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

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

Moderators: Casa, JAJ, ca.funke, Amber, Zimba, vinny, Obie, EUsmileWEallsmile, batleykhan, geriatrix, John, ChetanOjha, archigabe, push

Directive/2004/38/EC
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Location: does not matter if you are with your EEA family member

Post by Directive/2004/38/EC » Fri Dec 30, 2011 4:50 am

Rolfus wrote:I had another day in court, first-tier tribunal, arguing for a family permit on the basis of Chen and Zambrano, but also on the basis of the mother as an extended family member. The judge was not unsympathetic, but his written ruling will be the test! Probably early in January.
Rolfus, congrats on the FP!

Did you get the written ruling? If so, any interesting content?

pads
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Post by pads » Tue Jan 17, 2012 7:43 pm

rufusdid you get anywhere with zambrano.

congrats on the family permit x

Rolfus
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Post by Rolfus » Wed Jan 18, 2012 9:59 am

I still haven't received the ruling. I will comment on it as soon as I have it.
civis europeus sum

pads
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Post by pads » Wed Jan 18, 2012 10:12 am

Rolfus wrote:I still haven't received the ruling. I will comment on it as soon as I have it.
Thanks we still haven't got anywhere.

Visit visa was refused, can't get legal aid to apply for a spouse visa, and apparently we need a solicitor has the refusal was particularly bad.

So kind of stuffed here.

Love pads x

Rolfus
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Post by Rolfus » Thu Jan 19, 2012 1:55 pm

I checked with the Tribunal service today, and there is still no determination in our Zambrano appeal. That is about four working weeks. I am not surprised, as the legal issues are very complex, as we have discussed on this thread.
civis europeus sum

Rolfus
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Post by Rolfus » Wed Feb 08, 2012 5:02 pm

Appeal allowed by direct application of treaty rights as per Zambrano. (Mother as extended family member not accepted.) Regret that for legal reasons I cannot give more details.
civis europeus sum

Obie
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Ireland

Post by Obie » Wed Feb 08, 2012 5:50 pm

That is a fantastic news Rolfus. I am really happy for you. I am not surprised appeal was not allowed as an Extended family member, as it is difficult to see your partner being an extended family member, when she was not dependent or member of an household owned by your daughter.

Let see how the implementation of the appeal goes.

Correct me if i am wrong, but she had an appeal allowed under Regulation 8(5), has that been implemented?
Black life matters.

Rolfus
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Post by Rolfus » Wed Feb 08, 2012 6:18 pm

The scorecard so far is Appelant 3: Home office nil.

Application for EEA FP as unmarried partner of a British Citizen with Surinder Singh rights: Appeal allowed, upheld at Upper Tribunal.

Application for two year visit visa: refused by ECO on grounds that applicant might work. Appealed and ECM granted six months visa.

Application for EEA FP as mother of British child with Surinder Singh rights: Appeal allowed.
civis europeus sum

Obie
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Post by Obie » Wed Feb 08, 2012 6:55 pm

That is a good score. A bit of an hat-trick.

It is a shame all the appeals were not combined as one or Home Office did not concede.

Zambrano, in the light of Dereci, is a bit complicated. Even if they appeal and they find an err in Law, i don't think it will be material, as your partner could qualify under Article 20 and 21, as your son has indeed exercised his treaty rights in another memberstate, and his situation could be assimilated to a Surinder Singh, or Chen principle.
Black life matters.

Rolfus
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Post by Rolfus » Mon Feb 13, 2012 9:26 am

I checked with the tribunals service today, and no appeal has been lodged by the Home Office. I think they are therefore out of time.
I wonder how long it will now take to hear from the Embassy that they are ready to stamp in the EEA FP.
I also wonder how they are going to do it. Two stickers, one giving rights as an unmarried partner and the other as a Zambrano mother? Or one sticker saying "to accompany either... or..."
civis europeus sum

Directive/2004/38/EC
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Post by Directive/2004/38/EC » Mon Feb 13, 2012 1:12 pm

Do you already have the EEA FP sticker from the first decision?

It may be that UKBA takes so long to actually issue the new sticker that the first one has long expired... :-)

Rolfus
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Post by Rolfus » Fri Apr 13, 2012 9:48 am

We got a call from the embassy asking for my partner's passport. That will be for them to stamp in the Zambrano EEA FP as the mother of a British child. It is truly amazing how long it takes to rectify a mistaken refusal to issue an EEA FP.
As her current EEA FP as an unmarried partner expires in June it is questionable whether it is best to renew that at the same time, or to have two permits that are staggered.
I feel very aggrieved that the visit visa they issued was only for 6 months despite having paid for two years. Extraordinary that despite her having the right to live and work in the UK, they decided that "in the circumstances" 6 months was "appropriate".
civis europeus sum

Rolfus
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Post by Rolfus » Mon Jul 30, 2012 8:34 pm

My partner finally submitted her passport a little over 2 weeks ago. This was in response to the request for the passport to stamp the Zambrano EEA FP.
She also submitted a new application for an EEA FP as my partner.
Last week she got a call from Warsaw "Do you really want two EEA FPs?"
Lo and behold, today she got her passport back with two stickers. One saying EEA Family Member to acc xx (her son). The other saying EEA Family member to join Rolfus (her partner).
Is there any difference between "to accompany" and "to join"?
For my next trick, I am representing my partner in the Employment Tribunal complaining that the Department of Health has rules that prevent doctors graduated from Czech universities from obtaining employment in the UK Foundation Programme. This prevents them entering specialised medical training, and after two years the medical degree is no longer recognised. Main hearing in October!
civis europeus sum

EUsmileWEallsmile
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Post by EUsmileWEallsmile » Mon Jul 30, 2012 9:23 pm

Rolfus wrote: Is there any difference between "to accompany" and "to join"?
For all practical purposes there is no difference. From what I can make out, if the EU national is already in the UK (or has a job there), they will use "to join" even if the applicant states that they will travel together.

Mark.Boats
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Post by Mark.Boats » Thu Apr 25, 2013 9:21 pm

Rolfus wrote:Application for EEA FP as unmarried partner of a British Citizen with Surinder Singh rights: Appeal allowed, upheld at Upper Tribunal.
Hi Rolfus

My partner and I are currently going through the meat grinder that is the FP application process as an unmarried Singh case

So glad to hear that you were successful, do you have any advice for us?

http://www.immigrationboards.com/viewtopic.php?t=133293

Thanks

Rolfus
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Post by Rolfus » Wed Jul 03, 2013 9:06 pm

Seven weeks ago my partner submitted three applications: renewal of EEA FP as partner; renewal of EEA FP as parent; one year visit visa.

Today passport returned (two weeks of insistent requests to Worldbridge about the delay produced no information whatsoever).

The two EEA FPs were renewed, which is not surprising in view of the court judgments.

Visit visa refused. €340 up in smoke!

I really hadn't expected this to be refused, and wrongly thought that the appeal possibility for family visit visas had already been abolished, so selected general long term visit visa. But specified that one of the purposes was for my partner to visit her mother, now resident in the UK.
Additional information stated
This request for a general visitor visa is made to allow me to visit the UK unaccompanied by either my son or my partner. I will need to visit for job interviews and my mother’s health is such that I may need to visit at short notice.
Was this an appealable visit visa??? It also now costs £140 to fight to avoid having to give details forever of a visa refusal!! Even to get to the ECM review stage at which they conceded last time.
What is interesting is that the grounds of refusal are essentially the same as posted above on June 20th 2011. -
You were granted two permits for Family Member od EEA National to accompany your son and your unmarried partner...with a view to long term employment...your family has consistently maintained intention to move back to UK in near future...I am not satisfied that you are genuinely seeking entry as a visitor for the limited period as stated by you or that you intend to leave thereafter. I am therefore not satisfied that paragraph 41 (i) and (ii) are met.
This is what the UKBA site currently says
Do you need an EEA family permit?

A non-EEA family member of an EEA national will need to obtain an EEA family permit before travelling to the UK if they are:

coming to live with the EEA national in the UK.

The non-EEA family member must be travelling to the UK:

with the EEA national; or
to join the EEA national here.

If the EEA national is outside the UK and is not travelling with them, the non-EEA family member must instead apply for a visa (if they need one) before they can come to the UK. For more information, see the Do I need a visa? page.
These are the Immigration rules on which she was refused
41. The requirements to be met by a person seeking leave to enter the United Kingdom as a general visitor are that he:

(i) is genuinely seeking entry as a general visitor for a limited period as stated by him, not exceeding 6 months or not exceeding 12 months in the case of a person seeking entry to accompany an academic visitor, provided in the latter case the visitor accompanying the academic visitor has entry clearance; and

(ii) intends to leave the United Kingdom at the end of the period of the visit as stated by him; and does not intend to live for extended periods in the United Kingdom through frequent or successive visits; and
What does anyone think is going on? The ECO seems to think that my partner would choose to enter the UK on a visit visa, overstay, abandoning her British son and British partner, and forego recognition of her medical degree in the UK, rather than use one of her two EEA family permits to enter and practice medicine, with her family. Presumably he does not understand that an EEA family permit bestows no rights: it merely attests to the existence of a continuing enforcable Community right...

How could any holder of an EEA FP ever successfully apply for a visit visa?

More immediately: I interpret Aladeselu (TA) & Ors (2006 Regs - reg eight) Nigeria [2011] UKUT 253 (IAC) (01 July 2011) as having established that an EEA FP holder can travel in advance of the family member, and be joined by them later. Is that how UKBA interprets it?

If so, does she need a visit visa at all?
civis europeus sum

Directive/2004/38/EC
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Post by Directive/2004/38/EC » Wed Jul 03, 2013 9:15 pm

What does it even mean to apply for two EEA FPs at once, and be granted them? I do not understand.

And why also apply for the visit visa? Because you will not be travelling to the UK?

Rolfus
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Post by Rolfus » Wed Jul 03, 2013 10:08 pm

Hello old friend!

EEA FP number one is as my unmarried partner (Surinder Singh). It means we can travel together to the UK for visits, and move together to live & work there.

EEA FP number two is as the mother of our son (Zambrano). It means that mother and son can visit the UK without father, and could still move and live there if I got run over by a tram.

The visit visa allows (would allow) my partner to visit her mother without either of us, for example if she is taken suddenly ill during term time. Father could look after son. Also necessary to allow travel to attend job interviews prior to moving.

I agree that it is daft that UKBA cannot issue one FP specifying to accompany partner or son...

On current plans mother & son will be resident in UK from Sept 1st 2013, I will follow in a few months after winding up some business issues, selling our flat etc. This seems to be exactly that which is forseen in Aladeselu 19
We discussed with the parties the hypothetical example of a Union citizen who would be deterred from taking up an employment contract in a host Member State starting in the winter unless he could arrange for dependent members of his household to start school in the host Member state at the beginning of the preceding Autumn term.
So there should be no problem with mother travelling alone to the UK on Friday on her EEA FP, with son and myself only joining after necessary arrangements are in place?
In reality we will all need to travel back and forth many times over the next eight weeks, juggling a number of tasks and priorities.
I can't see any problem with this on the Aladeselu principle, but it would have been comforting for her to have the visit visa because every solo entry will run a risk of lengthy formalities.
civis europeus sum

Directive/2004/38/EC
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Location: does not matter if you are with your EEA family member

Post by Directive/2004/38/EC » Wed Jul 03, 2013 10:20 pm

The directive is written in terms of the family member travelling with or joining the EU citizen. So, under EU law, I think you may have troubles if they travel ahead.

That said, there is no particular restriction on you living in BOTH the UK and Europe. You can go to the UK with your family, and then also go back to Europe to finish up and put away.

Rolfus
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Post by Rolfus » Sat Jul 20, 2013 1:34 pm

So, I have paid £140 for the privilege of appealing. It appears that this is definitely a family visit visa. At least as this is now our fourth appeal (all others successful) I know the ropes and won't have to pay for legal representation.
I have asked the Tribunal to make an appropriate Direction to prevent the ECOs from using this flawed logic yet again to refuse a visit visa, following the abolition of the right of appeal.
I have also asked the Tribunal to make a fee award for the £140 to be returned.
If it gets to court I will ask the Tribunal to exercise discretion that the visa should be for the 12 months applied for.
What will probably happen is that the ECM will, on review, or perhaps only on the morning of the Tribunal hearing, withdraw the rejection and grant a 6-month visit visa.
They will do this to avoid the statistic of losing an appeal; and to avoid having to return the £140, and to avoid a Directive binding their future decisions.
The overall effect is seriously unjust. After appeals are abolished my partner will be unable to apply for a family visit visa without the near-certainty that it will be rejected yet again on grounds that would not stand up on appeal.
It appears from our example that once a visa has been refused, it doesn't matter whether it is overturned on appeal, the ECOs will still reject out of hand any future application. Has anyone collected statistics, or experiences, on this to see if it is true?
Is my partner the subject of some malicious and personal campaign? I have got her file under the data protection act procedure and there s nothing in it that would give grounds for all these refusals.
civis europeus sum

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