Application Type.

[Humanity]

Hi All,

Could a well informed person direct me on the sort of application that needs to be put forward to HO.

X has two British Young Children currently living in West Africa. X is no longer in relationship with the Father(He is resident in UK) and X is the primary carer for both kids back in West Africa.

X has decided to bring the kids back to UK to continue their education and maintain their residency here. X has no form of residency in Uk but comes here atimes on Visit Visa. X is currently married to another person with whom she has a child( This child holds an international passport which is a non visa national for the purpose of visiting UK).

All these Kids are under the ages of 14. How does X apply for a settlement visa in Uk from West Africa and also the last child ( whom is not a British Citizen)

Regards,




In a nut shell , how can X come to Uk and care for her kids in Uk.

[Casa]

Is she intending to leave her husband (the father of her youngest child) behind?

[manci]

Doesn't seem possible as apart from any other requirement the BC children would need to be living in the UK for her to be eligible to apply.

[Casa]

Doesn't seem possible as apart from any other requirement the BC children would need to be living in the UK for her to be eligible to apply.

I was assuming that the BC children would be moving to the UK with their father before the mother submitted any application. There's also the issue of the non-BC child with the current husband. I don't see at present how they would qualify to accompany the mother if she applied for a visa enabling access to her other children in the UK.

[noajthan]

...

In a nut shell , how can X come to Uk and care for her kids in Uk.

Where is latest husband (Z) in this scheme?
- in UK or home country?
And his Immigration status (if in UK)?

Who has custody/parental responsibility of these BC and non-BC minors?

Available options appear to be a work (Tier 2) or study (Tier 4)-related visa (leaving aside other business/entrepreneur UK visa routes).
What skillset/career path does X have?
Does X have any plans (plus the finances) to study in UK?

[Humanity]

Hi All,

Thanks for taking time to give your insights. Will try and answer every questions raised.

Yes she is planning on leaving her husband for a awhile ( not separate) to raise the kids in UK. The current Husband is in West Africa with the family, they all living as one unit.

X has Legal Custody and Parental responsibility of all the kids with her current husband, (he is willing to let them all travel to Uk for the time being).

X current Husband maintains only one nationality, home country.

Your thoughts on this please :

What if X comes to Uk with all the kids ( while she is on visit visa ) and she applies to stay behind based on derivative residency ?

Since two of the kids are already British Citizens ( I don't see HO deporting her ) Article 8 can always be raised if all fails.

In regards to the Non-British Kid, she can always register to be British Citizen when she is old enough, currently 4 ( Like I said, she is non-visa national citizen,thus she doesnt require entry permit).

I will prefer a straight forward application and avoid complicating things if possible.

Finally, if the kids need to be maintaining residency in Uk before the Mother can be invited based on Derivative residency, how long does the kid have to be in the UK for ? Once again, thanks all.

[Wanderer]

Hi All,

Thanks for taking time to give your insights. Will try and answer every questions raised.

Yes she is planning on leaving her husband for a awhile ( not separate) to raise the kids in UK. The current Husband is in West Africa with the family, they all living as one unit.

X has Legal Custody and Parental responsibility of all the kids with her current husband, (he is willing to let them all travel to Uk for the time being).

X current Husband maintains only one nationality, home country.

Your thoughts on this please :

What if X comes to Uk with all the kids ( while she is on visit visa ) and she applies to stay behind based on derivative residency ?

Since two of the kids are already British Citizens ( I don't see HO deporting her ) Article 8 can always be raised if all fails.

In regards to the Non-British Kid, she can always register to be British Citizen when she is old enough, currently 4 ( Like I said, she is non-visa national citizen,thus she doesnt require entry permit).

I will prefer a straight forward application and avoid complicating things if possible.

Finally, if the kids need to be maintaining residency in Uk before the Mother can be invited based on Derivative residency, how long does the kid have to be in the UK for ? Once again, thanks all.

None of this will work.

[Casa]

This fails on several counts and the following five are just for starters without going into discussion about custody etc...
1. It's not possible to switch from visitor to any other category while in the UK.
2. If the Immigration Officer at the UK port of entry suspects an intention to overstay, both her and the child will be returned on the next available flight.
3. Article 8 isn't a golden ticket and in this situation stands little chance of succeeding.
4. It doesn't appear that the youngest child (with a different father) has any right to British citizenship.
5. A derivative residence application won't succeed as she won't be the prime carer of her BC children, as it appears the father will. See below:
"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’)"

[Humanity]

This fails on several counts and the following five are just for starters without going into discussion about custody etc...
1. It's not possible to switch from visitor to any other category while in the UK.
2. If the Immigration Officer at the UK port of entry suspects an intention to overstay, both her and the child will be returned on the next available flight.
3. Article 8 isn't a golden ticket and in this situation stands little chance of succeeding.
4. It doesn't appear that the youngest child (with a different father) has any right to British citizenship.
5. A derivative residence application won't succeed as she won't be the prime carer of her BC children, as it appears the father will. See below:
"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’)"

The Father is not the primary carer. The kids have no relationship with their Biological father whom they acquire their citizenship through. If the kids move to Uk , they will have to stay with a relative if the mum can not reside in Uk. Thinking Derivative can be argued on the grounds that the kids will have to leave EEA ( once they maintain residency here) without the presence on of their mum ,primary carer.

Custody issue is non-existent in this case.


All that said, thoughts on what will work is also welcome NOT just what wont work. Thanks

[Wanderer]

This fails on several counts and the following five are just for starters without going into discussion about custody etc...
1. It's not possible to switch from visitor to any other category while in the UK.
2. If the Immigration Officer at the UK port of entry suspects an intention to overstay, both her and the child will be returned on the next available flight.
3. Article 8 isn't a golden ticket and in this situation stands little chance of succeeding.
4. It doesn't appear that the youngest child (with a different father) has any right to British citizenship.
5. A derivative residence application won't succeed as she won't be the prime carer of her BC children, as it appears the father will. See below:
"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’)"

The Father is not the primary carer. The kids have no relationship with their Biological father whom they acquire their citizenship through. If the kids move to Uk , they will have to stay with a relative if the mum can not reside in Uk. Thinking Derivative can be argued on the grounds that the kids will have to leave EEA ( once they maintain residency here) without the presence on of their mum ,primary carer.

Custody issue is non-existent in this case.


All that said, thoughts on what will work is also welcome NOT just what wont work. Thanks

This is a list of what will work.















End of list.

[Casa]

I won't waste any more of your time then, but be aware that if you're advising her (in whatever capacity) you're way off the mark at present.

[vinny]

They will probably maintain that the best interests of the British children are that they remain with their mother and their non British sibling outside the UK, not to mention the mother's current husband.

A breakup of a loving and supportive family unit may be traumatising.

[Obie]

They will probably maintain that the best interests of the British children are that they remain with their mother and their non British sibling outside the UK, not to mention the mother's current husband.

A breakup of a loving and supportive family unit may be traumatising.

If Zambrano is engaged then the UK cannot say so without breaching the community law rights of the British Child in Question.

Without the fact it may be hard to conclude whether or not regulation 15A may be engaged.

It follows from Campbell that Entry clearance may have to be granted if Zambrano is engaged. It will all depend on the facts of the particular case.

[vinny]

Would Zambrano or 15A also be engaged for the remaining non British child in question?

[Humanity]

Thanks all again for you input.

Can you actually engage Zambrano at the point of entry and how do you go about that.

Kindly 'disregard' the last child when responding.

Also what if she decides to pursue other EU countries under EU Treaty Law? What her options?

Thanks.

[manci]

Can you actually engage Zambrano at the point of entry and how do you go about that.

no - the BC children would have to be resident in the UK to engage Zambrano. See:
https://www.gov.uk/government/uploads/s ... mbrano.pdf

1. It's not possible to switch from visitor to any other category while in the UK.

This is so as far as UK immigration law is concerned but suppose she was able to enter as a visitor with the 2 BC children and then enrolled them in a school, would her claim for derivative right of residence under EEA rules after, say, 6 months (which may or may not be sufficient to establish resident status for the children) not override UK immigration rules subject of course to the merits of the claim?

[Humanity]

Can you actually engage Zambrano at the point of entry and how do you go about that.

no - the BC children would have to be resident in the UK to engage Zambrano. See:
https://www.gov.uk/government/uploads/s ... mbrano.pdf

1. It's not possible to switch from visitor to any other category while in the UK.

This is so as far as UK immigration law is concerned but suppose she was able to enter as a visitor with the 2 BC children and then enrolled them in a school, would her claim for derivative right of residence under EEA rules after, say, 6 months (which may or may not be sufficient to establish resident status for the children) not override UK immigration rules subject of course to the merits of the claim?

Think you spot on,it will be the most likely outcome. Kids maintain residency here and trigger EU law. Ultimately HO will aim to frustrate the application. Inevitable it will succeed. The price will be time.

[vinny]

Kindly 'disregard' the last child when responding.

Resulting in the probable traumatic split up of the family unit for child?

[noajthan]

Think you spot on,it will be the most likely outcome. Kids maintain residency here and trigger EU law. Ultimately HO will aim to frustrate the application. Inevitable it will succeed. The price will be time.

It's not a golden ticket and doesn't lead to settled status.
There can and have been removals associated with Zambrano & the qualified HR Article 8:
https://eutopialaw.com/2014/05/28/zambrano-unwritten/

In case of removal of X it appears there are relatives of the BC minors in UK.

The fact there is half a viable family in home country (where BC minors have been living for some time, up until now) indicates the whole family can reside quite happily in home country. So no hardship in leaving UK and no established life in UK even if they get to UK.

And hard to see how X can sponsor the non-BC minor or husband into UK as X is not an EEA national.

[Obie]

Would Zambrano or 15A also be engaged for the remaining non British child in question?

I get your point vinny . Notwithstanding the fact that Regulation 15A (4A) will cover the parents, it is weird that regulation 15A (5) (b) does not extend to the other children of the primary career of Zambrano children who are not British.

It seems really odd. I doubt it will stand judicial scrutiny.

It may be an error in drafting.

How can it be anything but nugatory, if the primary careers cannot bring their other children who is dependent on them.

I think 15A (5)(b) appears to go against the letter and spirit of Zambrano.

[manci]

It seems to me that under 15A(5)(b), and provided X is granted a derivative right of residence, her non-BC child would also be eligible for it but only if X is the non-BC child's primary carer. This is also confirmed in the HO document:
https://www.gov.uk/government/uploads/s ... mbrano.pdf