Ibrahim and Teixeira - Derivative right of residence

[lake1]

For a derivative right of residence application under Ibrahim and Teixeira to be successful does the EEA national parent of the child need to have left the UK or it makes no difference even if the EEA national parent is still living and being a worker in the UK as long as the other requirements are met?

[noajthan]

For a derivative right of residence application under Ibrahim and Teixeira to be successful does the EEA national parent of the child need to have left the UK or it makes no difference even if the EEA national parent is still living and being a worker in the UK as long as the other requirements are met?

It probably depends on the ongoing relationship (& possibly any custody arrangements) between such a parent & child.
As well as which of the 3 types of case is relevant to your question, namely:

• (A) children of EEA nationals;
  (B) primary carers of children of EEA nationals, and
  (C) dependants of primary carers of children of EEA nationals

Derivative rights of residence only arise where the person in question has no other right to reside under the Regulations. It is not therefore possible for someone to have a derivate right and some other right of residence under the Regulations

Ref: https://www.gov.uk/government/uploads/s ... ixeira.pdf

See also HO guidance on derivative rights of residence:
https://www.gov.uk/government/uploads/s ... _clean.pdf

[lake1]

For a derivative right of residence application under Ibrahim and Teixeira to be successful does the EEA national parent of the child need to have left the UK or it makes no difference even if the EEA national parent is still living and being a worker in the UK as long as the other requirements are met?

It probably depends on the ongoing relationship (& possibly any custody arrangements) between such a parent & child.
As well as which of the 3 types of case is relevant to your question, namely:

• (A) children of EEA nationals;
  (B) primary carers of children of EEA nationals, and
  (C) dependants of primary carers of children of EEA nationals

Derivative rights of residence only arise where the person in question has no other right to reside under the Regulations. It is not therefore possible for someone to have a derivate right and some other right of residence under the Regulations

Ref: https://www.gov.uk/government/uploads/s ... ixeira.pdf

See also HO guidance on derivative rights of residence:
https://www.gov.uk/government/uploads/s ... _clean.pdf

Seems I wasnt clear enough with my question, am not asking about the child am talking about the child's eea parent, does that person need to be in the UK for the non eea parent to have a successful case.

I'll outline the case maybe that might help, a non eea national has 2 kids from an eea national, polish to be exact.

One of the kid is already in primary school and the non eea national want to apply for a derivative residence card based on the primary career of the child.

Note that polish embassy won't issue the kids with passport until they have the passport and visa of the non eea national so the kids don't have polish passport as I assume the non eea national could have used that to apply for derivative residence card based on the kids being self employed and him looking after them.

So the only option is to use Ibrahim and Teixeira which the rule is that the kid should be in education and the eea national was once a worker.

Now my question is for the derivative residence card to be successful using Ibrahim and Teixeira should the EEA national have left the UK and the non eea national being the primary career or the fact the non eea national is also the primary career - the eea national and him looks after the kids - enough and there isn't any requirement for the eea national parent to be out of the UK.

[Obie]

It will all depends on whether the polish national was a migrant worker and you can prove it.


It is only childern whose parents were not migrant workers and who are relying on Article 12 (3) of Directive 2004/38EC, that will need to show that the qualified person had left the UK.

[lake1]

It will all depends on whether the polish national was a migrant worker and you can prove it.


It is only childern whose parents were not migrant workers and who are relying on Article 12 (3) of Directive 2004/38EC, that will need to show that the qualified person had left the UK.

That's interesting, the polish national is a migrant worker and in fact she is still a worker in the UK, so there is enough proof for that.

I wasn't sure if the polish national need to be out of the UK for it to be successful but based on your answer it seems that's not the case.

As both the polish national and the non eea national look after the kids can HO refuse the application for the non eea national based on the fact that the kid in education won't have to leave the UK and thus affect the education as the polish national can look after the kid ?

Or even more complex can the HO simply issue the kids with a residence card instead of a derivative residence card thus affecting the non eea national altogether as he want to rely on the derivative residence card for the kid and him being a primary career of a child in education using Ibrahim and Teixeira .

[noajthan]

Seems I wasnt clear enough with my question, am not asking about the child am talking about the child's eea parent, does that person need to be in the UK for the non eea parent to have a successful case.

I'll outline the case maybe that might help, a non eea national has 2 kids from an eea national, polish to be exact.

One of the kid is already in primary school and the non eea national want to apply for a derivative residence card based on the primary career of the child.

Note that polish embassy won't issue the kids with passport until they have the passport and visa of the non eea national so the kids don't have polish passport as I assume the non eea national could have used that to apply for derivative residence card based on the kids being self employed and him looking after them.

So the only option is to use Ibrahim and Teixeira which the rule is that the kid should be in education and the eea national was once a worker.

Now my question is for the derivative residence card to be successful using Ibrahim and Teixeira should the EEA national have left the UK and the non eea national being the primary career or the fact the non eea national is also the primary career - the eea national and him looks after the kids - enough and there isn't any requirement for the eea national parent to be out of the UK.

Yes it wasn't clear which party was the applicant.

And still not quite clear what you wish to achieve here, it seems to be one or more of the following:

• RC for child/ren?
  Polish passport for child/ren?
  RC (then potentially PR / UK citizenship) for non-EEA national?

Note that derivative rights don't lead to PR (hence UK citizenship & privilege of British passport).

If EEA national is also in UK it's not clear why they can't sponsor the non-EEA national;
ie to get a better quality of RC as direct family member (if there is a direct family relationship).
.
Also note:

Derivative rights of residence only arise where the person in question has no other right to reside under the Regulations. It is not therefore possible for someone to have a derivate right and some other right of residence under the Regulations

[lake1]

@ noajthan what I seek to achieve is a derivative residence card for the non eea national not the kids, the kids are not applying for anything just using there link for the non eea national to get his status rectified being the primary career of the kids.

I know derivative residence card doesn't lead to anything but it's a start and the non eea can always change to other routes with time as he can at the mean time work with the derivative residence card and probably with that he can use it to get married to the eea national without any problem.

He can't apply directly as a direct family member of the polish national cos 1. they aren't married and 2. They don't live together so he can't even be classed as an unmarried partner unless it's possible for an unmarried partner application to be successful without them living together?

[noajthan]

@ noajthan what I seek to achieve is a derivative residence card for the non eea national not the kids, the kids are not applying for anything just using there link for the non eea national to get his status rectified being the primary career of the kids.

I know derivative residence card doesn't lead to anything but it's a start and the non eea can always change to other routes with time as he can at the mean time work with the derivative residence card and probably with that he can use it to get married to the eea national without any problem.

He can't apply directly as a direct family member of the polish national cos 1. they aren't married and 2. They don't live together so he can't even be classed as an unmarried partner unless it's possible for an unmarried partner application to be successful without them living together?

Well there is no legal requirement under EU rules for persons in a relationship to be 'living together', whether they are married or they are in a durable relationship 'akin to marriage'.

Obviously the applicant will need cast iron & unimpeachable proof of such a relationship.
Something to dig into at least.

How long have the parties been in such a relationship
2 years would be a good starting point if this is going to fly.

[lake1]

There isn't any requirement in eu law for them to be living together but then the whole application for unmarried partner by HO is based on cohabiting together for 2 years, that seems to be the minimum proof required and obviously in this case they can't prove that.

They have been together for years, the 1st kid is 5 years and the other is under 1 year.

The only thing they can send as prove of relationship is the kids birth certificates and the odd pictures, whether that is enough is another thing hence the reason of trying to use the derivative residence card option.

[noajthan]

There isn't any requirement in eu law for them to be living together but then the whole application for unmarried partner by HO is based on cohabiting together for 2 years, that seems to be the minimum proof required and obviously in this case they can't prove that.

They have been together for years, the 1st kid is 5 years and the other is under 1 year.

The only thing they can send as prove of relationship is the kids birth certificates and the odd pictures, whether that is enough is another thing hence the reason of trying to use the derivative residence card option.

It's up to the applicant to prove their eligibility - as defined in law.
Children help the case as it clearly indicates a family connection.

My understanding is that co-habiting 'requirement' has no basis in law.
(How people conduct their family life is not HO's business or concern).

Case law of the courts has confirmed that the Home Office’s European Casework Instruction in relation to durable relationships ‘should not be taken as necessarily correct in every particular’. In YB (EEA reg 17(4) – proper approach) Ivory Coast [2008] UKAIT 00062 the Tribunal stated that ‘durable relationship’ is a Community law term and to seek to reduce it to the criteria contained within the Immigration Rules would run contrary to Community law

...two years cohabitation is not essential and cannot be determinative of the issue and indeed the Home Office must be wrong to treat the requirement of two years cohabitation as a mandatory requirement.

Ref: http://www.immigrationbarrister.co.uk/B ... -2006.html

You will have to dig further - it seems worth it to get a direct family member's RC.

[lake1]

Interesting thanks @noajthan , I totally agree that cohabitation shouldn't be the be it all and it's not the HO business how they choose to live but I don't think the HO apply this.

In the link it states a negative immigration history might affect the application

I think the unmarried partner sounds interesting but then again I think the HO might refuse it as the main criteria they use is the cohabitation.

Am interested in cases where unmarried applications were successful when they weren't living together.

Just thinking, is it possible that they apply as unmarried partner get proof of application then use that to apply to get married then update the application to married partner.

[noajthan]

I think the unmarried partner sounds interesting but then again I think the HO might refuse it as the main criteria they use is the cohabitation.

If HO play hardball and take it to the wire then, if such a case goes to appeal, as well as the classic case of YB there is also:
Rose (Automatic deportation - Exception 3) Jamaica [2011] UKUT 276 (IAC) (at para 24)
&
Dauhoo (EEA Regulations - reg 8(2)) [2012] UKUT 79
that all considered whether being in a durable relationship necessarily entails cohabitation.

Here is an appeal (Okeiyi) that brought up interesting points (although the appellant lost his case in the end):
https://www.google.co.uk/url?sa=t&rct=j ... MdmfXkROgw

And an interesting interaction with Home Office on the same topic:
http://www.gherson.com/news-articles/du ... eries-2787

[lake1]

Thanks @noajthan I'll have a read.

His solicitor want him to use flr(fp) but am not too convinced about that partly because I think you are always at the mercy of the HO when you apply under UK law.