noajthan wrote:Unclear how son was issued with RC in the first place.
Its unclear who son's EEA sponsor was as you were already divorced when son came to UK.
Someone with ROR (eg you) retains residence on a personal basis. They cannot sponsor other family members.
It seems as though someone were following free-movement directive, Directive 2004/38/EC, rather than the (British) EEA Regulations! The son was born a family member of the OP's first husband, and all that's stopped him retaining a right of residence is that he wasn't residing in the UK when the divorce occurred (Regulation
10(5)(b)). Regulation 10(5)(b) has to be deduced from the general tenor of the directive; the requirement is not there explicitly in the directive (and I'm not sure it's there at all).
Alternatively, the caseworker simply didn't notice that the son was not resident at the time of the divorce. The current instructions (p23 of
https://www.gov.uk/government/uploads/s ... _clean.pdf) call for evidence of the applicant's "residence in the UK for at least one year during the marriage". However, a whole year's residence is only required for the former spouse; the EEA Regulations do not require it for the former spouse's children.
The other issue is the son's paternity in law.
If we can trust the OP's arithmetic, the son was born on or after 1 July 2006. Consequently,
if the OP's first husband had become British by the time the son was born, the son would be British. The identity of the biological father is irrelevant.
There is the possibility that in general law the son might be the first husband's, whatever the biological truth of the matter. (Foreign law may determine the legal position.) In that case, ROR might not be relevant; instead the first husband's status as a qualified person or permanent resident would be. By the
Diatta judgement, it would be enough that legal father and son reside in the same member state. However, a birth certificate identifying the relevant parent (the first husband, in this case) is now required, and there is no such document.
Turning to the rejected 'renewal', I'm wondering if the caseworker applied the RoR criteria but misapplied Regulation
10(6). The evidence to be checked is specified as being that for a qualified person, but the regulations do not prohibit that person from being British. I'm not sure if it is worth reapplying claiming that the McCarthy traditional arrangement would apply if it were relevant that the the OP is now British, but adding that is not relevant as the OP is claiming to be a worker (or self-sufficient, or whatever), and that being British is irrelevant to whether one is such . The obvious problem is that the son does not meet the requirements of the British EEA Regulations as they stand, and any (permanent) residence card obtained now may be revoked in the future when it is realised that Regulation 10(5)(b) is not satisfied. There may also be a problem with any declarations required by the application form.
