that once you know that both your husband and you are working, start the divorce proceedings.

3 ,should I wait until 2018 and apply straight for permanent residence after completing five years in the UK just want to get my self wel prepare ahead. Once again thanks to every one given me this vital information as i have no knowledge which route to take so stress he hurt me and now am in dilema .

That's your risk assessment. You would have to provide evidence that your husband was working for the whole five years, and that may be difficult to obtain. If you divorce, the relevant evidence of working from the time of the divorce will be the evidence that you were working, which will be much easier to obtain.

[Casa]

IMHO the child is not an EEA citizen as his neither his mother or biological father are EEA citizens. In this instance, his biological father (as registered on the Birth certificate) is only considered to be British.

[lovety23]

once again thank u guys.

Yes my husband has been in full time job since I entered the uk and still working and excise his treaty right and the last time we spoke , he told me after completing my five years he will give me his documents for me to apply for my permanent residence is that possible ? he said for the fact that he is the one walk away from me and we had a child together back home whom he told me not to include in the application when i was going for the visa so both of us can work and later he wil bring the child as he said child care is very expensive in the uk . I suspect that during the process of geting me an entry clerance visa he was in deeply in relationship wit this lady and when I arrived make it difficult to see her.

I have been living wit my curent partner for 14 months now.

1,sorry to repeat this question is my son not entittle to a british passport through his British father? as he is registered on the birth certificate .

my curent partner is in full time job but he stil get the following benefit child benefit , child tax credit and working tax credit and child care. All this was transfer to him through the help of social worker when his ex wife walk away and leave him with his son note he has since divorced her and gain full custody of his son through court. He has not yet claim child benefit and child tax credit yet for our new born baby as i told him it my affect me when either applying for retention of right or permanent residence . once again thank u guys for ur time taken to reply me .

[Casa]

So although I don't believe that an unmarried partner application would be an option for you, the fact that you have only been together for 14 months counts this out anyway. Does you current partner earn at least £18,600 a year?
Personally, I believe your best route to solving your situation would be to apply for PR once you qualify with your husband's co-operation.
I'll leave others to respond who are better placed to advise on your child's right to BC.

[lovety23]

Thank u casa for ur prompt reply . U guys are wonderful people I meet a lawyer before given birth he told me the same thing that if my husband corporate i should wait until I clock the five years and apply for permanent residence that depends if by than he is stil exercise his treaty right and willing to support me by given me his documents .

please any one else on the forum what is the status of my child . should I wait after gaining permanent residence and apply for him residence card or register him .

my partner earn 14000 per year excluding shift allowance, bonus, and over time and also get money for his son and his adopted child which sums up 415.00 pounds a week and he also run a business which he send containers back home for business as we have set up a big store back home to ship things and the business is operating wil the above count for maintenance ? please every one with past experince help me am stock. Recently we want to go for holiday but jus fear wit this immigration issue and my current partner cant go for holiday as he said he want all of us to go together as a family unit I feel sorry for him as my problem have stock him one place even when he take holidays at work he jus spend it within the uk . once again thanks every one that has input to this topic.

[lovety23]

So although I don't believe that an unmarried partner application would be an option for you, the fact that you have only been together for 14 months counts this out anyway. Does you current partner earn at least £18,600 a year?
Personally, I believe your best route to solving your situation would be to apply for PR once you qualify with your husband's co-operation.
I'll leave others to respond who are better placed to advise on your child's right to BC.

Once again thank u casa for ur quick reply, i meet a lawyer before my baby was born told me the same thing that if I clock the five years and my husband stil excise his treaty right and corporate wit me I wil be able to secure permanent residence base on stil maried to him and no divorce yet he said am stil regarded as family member of an EU.

my curent partner earn 14000 per year exclude shift allowance, Bonus, and over time which he receive every month he also receive 414.oo pounds a week for his son and adopted child and he also run international business by shiping containers to Africa where both me and him have manage to set up a shop/store and the business is runing wil this count towards maintenance in case i want to switch to other visa . plz can any one with past experince help me tel me the immigration status for our son.

Can i wait after my permanent residence and apply for him for residence card or register him? Thanks to every one who have input to this topic.

[Richard W]

Yes my husband has been in full time job since I entered the uk and still working and excise his treaty right and the last time we spoke , he told me after completing my five years he will give me his documents for me to apply for my permanent residence is that possible ?

Yes, it will work if he stays in employment in the UK. Not all men are bad.

However, do keep the evidence that your marriage lasted at least 12 months in the UK. The rules may change this year and force you to take up retained right of residence rather than moving straight to permanent residence.

Is my son not entittle to a british passport through his British father? as he is registered on the birth certificate .

No, the law lays down that if the mother has a husband, for the purposes of British nationality, the husband of the mother is the person considered to be the father. Current policy allows you to buy him British nationality for just under £1,000, which I believe is to be regarded as a sort of tax on future income. (I believe such an explanation was given when fees first became very large.) The birth certificate, and possibly the DNA test, may be used as evidence of permission to buy him citizenship.

If you can afford to travel abroad, I suggest you buy your son British nationality.

Your son's best immediate option for a passport is to get one in his husband's nationality. I believe that if your husband is Swiss, he may be able to get your son a Swiss passport. I get the impression that under Swiss law, only your husband could declare that your son was not his son and therefore not Swiss. (If he were British, which he isn't, your son would be entitled to a British passport!) If you can't get him an EEA passport, you would need to get him a residence card so he could travel using your nationality. Would your husband lend you the documents to get him a residence card? Your son's entitled to one, though it would take nearly 6 months to obtain.

[Casa]

@RichardW Do you see any complications with applying for an EEA passport through the husband when the birth certificate will state the child's father is British?

[Richard W]

Does you current partner earn at least £18,600 a year?

The financial problem with an unmarried partner visa (not available for 10 months - this is planning for an emergency that may never happen) is that unless the son becomes British, the visa will need to cover both mother and son, so the threshold is not £18,600 but £22,400. At least, I assume the threshold rises for EEA national children, and we have no idea whether the son is an EEA national (in accordance with the principles of British nationality).

Salary/wages can be combined with business profits. Most importantly, I believe that if they apply while the OP is still allowed to work, they can also include her income. I am not 100% certain of this - there may be a problem if her rights under the EEA regulations vanish before 'a decision is made'. With any problems, we are back to EX.1 and her bond with a British citizen child.