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No. See also path 2 and 2. Procedural comparison.cad1729 wrote:Am I correct in thinking that we can also apply for unmarried-partner visa FLR(M), despite arriving on the Family Permit?
It was issued by the British Consulate in Amsterdam.Is your partner's EEA Family Permit one that was issued by the UK, or are you referring to one issued in the Netherlands?
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: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 [And 9(2)(b) is no longer valid since Metock]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 â€˜unmarried partnerâ€™ for â€˜neiceâ€™ 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 â€˜facilitatedâ€™. 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 wasnâ€™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 â€˜automatic rights of admissionâ€™ as apply to Family Members, and â€˜rights to facilitationâ€™ 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 donâ€™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.
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.
What does the last sentence mean?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) â€“ (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.