Zambrano - UKBA announces its interpretation...

Use this section for queries concerning applications on any of the EEA series of forms, and also for applications for EEA Family Permits.

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Postby Obie » Tue Dec 06, 2011 3:31 pm

Rolfus wrote:It seems to me that the system now accepts that parents of EEA minors are extended family members. So no need to apply for a Chen visa through 257c of the Immigration rules. Just apply for an EEA Family Permit. Permission to work, and en route for citizenship.


I dont think that is correct.

The UK legislation don't consider parents of EEA national as a family member within the meaning of Article 2(2) of directive 2004/38EC or regulation 7 of the EEA regulations 2006.

The reason for their decision is that the children are dependant on the Parents as opposed to the parent being dependant on them in line with the description in the regulations and Directive (Dependant Family member in the ascending line).

The family members cannot be part of the Household, because according to KG and Bigia, which the Upper tribunal cannot overrule as it is from a Higher court, the Household has to be that of the EEA national, he or she has to own it or responsible for it, and have his/her dependant living under her roof.

Therefore i don't think the interpretation in Moneke can be used in Chen cases. It will likely be unsuccessful.
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Postby Rolfus » Tue Dec 06, 2011 4:49 pm

A very good point Obie.
Might I suggest the following argument: In KG & AK, LJ Buxton at paragraph 77 is arguing that the EU citizen must be the head of the household somewhat faintly.
"It seems very likely that the assumption is that the household will indeed be that of the Union citizen, that is, that he was in colloquial terms head of it, the relations were under his roof, and on that basis he can reasonably wish to be accompanied by the members of it when he leaves for another country."

Bigia in paragraph 43 puts a different complexion on it
"It seems very likely that the assumption is that the household will indeed be that of the Union citizen, that is, that he was in colloquial terms head of it, the relations were under his roof, and on that basis he can reasonably wish to be accompanied by the members of it when he leaves for another country".... "only those OFMs who have been present with the Union citizen in the country from which he has most recently come whose ability or inability to move with him could impact on his exercise of his primary right. This also explains Buxton LJ's requirement of very recent dependency or household membership. Historic but lapsed dependency or membership is irrelevant to the Directive policy of removing obstacles to the Union citizen's freedom of movement and residence rights. Unlike Article 2.2 "family members", it cannot be said of them that "the refusal ... to grant them a right of residence is equally liable to discourage [the] Union citizen from continuing to reside in that Member State" (Metock, paragraph 92).

It can be argued that the real issue is to demonstrate closeness and interference with free movement rights. Chen and Zambrano have clarified that, so in the case of minor children, the faint argument about ownership is redundant.
It could further be argued that any argument based on ownership or headship of a household represents indirect sex discrimination, and is therefore prohibited by Article 10 TFEU and Article 21 CFEU anyway.
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Postby Rolfus » Thu Dec 08, 2011 8:04 pm

I submitted my argument as outlined in my post of Dec 6th 10.18 am, and the judge didn't bat an eyelid. I didn't volunteer the difficulty raised by Obie. Written judgment probably won't reach me until January.
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Postby jaskamalman » Thu Dec 29, 2011 2:16 pm

Roifus, thank you very much for your suggestions and congratulations for EEA Family Permit for your partner.
Just to campier my case with yours, are you EEA national but not UK citizen? you suggested I can apply for a Residence Card, Can you please tell me how to apply? Is there a new changes/decision by UKBA?

Just to remind you, I am non EEA parent of Irish citizen baby in Northern Ireland.




In tomorrow's case the British national minor (my son) is exercising treaty rights. But it is another logical step to say that Zambrano parents should be treated as extended family members under EU rules, not as a special category under the Immigration rules.
Jaskamalman: in your case your daughter is exercising treaty rights, so you might be able to apply for a Residence Card as her extended family member.[/quote]
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Postby Rolfus » Thu Dec 29, 2011 5:41 pm

jaskamalman, If you decide to apply for a Residence Card as the extended family member of a minor child, you need to expect the application to be rejected initially, and for the serious decision-making to be at the appeal. Unless you are very confident about representing yourself at the appeal hearing you will need a lawyer. Better to find the lawyer now, and discuss tactics with him before you make any application.
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Postby Obie » Thu Dec 29, 2011 9:51 pm

Rolfus wrote:I submitted my argument as outlined in my post of Dec 6th 10.18 am, and the judge didn't bat an eyelid. I didn't volunteer the difficulty raised by Obie. Written judgment probably won't reach me until January.


Sorry Rolfus i totally missed your post. I did not have the post notification in place until recently.

A big congratulations to you and your partner, and wish you every happiness for the future.

The good thing about these argument is, if properly argued it could succeed, but the other party will be fortunate in most cases to get a narrow minded judge who is not prepared to buy it, and you could find the Secretary of state being given permission to appeal or for reconsideration, and find that these argument are overturned, and a poor immigration Judge being told he/she erred in law.

As the law stands, the UKBA don't accept a minor child can have family members or even Extended family member for the purpose of the Citizen directive.

They believe special provisions are made in Paragraph 257C of the immigration rules for them

These might all change if this upcoming ECJ cases are all answered in the positive.(Yoshikazu Iida v City of Ulm)
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Postby jaskamalman » Fri Dec 30, 2011 1:56 am

Obie wrote:
Rolfus wrote:As the law stands, the UKBA don't accept a minor child can have family members or even Extended family member for the purpose of the Citizen directive.

They believe special provisions are made in Paragraph 257C of the immigration rules for them

These might all change if this upcoming ECJ cases are all answered in the positive.(Yoshikazu Iida v City of Ulm)



First question
In 248A I am bit confuse with this term “child resident in the United Kingdom” ? They do not say, child who is UK national. Is 2 year old Irish national child, who were born and presently residing in UK is not “child resident in the United Kingdom”?

Second question.
Under 257C, If Non EEA parent of EEA national cannot take employment, then how much money one should have in bank for this application?
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Postby Obie » Fri Dec 30, 2011 4:11 pm

The is no set amount that has to be in the account to qualify.

A regular source, or evidence showing regular source of income would help.

Seeking legal assistance before proceeding is advised.

A comprehensive sickness insurance is a requirement though.

The family member cannot work, in light of Zambrano, it is questionable whether the UK can continue on their policy of misinterpreting Chen.
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A different situation on a family EEA

Postby alyxzandra » Thu Jan 19, 2012 10:25 pm

I have been in the UK (U.S. citizen) since 1999. I now have ILR (since 2004). I am also applying for Greek citizenship as my father is from there. My mother lives in the U.S. My mother and stepfather are on a very low income and will need the money I send to help them. Plus, I am co-signing for a rented property for them as no one will rent to them due to their very low income of £600 per month. My mother has severe medical conditions (double amputee in a wheelchair on dialysis with heart problems) and my stepdad had a heart attack and 2 slipped discs. Thus, he is not able to adequately care for her.

I looked into bringing them here, but was told as my mother is 63 and receives some state benefits, the application will fail even though the state benefits does not cover all the basic necessities and I am not paying for all of their bills.

Once I get Greek citizenship, would I be able to bring them here under an EEA family permit?
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Postby Rolfus » Wed Feb 08, 2012 8:39 pm

With respect to my post of Dec 6th, the judge rejected my argument, insisting on the Head of Household argument. "the household of which the applicant is a member is the household of which the EEA national with the primary right of residence is the head, rather than just another member". He quotes RK India UKUT 421. If I had to appeal this I would say that it is impossible to apply such a test to households without either committing sex discrimination (is it mum or is it dad who is head?) or being arbitrary (toss a coin to see who's head).
I would also argue that as The European Casework Instructions (as updated May 2011) state that:
“Regulation 8 of the 2006 Regulations covers extended family members (for example, brothers, sisters, aunts and cousins). It also covers direct family members (such as parents or children over the age 21) who have failed to provide evidence for financial dependencies. An applicant may be considered under Regulation 8 of the 2006 Regulations if s/he falls within any of the following conditions… Note: there is no dependency test for persons who can show that they have lived under the same roof as the EEA national before coming to the UK”
parents must be in a category of "more favourable national provisions..."
And if I were doing it again I would stick in the Dec 6th arguments that I had written up.....but didn't want to cause data overload on the day.

But I don't have to appeal (but waiting for HO appeal) because the judge allowed my appeal on grounds of Chen, M and Zambrano by direct effect. :D
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Postby riseen » Thu Feb 09, 2012 12:28 pm

Annex A: Applications for a residence card citing M (Ivory Coast)/enforceable EU rights
Thank you for your recent application for documentation confirming your right to enter/reside as the primary carer/parent/sibling of a child who has a right of residence in the UK under the Immigration (European Economic Area) Regulations 2006 (“the Regulations”) as a self-sufficient person.
The UK Border Agency accepts that the recent determination in the case of ECO (Dubai) v M (Ivory Coast) (ref OA/55569/2009) means that the primary carer/parent/sibling of a self-sufficient EEA national child has a directly enforceable EU right to enter and reside in the UK. Whilst the determination confirms that the right flows directly from EU law, it does not alter the requirements which have to be met in order for the right to exist. Those requirements remain as set out in paragraph 257C of the Immigration Rules.
Work is currently underway to amend the Regulations so that documentation to evidence this right, where it exists, can be issued under those Regulations. Until those amendments have been made, requests for documentary confirmation of the right will continue to be treated as an application for leave under paragraph 257C of the Immigration Rules.
Option a) Application granted
As it has been assessed that you satisfy the conditions for enjoyment of the right to reside, your passport has been endorsed with a limited period of leave allowing you to enter/remain in the UK in order to facilitate the free movement rights of your child. You will note the terms and conditions of this grant as endorsed in your passport. Where the period of leave is nearing expiry, you will of course have the option of applying for another period of leave in order to continue to reside in the UK. Equally, assuming that the necessary changes have been made to UK law as alluded to above, you may be able to apply for documentation under the Regulations evidencing your right to reside if you wish.
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ZAMBRANO

Postby riseen » Thu Feb 09, 2012 12:40 pm

In the recent Zambrano case, the Court of Justice of the European Union found that in certain circumstances the non-EU parents of British citizens in the UK must have the right to reside in the UK, and to work (and, presumably, to access public funds), if refusing the parents this right would deprive the child of the genuine enjoyment of that child’s EU citizenship rights. In the subsequent Dereci case the Court clarified that this means that the parent must be allowed to stay in the UK where the child would otherwise have to leave the territory of the European Union altogether.

However, it could be argued that the Zambrano rule applies to the parents of Irish children as well since Irish citizens are to be treated as if they were British citizens for the purposes of UK immigration law, according to section 2(1) of the Ireland Act 1949. This should bolster the argument that parents of Irish child should be granted the right to work in the UK. Furthermore, the judgment of the UK Supreme Court in ZH (Tanzania) should apply to Irish (and other EU citizens) as much as to British Citizens. In that case, Baroness Hale, one of the judges, said the following:
They are British children; they are British, not just through the “accident” of being born here, but by descent from a British parent; they have an unqualified right of abode here; they have lived here all their lives; they are being educated here; they have other social links with the community here; they have a good relationship with their father here. It is not enough to say that a young child may readily adapt to life in another country.........
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CHEN CASE

Postby riseen » Thu Feb 09, 2012 12:44 pm

The Chen case involved the residence rights in the UK of the parents of an Irish child, who were themselves third-country (i.e. non-EU) nationals (from China). Under EU legislation, there is no explicit right of residence for the parents of an EU migrant citizen unless the parents are dependent on the child; in cases like this, however, it is the child who is dependent on the non-EU parent. In Chen, the European Court of Justice nonetheless ruled that as a citizen of the EU, the Irish child had a right under Article 18 of the EC Treaty (now Article 21 of the Treaty on the Functioning of the European Union) to reside as a self-sufficient EU citizen in the UK, and that denying residence rights to her parents, at a time when the child would be unable to care for herself, would conflict with this basic right. As a result of Chen, Non EEA Parents In the Chen case, the right to work was not at issue; the parents there were independently wealthy and did not need to work in the UK or access public funds. They also had private comprehensive sickness insurance.
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Postby howlong » Thu Feb 09, 2012 5:54 pm

Hi Riseen
Thank you for the input.Where did you obtain those information.Cheers
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Postby Obie » Sat Mar 17, 2012 9:15 am

This Judgement seems good, for Chen cases, but it slipped my radar for nearly 4 months.  Bassey , Re Judicial Review [2011] NICA 67 (21 November 2011)

It establishes a new precedent. Unfortunately it is not binding on all the UK jurisdiction.

It seem to have quashed Paragraph 257 of the immigration rules in more or less its entirety.
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Zambrano

Postby sarah a » Tue Mar 20, 2012 1:19 pm

Help, am a new member on this forum and i must say this forum has really helped a lot especially in knowing the questions to ask my lawyer. But have decided to tell my story in case there is anything else i need to do. Mine is an usual case i just hope people can help. I came to join my husband who is in the british army in 2004, he was under exempt on immigration rules then so i was granted a 2yrs leave to remain,i renewed that in 2004 and was given a 4yr extention as he was still under exemtion of immigation rule. Then in 2008 he was granted a British citizenship. when i applied for my indefinate in 2010 when my 4yrs extention was about to expire, i was told since my husband has changed his status i need to collect another 2yrs on his new status as a british citizen before i can be granted indefinite. I was refunded my money and told to apply for leave to remain but by then my visa has expired as it took them 6mths to get back to me.Anyway i applied for the leave to remain and that took another 8mth and now i just got a refusal saying my visa expired before i apllied so am an overstayer, not taking into consideration that the visa expired while it was with them. I got a lawyer and he said article 8 will suit me but long and expensive but i should go for Zambrano as its quick and will enable me to work while they process as i do not want to loose my job.I have 2 sons who are british citizens and minor and my husband is still in the Army. What do u think i shld do.
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Postby Obie » Tue Mar 20, 2012 2:43 pm

At the time when your husband had spent 5 years in the Army, and you had been married for 2 years, you should have applied for ILR. Even at the moment when he applied for ILR, you would have qualified too.

It is strange how the rules work. It looks a bit unfair aswell.

Due to the fact you failed to apply when your spouse had spend 5 years of Service and was exempted from immigration control by virtue of 8(4) of the 1971 act, before he became British, you are now excluded.

You may qualify under Zambrano, but is you husb
and still in service or has been discharged.
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Zambrano

Postby sarah a » Tue Mar 20, 2012 3:02 pm

I was just unfortunate that as at the time my husband applied and got his British citizenship,the 5yr rule of spouses was not in place. It started after he already changed his status. And yes he is still serving in the army
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Postby Obie » Thu Mar 22, 2012 12:29 am

I believe with good representation, you should be able to secure ILR outside the rules at least, or DLR.

In any event, i am sure a Zambrano application may succeed.
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Zambrano

Postby sarah a » Mon Apr 09, 2012 7:44 pm

Am i able to transfer back to uk rules for an ILR if i get the Zambrano . As the only reason i went for the Zanbrano was that it is quick and i was eager to regularise my status cos of my job which i did not want to loose.
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