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Zambrano - UKBA announces its interpretation...

Use this section for any queries concerning the EU Settlement Scheme, for applicants holding pre-settled and settled status.

Moderators: Casa, push, JAJ, ca.funke, Amber, zimba, vinny, Obie, EUsmileWEallsmile, batleykhan, meself2, geriatrix, John, ChetanOjha, archigabe

Obie
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Post by Obie » Thu Dec 29, 2011 9:51 pm

Rolfus wrote:I submitted my argument as outlined in my post of Dec 6th 10.18 am, and the judge didn't bat an eyelid. I didn't volunteer the difficulty raised by Obie. Written judgment probably won't reach me until January.
Sorry Rolfus i totally missed your post. I did not have the post notification in place until recently.

A big congratulations to you and your partner, and wish you every happiness for the future.

The good thing about these argument is, if properly argued it could succeed, but the other party will be fortunate in most cases to get a narrow minded judge who is not prepared to buy it, and you could find the Secretary of state being given permission to appeal or for reconsideration, and find that these argument are overturned, and a poor immigration Judge being told he/she erred in law.

As the law stands, the UKBA don't accept a minor child can have family members or even Extended family member for the purpose of the Citizen directive.

They believe special provisions are made in Paragraph 257C of the immigration rules for them

These might all change if this upcoming ECJ cases are all answered in the positive.(Yoshikazu Iida v City of Ulm)
Smooth seas do not make skilful sailors

jaskamalman
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Post by jaskamalman » Fri Dec 30, 2011 1:56 am

Obie wrote:
Rolfus wrote: As the law stands, the UKBA don't accept a minor child can have family members or even Extended family member for the purpose of the Citizen directive.

They believe special provisions are made in Paragraph 257C of the immigration rules for them

These might all change if this upcoming ECJ cases are all answered in the positive.(Yoshikazu Iida v City of Ulm)

First question
In 248A I am bit confuse with this term “child resident in the United Kingdom” ? They do not say, child who is UK national. Is 2 year old Irish national child, who were born and presently residing in UK is not “child resident in the United Kingdom”?

Second question.
Under 257C, If Non EEA parent of EEA national cannot take employment, then how much money one should have in bank for this application?

Obie
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Post by Obie » Fri Dec 30, 2011 4:11 pm

The is no set amount that has to be in the account to qualify.

A regular source, or evidence showing regular source of income would help.

Seeking legal assistance before proceeding is advised.

A comprehensive sickness insurance is a requirement though.

The family member cannot work, in light of Zambrano, it is questionable whether the UK can continue on their policy of misinterpreting Chen.
Smooth seas do not make skilful sailors

alyxzandra
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A different situation on a family EEA

Post by alyxzandra » Thu Jan 19, 2012 10:25 pm

I have been in the UK (U.S. citizen) since 1999. I now have ILR (since 2004). I am also applying for Greek citizenship as my father is from there. My mother lives in the U.S. My mother and stepfather are on a very low income and will need the money I send to help them. Plus, I am co-signing for a rented property for them as no one will rent to them due to their very low income of £600 per month. My mother has severe medical conditions (double amputee in a wheelchair on dialysis with heart problems) and my stepdad had a heart attack and 2 slipped discs. Thus, he is not able to adequately care for her.

I looked into bringing them here, but was told as my mother is 63 and receives some state benefits, the application will fail even though the state benefits does not cover all the basic necessities and I am not paying for all of their bills.

Once I get Greek citizenship, would I be able to bring them here under an EEA family permit?

Rolfus
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Post by Rolfus » Wed Feb 08, 2012 8:39 pm

With respect to my post of Dec 6th, the judge rejected my argument, insisting on the Head of Household argument. "the household of which the applicant is a member is the household of which the EEA national with the primary right of residence is the head, rather than just another member". He quotes RK India UKUT 421. If I had to appeal this I would say that it is impossible to apply such a test to households without either committing sex discrimination (is it mum or is it dad who is head?) or being arbitrary (toss a coin to see who's head).
I would also argue that as The European Casework Instructions (as updated May 2011) state that:
“Regulation 8 of the 2006 Regulations covers extended family members (for example, brothers, sisters, aunts and cousins). It also covers direct family members (such as parents or children over the age 21) who have failed to provide evidence for financial dependencies. An applicant may be considered under Regulation 8 of the 2006 Regulations if s/he falls within any of the following conditions… Note: there is no dependency test for persons who can show that they have lived under the same roof as the EEA national before coming to the UK”
parents must be in a category of "more favourable national provisions..."
And if I were doing it again I would stick in the Dec 6th arguments that I had written up.....but didn't want to cause data overload on the day.

But I don't have to appeal (but waiting for HO appeal) because the judge allowed my appeal on grounds of Chen, M and Zambrano by direct effect. :D
civis europeus sum

riseen
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Post by riseen » Thu Feb 09, 2012 12:28 pm

Annex A: Applications for a residence card citing M (Ivory Coast)/enforceable EU rights
Thank you for your recent application for documentation confirming your right to enter/reside as the primary carer/parent/sibling of a child who has a right of residence in the UK under the Immigration (European Economic Area) Regulations 2006 (“the Regulations”) as a self-sufficient person.
The UK Border Agency accepts that the recent determination in the case of ECO (Dubai) v M (Ivory Coast) (ref OA/55569/2009) means that the primary carer/parent/sibling of a self-sufficient EEA national child has a directly enforceable EU right to enter and reside in the UK. Whilst the determination confirms that the right flows directly from EU law, it does not alter the requirements which have to be met in order for the right to exist. Those requirements remain as set out in paragraph 257C of the Immigration Rules.
Work is currently underway to amend the Regulations so that documentation to evidence this right, where it exists, can be issued under those Regulations. Until those amendments have been made, requests for documentary confirmation of the right will continue to be treated as an application for leave under paragraph 257C of the Immigration Rules.
Option a) Application granted
As it has been assessed that you satisfy the conditions for enjoyment of the right to reside, your passport has been endorsed with a limited period of leave allowing you to enter/remain in the UK in order to facilitate the free movement rights of your child. You will note the terms and conditions of this grant as endorsed in your passport. Where the period of leave is nearing expiry, you will of course have the option of applying for another period of leave in order to continue to reside in the UK. Equally, assuming that the necessary changes have been made to UK law as alluded to above, you may be able to apply for documentation under the Regulations evidencing your right to reside if you wish.

riseen
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ZAMBRANO

Post by riseen » Thu Feb 09, 2012 12:40 pm

In the recent Zambrano case, the Court of Justice of the European Union found that in certain circumstances the non-EU parents of British citizens in the UK must have the right to reside in the UK, and to work (and, presumably, to access public funds), if refusing the parents this right would deprive the child of the genuine enjoyment of that child’s EU citizenship rights. In the subsequent Dereci case the Court clarified that this means that the parent must be allowed to stay in the UK where the child would otherwise have to leave the territory of the European Union altogether.

However, it could be argued that the Zambrano rule applies to the parents of Irish children as well since Irish citizens are to be treated as if they were British citizens for the purposes of UK immigration law, according to section 2(1) of the Ireland Act 1949. This should bolster the argument that parents of Irish child should be granted the right to work in the UK. Furthermore, the judgment of the UK Supreme Court in ZH (Tanzania) should apply to Irish (and other EU citizens) as much as to British Citizens. In that case, Baroness Hale, one of the judges, said the following:
They are British children; they are British, not just through the “accident” of being born here, but by descent from a British parent; they have an unqualified right of abode here; they have lived here all their lives; they are being educated here; they have other social links with the community here; they have a good relationship with their father here. It is not enough to say that a young child may readily adapt to life in another country.........

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CHEN CASE

Post by riseen » Thu Feb 09, 2012 12:44 pm

The Chen case involved the residence rights in the UK of the parents of an Irish child, who were themselves third-country (i.e. non-EU) nationals (from China). Under EU legislation, there is no explicit right of residence for the parents of an EU migrant citizen unless the parents are dependent on the child; in cases like this, however, it is the child who is dependent on the non-EU parent. In Chen, the European Court of Justice nonetheless ruled that as a citizen of the EU, the Irish child had a right under Article 18 of the EC Treaty (now Article 21 of the Treaty on the Functioning of the European Union) to reside as a self-sufficient EU citizen in the UK, and that denying residence rights to her parents, at a time when the child would be unable to care for herself, would conflict with this basic right. As a result of Chen, Non EEA Parents In the Chen case, the right to work was not at issue; the parents there were independently wealthy and did not need to work in the UK or access public funds. They also had private comprehensive sickness insurance.

howlong
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Post by howlong » Thu Feb 09, 2012 5:54 pm

Hi Riseen
Thank you for the input.Where did you obtain those information.Cheers

Obie
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Post by Obie » Sat Mar 17, 2012 9:15 am

This Judgement seems good, for Chen cases, but it slipped my radar for nearly 4 months.  Bassey , Re Judicial Review [2011] NICA 67 (21 November 2011)

It establishes a new precedent. Unfortunately it is not binding on all the UK jurisdiction.

It seem to have quashed Paragraph 257 of the immigration rules in more or less its entirety.
Smooth seas do not make skilful sailors

sarah a
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Zambrano

Post by sarah a » Tue Mar 20, 2012 1:19 pm

Help, am a new member on this forum and i must say this forum has really helped a lot especially in knowing the questions to ask my lawyer. But have decided to tell my story in case there is anything else i need to do. Mine is an usual case i just hope people can help. I came to join my husband who is in the british army in 2004, he was under exempt on immigration rules then so i was granted a 2yrs leave to remain,i renewed that in 2004 and was given a 4yr extention as he was still under exemtion of immigation rule. Then in 2008 he was granted a British citizenship. when i applied for my indefinate in 2010 when my 4yrs extention was about to expire, i was told since my husband has changed his status i need to collect another 2yrs on his new status as a british citizen before i can be granted indefinite. I was refunded my money and told to apply for leave to remain but by then my visa has expired as it took them 6mths to get back to me.Anyway i applied for the leave to remain and that took another 8mth and now i just got a refusal saying my visa expired before i apllied so am an overstayer, not taking into consideration that the visa expired while it was with them. I got a lawyer and he said article 8 will suit me but long and expensive but i should go for Zambrano as its quick and will enable me to work while they process as i do not want to loose my job.I have 2 sons who are british citizens and minor and my husband is still in the Army. What do u think i shld do.

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Post by Obie » Tue Mar 20, 2012 2:43 pm

At the time when your husband had spent 5 years in the Army, and you had been married for 2 years, you should have applied for ILR. Even at the moment when he applied for ILR, you would have qualified too.

It is strange how the rules work. It looks a bit unfair aswell.

Due to the fact you failed to apply when your spouse had spend 5 years of Service and was exempted from immigration control by virtue of 8(4) of the 1971 act, before he became British, you are now excluded.

You may qualify under Zambrano, but is you husb
and still in service or has been discharged.
Smooth seas do not make skilful sailors

sarah a
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Zambrano

Post by sarah a » Tue Mar 20, 2012 3:02 pm

I was just unfortunate that as at the time my husband applied and got his British citizenship,the 5yr rule of spouses was not in place. It started after he already changed his status. And yes he is still serving in the army

Obie
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Post by Obie » Thu Mar 22, 2012 12:29 am

I believe with good representation, you should be able to secure ILR outside the rules at least, or DLR.

In any event, i am sure a Zambrano application may succeed.
Smooth seas do not make skilful sailors

sarah a
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Zambrano

Post by sarah a » Mon Apr 09, 2012 7:44 pm

Am i able to transfer back to uk rules for an ILR if i get the Zambrano . As the only reason i went for the Zanbrano was that it is quick and i was eager to regularise my status cos of my job which i did not want to loose.

jaskamalman
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Post by jaskamalman » Wed Apr 11, 2012 12:12 am

We are non-EU citizens on work/tier 2 visas from last 7 years in Northern Ireland.
Today home office rejected my ILR application because, on my 4th year in UK, I had 67 days absence from UK for new Tier 2 visa.
Our daughter is Irish citizen by birth. So,

Can we apply for EEA2 family permit in UK?

If we can, will it affect my present tier 2 visa?

I am interested EEA2 family permit for two reasons.
1. I wouldn’t need visas to travel in EU countries.
2. If I change a job and my new employer need time to apply for licenses (which some time takes 5 months) then I don’t have to leave the country.

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Post by frankfurt » Fri Aug 24, 2012 10:12 am

Changes affecting EEA nationals and their family members

13/07/2012


The Immigration (European Economic Area) Regulations 2006 have received an update with a number of interesting changes. The main changes are:
•from 16 October 2012, nationals of an EEA state who also hold British citizenship will no longer fall into the definition of an EEA national and will no longer be able to rely on the provisions of the EEA regulations. This is likely to impact these dual nationals' non-EEA family members who will no longer be able to rely on the EEA free movement regulations and will need to apply under the immigration rules in order to enter and/or stay in the UK. Exemptions do apply for those who are already residing in the UK or who have submitted their applications under the EEA regulations prior to 16 July 2012;
•a new category has been created called ‘derivative residence’ which incorporates the ruling in the European Court of Justice case of Chen [2004] EUECJ C-200/02 into the regulations. This allows a non-EEA national primary carer of a self-sufficient EEA national under 18 to have the right of residence in the UK if that EEA national’s stay in the UK is dependent upon it. Likewise, non-EEA children of EEA nationals will also have a derived right of residence. This category cannot lead to settlement.



Can anyone tell me what is the differrence between immigration rules and immigration regulations?Can the chen's parents be allowded to work after changes?Are the chen's parents treated as the family member of EU national?Do the chen's parents still need to paya large amout of money to pay UK visa fee?

jaskamalman
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Post by jaskamalman » Fri Aug 24, 2012 11:56 am

Thanks, do you know what they mean by “carer of a self-sufficient EEA national under 18”? Dose that mean, we should have lot of money to stay?
Can we work under ‘derivative residence’?
Do you think a person living under ‘derivative residence’ can not get residency even after 10 years continue stay?

frankfurt wrote:Changes affecting EEA nationals and their family members

13/07/2012


The Immigration (European Economic Area) Regulations 2006 have received an update with a number of interesting changes. The main changes are:
•from 16 October 2012, nationals of an EEA state who also hold British citizenship will no longer fall into the definition of an EEA national and will no longer be able to rely on the provisions of the EEA regulations. This is likely to impact these dual nationals' non-EEA family members who will no longer be able to rely on the EEA free movement regulations and will need to apply under the immigration rules in order to enter and/or stay in the UK. Exemptions do apply for those who are already residing in the UK or who have submitted their applications under the EEA regulations prior to 16 July 2012;
•a new category has been created called ‘derivative residence’ which incorporates the ruling in the European Court of Justice case of Chen [2004] EUECJ C-200/02 into the regulations. This allows a non-EEA national primary carer of a self-sufficient EEA national under 18 to have the right of residence in the UK if that EEA national’s stay in the UK is dependent upon it. Likewise, non-EEA children of EEA nationals will also have a derived right of residence. This category cannot lead to settlement.



Can anyone tell me what is the differrence between immigration rules and immigration regulations?Can the chen's parents be allowded to work after changes?Are the chen's parents treated as the family member of EU national?Do the chen's parents still need to paya large amout of money to pay UK visa fee?

Rolfus
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Post by Rolfus » Sun Sep 16, 2012 1:57 pm

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 » Tue Sep 18, 2012 11:14 pm

Rolfus wrote:This link is interesting
http://csdle.lex.unict.it/docs/labourwe ... /3458.aspx
Thank you for finding it!

Kitty
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Post by Kitty » Thu Oct 18, 2012 6:13 pm

Amendments to EEA Regulations covering Zambrano cases:

http://www.legislation.gov.uk/uksi/2012/2560/made

Laid before Parliament today and in force 9 November.

Prince74
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Post by Prince74 » Thu Oct 18, 2012 6:51 pm

Kitty wrote:Amendments to EEA Regulations covering Zambrano cases:

http://www.legislation.gov.uk/uksi/2012/2560/made

Laid before Parliament today and in force 9 November.
Pls Kitty or anyone else reading this, if you have a link to where UKBA's caseworkers guidance is relating to Zambrano pls kindly post it.

Obie
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Post by Obie » Thu Oct 18, 2012 7:18 pm

It was long overdue. I was speaking to a friend of mine few days back, and were discussing the ongoing infringement of EU law by the UK in regards to Zambrano. It appeared that the UK was the only country in the EU who has yet put legislation in place or procedure or policy for issuing residency to people who fall under the scope of Zambrano.

In regards to Regulation 8, it is good that one of the offending regulation has been removed. However, the requirement of Regulation 8 (2C) is not a requirement for the facilitation obligation in regulation 17(4) or Article 3(2), therefore the UK, should consider removing it altogether.
Smooth seas do not make skilful sailors

pads
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zambrano

Post by pads » Tue Oct 23, 2012 7:36 pm

Does this now apply to entry clearance it would suggest it does

Love pads x

pads
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zambrano

Post by pads » Sun Oct 28, 2012 10:41 am

Does anyone know what these new regulations are actually saying?

Love pads x

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