Similar cases and their results? Best interest of child

[Natgeb]

I am looking for similar case situations to my own and relative case results if any? Guidance and Advice?
My family situation:
I am an American citizen. My wife is British. Our son has both Britsh and American citizenship.
I came to the UK in 2006 on a work visa, I met my future wife not long after. We applied for a marriage certificate, it was granted. We married in 2008. I was on a work permit until 2009. Before my permit expired I applied for a spouse visa and that was granted until 2011.
In 2010, we departed the UK for America. My wife was granted a green card for two years. We had our son in 2011. Soon after we realized it would be in his best interest if he were raised in the UK. This was for multiple reasons all pertaining to his well-being. My wife returned to the UK with our son in August 2012. I remained in the USA as I was still working.
I came to the UK at the end of September as a tourist to be with my family for our sons birthday, which was in October. I had a return flight booked a few days after his birthday. However we soon found out that immigration rules had changed. We realized if I returned back to the USA and I applied for a visa there it would have been refused as we did not meet the requirements set out by UKBA. We contacted a solicitor, whom we are still working with. They suggested we apply while I was here in the UK on grounds of Best Interest of the Child Article 8(human Rights).So we did.
While waiting for a decision from the Home Office I was issued a letter by the Border Agency requesting a meeting in Portsmouth. The reason for the meeting: to determine if I entered the UK illegally. I was escorted to a room where I was told I was under caution and questioned. The officer stated they usually conducted these types of meetings at a police station(department). She stated they were trying to conclude if I had been deceitful upon my entering the UK, as well as my intentions etc.
The Outcome: after the meeting I was told by the officer she was going upstairs to meet with her superior to discuss their findings. She returned and told me they were satisfied that I had not been deceitful and had entered the UK LEGALLY. She also added they would have preferred I entered on a proper Visa. Following our discussion she informed me that her superior upstairs was the agent presiding over my visa application.
My solicitor was not present at this interview. I am not sure why?

The UKBA decision: The application was REFUSED.Reasons given by UKBA:
-We did not meet the financial requirements
- I was in the UK as a tourist
-My relationship with my wife is subsiding therefore I don't have sole parental responsibility of our child
-They don't find it unreasonable our son return to the USA where he was born with me. My wife could return with us if she wished to do so
-Particular significance was put on my failure to obtain the correct entry level clearance prior to my traveling to the UK. Especially given my experience with other applications from my prior stay in the UK.

The refusal letter also stated I should be removed from the UK and returned to the USA.
I cannot see here where any weight was giving in consideration of the child's best interest? If they are to look at this with great care they certainly did not.

Other items we submitted but were not considered.
- My wife has been employed full-time since returning to the UK
-An offer letter for employment for myself pending the visa decision

We have filed an appeal with the First Tier Tribunal. We have not heard anything as of yet

My questions/concerns:
My solicitor doesn't really seem to be applying all cases which I have read about on this forum. In fact they seem more interested in collecting fees from us.
Has anyone any advice on my particular case?

I have read about the Free Movement Directive, however I'm not sure I fully understand how to fully apply it. That can be for another forum. We would consider this if our case is refused.
Does anyone have contact for a solicitor for either the EEA Directive or most importantly our current case for appeal?

[Amber]

See Guidance on application of EX.1 (click)

See also, BBC Explains Surinder Singh with a nice diagram! (click)

Does your wife's income meet the financial requirement for a spouse visa now? (£18600 per annum)

Does your wife have any disabled relatives who receive Attendance Allowance, DLA or PIP?

[Natgeb]

Thank you for your response. I have read the exception guidelines, Do you believe the UKBA has made a resonable decision?

My wife makes just under the requirement, if she was to meet the requirement does she not have to be earning this for a minimum of 6 months?

Yes her mother is on disability, Why do you ask?

[Natgeb]

When it refers to the child's primary carer: my wife works 60 hours a week so that would make me his primary carer, is this correct?

[Amber]

If your wife could claim carers allowance, you'd not be subject to the financial requirement though with carer's allowance one can only earn £100 per week, but if her employer was understanding she could perhaps claim carer's until you are granted the visa?

[Natgeb]

Anyone else have thoughts on this?

[Obie]

Primary carer is not a term in the Immigration rules. Sole responsibility or normally reside with the child, is a term applicable.

The decision was clearly wrong. You do qualify as you meet the requirement of E-LTRP 1.2-1.12 and E-LTRP 2.1, and exception 1 does apply, as you have a genuine and subsisting parental relationship with a British Child, and save for cases of criminality, it will not be reasonable for that child to leave with you.

Not sure the solicitor properly informed the HO, that they are seeking to invoke the EX 1 provision.
It would seem to me, that you failed in meeting all the criteria for obtaining leave to remain as a partner, as you were on a visitors visa and you failed to meet the financial requirement. but EX 1 does apply.

[Amber]

Bare in mind that the route to settlement for family life is 10 years.

[Natgeb]

Are you suggesting my wife exercises her treaty rights? That would be better than the route for family rights?

Please explain differences?

[Obie]

I believe you are getting into a module, the poster was referring to the fact that you will have to wait for 10 years, as opposed to 5 years to obtain ILR, if you are seeking to rely on Exception 1.

Treaty rights is a different category from the immigration rules, altogether.

To invoke it, your wife will need to move to another memberstate, reside there as a worker or self-employed person, and return after a period of time, between 3-6 months.

[Natgeb]

Ok I understand what your saying. Could you please explain the exception rule?

Anyway the only reason I ask about the free movement directive is solely based on outcomes, we are completely unsure if our case will even be heard in a tribunal. And of course who knows how long that will take. And of course it would appear our solicitor has his head up his mule. It's looking like that might be the more reliable option as far as results and time(duration of this outstretched fiasco) are concerned.

[vinny]

Slight addition.

Treaty rights is a different category from the immigration rules, altogether.

To invoke it, your wife will need to move to another memberstate, reside there with you, as a worker or self-employed person, and return after a period of time, between 3-6 months.

[Obie]

Thanks Vinny.

Also see EXception 1 Guidance

[Natgeb]

Thank you all for your responses

Would you care to offer your opinions on the matter of should we wait for our appeal?
Or
Should we go to Ireland under the free movement directive and re-enter under the SURINDER SINGH route?

[luis hernandez]

Hello,

I would like to ask a question about my immigration status. i came to the UK back in 2003 with a student visa, i met a german girl and we got married and was granted ILR until 2011. then i met another woman UK citizen and i stayed with this woman and separated the german woman. the uk woman and i had a baby born in the uk and in 2009 and we decided to leave the uk and went to my country of origin and had another baby there. she was working at an university and she got serious threats as this was a dangerous country. she applied for our song to have a british pasport which he now has and they return to the UK. we got advice from a solicitor but ouviously we did not meet the financial criteria. due to the seriousness of these threats i applied for a student visa and was granted, as we didnt see any other option. i did not came back in 2010 to extend my ILR. Now i am in this dilema and i have 2 years until my visa expires. right now i do not know what to do when the 2 years comes up. please any advice.