EU -citizen husband in Jail Please help

[lima22]

Please help. I am a Non EU living in the UK and my husband is in jail outside the UK.My Resident Card(EEA2) has been refused because he could not attend the interview they called us for. Now going for a tribunal on the 9th of april.we also have a 4 month son. my questions are.
what are my chances at the tribunal?
The HO know my husband is in jail.(i have evidence he was in jail at the time they called for the interview)
Me and my son do not rely on benefits but we have used the NHS services?
My aunt(british citizen) currently is supporting me and the baby .
we applied for RC in august 2008 and my husband was in the UK and working at the time.
All advice welcome.thanx

[Obie]

Is this EU chap the biological or adopted father of your child.

Has this child managed to obtained dad's nationality.

Is the dad's name on the birth Certificate.

If the child has EU passport or nationality, you could apply on the basis of the child.

Is the dad in UK jail or overseas.

[John]

As well as the questions from Obie ..... when do you expect your husband to be released from prison .... and what offence was he convicted of?

[lima22]

thanx for the replys all.
The guy is the biological dad, and yes his name is on the birth certifacate.
The child has not obtained dads nationality as he was in jail when he was born.( am not sure whether i can do this without him being present)
And i cannt travel outside the UK even to visit him.
And he is in jail outside the UK but in the EU.
So can the HO deport me and the baby?

drug trafficking and will be released from prison in 3 years time.
Regards

[Wanderer]

thanx for the replys all.
The guy is the biological dad, and yes his name is on the birth certifacate.
The child has not obtained dads nationality as he was in jail when he was born.( am not sure whether i can do this without him being present)
And i cannt travel outside the UK even to visit him.
And he is in jail outside the UK but in the EU.
So can the HO deport me and the baby?

drug trafficking and will be released from prison in 3 years time.
Regards

Pretty serious offence, what's the father's nationality?

[John]

lima22, especially because of all that (enforced) time outside the UK, I can't see how your spouse is of any use to you in enabling you to stay in the UK.

But other opinions very welcome.

[Obie]

Well it is pretty obvious that this woman cannot depend on this EU chap, however the child in question is an EU national, and hence the mother is allowed to stay in the UK on the basis of this child, if she can show that she has enough resource not to be an unreasonable burden on the UK.

As you and the dad are married and the father's name is on the child's birth Certificate, i think the child will qualify for whatever nationality the father holds.

With or without the passport for the child, i think you will qualify under chen principal in the UK.

You can contact the child's dad embassy and see if you can obtain a passport for him or her, if you can't it is not the end of the world, he is still a union Citizen.

Providing evidence to the Embassy of the father in the UK, showing the dad is their national will help.

It is settled caselaw that a Union Citizen in penal custody, cannot be exercising treaty right.

[thsths]

Well it is pretty obvious that this woman cannot depend on this EU chap, however the child in question is an EU national, and hence the mother is allowed to stay in the UK on the basis of this child, if she can show that she has enough resource not to be an unreasonable burden on the UK.

As you and the dad are married and the father's name is on the child's birth Certificate, i think the child will qualify for whatever nationality the father holds.

I agree, but you also need to prove this. lima22, you have to check the nationality law of your husband, and if indeed the child has acquired his nationality at birth. If so, you can certainly stay, and you may even have the right to work.

Otherwise it is going to be very difficult. I doubt that your husband is even welcome in the UK now. You could argue that he should have access to his child, but you may need to show that he is actually helpful for the development of the child.

[lima22]

I am forever grateful for all the contributions and keep up the good work.thanx.

The dads nationality dutch.

And i have checked our son has acquired the dads nationality by birth(i think).i just need to produce some of his documents.and i will be pursuing this.
Kindly could your explain how i may obtain or have the right to work as the HO will try and use my not working as a basis for deporting us(although at the moment my aunt is providing for us).

I was not aware EU citizens serving prison sentences cannot exercise treaty right and thanx for the invaluable info.

Well, good people thanx again.regards

[Obie]

Here is the information on requirements for obtaining Dutch Passport

A person born on or after 1 January 1985 to a married Dutch father or mother, or an unmarried Dutch mother, is a Dutch subject at birth. It is irrelevant where the child is born.

You might need to forward dad's passport or Id or information from the Dutch population register in order to get his Dutch passport.

I dont agree with the previous contributor that you will be allowed to work.

However, i am sure they will give you some sort of leave to remain , and the child will be issued with a Registeration certificate, which will mean you cannot face an imminent removal.

I

[John]

I dont agree with the previous contributor that you will be allowed to work.

I agree, that is, I can't see how there will be any ability to work. That concept is clear from Chen. Also the more recent ECJ judgement, which might have allowed work, only applies where the child(ren) are school age, and here the child is just a few months old.

[Obie]

Even that judgement follows the Baumbast ruling, in that the EU migrant worker should have been working in the UK, and then left the UK or divorced the non-EU parent who is the carer of the child.

In situation like that, if the children are in school, the Status quo for the non- EU parent will continue to exist.

I the case at hand on this thread, once the parent has been living with the child in accordance with the EEA regulation and the chen ruling for 5 years, i think there is a possibility for ILR to be obtained.

It is important to note that the chen ruling does not preclude the right to employment. It says the parents cannot be considered as family members of an EEA national.

The UK intepreted that as meaning the parent should not be allowed to work.

[lima22]

Please could someone tell me whether:
i would be eligible for an ILR under chapter 18 long residence(UK immigration rules) as prior to getting married in 2007 i was a student and my 10 years in UK expired in feb 2010.So for the last 3 years (bearing in mind my original querry(EU husband in jail) have i been here in the UK legally i know its longshot but is it possible.
Please pardon me i know this a EU forum but kindly help thanx.
Regards.

[Wanderer]

Please could someone tell me whether:
i would be eligible for an ILR under chapter 18 long residence(UK immigration rules) as prior to getting married in 2007 i was a student and my 10 years in UK expired in feb 2010.So for the last 3 years (bearing in mind my original querry(EU husband in jail) have i been here in the UK legally i know its longshot but is it possible.
Please pardon me i know this a EU forum but kindly help thanx.
Regards.

No, when you switch routes the clock is reset.

[thsths]

Please could someone tell me whether:
i would be eligible for an ILR under chapter 18 long residence(UK immigration rules) as prior to getting married in 2007 i was a student and my 10 years in UK expired in feb 2010.

No, the 10 year rule does not help you. I wonder whether you would qualify as a legacy case, but that may require a longer stay. I think 14 years, or was that another rule again?

Then again you always make a case outside of the rules on Human Rights grounds, but it would almost certainly go to court. I think the interests of the child are key: what are the options, and how would they work out? For example is it feasible for you to move to Holland? Ghana?

You should really get some legal advice before you make a move. The case is complicated, the options are many, but it is not quite clear which one to pursue.

[Obie]

No, when you switch routes the clock is reset.

I don't think that statement is correct.

2.3.8 Time spent in the UK with a right to reside under the EEA Regulations
Applications may be received from third country nationals who have spent part of their time in the United Kingdom as the spouse, civil partner or other family member of an EU/EEA national exercising their treaty rights to reside here, but who have not been able to qualify for permanent residence. Alternatively, we may receive applications from former family members who have had a retained right of residence (see Chapter 5 of the European Casework Instructions for more details).
During their time here under the provisions of the EEA Regulations, the individuals would not have been subject to immigration control and would not have required leave to enter or remain. Therefore, they would not fall within the definition of lawful residence given at paragraph 276A.
However, the family members of EU/EEA nationals exercising their treaty rights to reside in the UK are here in a lawful capacity. Provided they meet all of the other requirements, discretion may be exercised to count this time as if it were lawful residence.
This does not affect the rights of family members of EEA nationals to permanent residence in the UK where they qualify for it under Regulation 15 of the Immigration (European Economic Area) Regulations 2006.

]2.2.6 Events that "stop the clock" for the purposes of the continuous residence
Paragraph 276B(i)(b) allows settlement to be granted where the applicant has had 14 years continuous residence here (whether or not the residence was lawful), excluding any period following the service of:
a.
a notice of liability to removal; or
b.
a decision to remove by way of Directions under paragraphs 8 to 10A, or 12 to 14, of Schedule 2 to the Immigration Act 1971, or section 10 of the Immigration and Asylum Act 1999; or
c.
a notice of intention to deport (also known as a Notice of a decision to make a deportation order).
Service of any of the above notices "stops the clock" for the purposes of paragraph 276B(i)(b). This means that, if the applicant had not accumulated 14 years continuous residence on the date the "clock stopping" notice was served, they will never be able to qualify under paragraph 276B(i)(b).
Notices which stop the clock include:
•
IS151A
•
IS151A Part 2
•
IS151B
•
IS151B (NSA) (used in NSA cases)
•
IS151B (CERT) (used where an asylum or Human Rights claim has been refused and certified under section 96 of the Nationality, Immigration and Asylum Act 2002).
•
Notice of intention to deport ICD.1070
•
Prior to the introduction of the ICD.1070 (on 2 October 2000), the notice of intention to deport was the APP 104.
•
ICD.1071
•
ICD.1072
•
ICD.1075
•
ICD.1076

Being a family member of an EEA national does not stop the clock, since such residence would have been on a lawful capacity.

I think the best option for the OP is the Long Residence option, as the Chen option will not confer enough rights.

[thsths]

I don't think that statement is correct.

2.3.8 Time spent in the UK with a right to reside under the EEA Regulations
...
However, the family members of EU/EEA nationals exercising their treaty rights to reside in the UK are here in a lawful capacity. Provided they meet all of the other requirements, discretion may be exercised to count this time as if it were lawful residence.

Interesting. However, I am not sure that it helps here, because arguably the right of residence was lost when the husband stopped living in the UK. And even if that is a not a problem, the UKBA is free not to exercise discretion if it is not felt appropriate.

[Obie]

You have made a brilliant point, but there are still room for manouvre.

The OP could argue that she was bringing up a union citizen child in the UK, and that gives her a mandatory right of residence in the UK under the national immigration rules ( Paragraph 257), and hence, all her period of residence in the Uk has been lawful.

Even though they will pick up on the fact that the husband was not exercising treaty rights, residence under Paragraph 257 is counted, without dispute as unbreakable residence.

[thsths]

Even though they will pick up on the fact that the husband was not exercising treaty rights, residence under Paragraph 257 is counted, without dispute as unbreakable residence.

That sounds like a plan, and it would grant the right to work. The UKBA may not like it, but certainly in a appeal the chances are pretty good I would think.

[lima22]

Thanx.
Definately i will be consulting a lawyer come tuesday.

And yes i can move to (ghana) uganda rather i just wanted to know my option while am still here.

Thank you all and i will let you know the outcome.
regards.