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Buachaill
Buachaill, Barrister
Category: Law
Satisfied Customers: 10534
Experience:  Barrister 17 years experience
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I am a uk citizen who is married to an South African citizen

Customer Question

Hi. I am a uk citizen who is married to an South African citizen and we have been married for 6 years with 2 daughters. One born in SA and the other born in the UK. I have been back in the uk for nearly 18 months and have only seen my husband for 6 months of that time. He left in June after his visitors visa expired and we attempted to apply for another visitors visa and it was declined. As there was no development in applying for the marriage visa as I was unable to secure a permanent position. As you can imagine this is very frustrating and sad that we are a legitimate family. This is a basic human right to be together and we are forced to live apart. Any advice would be much appreciated. Thanks Jo
Submitted: 10 months ago.
Category: Law
Expert:  Buachaill replied 10 months ago.

1. The father of an EU citizen child, such as your child born in the UK has the right under the Zambrano decision of the European Court of Justice to both live and work in the UK or any part of the EU to support that child.

Expert:  Buachaill replied 10 months ago.

2. This zambrano right is not dependent upon showing that he or his dependents earn any set amount of money. So, it avoids the difficulty of you not earning in the necessary GBP 18,600 in order to gain his entry. Accordingly, I would suggest you get a passport for your UK born child AND your other child (who would be entitled to it by descent because of your british nationality) and the exercise the Zambrano right to bring in your husband.

Expert:  Buachaill replied 10 months ago.

3. In essence your husband is entitled to a derivative residence card as he is the father and carer of his UK citizen child. here is a link to the UK Government website for the derivative residence card https://www.gov.uk/derivative-right-residence/overview. However, he can also apply for Further Leave to Remain (Family Provision) - FLR (FP)

Expert:  Buachaill replied 10 months ago.

4. If you want any further explanation, I will be happy to assist further. However, you should look up the Zambrano decision on the internet and understand it. It holds the legal basis for your husband to join you and your children in the UK.

Expert:  Buachaill replied 10 months ago.

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Customer: replied 10 months ago.
Hi. If he is in South Africa at the moment would he apply for the EEA family permit and then apply for the derivative residence card once he is back in the UK?..For this would I need to provide 3 months worth of bank statements, proof of residence etc... What would he need to provide as evidence?.. Thanks
Expert:  Buachaill replied 10 months ago.

6. It is not an EEA family permit. It is further leave to remain based on his parentage of his child. He should seek to apply as parent of the child, not as your spouse.

Customer: replied 10 months ago.
My daughter will not be 5 until February, does that mean we cannot apply until then. Also can he still apply even though I will also be looking after the girls?..
Do you think he should apply for a visitors visa so he can return to the Uk asap and state he will be applying for a derivative residence permit or FLR when he returns.
Thanks
Expert:  Buachaill replied 10 months ago.

7. I don't know where you are getting that you cannot apply until the child is 5. That is an incorrect interpretation of the law I have set out for you. Secondly, he can certainly apply even though you will also be looking after the girls. Finally, I don't know why you think he should apply for another visitor's visa when he can get a permanent visa. That is foolish.

Customer: replied 10 months ago.
We unfortunately are not in a financial position at this time to apply for the permanent visa.
Would we still be able to apply for a visitors visa stating that once my husband is back in the UK we would be seeking to apply for the derivative residence card. Once we are in a better position we then apply for the Further leave to remain.
Would you foresee any issues why the visitors visa would be denied based on our intentions of applying once in the UK. Thanks
I

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