Unmarried partner and mother of EEA citizen

[Basti]

Hi,
I am glad I found your competent board. I would like to ask a question please regarding the best (easiest, quickest, cheapest) way for my family to get to the UK, though I am not sure whether this is the right forum or whether I should have posted in the the EEA board...

I have been living together with my unmarried partner for close to six years. We have two children, aged 4 and 2, for which we have joint custody.
We have now been living in Germany for 4 years, but I may take up employment in the UK soon and wonder if my children's mother could come too.

Our children and myself are Germans, so we obviously enjoy freedom of movement and could just waltz right in (until you vote to leave the EU).
My unmarried partner (she) is a stateless person with travel document for statelss persons issued by Germany and has a limited residence permit, renewed every three years, which grants her the right to work.

Qs:

1. Does she need to apply for any permit before she comes to the UK or does she have to be let in if we turn up at the border together?

2. What does she need to apply for and should she base her application on being the mother of EEA minors or the unmarried partner of EEA citizen?

3. What does she have to prove in each case, how much is the application fee and how quickly does the application have to be processed?

4. Will she be allowed to work in the UK?


I would be very grateful for helpful answers to those questions, thank you very much!

[Obie]

You partner is an Extended family member, therefore she has no automatic right of entry into the UK. An extensive examination will need to be undertaken, and she will only be allowed entry, if in all the circumstance it seems appropriate to the immigration officer. However any refusal will have to be properly justified. In the circumstance of your case, it may well be the case that a refusal will be an unjustified restriction on your freemovement rights, and that of you EEA national children.

However, it may be best for her to seek entry under Regulation 11(2) , by virtue of Regulation 11(5) as amended, because she seem to qualify under regulation 15A(2), as the parent of an EEA national child.

[vinny]

She may apply for a free EEA family permit prior to going to the UK.

[Basti]

However, it may be best for her to seek entry under Regulation 11(2) , by virtue of Regulation 11(5) as amended, because she seem to qualify under regulation 15A(2), as the parent of an EEA national child.

Thank you for the input, however, if I read the amendment, then 15A(2) refers to "the primary carer" of being able to claim derivative rights of residence, yet we are not seperated and don't intend to, so she is not the "primary carer" as I find it defined in wikipedia.
Is there a different definition for "primary carer" for the purpose of regulation 15A(2) somewhere?

She may apply for a free EEA family permit prior to going to the UK.

Thank you, are there any advantages to applying for an EEA family permit first if we don't travel by plane?

Thank you both again!

[vinny]

Thank you, are there any advantages to applying for an EEA family permit first if we don't travel by plane?

If successful, less stress at the UK port.
7(3) may permit her to work sooner.

[Basti]

Ok, tnx vinny!

Still the problem remains, that she would not be the primary carer as I am available, so 15A(2) does not cover her.
Can she base her application on being the unmarried partner of an EEA national then only?

[Obie]

She could apply under Regulation 12(2) as your Extended family member, but to say she is precluded from applying under 15A(2), because you are present is simply wrong in law.

Well if that is the view of the United Kingdom authorities, which i hope is not the case, then that view is clearly wrong.

Nothing in paragraph 45 of Chen provide any support for such interpretation, to the contrary. It clearly states that the family members of a child who are national or non national of a memberstate can claim right of residence.

On the other hand, a refusal to allow the parent, whether a national of a Member State or a national of a non-member country, who is the carer of a child to whom Article 18 EC and Directive 90/364 grant a right of residence, to reside with that child in the host Member State would deprive the child-�s right of residence of any useful effect. It is clear that enjoyment by a young child of a right of residence necessarily implies that the child is entitled to be accompanied by the person who is his or her primary carer and accordingly that the carer must be in a position to reside with the child in the host Member State for the duration of such residence (see, mutatis mutandis, in relation to Article 12 of Regulation No 1612/68, Baumbast and R, paragraphs 71 to 75).

The UK courts don't seem to share that view either.

M ( Chen parents: source of rights) Ivory Coast [2010] UKUT 277 (IAC)

Paragraph 89 of the case below, acknowledged the same.

AB & Anor v Home Office [2012] EWHC 226 (QB) (16 February 2012)

It is noteworthy that in the two cases i cited above, there was the presence of an EEA national father.

Zambrano may well be interpreted in that way, but Chen certainly cannot.

However, you may wish to try the EEA family permit route suggested by Vinny, and see how it goes.

[vinny]

I have been living together with my unmarried partner for close to six years. We have two children, aged 4 and 2, for which we have joint custody.
We have now been living in Germany for 4 years, but I may take up employment in the UK soon and wonder if my children's mother could come too.

If your children's mother is the same person as your unmarried partner, then I'm assuming that you/she will be able to prove Durable relationship quite easily?