EEA 4, 10 years married, separated for 5, still no divorce

[stillondedams]

Hi all

I am a silent member of this amazing forum, but just summoned courage to ask about my case. please i am sorry to bore you with my sad story but i really need advise and would try to summarise.
I married an eea national in 2006, joined him in 2007 in a european country, had first child in 2008, had second child in 2009 but sadly she passed, moved to the UK with him and child in 2009, fell pregnant and had still birth in 2010. Obtained residence card September 2010 valid till september 2015. Things were not going well with marriage, lots of DV, and i mean DV. finally marriage broke down in 2011 due to DV which involved the police and a conviction for him. Divorce proceedings started since 2012, and till date, no divorce or anything close to it.
I have since gone into another relationship, and have a child to a british father. My child was refused his british nationality because home office claims i am still married even though he is born to another father and that he has to get his nationality from the man i was "married" to at the time of his birth. Is this possible?

I have applied for PR as i was told i am still considered a family member and since september last year, i have not had a decision. I have lost a job offer with hmrc as they won't accept coa. had my wicked ex-partner agreed to divorce, i would have applied for ror and then subsequently pr. i have been in employment since 2010, only stopped for maternity but still with same employer.

I really don't know what to do, i have contacted home office and they said it has not been decided yet and they don't know how long it is going to take, i feel lost.
My ex-partner has since gone into another relation with another woman who has a child for another father, he apparently wants custody of our child together because he swore he would take the child away from me.

If anybody can advise what is my best option, if any, i would appreciate.

Many thanks.

[noajthan]

In first place, suggest sit tight and wait for the outcome of confirmation of PR.

Regarding your youngest child, the relevant legislation changed in autumn 2015. When was child born?

Under the new rules, a birth certificate would be one of a list of documents capable of evidencing paternity, but it will no longer be the prima facie proof of paternity.

For example, DNA evidence may now be submitted as part of the application to rebut the assumption that the named father is the natural father.

Other factors such as the whereabouts of a man at the time of the child’s conception may also be provided as evidence to discount the veracity of the named father on the birth certificate.

In practice this means that people who make an application for a British passport for their children on the basis that the father is British (or has Indefinite Leave to Remain) will need to provide additional evidence as proof of paternity.

See also
https://www.freemovement.org.uk/proving ... tificates/

[Richard W]

I have since gone into another relationship, and have a child to a british father. My child was refused his british nationality because home office claims i am still married even though he is born to another father and that he has to get his nationality from the man i was "married" to at the time of his birth. Is this possible?

Yes. In short, since 1st July 2006, the British Nationality Act 1981 says "For the purposes of this Act a child’s father is— (a)the husband, at the time of the child’s birth, of the woman who gives birth to the child, or..." , in Section 50(9A) to be precise. In such a case, the biological father is irrelevant for nationality purposes. On the other hand, it is the biological father, not the mother's husband, who gets parental rights and responsibilities.

Now, if your husband had worked for 5 years continuously in the UK before your son was born, then he had acquired PR, making him 'settled' and so your youngest child will still be British! (Section 1(1)(b) of the British Nationality Act 1981.) Unfortunately, proving that your husband had achieved PR might not be easy.

[Richard W]

Other factors such as the whereabouts of a man at the time of the child’s conception may also be provided as evidence to discount the veracity of the named father on the birth certificate.

I doubt that this has any relevance to the OP's post. No-one has suggested that the birth certificate of the OP's youngest child is incorrect.

[noajthan]

Other factors such as the whereabouts of a man at the time of the child’s conception may also be provided as evidence to discount the veracity of the named father on the birth certificate.

I doubt that this has any relevance to the OP's post. No-one has suggested that the birth certificate of the OP's youngest child is incorrect.

Let the OP tell her story instead of second-guessing for her.

[stillondedams]

Thank you all for your responses. The child was born in 2013 (January), the application for his passport was rejected 3 times, 2 times they gave reasons that the people who attested for me did not meet the criteria, and the 3rd time, they initially asked for plethora of evidence such as birth cert of both parents, marriage/divorce cert of both parents, red book, maternity notes, bank statements for 5 years, proof addresses of both parents for 5 years, child benefit letter, pictures with both parents and the child at the time of birth, letters from nursery, the list was endless. i provided what i could and they came back to ask if mother and child are living in the UK, and i told them they must be joking, even when they have payslips from me and nursery letter, how can i be out of the country and have these evidences. finally they came back to say because i was not divorced at the time of his birth, the child would have his nationality from the man i married.

My ex-partner up till the time of separation was working, and even after that, but at some point in 2012 when he was asked to pay child support, he claimed he wasn't working and that he was a student, so i have no clue how long he was a student for, but from late 2013 when contact was granted, he used to say to my son that he was working and now i know he is working. i am not sure he had the csi i have read a lot about in this forum when he was studying which is another worry for me regarding my application.

My second son's birth cert has his father's name which is different from mine, applying for his passport under the man i have not divorced from would look ridiculous, i don't know what to do about that.

I am also concern home office would delay my application to see if the divorce would come through. I am so worried and confused.

[noajthan]

If estranged husband's economic and other activity (eg studying) in UK really has been so disorderly then, without having a clearer timeline, it's hard to say how he may or may not have exercised treaty rights; or whether he will be considered as an EEA qualified person.

Your current application for confirmation of PR is likely to succeed or fail on the quality of the documentary supporting evidence that was submitted to back up your case.

[stillondedams]

Thank you for your reply, i guess all i can do now is wait and see what the outcome of my application would be, if i would have to pack my bags and kids and go back to my home country. .

[Richard W]

My second son's birth cert has his father's name which is different from mine, applying for his passport under the man i have not divorced from would look ridiculous, i don't know what to do about that.

The birth certificate is correct. There is nothing that needs to be done about it.

At some point in the next 14 years he should be registered as British. The form will probably be MN1, and the routes, identified by Sections of the BNA 1981 will be:

s3(1) - Registration at discretion on the basis that he is the natural son of a British citizen. My only concern is that this might be considered an abnormal case.

s1(3) - If you get your PR card, then he will be entitled to register.

If you can take thinks slowly, he can registered once he reaches the age of 10 using Form T under s1(4), but in the first ten years of his life he must have spent no more than 90 days outside the UK. Registration under this route can be done at any age 10 or above.

If your PR card is refused, apply for an ordinary Residence Card and make plans to switch to the family immigration route. It will be easier to take if your youngest child has become British. Until the decree absolute, you and your children are still family members of your husband.

[Richard W]

Thank you for your reply, i guess all i can do now is wait and see what the outcome of my application would be, if i would have to pack my bags and kids and go back to my home country. .

The (imminent?) legal judgement on when the retained rights begin in cases of domestic violence looks rather promising.

Additionally, the promised 'clarification' (allegedly conditional on the UK staying in the EU) that marriages that have broken down will no longer count for EEA law may also advance the date of termination of marriages and might thereby help your case. However, some people think this promise is fraudulent, and also say it is not clear how this change in the law as understood will take effect.

Did your CoA say that you had the right to work?