Entry Clearance was not required

[naija99]

I have a friend who arrived in the UK from South Africa when SA was visa free. She was given entry and remained. SA later became non visa free.
She formed a relationship with a British citizen and they now have a 3 yr old son. They have submitted an FLR(M) application (unmarried partner application) and would like to know the chances. They have been living together for approx 5/6 yrs.

Is the application likely to be refused due to lack of entry clearance.
What is the position on those who entered the UK when it was not compulsory for them to obtain entry clearance?
Is there a requirement for them to return to their country of origin when that country becomes a state whereby entry clearance is required?

[vinny]

FLR(M) is likely to fail because 284(i) requires appropriate leave. However, as she has a British child, they may grant her discretionary leave.

See also Changes to the Immigration rules.

How long has she been in the UK?

[geriatrix]

Relevant?

[naija99]

She has been in the UK approx 7yrs.

Would it be advisable for her to submit a DLR app at this stage (i.e before 9 July) in anticipation that the FLR(M) may fail for lack of entry clearance and knowing that if it fails she will not be considered for DLR.

Is it wise to safeguard her position in this way to ensure that if the FLR(M) fails then she has the opportunity to be considered for DL outside of the rules by submitting an application before 9 July?

[naija99]

Would it be advisable for her to submit a DLR app at this stage (i.e before 9 July) in anticipation that the FLR(M) may fail?

[naija99]

Anyone?

Should they make a request for their FLR (M) application to be considered outside of the rules which I understand is still possible before 9 July or is a separate FLR O application required?

[geriatrix]

Should they make a request for their FLR (M) application to be considered outside of the rules which I understand is still possible before 9 July

Not possible, even if application is submitted before 09-Jul-12.

The statement of intent, in Appendix E, states the following:

Before 9 July 2012 you were granted discretionary leave - You will continue to be dealt with under the discretionary leave policy through to settlement if you qualify for it.

Note that it states "granted DL before 09-Jul" and not "applied for DL before 09-Jul". This gives the impression, to me at least and I stand to be corrected, that DL application on the basis of Article 8 will not be assessed according to the current DL policy after 09-Jul-12 even if such an application is submitted before 09-Jul, but will be subject to the new policy.

[naija99]

Just a quick update on this one and wondered if anyone can offer any advice:

The FLR(M) application that was submitted before 9th July on the basis of unmarried partner to a British citizen. The unmarried partner entered the UK from South Africa. She entered at a time when visas were not required. They have a two year old child together who is British derived from his British father.

The application was rejected as invalid. The application was version 04/2011 when apparently version 10/2011 should have been used. The couple were hoping that if the application was refused then Article 8 (which now falls under Appendix FM EX.1 of the rules) would have been considered.

1) It appears this is no longer possible so the couple would like to know whether they can still submit an unmarried partner application from inside the UK. I understand FLR(M) has changed again so not sure if this is possible.

2) Would Zambrano be a better option for the South African mother (or Chen)?

3) Any other possible options available to her?

[Kitty]

She can apply on FLR(M) as an unmarried partner and rely on EX1 if it would not be reasonable to expect her British citizen child to leave the UK. That would put her on a 10-year route to ILR if successful.

She could also apply under Zambrano if her British citizen child is dependant on her to exercise his rights of residence as a citizen of the European Union.

[naija99]

Thanks Kitty. Will let her know. Could you please send the link for EX1?

[geriatrix]

Exceptions

[naija99]

Thanks sushdmehta.

Would a Zambrano application be seen to contradict this FLR(M) application in the sense that Zambrano needs to prove that she is the sole carer for the child and FLRM on the other hand would be stating she is dependent on the father who is a British citizen?