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Buachaill
Buachaill, Barrister
Category: Law
Satisfied Customers: 10528
Experience:  Barrister 17 years experience
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I have a question about derivative rights of residents and

Customer Question

I have a question about derivative rights of residents and Zambrano cases. My partner will shortly give birth here in the UK to our son. I am a UK citizen and our son will therefore also be British. My partner is Ethiopian and is here on a visitor visa
only. We would like to extend her stay in the country pending such time as we get married. She will have about 3 months left on her visa following the birth. Is Zambrano suitable for us or is there another visa route we could use. Regards, Owen
Submitted: 1 year ago.
Category: Law
Expert:  Buachaill replied 1 year ago.
1. You apply for FLR(M) visa as this is the quickest path to citizenship. Here is a link to the form https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/447242/FLR_M__04-15.pdfand to accompanying notes to fill the form in. This will lead to citizenship for your partner after five years and if you get married, after three years. This visa will give her the right to both live and work in the UK as your partner. It is a better visa than the Zambrano visa as it allows the holder to convert it into citizenship. The difficulty with a Zambrano visa is that the Home Office have been taking the (wrong) view that living in the UK under a Zambrano visa does not count for naturalisation purposes. So this visa is preferable. Your partner can apply for it immediately. It is not dependent upon her having her child. Be aware that you have to earn more than £18,600 in order for her to qualify for this visa. However, there is an exemption from the income requirement if you are getting disability or carer's allowance.
Customer: replied 1 year ago.
Thank you for that. The earnings threshold is not an issue. What I didn't mention that she is currently married to someone else, a German National, and they live in Abu Dhabi. It's all bit unusual but we are where we are. Whilst she will divorce, this is unlikely to happen in the next 6 months so I don't think the FLR(M) will be suitable at this stage. We're not too concerned with the visa counting towards naturalisation at this stage. We really just want to buy some time as it were for the next year or so. So, as things stand she will have to leave in approx 3 months and as I work full time the baby would almost certainly have to leave with her. I'd just like some guidance on how the court might interpret out situation under Zambrano. For instance, might they say that as she's married there is no good reason why she can't take our son to live in Abu Dhabi?
Expert:  Buachaill replied 1 year ago.
2. Zambrano is not dependent upon you being married to one another. Nor is a FLR(M) visa. It is an independent concept of being part of someone's family. This is an independent concept in UK law which is not dependent upon the status of marriage. Whilst obviously, it takes explanation as to why someone is your partner when they are married to someone else. However, fi they are having your child, that is a good enough reason to be "family". Secondly, should you wish to pursue a Zambrano visa, the baby must be born before you can assert the right. then she will have the right to live and work in the UK until the child is 18. There is no such concept as there being "a good other place to live" under Zambrano. A person can decide where they want to live and this doesn't have to be Abu Dhabi - it can be the UK.
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Customer: replied 1 year ago.
Thanks very much. One final follow up - I'm assuming she can't apply for the FLR(M) visa whilst she is still married to someone else. Is that the case?
Expert:  Buachaill replied 1 year ago.
3. There is no rule that a person married to one person cannot apply to remain in the UK as part of someone else's family if they are bearing the person's child. The notions of family and marriage are fluid and not fixed so far as immigration law is concerned. So it is wrong to assume that your partner cannot be your partner whilst married to someone else, even though she bears your child. So that is why I am telling you to apply for a FLR(M) visa. As a fall back, you can assert the Zambrano grounds for staying in the UK.
Customer: replied 1 year ago.
Now I get it. Perfect, thanks.
Expert:  Buachaill replied 1 year ago.

4. You are welcome.