Death of UK citizen with non EU spouse (with kids)

[Angkag]

Got a feeling I already know the answer to this one, but I'm British with an Indonesian wife. We currently live in Singapore.

We have three children (young - ages 9,7,3), all with UK passports. If I died, the family would have to leave Singapore 9as we do not have permanent residence) and we would want the children to go back to the UK for schooling etc vs grow up in Indonesia. But are we right to assume that my wife would not be allowed to be with them given she is non EU ?

[quantum1]

Got a feeling I already know the answer to this one, but I'm British with an Indonesian wife. We currently live in Singapore.

We have three children (young - ages 9,7,3), all with UK passports. If I died, the family would have to leave Singapore 9as we do not have permanent residence) and we would want the children to go back to the UK for schooling etc vs grow up in Indonesia. But are we right to assume that my wife would not be allowed to be with them given she is non EU ?

Not necessarily. She could apply for a visa and I don't see it being a problem being granted one as the sole parent of british children

[Amber]

The issue would be the child is not residing in the UK.

[Obie]

The issue would be the child is not residing in the UK.

I dont believe this will matter for the purpose of Zambrano.

[Amber]

I think it would be preferable for the applicant to apply for a 5 year route to settlement under the immigration rules. In which case the child(ren) may have to be in the UK first.

A parent cannot rely on their relationship with a child who is overseas to obtain leave in this route.

[Obie]

There are provisions in the immigration for entry clearance to be issued to the parent who is the primary carer of a United Kingdom national child.

Also the EEA regulation also provide for such parent to be covered by Zambrano.

It is only when one has entered that it will become necessary to worry about leave to remain.

[Amber]

Unfortunately, for entry clearance, E-ECPT 2.1 to 4.2 must be met including:

E-ECPT.2.2. The child of the applicant must be-

(a) under the age of 18 years at the date of application;
(b) living in the UK; and
(c) a British Citizen or settled in the UK.

And for the EEA rules:

A primary carer of an EEA national child will qualify for a derivative right of residence under regulation 15A(24) where they satisfy the conditions set out in that regulation. The conditions are that:

a) the applicant is the primary carer of an EEA national ("the relevant EEA national"), and
b) the relevant EEA national
i) is under the age of 18 ;
ii) is residing in the UK as a self-sufficient person: and
iii) would be unable to remain in the UK if the primary carer were required to leave the UK

[Obie]

Yes you are right. I was thinking along the lines of Campbell and the EEA regulation.

[Amber]

Perhaps sending the children to the UK first with grandparents/British family member would be ok then applying for EC.

[Obie]

I am not sure it makes much sense. If the family are not ready to settle in the UK yet, and the mother is the primary carer of the children, how could sending the children first work. How will they be looked after?

[Amber]

This is based on the Father dying and leaving money to the spouse, sending the children perhaps a week before applying. The British family members would have to look after the children until the Mother arrived.

[Obie]

Your views may well be right, provided the family are willing to take the children, and the parents are satisfied to give their child up to a relative stranger. And provided these relatives have time to provide home for them and school?There are lots of unknown variables here. The rule is senseless and may not go far in court.
Thanks to MF, a judge will need to deal will the senselessness of the rule in the proportionality assessment.

[Amber]

I concur, most of the rules are senseless and completely unreasonable.

[JAJ]

Probably should be discussed further with a U.K. immigration solicitor, but I am not in general aware of any specific visa to allow the widow/widower of a British citizen to move to the United Kingdom. Even if there are British citizen children involved. Unless there are options for visa concessions on an "outside the rules" basis.

There would be more flexibility if the family was already resident in the U.K. even if the wife had not obtained settlement.

Assuming this situation is confirmed with a U.K. lawyer, then the family may wish to consider that their situation of living in Singapore as temporary residents is not necessarily a secure one.

The options to become more secure could include, a. obtain Singapore permanent residence (note that this could involve National Service for male children, in due course), b. move to the United Kingdom, c. move to another EEA country (preferably one with a pathway to citizenship locally); or d. seek to obtain permanent residence in a third country (eg Australia, Canada, NZ) for the long term.

[Obie]

Well the United Kingdom enacted a new Regulation 15A(4A), following the Court of Justice ruling in Zambrano. This provides a pathway for the Parents, who are the primary carer of a British Citizen Child to apply for entry clearance to enter the UK, and a Derivative residence card to stay in the UK.
Therefore OP's wife will have a pathway to enter UK in any unfortunate event, this is subject only to the children being under 18.

[Amber]

You can gain entry under the immigration rules if you've got sole responsibility for a child in the UK, though, the child must be in the UK.

[Obie]

I do accept that without hesitation. But like you said, the child has to be in the UK.

The EU regime which i cited above, is a different regime from that of the immigration rules.

OP's wife has to first enter the UK, in the event of any unfortunate circumstance.

The only means by which she can enter is via the EU route.

Once in the UK, she may well opt for the Immigration rules avenue, as that provides a pathway to Settlement.

[Angkag]

Thanks for all the input guys. It would certainly be complicated, and I think we have to accept that at a time that there would be a lot of emotional trauma for the children, the uncertain outcome and complication of process would make it worse for them.

So - decision taken, we will be moving to Europe next summer (maybe UK, maybe not) and get them resident.

[JAJ]

So - decision taken, we will be moving to Europe next summer (maybe UK, maybe not) and get them resident.

Presumably you've decided that permanent residence in Singapore isn't the answer?

If you decide not to move to the United Kingdom, then think about the pathway to local citizenship - especially for your wife, also for your children in due course. It varies greatly among European countries, including those adjacent.

Residence, on its own, is usually not enough for security long term.