primary carer of british child

[amro2012]

hi all,

please advise, my wife is non EEA NATIONAL and joined me in UK as family member of EEA national with EEA family permit, she never applied for residence card as family member of EEA national.

now my child(one year old )is British. does my wife eligible to submit Derivative Residence Card application as primary carer of British citizen child even she is family member of EEA national?

Any comments will be helpful

thanks

[Obie]

Why did she not apply for a family permit?

[amro2012]

Hi obie

My wife already living here in the UK with family permit .

[Obie]

I suspect my question is , on what basis did she get the family permit.

[CR001]

I suspect my question is , on what basis did she get the family permit.

Based on previous topics, OP appears to be an EEA national with PR.

[Obie]

I suspect my question is , on what basis did she get the family permit.

Based on previous topics, OP appears to be an EEA national with PR.

It makes no sense then to go for derivative residence.

[amro2012]

Hi obie,

Could you please explain. Can she apply as primary carer even she had family permit as family of EEA national ?

Thanks

[Obie]

Why cant she apply as a family member of you? On the basis of which the family permit was granted?

[amro2012]

Ok I understand. My question do we have option to choice between two options or it must be only as family member of EEA national?

Thanks

[amro2012]

Any help please or if someone had similar situation.
For personal reasons we don't want to apply as family member of EEA national.

In this case can I apply for my wife for residence card as primary carer of British child??

Any help will be appreciated

Thanks

[Obie]

No you can't. Even if your relationship is not working she can still qualify for residence card.

Derivative Residence does not lead to PR and is granted in limited cases and in exceptional circumstances.

[amro2012]

Thanks obie for your confirmation

[amro2012]

hi,

I did my own search but I could not find any regulation to support you said that I must apply for EEA family residence even my wife are eligible for derivative residence rights as primary carer of British child.

obie could you please refer me where I can find refer work.

Regards

[Obie]

Well if you did your research and it came up with contrary information, then by all means do what you research led you to. Dont view my post as restricting you in any way shape or form..

I know for certain that your wife cannot meet the terms of Zambrano, so I wish you the best in your endeavour.

Your wife clearly does not meet the legal or Zambrano definition of Primary carer.

[New on forum]

hi,

I did my own search but I could not find any regulation to support you said that I must apply for EEA family residence even my wife are eligible for derivative residence rights as primary carer of British child.

obie could you please refer me where I can find refer work.

Regards

Zombrano is a very much difficult to establish.
Don’t even go into that, I am a zombrano carer and trust me I know what is the criteria.
Being only primary carer is not enough to claim zombrano rights.
Go for eea residence card.

[vinny]

(a)is not an exempt person; and
...

(c)an “exempt person” is a person—
(i)who has a right to reside under another provision of these Regulations;
...

(8) A person is the “primary carer” of another person (“AP”) if—

(a)the person is a direct relative or a legal guardian of AP; and
(b)either—
(i)the person has primary responsibility for AP’s care; or
(ii)shares equally the responsibility for AP’s care with one other person who is not an exempt person.

[Obie]

OP's partner will clearly not meet the Regulation 16(5)(C) test anyway, even if I was wrong on the primary career test.
The child will not be legally compelled to leave the UK or the EU as OP has Rights under the Regulations.

So primary carer is not the only hurdle that has to be overcome.

[vinny]

Yes. It appears that there are many hurdles.
For example, when the other parent is also a Primary Carer and exempt.

[Obie]

Yes. It appears that there are many hurdles.
For example, when the other parent is also a Primary Carer and exempt.

Well if the other parent is an exempt person, then one parent cannot be a primary career for the purpose of that regulation.

The regulation envisages 2 situation.

One where there is a single mother or father taking care of the chid. The other parent is no where to be found or playing any role in the life of the child.

The other category is where you have 2 parents looking after a British child and both parents has no right of residence in the UK.

OP's wife does not meet either of these category.

As a matter of law, and for as long as OP remains in the UK, it will be open to Secretary of State to argue that both OP and his wife are exempt people, as the wife herself has a right of residence under regulation 14(2).

[New on forum]

The regulation envisages 2 situation.

One where there is a single mother or father taking care of the chid. The other parent is no where to be found or playing any role in the life of the child.

The other category is where you have 2 parents looking after a British child and both parents has no right of residence in the state.

Or if other parent lacks the ability to care for the child for example child protection concerns or any disability mental or physical.
What evidence is required can be argued.

[amro2012]

Thanks everyone for your help and clarification. I will go for EEA residence card.

I will search through the forum about the details how to apply for EEA2

Thanks obie and viny