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Buachaill, Barrister
Category: UK Immigration Law
Satisfied Customers: 10624
Experience:  Barrister 17 years experience
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Dear Ms, I am swiss national exercising treaty right in

Customer Question

Dear Ms Wilson,
JA: Have you talked to a lawyer yet?
Customer: I am swiss national exercising treaty right in England ( working from the 1st February 2015)My partner is a Congo DR national living in Switzerland ( we are not married and lived shortly 3 months together before I moved to the UK)In September, we will have a baby that will be swiss national. The baby will have a mandatory health insurance.I would like to travel with them and have my partner claiming entry as direct family member of self sufficient EEA national (the baby).Would that be possible?Is there anyy other options?Thank you
JA: Anything else you think the lawyer should know?
Customer: i did not talk to any lawer yet
Submitted: 1 year ago.
Category: UK Immigration Law
Expert:  Buachaill replied 1 year ago.

1. You have two options here. The first one, as you rightly point out is that your non-EEA partner from the DR Congo can obtain the right to live and work in the Uk as the parent of your EEA citizen baby. This would be under the Zambrano decision which guarantees non EEA parents the right to live and work in any EEA country to support that EEA citizen child. Any visa obtained under this ground would be for five years in the first instance.

Expert:  Buachaill replied 1 year ago.

2. The second option would arise when you are in a relationship with your Congolese partner for two years. Your partner would then constitute a settled relationship and you would be able to obtain an EEA visa for her as a family member of you and your child. This would be a more valuable right because it would lead directly to UK citizenship if exercised in the UK. Under Article 8 of the ECHR, every family has the right to be together. So here you would apply on the basis of your settled relationship with your Congolese partner in that she would be the family member of both yourself (primarily) and your child. However, in the UK Visas & Immigration generally only grants this right after you can show you have been two years together. However, a special case can be made under Article 8 if you have a child that you are a settled family if you haven't reached the two year stage.

Expert:  Buachaill replied 1 year ago.

3. Be aware that your Congolese partner should have mandatory health insurance if she wishes to progress to UK citizenship. Additionally, once she is resident in the UK she should apply for a Permanent Residence card as this will be necessary before any UK citizenship application to prove she lived visa free in the Uk for the final of her five years necessary continuous residence which is the requirement for UK citizenship.

Expert:  Buachaill replied 1 year ago.

4. Please Rate the answer as unless you Rate the answer your Expert will receive no payment for answering your question.

Customer: replied 1 year ago.
Thank you for your reply.I have the following point:
The child will be Swiss and as such not EU Citizen. Switzerland is not part of EU but is eligible for any free movement rights.
Does it still work?
What would be the name of the Visa to apply?
Expert:  Buachaill replied 1 year ago.

5. The Zambrano right applies to EEA CHILDREN. That is, it includes Swiss children as well as EU citizens. If you notice, I crafted my first paragraph in terms of EEA which includes Switzerland. The second option visa is the better one and it simply is an EEA permit for family members. Here is a link to the UK Government website which sets out the parameters for this EEA Family Permit and includes an application form The first option would be narrower derivative right of residence. Here is a link for that

Customer: replied 1 year ago.
It seems that the first option can only be filled when already leaving in the UK. I am not sure how it could apply to us as she can't come in the UK to apply for it.
Expert:  Buachaill replied 1 year ago.

6. It is not correct to say that she needs to be in the UK TO GET the first type of residence visa. The child needs to be in the UK not her, as her right of residence is contingent upon the child being in the UK (with you, for example) and her needing to come and mind the child and provide for its upkeep. She can apply for this type of visa from Switzerland, although, it is more commonly sought by mothers who have just had the child in the UK. But remember, all fathers apply from outside the UK IF THEY weren't present at the birth.

Expert:  Buachaill replied 1 year ago.

7. Please Rate the answer.