Unmarried UK/Non-EU couple: EEA2 vs FLR(M) vs ?

[cad1729]

Hi,

I am a UK national who has been exercising his treaty rights in the Netherlands for the past 3 years with my non-EU partner. We are not married.

We intend to return to the UK together on 30th October 2010 to settle. My partner has a Family Permit (EEA) that is valid until the 6th November 2010.

I have been advised that we can apply upon arrival in the UK for a residence card, using form EEA2. The advantage of this approach is that the application is free. Disadvantages are that it will take 5 years in order to be eligible for ILR and possibly the lengthy processing time.

Am I correct in thinking that we can also apply for unmarried-partner visa FLR(M), despite arriving on the Family Permit? The advantage here would be that ILR could be offered after 2 years, but that the application costs 475 (or is it now 644?) pounds. And do I need to be present for an interview with her in this case?

Are there any other options I've missed, or advantages/disadvantages with either approach (e.g. ease of travel to other EU countries; having Non-EU relatives visiting)?.

One more detail which may or may not be relevant to the application process: I will likely need to spend most of November seeing out my notice period in the Netherlands.

So many questions! Many thanks in advance for any advice you can offer.

Cheers,

Craig[/list]

[vinny]

Am I correct in thinking that we can also apply for unmarried-partner visa FLR(M), despite arriving on the Family Permit?

No. See also path 2 and 2. Procedural comparison.

[Rolfus]

Is your partner's EEA Family Permit one that was issued by the UK, or are you referring to one issued in the Netherlands?

[cad1729]

Thanks for the responses. It appears that EEA2 is the way to go.

Is your partner's EEA Family Permit one that was issued by the UK, or are you referring to one issued in the Netherlands?

It was issued by the British Consulate in Amsterdam.

[Rolfus]

Thanks for confirming your circumstances, I wanted to be sure before relating the following:

I too am a British national exercising treaty rights. My unmarried partner was given an EEA family permit by the British in 2009 - (we live elsewhere in the Eu with a Family Permit from that country and have a three year old British child).

In July 2010 she applied for what we thought would be an absolutely routine renewal. BUT it was refused. The reason cited was:

"as you are the unmarried partner of Rolfus and not his spouse the condition in Regulation 9 (2) (b) is not met. Unmarried partners are considered under Regulation 8(5) as extended family members, but Regulation 9 does not make provision for you to be considered as an extended family member under Regulation 8(5)."

In other words the ECO says there is no way for the unmarried partner of a British National exercising treaty rights to be considered for a Family Permit. (They imply that only spouses can benefit from Surinder Singh.)

SOLVIT couldn't sort it out, so I am now deep into lawyers fees with an appeal. They are confident we will succeed. Maybe! But at the very least it is the best part of a year out of our lives and so far unlimited liability for lawyers costs.

So my Awful Warning is 'Get yourselves to the UK and submit your EEA2 application Before your family permit expires. There is no guarantee it would be renewed'. I will be very interested to see if your EEA2 is successful! Good luck!

[vinny]

Thanks for the information.

[Rolfus]

You will want to look at EEA2 Applications - ONLY 1 TOPIC - UpToDate if you haven’t already, particularly post by jajanana Mar 15th 2010, and also post by Wet26 Mar 20th 2010 and surrounding posts.

It would be useful if you could tell us on this forum whether the COA, when you get it, does actually specify that your partner can work in the UK while waiting for the EEA2.

On all this forum, we are the only two examples of British Nationals returning to the UK with unmarried partners and EEA family Permits. I wonder whether this means that we are rare cases, or that normally everything goes smoothly. Does anybody know? I am thinking of asking the HO for figures under the freedom of information rules.

[cad1729]

Thanks very much for the additional info. It does indeed seem as though we are something of a rarity!

I will be sure to post the COA info as soon as we receive it.

Having looked at that thread -- and then taking another look at the EEA2 form -- I think I have a major problem: I need to return to the Netherlands before the 6th November (when her FP expires), but I also see that I must submit my passport along with my partner's. I assume that there's no way around this....?

[Rolfus]

If I understand correctly, you can ask for your passports to be returned, and this is supposed to happen within 10 days. But perhaps it won't, and you would have to rush your EEA2 application. I think you should take that application very seriously indeed. Based on my experience there is a real risk that even if your application is perfect, they will say your Family Permit was issued in error and reject your request. I wish I had found any example of a successful case like ours!
The EEA2 forms don't seem to cater for returning Brits. Are we really expected to show we are exercising treaty rights and have health insurance? I think this needs legal advice, and I haven't got to the EEA2 stage yet.
I have made a Freedom of Information request to find out how common our case is. Based on the 25000 odd family permits issued per year, I would estimate that we are only tens per year. Interestingly the rejection rate for EEA family permits has increased from about 4% in 2006 to about 20% in 2009.
You could perhaps apply for a second passport through the fast track process, but I doubt if you will get it through by the 6th.
Good luck, and please keep us informed of progress.

[Rolfus]

So we had our day in court yesterday.
We made an early application for the judge to refer the legal issue to the ECJ.The judge replied that the arguments for direct effect should first be heard, and that if that argument permits the appeal to be granted, so be it, if not the judge will refer the matter to the ECJ. The Home Office were somewhat taken aback by the motion to refer to the ECJ, but after consultations made no objection to the motion.
Ruling promised in two weeks.
In the mean time still no replies to my Freedom of Information requests to find out how many unmarried partners apply for EEA Family Permits.
Any news from cad1729?

[Rolfus]

In response to a freedom of information request, the Home Office has told me that in the most recently available 12 month period
"our records show 42 applicants were issued entry clearance visas that had applied for an EEA family Permits issued to unmarried partners who had exercised their treaty rights" (sic).
They say that they cannot easily determine how many of the partners exercising treaty rights were British nationals. They have given no information on applications refused.
How many are we? I would suggest that this information makes it unlikely that there are more than 10 British nationals who apply per year, and more probably fewer than 5.

[Rolfus]

The response to another FOI request has revealed in 2010 the existence of four applications for EEA family permits by the 'unmarried partners of British Nationals exercising treaty rights' that were rejected. In each case the rejection was on the basis that Surinder Singh does not apply to Other Family Members.

There may be more than four cases as the Home Office has claimed exemptions for some of the information I requested.

[Obie]

I dont know if these people know what they are doing, or they are unlawfully seeking to be restrictive in view of the CJEU or they just dont understand the scope of the judgement in Eind and Singh. The court ruled that a national who has exercised treaty right in another member state, should on their return to their home state be afforded rights similar to that which will be afforded to them if the decided to exercise treaty rights in any other state in the union. That was singh. Eind went on to say that the right of entry of these people is confered by article 39 of the treaty now article 45 and the provisions adopted to implement them such as those provided in regulation 1612/68 now directive 2004/38EC. The court went on to say these people will be deterred from moving back if the are unable to continue living with their close relatives, which covers (Article 3(2)) family members. It also stated that barriers to family reunification is liable to undermine the right of free movement which the national of the member have under community law, as the right of a community national to return to their state of origin cannot be considered as purely internal.

Which part of the judgements above indicates to the UK that these people have lesser rights than an EEA national who come to resettle in the Uk.

[Rolfus]

To understand how deeply muddled the HO thinking is, you need to read the Entry Clearance Manager's submission to the court. I have highlighted some lines in red, and added a rebuttal in italics. All this was available to the HO in advance of the hearing, but they chose not to comment on the rebuttal.

The decision to refuse the application has been reviewed by an Entry Clearance Manager in light of the grounds of appeal as detailed by the appellant on the IAFT-2 appeal form. I have reviewed the decision taking into account the grounds of appeal and additional evidence.
The appellant is the unmarried partner of a United Kingdom national. The application has therefore been assessed under Regulation 9 of the Immigration (EEA) Regulations 2006 which refers to 'Family Members of United Kingdom nationals'. Regulation 9 sets out the conditions to be met in order for the family member of a United Kingdom national to be considered under the Immigration (EEA) Regulations 2006. The United Kingdom national lives and works in the Czech Republic and the Entry Clearance Officer was therefore satisfied that the condition set out Regulation 9 (2) (a) was met. The conditions set out Regulation 9 (2) is formed of two parts and clearly requires both parts to be met The appellant's application for an EEA Family Permit was refused on the basis that Regulation 9 (2) (b) was not met.

This is curious. Regulation 9 covers family members, which the appellant is not. [And 9(2)(b) is no longer valid since Metock]

The appellant has appealed the decision to refuse her an EEA Family Permit on the grounds that the decision breaches her rights as an extended family member of an EU citizen and that this decision is not in accordance with European Union law. For the reasons outlined below I maintain that extended family members of Member State nationals are not afforded automatic rights of residence under EU law.

We agree. They are afforded rights of facilitation

I acknowledge the points raised in the appellant's appeal but I maintain the decision to refuse an EEA Family Permit is in accordance with Regulation 9 of the Immigration (EEA) Regulations 2006.. Importantly, Regulation 9 outlines the conditions to be met in order for an EEA Family Permit to be issued as the family member of a United Kingdom national. The appellant did not meet these conditions.

Our appeal is that EU law requires Regulation 8 to apply to UK nationals with treaty rights

In addressing the statements made by the appellant regarding a breach of rights I first maintain that the Directive establishing freedom of movement applies to EU citizens who move to or reside in a Member State other than that of which they are a national. Article 3 (1} of the Directive refers. The Directive therefore does not grant automatic rights for a Member State national to be exercising treaty rights in their State of nationality with their family member(s).

Quite so. The rights were established in Singh, confirmed by Eind and quoted in KG&AK, then underlined in COM(2009) 313 section 2.

EU law has, however, recognised that a Member State national may wish to return to their State of nationality with their family member (s) after exercising a treaty right in another Member State. EU law has also recognised that Member States can determine what rights are granted to the Member State national and their family member(s) in these circumstances. Family members of United Kingdom nationals can use the conditions laid down in the Immigration (EEA) Regulations 2006. These regulations have made provision for United Kingdom nationals to be able to return to their State of nationality provided that the conditions in Regulation 9are'met.Where these conditions are not met in the case of an extended family member of a United Kingdom national, they may rely on provisions made by the United Kingdom Immigration rules.

This is a wrong appreciation of EU law. (Let us assume the ECM meant Extended family Members.) Bigia para 42 confirms the protection given to OFMs. This is confirmed in AP&FP paras 11 & 15. Our contention is that UK legislation permits the admission of unmarried partners under Regulation 8(5). Substitute ‘unmarried partner’ for ‘neice’ in AP&FP para 14 and the point is clear.

I therefore maintain that the United Kingdom national cannot directly benefit from the Directive itself and nor can the appellant be regarded as having automatic rights on the basis that she is the family member of the United Kingdom national. It is EU law that has determined that unmarried partners (and extended family members) do not have automatic rights of residence and that Member States are not obliged to consider unmarried partners as family members for the purposes of the relevant Member State Regulations.

But EU law does require that the admission of unmarried partners should be ‘facilitated’. And that there should be no discrimination on the basis of nationality.

Regulation 9 of the Immigration (EEA) Regulations 2006 recognises that the non-EEA spouse or civil partner of the United Kingdom would qualify to return to the United Kingdom where the conditions in Regulation 9 (2) (b) are also met. The appellant does not qualify for an EEA Family Permit as she is not the spouse or civil partner of the United Kingdom national. The decision to refuse an EEA Family Permit was therefore not made on the grounds of nationality, as asserted by the appellant.

But why wasn’t the application considered under Regulation 8, which would cover the unmarried partner of, say, a Frenchman. The refusal to consider the application under regulation 8 is discrimination on the grounds of nationality.

For the above reasons I maintain that the appellant has no automatic entitlement to be considered a family member of a United Kingdom national and that the decision was made in accordance with Regulation 9. The fact that the appellant was previously issued with an EEA Family Permit in 2009 does not mean that the Regulations were met then or that the appellant now has an automatic right to admission under EU law as the unmarried partner of the United Kingdom national. The appellant was not considered under Regulation 8(5) for the reasons outlined above in that the Directive does not grant automatic rights of admission to Member State nationals and their family
member(s) where the Member State national is exercising a treaty right in their State of nationality.

This is the nub. This contradicts the rulings in Singh, Eind, and quoted in KG&AK, underlined in COM(2009) 313. And there is also clearly confusion in the mind of the ECM between ‘automatic rights of admission’ as apply to Family Members, and ‘rights to facilitation’ as apply to Other Family Members.

I have carefully considered the appellant's statements on the issue raised in the case of Surinder Singh and the Eind Judgement. However, as outlined above, the Directive does not provide for automatic rights of freedom of movement in a Member State national's State of nationality. For this reason Member States are therefore entitled to determine what rights are granted to the family members of nationals of their respective State. .

I don’t think that the ECM is seriously arguing that EU law is not superior to national law. It is more probable that she is confusing the different rights of family members and other family members, and that Other Family Members have the right to facilitation in accordance with national law.

Given all of the above I maintain the decision to refuse an EEA Family Permit was in accordance with Regulation 9 of the Immigration (EEA) Regulations 2006.

I also have an informal opinion from a Commission expert, which for legal reasons could not be quoted in court. An extract of what the expert said is:

There is no valid reason for interpreting the Singh judgment narrowly as applying only to core family members. The purpose of Article 3(2) of the Directive is exactly to ensure the unity of the family in a broad sense. A returning national who has exercised his right to free movement in another Member State in a genuine and effective manner and who wants to return to his home Member State would be entitled to bring along his/her family member in accordance with Articles 3(1) or (2) of Directive 2004/38/EC.

It is true that under the Directive, core family members (spouse, partner, direct descendants and dependent direct relatives) have the right by virtue of Article 3(1) to accompany or join the Union citizen in another Member State while family members other than those defined in Article 2(2) (cousins, uncles, aunts, partner in durable relationships) have no automatic right to accompany or join the Union citizen. Other family members' rights are subject to the discretion of the host Member State. They have a right to have their entry and residence facilitated, which means that the host Member State, in accordance with its national legislation, must undertake an extensive examination of the family ties with the Union citizen and that any denial of entry and residence must be duly justified and subject to appeal.

[Obie]

Rolfus as i read you post on the ECM submission or service, i felt nauseated.

What a complete waste of tax payers money. This statement is so contradictory. It is as if he did not spend any time reading these laws.

He says he will not examine your partners application under regulation 8(5) because she does not have automatic right of entry. That is exactly why regulation 8(5) exist, to facilitate the entry of those other family who don't have automatic rights.

He said the directive does not apply to UK national, and that UK has the right to regulate which family members are allowed in, as the community Jurisprudence has recognised this discretion of the UK.

I have been checking , but have yet to see a case law that backs this up.

All the caselaw s suggests the opposite.

He is right to say that regulation 9 ( UK national law) regulates the right of UK nationals under EU rules to enter UK with their non-EEA family members , and that this regulation does not make provision for other family member. However it is his responsibility to look at the directive, which has more force than national legislation, and ascertain whether the regulation withhold something that the directive provides, which in this case is the position.

If a UK national was to be denied the right to live a normal family live that he enjoyed, in the UK, then exercising his right to return to the UK will not be very appealing. He will be deterred from doing so, especially when by doing so, it could result in his extended family member being forcibly being returned to a third country. Is that not what Surinder Singh and Eind judgment was seeking to prevent.

His response has no substance, as expected anyway, and i believe a serious judge will dismiss it without a second thought.

[Rolfus]

Well, we will see whether the Judge can clear this up in the next few days.

AP & FP paragraph 12 explains what 'Facilitate' means, and exactly what discretion member states have. This is perhaps what they were incorrectly interpreting.

Incidentally, what I have posted is academic rigour itself compared to the reply to a SOLVIT enquiry by the so-called policy officer at the HO.

[Obie]

Rolfus, the problem is not that they don't know what facilitation or extensive examination is, they are refusing to do it in you case, because they consider you to be a UK national, and not an EU national. They are essentially doing it on the grounds of nationality. You are in a comparable situation to any other EEA national who come to settle in the UK. Treating you differently, is like treating a french and a German citizen living in the UK differently.

I believe once they have got that in their head, that you have the same rights as any EEA national who come to settle in the UK, then the problem is solved, and we can start arguing as to how the facilitation and extensive examination should be done.

AP and FP have been partially overruled by this judgement

I wish you all the best again, and hope they dont waste time to process you partners application, once her appeal has been allowed.

[Rolfus]

Good news - our appeal has been allowed. Now we have to see whether the Home Office will themselves appeal in the next 5 days.

The key points from the judgment are:

-it seems to me that [paragraph 8(5)] is the key paragraph that is applicable to the application
-Clearly Mr Rolfus is exercising Treaty Rights and counts as an EEA national in this respect
-it seems to me that paragraph 8(5) includes the Appellant in the category of persons who should be issued with a family permit
-I have been able to make this decision with reference to the Immigration (European Economic Area) Regulations 2006. There has been no need for me to invoke the principle of direct applicability. Neither has it been necessary for me to make a reference to the European Court of Justice in order to make this decision, which is in accord with UK and EU law.
-I conclude that the refusal of entry clearance by the Entry Clearance Officer was a decision which he was not entitled to take.

My (interested) opinion is that this is a clear sighted reading of situation. The legal reasoning is very interesting.

I hope that this decision will encourage anyone who finds themselves in the same position as ours. But I also understand that as it is a First Tier Tribunal decision it does not create a usable precedent.

[Obie]

Congratulation Rolfus. That is a great Christmas gift.

The scope of Regulation 8 should be extended for sure, or these type of problems will crop up in the future unfortunately. Its scope should extend further than it literal meaning. On it literal meaning, it applies only to EEA nationals, but it should also applies to UK nationals, who are defined by the regulations as people who falls to be treated as such, for the purpose of the community treaties.

Well done. Now it will be left with the ECO to undertake the task of regulations 12(2) and (3) .


If you look at the last paragraph of the ruling below, it is pretty obvious that a court higher than the one that has just ruled in your favour,has not precluded the fact that regulation 8 can apply to family members of UK national.

http://www.bailii.org/cgi-bin/markup.cg ... od=boolean

[Rolfus]

Well spotted!
I had read that case and had missed the fact that the relevant EEA National was the British son-in-law and not the Greek daughter.
I think you are quite right that this shows that the Higher Tribunal agrees that paragraph 8 should be used in assessing extended family members of Surinder Singh cases.
The key paragraph is:

17. If the tribunal were to come to the conclusion that there was no relevant dependency, it should go on to consider whether the claimant is an extended family member by virtue of regulation 8, Immigration (European Economic Area) Regulations 2006. For an extended family member, it is necessary to establish that the person falls within regulation 8(2)(a) – (c) and (as relevant to the facts as currently known in this appeal) that she would meet the requirements in the immigration rules for indefinite leave to enter or remain in the UK as a dependent relative. Before listing this appeal, a district tribunal judge may consider it worthwhile for the Secretary of State to address this in a further submission.

What does the last sentence mean?

[Obie]

Hi Rolfus,

I believe Paragraph 13 and 17 of the judgement are of relevance to this case.

The Secretary of State , as it appears, has not considered the case under Regulation 8(2) (a-c) and hence the judge felt they should be given the opportunity to reexamine the woman's situation under it, if she does not meet the dependency requirement, to be considered as a family member.

The problem is, they was no findings of fact, so they judge was unable to substitute any decision, as the lower tribunal judge wrongly thought regulation 9 only afford a right of entry, and hence did not proceed, to making a fact finding of the case.

It would in light of that be reasonable to allow the Home office to make submission on whether the woman is dependent, and if she is not, to see whether she was a member of the household of the British national in Greece, something it appears, the Secretary of State has not considered.

[Rolfus]

Thank you for that comment Obie.

I am starting to think about an EEA2 application. I realise that there are a number of points that merit discussion on this forum. As I intend to analyse them from the particular perspective of a British (Surinder Singh) National as EEA sponsor, I will continue on this thread unless a moderator prefers these questions to be raised elsewhere.

Definition of Residence. The UKBA website tells us lots about how residence is defined for the non-EEA family member, and we have paragraph 3 of the Immigration (EEA) Regulations 2006. But what about the EEA sponsor? Are there any traps there? What test is applied to see if the sponsor is resident? I am thinking of cases where everyone is resident in more than one country, travelling on business, multiple homes etc.

Must the (British National) sponsor be exercising treaty rights, and does the sponsor need medical insurance. Why would a Surinder Singh sponsor need to be exercising treaty rights ? Like Mr Eind, the sponsor must have the right not to carry on any effective and genuine economic activities. How could he and his family members be expected to have private health insurance if the sponsor is living on social assistance? Once that is established, why would the sponsor and his family need medical insurance if he is a self-sufficient person? To stop them becoming a charge on the state? – but they are entitled to become a charge on the state!

What does the form EEA2 mean in section 7 by ‘Retired and in receipt of a pension’? “I am only 49, but I was an air hostess with Unreconstucted Airlines, and they retired me compulsorily at 32, I have received a pension of 30 Dinars per month ever since.â€

[Rolfus]

i have heard today that the HO have lodged an application for permission to appeal. I don't yet know the grounds.

[Obie]

Sorry to hear about the steps the HO are intending on taking. They are obviously not going to go far.

One will have to wait and see.

In any case, i can't see your partner losing on direct effect. It is obvious she has a community rights under Article 3(2) of the directive, and on that basis you have lived in another member state and has a child together, their discretionary power is severely restricted.

The way regulation 8(5) is structured, it might be argued it does not apply to a UK national in the regulation, which is defined as " a person who falls to the treated as a UK national for the purpose of the European Union Treaties".

If they fall to be treated as a United Kingdom National for the purpose of the community treaties, then they have the same rights as any EEA nationals, who falls to be treated as a foreign national for the purpose of the community treaties. So they are in similar positions.


I wish you all the best mate. Hopefully their permission to appeal will not be allowed.

[Rolfus]

I have found another bit of case law that supports the position of unmarried Singh partners: M (Chen parents: source of rights) Ivory Coast [2010] UKUT 277 (IAC).

This case considers amongst other things, an application by M, a third country national, for an EEA Family Permit as the unmarried partner of P, a British citizen.

The application was refused, and then appealed first to the lower tribunal who said:

8 ii. The application for an EEA family permit was refused because although the IJ found that P had been supplying professional services to and within the EEA, the couple had not lived together as man and wife in another EEA state other than the UK and so could not comply with Regulation 9 (2)(a) of the EEA Regulations 2006 SI 2006 1003 (the Regulations).

It was then examined again by the upper tribunal who said:

42 iii. M’s appeal against the refusal of an EU family permit raises further considerations as to the scope of the principle in Carpenter and the application of the case law on the Citizens Directive. It is not suitable for summary determination on the papers and is adjourned for a full hearing in due course. Whether M would wish to proceed with this appeal if she is admitted pursuant to the decision in the present case is a matter for her. It is now clear that P is free to marry her as his decree absolute terminating his previous marriage was pronounced on 19 April 2010.

The interesting thing is that in a heavily lawyered and argued case, at no level has it been suggested that unmarried partners of British citizens with treaty rights cannot be considered for the reasons raised in my case.