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

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.

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€

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

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.

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.

Thats a good point. It will be interesting to know if she succeeded in her appeal under the Carpenter provisions in community law.

I believe her refusal would have been on the basis that she is not a family member, as she was not married to the British national in question, neither has she resided in an EEA state with him.

Although the judges had some doubt about the soundness of that decision.

She did won on the Chen basis, as the child is a French national.

There is no doubt in mind of any member of the legal fraternity that, the directive applies as a whole to the family members or other family members of returning national. It is only the UKBA that are pretending to be stupid.

If their intepretation of Surinder Singh and EInd Principle is correct, then it undermines the whole definition and equal treatement awarded to the status of Union Citizen , which stupilates they should recieve same treatment in law regardless of their nationality.

HO has been granted leave to appeal to Upper Tribunal. Their main argument is that Surinder Singh doesn't apply to unmarried partners. Now why couldn't they have argued that when I had a legal team assembled at the First Tier Tribunal!

I am sorry to hear that Rolfus. I hope you win your case, and i wish you all the best. These people seem to be forgetting the source of rights in Surinder Singh cases, which is the migrant worker. If the migrant worker who is returning to his home country has rights similar to or on par with that of a union citizen who moves to, or establish his/her in another member state, it remains to be seen why the same rights will not be afforded to both categories of people.

The Judgements below mention the possibile applicability of Regulation 8 to Surinder Singh cases.

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

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


Therefore i am lost why the judge never question the soundness of the ECO claims.

I am hopeful you will win eventually. They seem to have got back to you guys pretty quickly. Could it be because it was an appeal from ECO. I know someone who appealed to UTIAC, and it took about 2 months before he found out he has been granted it the right to proceed.
However the quicker, the faster the prospect of winning and disposing this matter.

The key is perseverance. Dont give up or feel discouraged. A relative of mine fought an 18 months battle under this same circumstance, in fact it a more hostile circumstance, as a right of appeal was not granted, and he won.

We had another day in court on April 12th at the Upper Immigration tribunal. It was only to hear arguments as to whether the Home Office should be allowed to appeal. If they are allowed, we will have to have another hearing to actually hear the legal arguments.

Six weeks later and the judge has still not ruled!

In the meantime we made another attempt to get the FP stamped in the passport on the basis that we won the appeal at the First Tier tribunal.This was met with absolute refusal.

Oh well, my son has only been prevented from visiting his own country with his mother for a quarter of his life, so I guess that the delays are all pretty reasonable.

What were the reasons for refusal ? Did they consider Zambrano ruling and its effect ?
I see no reason why the judge is wasting time. Even if they said the first judge erred in law, i dont think that is material anyway, as through you treaty rights, and by analogy to EEA NATIONAL, your partner would have qualified for the discretion under regulation 12(2) any way , which in actual fact would lead to the same outcome. I cant see any reason why she would not qualify under the so called discretion, which has no basis in the directive.

So far, every letter that has been sent to the Home Office, the UKBA or the UKBA office in Warsaw has been simply ignored.

So we filled in the on-line application form for a new EEA FP, this time on the basis of my partner being the mother of a British self-sufficient child, and quoting the case law established in Chen and Others (Free movement of persons) [2004] EUECJ C-200/02 (19 October 2004), clarified in M (Chen parents: source of rights) Ivory Coast [2010] UKUT 277 (IAC), and expanded in Ruiz Zambrano (European citizenship) [2011] EUECJ C-34/09 (08 March 2011). In the covering letter, it said, in respect of the question "Have you ever been refused a visa" .....While leave to appeal the First-tier tribunal ruling has been granted to UKBA, no Stay of Effect was applied for or granted. The decision of the First-tier Tribunal is therefore effective until or unless a different decision is made by a higher tribunal. Please would you take this opportunity to stamp my passport with the EEA FP as an Extended Family Member of Rolfus

We also filled in a request for a visit visa.

My partner asked for two consecutive meetings at the embassy and attended on her own. They won't let two people through security, and they take away your telephone! The lady at the embassy was trying to be genuinely helpful and, after talking to her boss, and phoning Warsaw, said that as we had won the appeal my partner shouldn't apply for a new FP, but leave your passport and we'll stamp in the other, and don't apply for a visit visa, and if you do what you are trying to do everything will be refused.........

So my partner took away the new applications, but left her passport. One week later they confirmed by phone that "as the appeal is still ongoing you can't have the EEA FP"

Two weeks later we are still trying to fix a new appointment to submit the new applications.

I think that when the next meeting actually happens they will say that the online applications have expired so they can't accept the papers.....

I take it back! When my partner finally got an appointment on May 25th a very helpful lady took all the papers and said "its usually taking 2 weeks at the moment".
We shall see.
Still no ruling from the UIT on whether the Home Office appeal should be allowed to proceed.

It is now ten weeks since the hearing at the Upper Immigration Tribunal and still no ruling as to whether the Home Office counter appeal is to be allowed to proceed to a hearing. One might be forgiven for thinking that the judge does not find that the HO arguments are immediately convincing.

But on June 7th, UKBA rejected both my partner's new applications.

Summary of the reasons for rejecting the EEA FP application under Chen,M, & Zambrano:

-You have applied … as the family member of a European Economic Area national who is exercising, or wishes to exercise, rights of free movement under the Treaty of Rome in the United Kingdom.
-257 (C) of the Immigration rules does not apply because your son is British and therefore not an EEA national under the definition in the Immigration Rules.
-There are reasons for judging that no special circumstances apply:
Application is judged to be for your benefit not your son’s
-And further:
No documentary proof that son is self sufficient supplied
Son judged not to be or have been deterred from traveling to UK because he can travel with father.

This line of reasoning has wholly ignored the basis of the application and the Zambrano judgment. It is wrongly stated that the application is as the family member of a European Economic Area national. It is stated in the covering letter “This new application is made as the mother of a Union Citizenâ€

Keep strong!

Rolfus wrote:Note that my partner has an unblemished immigration history comprising six vists over seven years previously having held a student visa, several visit visas and an EEA FP.

In what context did your partner previously have an EEA FP, and what is different now?

All is explained in earlier posts on this thread.

The more I think about this the more I am shocked that despite having WON her appeal last November my partner still can't get the FP in her passport. And she, and my son, are now punished by her being denied even a visit visa.

And how can they have a policy of simply ignoring rulings like Zambrano?

This extract from ECIS CHAPTER 9 – APPEALS sheds light on the UKBA thinking.

[quote]3.14 Allowed appeals on cases which were initially refused on the basis that the person did not qualify under Regulation 8(2)-(5).
Allowed appeals on cases which were initially refused on the basis that the person did not qualify for consideration under Regulation 8 should be referred the ECO or (for in-country cases) to European Casework. In these cases those responsible should write to the appellant acknowledging the AIT determination and that the ECO/Secretary of State will now consider the application, exercising his discretion under Regulation 12(2), 16(5) or 17(4) as appropriate. A decision by the AIT to allow an appeal where we initially decided that the person did not qualify for a document does not mean that we are bound to grant. In such circumstances, the ECO/Secretary of State is simply required to consider granting a document. The AIT only has the power to require the ECO/Secretary of State to consider granting a document, it does not have the power to order one to be granted/issued. This is because s86(3)(b) of NIA 2002, only allows the AIT to exercise discretion belonging to the decision maker if the decision maker has exercised it him/herself. As we decided that we had no power to issue a document (because we considered-incorrectly- that the applicant did not meet any of the conditions of Regulation 8(2)-(5)), we will not yet have exercised our discretion in this case. Therefore, the AIT cannot conclude that the discretion “should have been exercised differentlyâ€

I have now drafted my partner's appeal against refusal of the visit visa. As the refusal was based on the risk that she might do work related activities, a key question is whether she actually has a directly effective EU right, irrespective of whether it is attested by an EEA FP.

Does anyone have any comments on what I have drafted to encapsulate that?

[quote]40 The ECO’s whole line of argument is based on the premise that it would be a breach of immigration rules for the Appellant to undertake work experience. This fails to consider the possibility that she already has an EU right that allows her to work in the UK. As has been discussed, there has been a successful appeal against refusal of a FP (Warsaw/xxxxx). In the determination it is established that the Appellant has derivative treaty rights entitling her to work in the UK. She is waiting for these rights to be attested to by an EEA Family Permit. That she has satisfied the factual conditions of this EU right has been established.

41 The direct effectivity of an EU right is described in M (Chen parents: source of rights) Ivory Coast [2010] UKUT 277 (IAC) (10 August 2010):
40. Whereas in W China the conditions for the existence of the right were not made out, on the IJ’s findings in the present case they were. Accordingly it is apparent as a matter of law that having satisfied the factual conditions for its existence M enjoys a derivative right of entry to make C’s right of entry effective. This is a right given by EU law. It is a directly effective right, that exists independently of the terms of the EEA Regulations and the Immigration Rules that in any event must be interpreted compatibly with EU law where it is possible to do so.

42 The position of the Appellant is exactly analogous. A judge has established that the factual conditions exist. Her right to work in the UK is directly effective under EU, and therefore British, law, irrespective of whether or not it has been attested to by an EEA Family Permit.

43 The Appellant is also the mother of a British Child and therefore has rights to reside and work under Article 20 TFEU. This has been confirmed by the UKBA in a Freedom of Information Act response reference 19033 of July 15th.
“You have also asked whether a non-EEA parent and primary carer of a minor British child under the ECJ’s ruling can get employment in the UK. Whilst the UK Border Agency is currently considering the full implications of the Ruiz Zambrano judgment, it is clear that the judgment enables those who acquire a right to reside on the basis of the judgment to also have a right to work. There is nothing currently to prevent reliance on the Ruiz Zambrano judgment from seeking to rely upon it when seeking employment. However, as employers are subjected to the civil penalties regime evidencing a right to work in the absence of documentation issued by the UK Border Agency may prove problematic in terms of the employer discharging their duty in law to ensure they only employ those who have a right to work in the UK.â€

You are welcome Rolfus...

And also if you saw my 3rd question about taking on employment without a dresident document? and they responded that there was no provision to prevent taking employment in light of zambrano, but the employee will find it difficult to convince the employer.

I had to be very cheeky in my FOI question..lol i should be working with the press...lol

http://www.whatdotheyknow.com/request/7 ... 3.pdf.html

I wrote to the UKBA asking, in light of what the immigration lawyer community is now calling The Williams Letter, (a bit like The Zimmerman Telegram):

If a non-EU parent without an entry clearance but with Zambrano rights presents him/herself to a port officer, accompanied by the British child, will the parent be admitted to the UK?

I got a reply today:

I am writing to confirm that the UK position on the Ruiz Zambrano
judgment is still being finalised. Until it has been finalised we are
not in a position to answer your questions. However we aim to respond to
your questions within 28 working days.

Are we seriously expected to believe that they don't know what would happen???

But it would appear that they are close to finalising a position on Zambrano...

28 working days is six weeks in real money.

It is now 16 weeks since the hearing at the Upper Tribunal and still no news.

Don't build your hopes up. Sounds to me as a standard ending for a letter in cases they don't provide an answer. The key words are "aim" and "respond". They have their targets but no one promises to meet them.

So we have a decision. Signed by the Judge only 11 weeks after the hearing, but it then took another 6 weeks before it was put in the post. UIT accepts all findings of fact, but says the legal arguments put forward by the first tier judge are insufficient. Original determination set aside.

So we have a new UIT hearing scheduled at the end of the month to argue again whether Surinder Singh should apply to Other Family Members. And if so, whether it is by construing the Regulations in the light of community law, or whether it is the doctrine of direct effect.

Another day in court today. No legal team helping me as I had decided to appear as a litigant in person. Two judges. Unbiased HOPO. Result: a ruling in favour of granting an EEA FP and a promise of a direction to give effect to the ruling. Unfortunately they did this by re-exercising discretion in our favour and have not ruled on the point of law, which was whether OFMs can benefit from the Surinder Singh principle. So it won't create a precedent that can help others.

Does anyone know what possibilities the Home office has for making another appeal?

By coincidence, last Friday we got an email saying they had reviewed the appeal and now intended to grant her visit visa.

By further coincidence there has been a decision on how Zambrano should be implemented, so I expect news on that appeal shortly.

Coincidence? "Once is happenstance, twice is coincidence, three times is enemy action" Ian Fleming.

I am pleased to hear the good news. It must be a huge relief. A proper written determination will be sent to you, which will detail the legal basis for their determination. It will be interesting to see its content.

Rolfus, thanks for the good news, and all the work you have clearly put in behind it!

Congratulations! Good to see that you were succesful after this long "journey". Thanks for the feedback.