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Buachaill
Buachaill, Barrister
Category: Law
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Experience:  Barrister 17 years experience
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I am helping my former partner apply to remain

Resolved Question:

Hi,
I am helping my former partner apply for leave to remain in the UK on the basis of family life as a parent. We have a 4 year old daughter who is a British citizen. (I am also a British citizen, and my former partner is Chinese.)
I think my former partner will not meet the financial/maintenance requirement, because she does not have a job, and all her income comes from me. It looks as though income from me does not count, because it would be considered 'promises of support from a third party.'
So my interpretation of the rules is that she will be relying on the exception EX.1. This applies if the child is under 18, in the UK, a British citizen, and it would not be reasonable to expect the child to leave the UK.
This description applies to our daughter. My question is: how is 'reasonable' interpreted in these circumstances? I think it would be very unreasonable to expect my daughter to leave the UK, because she has lived in the UK all her life, has never lived in China (where she would be forced to move to if her mother's visa was rejected), and if she was forced to leave the UK, this would permanently separate her from her father (me). Her mother and I have both had an active role in her upbringing for all her life so far, so this would be highly traumatic. How much confidence can I have that UKBA will share my assessment of what is 'reasonable'?
I'd be very grateful for your advice.
Best regards,
S
Submitted: 1 year ago.
Category: Law
Expert:  Buachaill replied 1 year ago.
1. Following the Zambrano ruling of the European Court of Justice, a non-EU parent of an EU child, such as a Chinese mother of a British citizen child, has the right to live and work in any member country of the EU, including Britain, to support that child. Accordingly, your former partner and mother of your child has the right to live and work in the UK should she so wish to apply for a visa. There is no income limit for the exercise of this right. However, there is a rule that the parents seeking to exercise the parental right must not be a burden on social services, ie must not claim social welfare. It is purely a right to live and work. Not to draw social assistance.
Buachaill, Barrister
Category: Law
Satisfied Customers: 10458
Experience: Barrister 17 years experience
Buachaill and other Law Specialists are ready to help you
Expert:  Buachaill replied 1 year ago.
2. So, if your former Chinese partner has a child it is not reasonable to expect her to leave the UK AND to take that child with her. So it is not reasonable to expect your child to go and live in China or some other place with her mother. However, be aware that it would be better for all concerned if your former Chinese partner could find some job, even part time, as this is necessary so that she would not be a burden on public benefits. It would make getting a visa much more simple, as this is the issue her case could turn upon.

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