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thsths
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 Posted: Wed Dec 24, 2008 5:49 pm Post subject: |
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Interesting. My last copy is from a year ago, and a lot has changed since then. But it seems that all further tests for family members have been dropped: only the check for marriage of convenience and public policy (etc) is still listed. So it seems that it should be a lot easier now to apply for an EEA Family Permit as a family member. |
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charles4u
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Joined: 28 Jul 2008
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| Posted: Wed Dec 24, 2008 7:33 pm Post subject: |
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| eufreemovement wrote: |
The amendment is not what the EU law says. Still they are applying Immigration Rules especially for other family members, where there is no such basis in the community law. Soon the EU law will force to change the illegality of HO procedures and Laws. |
We shall see when this will happen cus I personally dont think UK will ever drop it making visa-free for EU family members..but lets see when this will happen..maybe 2011.
thsths is is better? cus they request for all the same documents and I dont see whats changed when you still have to show financial status and other stuffs.
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eufreemovement
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Joined: 28 Oct 2007
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| Posted: Thu Dec 25, 2008 5:23 pm Post subject: |
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| charles4u wrote: | | eufreemovement wrote: |
The amendment is not what the EU law says. Still they are applying Immigration Rules especially for other family members, where there is no such basis in the community law. Soon the EU law will force to change the illegality of HO procedures and Laws. |
We shall see when this will happen cus I personally dont think UK will ever drop it making visa-free for EU family members..but lets see when this will happen..maybe 2011.
thsths is is better? cus they request for all the same documents and I dont see whats changed when you still have to show financial status and other stuffs. |
See the below link from the commission report.
http://ec.europa.eu/justice_home/news/intro/doc/com_2008_840_en.pdf
Transposition with regard to the rights of other family members under Article 3(2) is less satisfactory. UK is one of the incorrect transposition. Clearly UK is in breach of community law obligations.
Article 3(2) of directive 2004/38 is based on Article 10(2) of Regulation 1612/68 and Article 1(2) of Directive 73/148, which call on Member States to facilitate the entry of other family members of the Union citizen who are dependant on him/her or lived with him/her in the country of origin of those family members or union citizen partner has a durable relationship.
The facilitation of entry and of residence of family members not covered by Article 2 where serious health grounds or union citizen partner has a durable relationship so require, is a novelty of this Directive.
Clearly EU family members have their right to entry and or residence if they meet the above conditions.
The member states must undertake an extensive examination means that the members states have to give sufficient opportunity for the eu family members to bring their evidence for the claimed dependency or members of the household or health grounds or union partner who has a durable relationship. The directive refers the member states give an every opportunity to consider these people in a broader sense. The obligations arise from Treaty those who move to other members to work. Instead UK is making more difficult for these family members by applying immigration rules for family members who are outside EU and other for inside EU where there is no such thing in Community Law |
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shandave2001
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Joined: 23 Dec 2008
Posts: 67
Location: London
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| Posted: Thu Dec 25, 2008 9:07 pm Post subject: Certificate of Approval for marriage |
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| Anyone on update in regard to Certificate of Approval for marriage where non EEA national has overstayed, as home office website is threatening with deportaion proceeding in such a case. |
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charles4u
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| Posted: Thu Dec 25, 2008 10:21 pm Post subject: |
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"eufreemovement"
Well I guess we all know this all this while and thats why some of us made a complaint to the EU and other means but we didnt get any result and the European commission is not doing anything about it.
So in this case what can we ordinary people do when UK is above the law ?
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thsths
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| Posted: Fri Dec 26, 2008 10:27 am Post subject: |
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| eufreemovement wrote: | | The amendment is not what the EU law says. Still they are applying Immigration Rules especially for other family members, where there is no such basis in the community law. Soon the EU law will force to change the illegality of HO procedures and Laws. |
Not quite, but I think it is a lot closer now. And the handling of extended family members is very much left to national legislation, so I am not sure that the current procedures is a clear infringement on human rights. That would depend on the individual case - and the procedures are very vague in this respect.
| charles4u wrote: | We shall see when this will happen cus I personally dont think UK will ever drop it making visa-free for EU family members..but lets see when this will happen..maybe 2011.
thsths is is better? cus they request for all the same documents and I dont see whats changed when you still have to show financial status and other stuffs. |
I think that only the procedures have been updated so far. The application form and guidance will need to be changed accordingly, but this has not happened yet. Also the form may ask for additional documents just in case (it always did), even if the documents are not required in a given situation. So you may well be successful submitting much less than is asked for. |
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charles4u
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| Posted: Fri Dec 26, 2008 10:41 am Post subject: |
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| thsths wrote: |
Not quite, but I think it is a lot closer now. And the handling of extended family members is very much left to national legislation, so I am not sure that the current procedures is a clear infringement on human rights. That would depend on the individual case - and the procedures are very vague in this respect.
I think that only the procedures have been updated so far. The application form and guidance will need to be changed accordingly, but this has not happened yet. Also the form may ask for additional documents just in case (it always did), even if the documents are not required in a given situation. So you may well be successful submitting much less than is asked for. |
Whats less in the document when one still have to show financial proves, accomodation in UK and some other proves, to me nothing as being changed. They are just manipulating this things as if they dont know the main thing.
No EEA family permit for EU family member mostly for those who hold a residence permit from EU states as a family member..SIMPLE !!!
So whats hard about this and why turning around in the same circle..
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eufreemovement
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Joined: 28 Oct 2007
Posts: 33
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| Posted: Sat Dec 27, 2008 10:37 am Post subject: |
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| charles4u wrote: | "eufreemovement"
Well I guess we all know this all this while and thats why some of us made a complaint to the EU and other means but we didnt get any result and the European commission is not doing anything about it.
So in this case what can we ordinary people do when UK is above the law ? |
It will happen brother. I knew lot of complaint already been through for this. It is a matter of time. In Ireland, lawyers fought for their apellants rights and finally they achieved although Irish Government so stubborn in that 'Prior Lawful Residence' requirement. Now there is no requirement either in article 2 or article 3(2).
But UK seems to be arguing till now. We all knew that their argument is baseless. However it is the only appeal system to achieve the EU citizens rights here. The time and mental agony is one of the worst affecting factors for all EU families. Anyhave, those who know the EU law can get remedy for their all losses.
There are judgements from ECJ or EU law which will give you all detailed community law remedy against those member states mal administrations.
Here the very surprised one is even the tribunal restricts the apellants not to rely directly on the directive where the directive is a Vertical Direct Direct. Every union citizen can able to enforce a right granted by European Community legislation against the state. |
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eufreemovement
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eufreemovement
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| Posted: Thu Feb 19, 2009 3:42 pm Post subject: |
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| eufreemovement wrote: | http://www.bailii.org/ew/cases/EWCA/Civ/2009/79.html
Guys. See the court of appeal judgement. |
In case BIGIA & ORS - and - ENTRY CLEARANCE OFFICER
In Para 41 "........ However, it is accepted on behalf of the Secretary of State that the reasoning which underlies the conclusion that, in relation to Article 2.2 “family members”, there is no need for prior lawful residence in another Member State, must also apply to OFMs. To that extent, the fourth and sixth propositions expounded by Buxton LJ in KG and AK (see paragraphs 10 and 11 above) require modification. This stems from the ECJ’s reconsideration of and departure from Akrich. It follows that the provisions in Regulations 8 and 12 of the 2006 Regulations, to the extent that they require an OFM to establish prior lawful residence in another Member State, do not accord with the Directive. |
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brownbonno
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eufreemovement
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| Posted: Fri Jun 05, 2009 4:26 pm Post subject: |
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UK Immigration Regulations and Policies are still annoying one. Nothing is so far compatible for the entry as well as Residency.
Bigia Case, AK Srilanka etc are all well breach of Community law.
There are cases still pending before the High Court. Either they should follow the community law correctly or have to refer the matter to ECJ. They (UK court, Home Office etc) are liable for all losses which are occuring for the EU national family members. |
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Obie
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John
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| Posted: Sat Dec 12, 2009 4:15 pm Post subject: |
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Obie, that is clearly a step in the right direction, but before we get too excited, the decision of the Court was to remit the cases back to the Tribunal. So the appellants have not won, yet, but have a further hurdle to get over.
But of course the Tribunal will of course take account of the new Court judgement when making their new determinations, so the signs are hopeful.
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Obie
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| Posted: Sat Dec 12, 2009 5:02 pm Post subject: |
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| Paragraph 27 of AIT previous ruling wrote: |
27. There are at least two possibly relevant definitions of dependence for these purposes. The Immigration Rules require that a person seeking admission as a dependent relative be "wholly or mainly dependent" on the family member he seeks to join (Statement of Changes in Immigration Rules, HC 395, paras 317(iii)), and the authorities establish that, for these purposes, the dependence must be of necessity, not of choice (Zaman v ECO Lahore [1973] Imm AR 71; Musa v ECO Bombay [1976] Imm AR 2 . Where the requirement of dependency is outside the Rules but is instead imposed by regulations introduced with reference to EU free movement legislation, the Tribunal, interpreting regs 6(4) and 10(4) of the Immigration (European Economic Area) Regulations 2000 (SI 2000/2326), implementing reg (EEC) No 1612/98 of the Council of 15 October 1968, in PB and others [2005] UKIAT 00082 said at [8]:
"In deciding whether an applicant is a family member for these purposes, it may be necessary to make a finding of fact on dependency. For these purposes, it is clear that dependency is a question of fact. There is no requirement that dependency be of necessity |
I fully agree with you John, as always, that there is still a long way to go, and it is too early to start celebrating or crack opening the champagne, but the essential aspect of this case, if i understand it clearly, is that, the AIT had wanted to ignore the dependancy aspect of the appeallant's case, which gave legitimacy to their ruling. With this ruling, they would not have a right to examine whether or not an applicant is wholly dependant on an EEA national,in future, they will only need to establish that there is a relationship of dependancy.
I suppose it sets a precedent which could be used in other cases.
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Obie
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| Posted: Sat Mar 27, 2010 12:42 pm Post subject: |
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These are the Court of Appeal Rulings on the construction of Article (3)2 of Directive 2004/38EC. I thought people who are applying on this basis would appreciate this information.
1. KG &AK Prior to Metock
2. Bigia & Ors following Metock.
The court and the Secretary of State have conceded that Metock affects extended family member as far as the prior Lawful residence in another member state will no longer be required.
However, it does not affect the wording that the Extended family member should have lived with the EEA sponsor before coming to the UK, in an EEA state.
This leaves Extended family member with the big hurdle of meeting the stringent rules set on
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DFDS.
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Posts: 195
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| Posted: Sat Mar 27, 2010 4:42 pm Post subject: |
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| Obie wrote: | These are the Court of Appeal Rulings on the construction of Article (3)2 of Directive 2004/38EC. I thought people who are applying on this basis would appreciate this information.
1. KG &AK Prior to Metock
2. Bigia & Ors following Metock.
The court and the Secretary of State have conceded that Metock affects extended family member as far as the prior Lawful residence in another member state will no longer be required.
However, it does not affect the wording that the Extended family member
should have lived with the EEA sponsor before coming to the UK, in an EEA state.
This leaves Extended family member with the big hurdle of meeting the stringent rules set on |
No specific period has ever been given, as to how long one should have lived with the EEA sponsor in order to qualify. Is their a difference between leaving with, and staying with?
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Obie
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| Posted: Mon Mar 29, 2010 3:14 pm Post subject: |
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There is no specified time limit set. Although the UK insist the extended family member should have lived with the Union Citizen for about six months in the memberstate from which the are arriving, in order for the non-EEA national to qualify.
I shall forward the guidance if i find it. The directive does not mention anytime limit, neither does the incomplete directive.
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DFDS.
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| Posted: Tue Mar 30, 2010 12:41 pm Post subject: |
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| Obie wrote: | There is no specified time limit set. Although the UK insist the extended family member should have lived with the Union Citizen for about six months in the member state from which the are arriving, in order for the non-EEA national to qualify.
I shall forward the guidance if i find it. The directive does not mention anytime limit, neither does the incomplete directive. |
Obie I've tried to exhaust the directive, as well as CW guide line and I've never come across the six months regulation. Unless there is other CW guide lines other than the usual UKBA ones we are used to.
Besides, I'll appreciate if you can forward them to me.
To me this is just similar to the dilemma of having leaved in another EEA member state legally. I wonder, if the later ( leaving leaved legally in another member state) is no longer an issue why should then time limit for leaving in another member state be an issue????
Same happens to method of entry. Once a member on board here was trying to convince members that for one to qualify under OFMs, they must have entered with a family permit. Hence we have seen that AIT & the secretary of state conceived that if Family members under article 2 (2) are not obliged to have leaved legally in another member state before, then it does apply to those in article 3.(2) as well.
It is written no where under the CW guidance, that OFMs should hold a family permit in order to qualify. However, CW are rather reminded to examine that the applicant is not an illegal entrant.
They go ahead and say that if someone applies after he or she has overstayed the visa, that shall be taken into account as well.
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Obie
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| Posted: Tue Mar 30, 2010 3:03 pm Post subject: |
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Sorry DFDS if i misled you, what i was meaning to say is ECO guidiance on EEA family permit. It is safe to say that this will possibly apply Mutatis mutandis to residence card application.
| EEA Family Permit guidiance wrote: |
Criteria
Criteria for non-EEA national extended family members:
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Holds a valid passport,
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Has evidence that s/he is related as claimed (e.g. genuine birth certificate), and
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Has proof that they are a member of relevant EEA national’s household. This should mean living under the same roof for a period of at least six months in the country of origin. |
It is important to note that in light of Metock and Bigia ruling at the Court of Appeal, the requirement in Regulation 12 (1b) that the Family member or Extended Family member should have resided lawfully in another member state to qualify for EEA family permit is unlawful and against the ruling.
The ruling state that the requirements still remain that the extended family member should have resided with the Union Citizen in an EEA state, but there is no requirement that the residence should have been a lawful one as previously demanded.
| Bigia & Ors Judgement wrote: |
41. At no point in the judgment in Metock does the ECJ expressly consider OFMs. Indeed, in the extracts from the Directive which it carefully set out, Article 3.2(a) is omitted. However, it is accepted on behalf of the Secretary of State that the reasoning which underlies the conclusion that, in relation to Article 2.2 "family members", there is no need for prior lawful residence in another Member State, must also apply to OFMs. To that extent, the fourth and sixth propositions expounded by Buxton LJ in KG and AK (see paragraphs 10 and 11 above) require modification. This stems from the ECJ's reconsideration of and departure from Akrich. It follows that the provisions in Regulations 8 and 12 of the 2006 Regulations, to the extent that they require an OFM to establish prior lawful residence in another Member State, do not accord with the Directive. It cannot be the case that the policy which produced the result in relation to Article 2.2 family members in Metock is inapplicable in relation to OFMs |
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