EEA2 application- unmarried partner, overstayer with a baby

farneybunny · Post by **farneybunny** » Fri Apr 25, 2008 4:06 pm

I have read different websites and the more I read, the more confused I get

. SO I would appreciate it if anyone could advice me on this..

I am a NON-EU citizen and from East Asia, my partner is Italian. I came here under student visa and I have now overstayed my visa for a year at the end of this month. The thing is we have not been living together for 2 years (almost 1 year) although we have been together more than that. I recently gave birth to our son and now we're looking to apply for EEA2 for myself. His whole family moved here since 15yrs ago(he completed his education in UK and now working). I was just wondering what are the chances of me getting the Residence Card being that I am an overstayer, we have not been living together for 2 years although we have been in a 'durable relationship' and the fact that we are not married?? We do plan to get married but obviously I couldn't apply for COA and hoping to do if I get the residence card?

We obviously cannot go back to my country (more like we're trying to sort it out whilst I'm still in the country as some ppl have advised it would be easier) and also

being that our baby is still very young (6 weeks) old. WE have kick-start on the application form but I would appreciate it if anyone can advice me on the chances and what I should do to strengthen my application so they will not have any reason to reject me although I'm only considered as extended family member? We are planning to submit both his EEA1 application and my EEA2 application together.

Please advice me on this.

thsths · Post by **thsths** » Fri Apr 25, 2008 4:25 pm

farneybunny wrote:WE have kick-start on the application form but I would appreciate it if anyone can advice me on the chances and what I should do to strengthen my application so they will not have any reason to reject me although I'm only considered as extended family member? We are planning to submit both his EEA1 application and my EEA2 application together.

There are two potential problems, because you are an extended family member (unmarried partner). The first one is that you do not automatically get a right of residence, so you do not have a legal status at the moment. That may be used as an excuse to refuse the Residence Card. The second problem is that you have not been together for the required two years. I would consider the child to demonstrate sufficient commitment, but this is a question of judgment. I would give it a try anyway, since it will secure your status for quite a while (until all options to appeal are exhausted).

You can also apply for a Certificate of Approval, so you can get married. It seems that your status is not necessarily a reason to refuse this, although the reports are certainly contradictory.

If you can get a visa to another European country (e.g. your partner's), you can get married there. Once married, you have the right of residence, so getting a visa to the UK should be pretty easy.

Tom

farneybunny · Post by **farneybunny** » Fri Apr 25, 2008 5:00 pm

HI, Thanks for your reply.

Of course I don't have a legal status here being that I'm already illegal but being a partner and a mother to a EU citizen should make a difference?And we have been together for 2 years it's just that we have not been living together for 2 years? I rang HO and they told me to file the EEA2 application under this circumstances. The only thing we have for our baby is the birth certificate.

Regarding abt the COA, illegal immigrants are not entitled to get it. I know some ppl have got it eventhough they are illegal but I have been adviced to apply under EU law as applying COA is UK law and the chances of being remove is higher,no? Please correct me if I am wrong? Surely I know some would say that having a baby doesn't prove a relationship but to a certain extend (in my case esp) I'm sure it's a factor as well?

Read, I was given this link and I'm still unsure.

http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary

http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary

tasha75 · Post by **tasha75** » Fri Apr 25, 2008 9:59 pm

I think your chances are very very slim. Is there a reason why you cannot go home and apply for the EC from there?
At my appeal last year I was told that had my partner been settled in the UK (like your partner) then I would be expected to go home and apply for the entry clearance from there. And by that time we had been together for over 3 years, living together for 2.5 years with 2 children.
Applying from your country would save you a lot of nerves and money not to mention the time of living in limbo. I suppose this is not what you'd like to hear.
But I am certainly not an expert and only speaking from the personal experience and from reading similar stories for the past 2 years.

Also, have you read some of the stories on this site?
http://www.immigrationboards.com/viewto ... highlight=
they were together for 4 years with a 3 y.o. baby, still got refused
or this:
http://www.immigrationboards.com/viewto ... highlight=

farneybunny · Post by **farneybunny** » Fri Apr 25, 2008 11:10 pm

thanks for the reply....

I have read the 2 posts you sent me but in their cases, they applied for COA which clearly states that illegal immigrants cannot apply for that although I have read and know some overstayer who got their COA despite what the law said.

Tasha: Obviously it's not what I want to hear but I would like to hear ppl's experiences and opinion... in your case (correct me if i'm wrong, but your partner wasn't here long enough to acquire a premanent resident and that's why you got rejected?) My partner spent half his life in this country, finishing his high school and further education and working..his whole family is here.The other reason I did not mention is I'm a muslim and my partner is a catholic and my family did not want anything to do with me or the baby so if i were to go back, where am i supposed to live? I am the only child and my father passed away a while ago. Again, how do i prove this if i were to put it on the table as one of the reasons?

I have read some and this may sound a bit sexist, surely they cannot deport me home as what is going to happen to my baby? He was born here? I'm trying to imagine the worst possible scenario but trying to find the best options and solution....I'm so confused.....

tasha75 · Post by **tasha75** » Sat Apr 26, 2008 3:06 am

farneybunny wrote:... in your case (correct me if i'm wrong, but your partner wasn't here long enough to acquire a premanent resident and that's why you got rejected?)

No, this was not the reason for my rejection. Quite contrary, my appeal was allowed because of this. Had he been here long enough to acquire the right to permanent residence then the appeal would have been dismissed as I would have been expected to go back home and apply for EC.

.
The other reason I did not mention is I'm a muslim and my partner is a catholic and my family did not want anything to do with me or the baby so if i were to go back, where am i supposed to live?

You know,HO doesn't care at all. But it might be viewed as compelling or exceptional circumstances when it'll come to court. Again, from my case - I have noone left in my country, my children are mixed race and my country is well known for facial hatred, still the HO didn't care. But it was favourably viewed in court.
Seek professional advice in this case. But as I said, if you decide to put an application in-country - prepare for a long and costly fight

surely they cannot deport me home as what is going to happen to my baby? He was born here?

I am afraid you'll find it that they can. You'll be givemn an option of leaving your child here, while you are going home to apply for the EC, or to take s/he with you. The child is free to stay or go, but you are not. This was put in my rejection letter. Even though both my kids were born here as well.

Twin · Post by **Twin** » Sun Apr 27, 2008 3:34 am

tasha75 wrote:
farneybunny wrote:... in your case (correct me if i'm wrong, but your partner wasn't here long enough to acquire a premanent resident and that's why you got rejected?)
No, this was not the reason for my rejection. Quite contrary, my appeal was allowed because of this. Had he been here long enough to acquire the right to permanent residence then the appeal would have been dismissed as I would have been expected to go back home and apply for EC.

.
The other reason I did not mention is I'm a muslim and my partner is a catholic and my family did not want anything to do with me or the baby so if i were to go back, where am i supposed to live?
You know,HO doesn't care at all. But it might be viewed as compelling or exceptional circumstances when it'll come to court. Again, from my case - I have noone left in my country, my children are mixed race and my country is well known for facial hatred, still the HO didn't care. But it was favourably viewed in court.
Seek professional advice in this case. But as I said, if you decide to put an application in-country - prepare for a long and costly fight

surely they cannot deport me home as what is going to happen to my baby? He was born here?
I am afraid you'll find it that they can. You'll be givemn an option of leaving your child here, while you are going home to apply for the EC, or to take s/he with you. The child is free to stay or go, but you are not. This was put in my rejection letter. Even though both my kids were born here as well.

Good to see you around, Tasha. I see that you are well on your way to becoming an immigration consultant...

It's nice to see that you still come around to offer advise to people on the forum.

How's the new life? The baby and the new house? I'm sure you're loving it. Please stay around for longer, I've missed you.

Post by **Directive/2004/38/EC** » Sun Apr 27, 2008 6:42 am

farneybunny wrote:The only thing we have for our baby is the birth certificate.

What citizenships does the child have? UK and Italian? You may want to apply particularly for the Italian passport of the bouncing baby, which would always give you the option of using Chen to remain http://eumovement.wordpress.com/2007/02/09/chen-case/ Your partner would of course not be prevented from working, though you might not be able to work if you went this route.

I actually think you can apply for a Residence Card as the partner of an EU citizen and I suspect you will have no problem. There is no hard rule requiring 2 years of living together that I am aware of - each case has to be looked at individually. And a baby is a pretty clear sign that it is not a fraudulent relationship.

tasha75 · Post by **tasha75** » Mon Apr 28, 2008 12:25 pm

Twin wrote: Good to see you around, Tasha. I see that you are well on your way to becoming an immigration consultant...

Moi? An immigration consultant? Aren't we all here

No, I am only speaking from personal experience which I wouldn't wish to anyone. You know yourself how stressful all this business is - refusals, appeals, not knowing what's there tomorrow.

How's the new life? The baby and the new house? I'm sure you're loving it. Please stay around for longer, I've missed you.

Aaaah, thank you my dear. I don't always have time to write, but I try to read on here most of the days, and I follow your story closely and pray that you'll finally be successful. May God help you.

My life? Busy, busy, busy. 3 kids is not a joke, I tell ya

. There is a school work to do with the eldest, then it's a 2year tantrums and a potty-training, and then there is a baby, who demands his food all the time.

thsths · Post by **thsths** » Mon Apr 28, 2008 2:58 pm

Directive/2004/38/EC wrote:What citizenships does the child have? UK and Italian? You may want to apply particularly for the Italian passport of the bouncing baby, which would always give you the option of using Chen to remain http://eumovement.wordpress.com/2007/02/09/chen-case/

I think that is an excellent idea. Even if you do not have a durable relationship with your partner, certainly you do have one with your child! This seems to be the essence of Chen, which defines a right of residence *and parental care* for the child.

I would certainly mention both your partner and your baby in the application. I guess for the form you have to pick one as your sponsor, but if it goes to court, the whole situation is considered.

Tom

farneybunny · Post by **farneybunny** » Mon Apr 28, 2008 4:02 pm

Directive/2004/38/EC wrote:
What citizenships does the child have? UK and Italian? You may want to apply particularly for the Italian passport of the bouncing baby, which would always give you the option of using Chen to remain http://eumovement.wordpress.com/2007/02/09/chen-case/

Thank you for atleast giving me a lilttle bit of hope instead of deciding whether I will get it or not like most people in here do. We are planning to get him an Italian passport and this hopefully, will happen within the next few days. I would really appreciate it if you can let me know if there are other things I need or can do to strengthen my application.

I would certainly mention both your partner and your baby in the application. I guess for the form you have to pick one as your sponsor, but if it goes to court, the whole situation is considered

I am planning to mention both my partner and baby in the application which include sending my baby's birth certificate and also hopefully, supporting letters from GP, Midwife, my partner's mom and a friend of ours just to clarify that this is a genuine relationship. Also, what do you mean by the form I have to pick up? I thought the EEA2 form is the one I need?

Post by **Directive/2004/38/EC** » Mon Apr 28, 2008 4:28 pm

He was just saying that you need to mention both your EU citizen family members â€“ your partner and your child. Your rights derive from both of these people.

EEA2 form is the one you want to use.

Chen case is a good backup option. But your rights would be limited with it, and would not include working if you wish.

If I were doing this, I would try to not focus on the baby too much with your EEA2 application â€“ I would probably not include a photocopy of the babyâ€™s passport, just itâ€™s birth certificate. I would not mention the Chen case in the initial application. If, for some strange reason, you do not receive the normal Residence Card on the basis of your relationship with your partner, then you can make a new application on the basis of the Chen ruling.

Relax about all this though, and try to enjoy the amazing times of your small baby.

thsths · Post by **thsths** » Mon Apr 28, 2008 4:29 pm

farneybunny wrote:Also, what do you mean by the form I have to pick up? I thought the EEA2 form is the one I need?

Yes, EEA2 is the correct form. But it has only one field for your sponsor (the "EEA national"), so you should probably put your partner there. You can still mention your baby in a cover letter, and you should make it clear that you also apply as the parent of the baby.

Tom

Ben · Post by **Ben** » Mon Apr 28, 2008 7:50 pm

Directive/2004/38/EC wrote:
farneybunny wrote:The only thing we have for our baby is the birth certificate.
What citizenships does the child have? UK and Italian? You may want to apply particularly for the Italian passport of the bouncing baby, which would always give you the option of using Chen to remain http://eumovement.wordpress.com/2007/02/09/chen-case/

My thoughts exactly. The child is likely to be a citizen of three countries: the UK, Italy and the country of the OP.

OP, what country are you from?

farneybunny · Post by **farneybunny** » Tue Apr 29, 2008 3:00 pm

Hi all, thanks for the advice.

I'm from Malaysia

Directive:

I would probably not include a photocopy of the babyâ€™s passport, just itâ€™s birth certificate.

.

Is there any particular reason why I shouldn't? I did think of saving it until I'm forced to bring out more evidence but on second thoughts I thought it would be best to show them everything I have got so they won't have any reason to reject my application, no?

Post by **Directive/2004/38/EC** » Tue Apr 29, 2008 3:18 pm

farneybunny wrote:Is there any particular reason why I shouldn't? I did think of saving it until I'm forced to bring out more evidence but on second thoughts I thought it would be best to show them everything I have got so they won't have any reason to reject my application, no?

Interesting question.

If I were in the situation, I would want a full Residence Card so that I could work later if desired. So this is what I want to focus my application on. And this is something that in most cases they must issue to you, since it is just a confirmation of the rights you already have as the partner of an EU citizen.

My second option is to stay through the Chen ruling, since there are a lot more restrictions on me. This I want to keep as the ace up my sleeve.

My concern is that you advertise that you are also Chen compatible, then there is an increased possibility of BMI worker deciding to give you Chen rather than the Residence Card. If they do not have that option, then they might be more likely to just issue the normal Residence Card.

I suspect that in any case they will just issue the Residence Card. So Chen is just nice case law to be aware of.

farneybunny · Post by **farneybunny** » Tue Apr 29, 2008 4:43 pm

Directive: Thank you so much for patiently explaining to me. A lot of what you said made sense to me and I think I might have to follow your way in the sense that I would want to get the full residence card as given chance,I would love to work at some point (I'm an accountant by profession)

Here's the big question: What are the chances as I'm an overstayer (overstayed my student visa by one year in coupld of days- I was doing my chartered acc course) and I have been told that there are chances of me being deported without my baby, is that true? This issue is really bugging me. And there was something you mentioned in the previous post about there is no hard rule about living together for 2 years. I have a mixture of both scared and the fact that I just want to submit my application and get it done and over with.

Post by **Directive/2004/38/EC** » Tue Apr 29, 2008 5:29 pm

I don't know your situation in detail and do not know enough about how BMI deals with applications. I can't tell in any useful way.

You might want to submit a question about your situation to http://ec.europa.eu/citizensrights/

If your initial application is not approved, I would also immediately submit the follow up application.

tasha75 · Post by **tasha75** » Tue Apr 29, 2008 9:47 pm

farneybunny wrote: Thank you for atleast giving me a lilttle bit of hope instead of deciding whether I will get it or not like most people in here do

Sorry if you felt that way but it is not up to us, forum members to decide whether you should be issued with a LTR or not. I can't speak for everyone but having been in a similar situation myself I wouldn't wish it to anyone, especially someone like you with a small baby. You have enough sleepless nights as it is. But the thing is when it comes to the Home Office I hold no illusion. That bunch of robots are notorious for rejecting many (most?) applications that are just a bit out of the standard requirements. I've seen many strong applications on this forum over the past few years which unfortunately got rejected.
I didn't intend to scare you, however if you are planning on applying in-country then you have to be prepared for the fight. But as the saying goes "prepare for the worst but hope for the best".

tasha75 · Post by **tasha75** » Tue Apr 29, 2008 9:58 pm

farneybunny wrote: I would really appreciate it if you can let me know if there are other things I need or can do to strengthen my application.

If you are planning on using Chen, then the baby will need a health insurance. Even if you are not planning on using Chen immediately, I think it would be a good idea to get a health insurance now, so when the time comes it will not look as if you've taken the insurance just for application purposes.

At my appeal the judge actually asked why our insurance had only started a couple of weeks prior to the court hearing. The reason was that my partner had a health insurance through his employer, but when they had a take-over their new employer did not provide corporate insurance so we had to take a new policy. And luckily I also have a cash-back insurance through my employer which covers me and all my children under 18. We presented everything to the judge and he seemed satisfied.

Post by **Directive/2004/38/EC** » Tue Apr 29, 2008 10:01 pm

The baby has health insurance NHS through the father.

Actually now that I think about it, this is an interesting variation on Chen. If it comes to that, you should definitely consult with a solicitor.

tasha75 · Post by **tasha75** » Tue Apr 29, 2008 10:07 pm

farneybunny wrote:I have been told that there are chances of me being deported without my baby, is that true?

I don't know about your chances but what I said earlier was actually written in my rejection letter -
Whilst it is acknowledged that you may have established a family life in the UK with your children, it is not considered that your removal from the UK will amount to a breach of Article 8 since there is no insurmountable obstacles to your children accompanying you to your country should this be their wish. Your children are free to accompany you abroad (but they were still served with IS151A)....However, even if your children are unable or unwilling to accompany you, it is not considrede that your removal will amount to an unlawful interference with your family life in the UK....
...your rights to private life have also been considered. whilst it may be accepted that during your time in the UK you may have established a private life, it is believed that any interference can be justified. Your private life has been established partly whilst you have been in this country unlawfully, in the knowledge that you have no right to be here and may be removed at any time........
In view of the above we do not accept that the existence of your family or private life in the UK is a sufficiently compelling reason ....

tasha75 · Post by **tasha75** » Tue Apr 29, 2008 10:50 pm

Directive/2004/38/EC wrote:The baby has health insurance NHS through the father.

Do you think that NHS is enough? Why then my barrister and the judge specifically asked about private health insurance when (almost) every EU child would be entitled to NHS.
Also, the Chen case and the EEA Regulations 2006 keep referring to a comprehensive sickness insurance.

14 .# Regulation 4(1)(c) of the EEA Regulations 2006 states that:

"(c) "self-sufficient person" means a person who hasâ€”

(i) sufficient resources not to become a burden on the social assistance system of the United Kingdom during his period of residence; and

(ii) comprehensive sickness insurance cover in the United Kingdom; ... ."
................................

# In keeping with Directive 2004/38, the EEA Regulations 2006 confer a derivative right of free movement and residence upon certain family members of an EU national exercising a right such as that found in Article 18 EC Treaty. Where that is the case, the whole family (including the family members) must be self-sufficient. Regulation 4(2) requires that the EU national's "family members" are also covered by comprehensive sickness insurance and the total resources of that individual and his family are adequate to avoid them becoming a burden on the social assistance system. It provides as follows:
......
(b) the requirement for that person to have comprehensive sickness insurance cover in the United Kingdom shall only be satisfied if he and his family members have such cover."

http://www.bailii.org/uk/cases/UKIAT/2006/00096.html

The need for comprehensive health insurance

# As regards the requirement for comprehensive health insurance, it is clear from a policy document at pages 49-50 of the appellants' reconsideration bundle that the family has been covered since 8 March 2006. Although it was not a point taken by the Secretary of State in refusing the applications, it seems that this element of the self-sufficiency requirement was at least satisfied at the date of the hearing before the immigration judge. That undoubtedly suffices (see, SGC and others (EEA â€“ Date of Decision â€“ 1999 Act) Ireland [2005] UKAIT 00179 at para [25]). In the light of this, we say no more about this requirement and move on to the issue of resources.

tasha75 · Post by **tasha75** » Tue Apr 29, 2008 11:00 pm

Directive/2004/38/EC wrote: My concern is that you advertise that you are also Chen compatible, then there is an increased possibility of BMI worker deciding to give you Chen rather than the Residence Card. If they do not have that option, then they might be more likely to just issue the normal Residence Card.

I suspect that in any case they will just issue the Residence Card.

Interesting point. I now wonder what type of LTR would be issued if the application is based on Chen?
My appeal was based on Chen and Baumbast and in the letter from the HO requesting my passport it says:
Thank you for your application for further leave to remain.
....
With regards to (child's name), after the issue of her mother status papers the file will be forwarded to euro support in order to issue (child) with a residence card under EEA regulations.

So obviously, it will not be a residence card for me and I assumed it will be DLR but now I am not so sure.

Twin · Post by **Twin** » Wed Apr 30, 2008 10:36 am

tasha75 wrote:
farneybunny wrote: Thank you for atleast giving me a lilttle bit of hope instead of deciding whether I will get it or not like most people in here do
Sorry if you felt that way but it is not up to us, forum members to decide whether you should be issued with a LTR or not. I can't speak for everyone but having been in a similar situation myself I wouldn't wish it to anyone, especially someone like you with a small baby. You have enough sleepless nights as it is. But the thing is when it comes to the Home Office I hold no illusion. That bunch of robots are notorious for rejecting many (most?) applications that are just a bit out of the standard requirements. I've seen many strong applications on this forum over the past few years which unfortunately got rejected.
I didn't intend to scare you, however if you are planning on applying in-country then you have to be prepared for the fight. But as the saying goes "prepare for the worst but hope for the best".

You couldn't have said it better! I am a living testimony of all you've written up there!

Chances do seem better for EU citizen partners though.

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EEA2 application- unmarried partner, overstayer with a baby

EEA2 application- unmarried partner, overstayer with a baby

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