kiwi_pat wrote:Hi
I am hoping to get some advice on the following
I am currently on a 5 year Family residence permit expiring Sept 2017. I got married to my ex-wife (German Passport) in 2014 and separated 1 year later in 2015, we aren't divorced yet. We have a 5 year old boy who is currently attending school who has NZ and German passport, I see him 2-3 days a week as a mutual verbal agreement between ourselves. As my ex-wife cannot show that she has been self sufficient I cannot apply for an extension on my Family permit and a work permit is not possible as my role isn't on the short list.
I'm trying to find out what or if there are any other options that I can seek to remain in the UK to continue to be with my child.
Open to any feedback or recommendations anyone can provide
Thanks
Kiwi_pat
By way of preface, just because the validity of your residence card is fixed at 5 years does not mean that you have an automatic entitlement to be in the UK for five years. The card does not give you a right to reside in the UK independent of the Immigration (EEA) Regulations 2016. For example, in a scenario where an EEA national is self-sufficient, and is married to a non-EEA national with one child, but none of the three have comprehensive sickness insurance, none of the three have a right to reside in the UK, and all are in principle removable. This is irrespective of the fact that a residence document may previously have been issued to any of them that is, on its face, still valid.
Now, you are close to completing five years' residence in the UK as a family member of an EEA national. As such, you would normally qualify for permanent residence. However, you mention that your wife is unable to prove self-sufficiency. May I ask what evidence is missing - sufficient funds or health insurance or both? Just FYI, there have been signals from the Home Office suggesting that the health insurance requirement may be scrapped when the new "settlement scheme" for EEA nationals and their family members becomes operative. For now, however, we have to take the law as we find it.
If you are not presently or in the near future entitled to permanent residence, you may nevertheless continue to qualify under the Immigration (EEA) Regulations 2016. In this regard, you might qualify either
(a) as the father of an EEA national child or
(b) on the basis of your relationship to your (current) wife.
(a) To qualify on the basis of your relationship to your
child, your son first of all has to be exercising Treaty rights. Given his age, I assume he will only qualify on the basis of being self-sufficient. In either case, you will need to show that your son has sufficient resources and, crucially, either a European Health Insurance Card (EHIC - issued by an EEA state other than the UK, such as Germany) or private comprehensive health insurance.
Now, as a parent you are generally not regarded as a direct family member for the purposes of the 2016 Regulations. At most, you may qualify as an "extended family member" (EFM). If you are accepted as an EFM, that gives you full free movement rights and opens a path to permanent residence, but the Home Office has some discretion in deciding EFM applications. (I advise you to read the caseworker guidance at
https://www.gov.uk/government/publicati ... -nationals.)
If you are unsuccessful on the EFM route, you might still qualify under a derivative right of residence (although this is unlikely). However, this is contingent on your child's continuing to be under the age of 18 and, crucially, does not count towards permanent residence (although you may eventually qualify for Indefinite Leave to Remain under the 10-year Long Residence rule). To qualify under the derivative head, you would need to show that you are the child's primary carer, that the child is self-sufficient, and that the child would be unable to remain in the UK if you had to leave. The last part of the test is unlikely to be satisfied in your case, because even if you had to leave, your child could continue residing with your wife, all the more so in view of your separation. There is another derivative provision, but since your wife is not a worker, it is unfortunately inapplicable.
(b) You may therefore think it might be easier to remain in the UK on the basis of your relationship to your
spouse. As long as you remain married you continue to qualify as a family member, provided the marriage is legally valid and not a marriage of convenience (be prepared for some querying of this given the short time you spent together).
The problems will start if/once you are divorced, because then your (ex-)wife will cease to be a family member for the purposes of the 2016 Regulations. At most, therefore, you might qualify post-divorce on the basis of a retained right of residence. This requires, however, that you do not commence divorce proceedings before you've been married for at least three years,
unless (i) you have custody of your child or (ii) you continue to have access to your child by virtue of a court order stating that this access must take place in the UK. In other words, whether you retain your residence rights will depend on the timing and/or the terms of any future divorce.
You will want to avoid having to make an application under the (domestic) Immigration Rules. At present, this is particularly difficult as your child (presumably) does not have permanent residence and is thus not a "settled person" for the Immigration Rules. Stick with EU law if you can.
