British Citizen in the UK applying for a EEA family permit

Sorry if this has been posted before but I did search the forum and didn't find an answer...

Can someone explain why a British Citizen living in the UK cannot use the EEA Family permit route to apply for a dependent (Parent in this case) to visit the UK?

From reading the visa process, it appears that I have to follow the standard visa application route and pay £200 at the embassy because according to the Home Office: "Although the UK is also a member of the EEA, the information in this guidance does not, in general, relate to British citizens and their family members.".

I am not sure why this is? If I was a Italian citizen in the UK, I *could* apply using the EEA Family permit at no cost. Why should this be different for a British Citizen in the UK?

Many thanks

boysisus wrote:Sorry if this has been posted before but I did search the forum and didn't find an answer...

Can someone explain why a British Citizen living in the UK cannot use the EEA Family permit route to apply for a dependent (Parent in this case) to visit the UK?

From reading the visa process, it appears that I have to follow the standard visa application route and pay £200 at the embassy because according to the Home Office: "Although the UK is also a member of the EEA, the information in this guidance does not, in general, relate to British citizens and their family members.".

I am not sure why this is? If I was a Italian citizen in the UK, I *could* apply using the EEA Family permit at no cost. Why should this be different for a British Citizen in the UK?

Many thanks

It's because if you were living in another EU state you could not use that states immigration rules because ur not a citizen of that state.

For example if I lived in Germany I couldn't use the German immigration rules to marry my non-EU gf because I'm not a German Citizen. Nor could I use the UK rules cos I'm not resident there anymore. Hence the EU directives to get round this issue.

Can someone explain why a British Citizen living in the UK cannot use the EEA Family permit route to apply for a dependent (Parent in this case) to visit the UK?

On top of what has already been posted I think it is worth mentioning that the Surinder Singh principle has been adopted into UK law.

That is, where a British Citizen has been exercising EU Treaty Rights in another EU country, with their non-EEA family member, it is then possible to utilise EU regulations as regards the UK. That is, an EEA Family Permit can be applied for, for the non-EEA Family Member.

For example, British Citizen living in say Portugal with their Thai wife ..... an application for UK-issued EEA Family Permit can be made.

Following on from John's post, see also I am a British citizen. Can my family members apply for an EEA family permit to join me in the UK? and 21.4.8 Non-EEA Family Members of British Nationals (Surinder Singh cases)

To add to John's post, the Surinder Singh route can only be used if the British Citizen is planning on returning back to the UK for settlement purposes. If coming back only for a visit, the spouse will have to apply for the visit visa under the UK immigration rules.

Not quite, remember that any EEA citizen is allowed to go to another EEA state for 3 months with no strings attached. There is no reason why a UK citizen should be treated differently.

If you remember, this is the problem I'm having. It's not over yet, but I did get a letter from a UK embassy (after consulting UK Visas) confirming that for a UK citizen exercising treaty rights an EEA FP is a possibility.

Otherwise to obtain a visit visa for the family member would be far more difficult than a "settlement" EEA FP, which would be absurd.

The UK Immigration (EEA) Regulations 1003/2006 make no mention to settlement for issuing an EEA FP to a UK citizen exercising treaty rights.

Maybe this is to do with England's Common Law as opposed to Roman Law, but the UK places undue importance on case law, apparently considering old case-law it to be more important than the new Directive 2004/38/EC..

AFAIK the Surinder Singh route is only to return back to the home EEA country and cannot be used for visit purposes. If an EEA national is travelling to another EEA country other than his home country, what ever you said is applicable.

You are saying that its far harder to visit the UK for a family member of a UK citizen exercising treaty rights than for the UK citizen to return with his family member to settle. It's absurd.

Absurd as it sounds, I am sorry, but that is exactly what I am saying.

Have a good look at the EU rulings regarding the Surinder Singh route to be sure.

boysisus wrote:I am not sure why this is? If I was a Italian citizen in the UK, I *could* apply using the EEA Family permit at no cost. Why should this be different for a British Citizen in the UK?

The EU respects the sovereignty of the member states in immigration matters, and it does not interfere unless there is a European concern. If a person moves within the EU, that is a European matter. A British citizen in the UK with a third country spouse is not considered a European case, because only one European country is involved.

Consequently, the EU only makes the rules for EU citizens (excluding British citizens) in the UK. The goal was to make moving within the EU easier, so all the required visas are free (this includes family members). The rules for British citizens in the UK are written by the MPs, and for some reason the UK thinks that immigration is a profitable enterprise, so they charge quite a lot of money for visas. You have to ask your MP why this is so.

Docterror, I'm not looking at Surrinder Singh: I'm looking at the UK immigration Regulations! They are more recent!

Richard66, I am not sure I understand what you mean.

I mean that Immigration Regulation 9 was written taken into consideration the Surinder Singh ruling and the initial three months of residence in any EEA state.

To me it seems clear that a more recent regulation (and also a more recent directive in the case of Surinder Singh) will always have more force than previous case law, incorporating it, altering it or even revoking it. If this were not so, it would mean that case-law would be a permanent and primary source of law, which it is not. Case-law interprets, complements and clarifies points in law that the legislator did not consider. To say differently would mean case-law could never be changed by newer regulations, directives or what have you.

If you read Regulation 9 there is absolutely no mention to settlement anywhere. And it also says that the UK national must be or must have been residing in another EEA state. This present simple tense is most important. There is indeed talk in further regulations about being a qualified person, but only after this initial period of three months has expired. You might notice that otherwise there would be a clear case of discrimination as a UK citizen exercising treaty rights would not be able to come with a family member to the UK on a visit, while a citizen of any other EEA country would. If there is an initial right of residence of three months, how can you ask any EEA national to be a qualified person from day one?

I raised this point with the relevant UK authorities and it seems that so far they agree with me, or at least this is what UK Visas has told the British Embassy in Rome. This I have in writing.

Richard, I think there is a point here that you may be failing to take into account. That is, the Surinder Singh ruling is European Case Law, not UK Case Law.

Also, as far as I can see, nothing issued at the European level since the Surinder Singh ruling has in any way cancelled the effect of that ruling.

John, I am aware it's European Case-law and I'm not saying otherwise. What I'm saying is that Directive 2004/38/EC gives to all EEA nationals three months of unconditional residence in any other EEA country and the UK immigration regulations have taken this into account. As you say, no case-law, regulation or directive has revoked Surinder Singh, but has if anything, given it wider scope. Either you have three months in which you don't need to be a qualified person or you don't have three months. The condition is that you are exercising treaty rights, not that you are returning to the UK. You can't have it both ways and this seems to be the direction that the Eind case is taking.

Besides the Kafkian overtones of this situation, doesn't this seem to you an infringement of free movement rights? I'll give an example:

I live in the UK where I have my parents, brothers, sisters, children from a former marriage and so on. I also have my house, but I decide to go to France to work. But, wait a moment! What happens if, when I'm in France, I meet an Iraqi? If we marry I'll never be able to return to the UK SAVE if I'm going to settle there again: no visits at all, because of course, my wife will never get a visa!. My! I won't go! The risk is too great!!

As someone else pointed out to me, most UK nationals who live in another EEA state and are married to a non-EEA national just won't bother to go to the UK on a visit and it's too much of a hassle to go to the ECJ. Surinder Singh did it, because his whole life depended on it.

The sermon part of your post aside, I feel that you are unnecessarily complicating something that is not as complicated as you make it out to be.

Directive 2004/38/EC gives to all EEA nationals three months of unconditional residence in any other EEA country....The condition is that you are exercising treaty rights

As pointed out many times to you before, the Directive covers only all EEA nationals except the nationals of the very own state,i.e- in this case the UK, when it talks about treaty rights being exercised. The Surinder Singh route can be used as an alternative only by returning residents to bring their spouse back to their own country after exercising treaty rights in another EU country.

So, to break it down, the unconditional right you mention is given only to other EU nationals not UK citizens(in UK atleast).

Actually, the way the Directive is written I think I can also play the devil's advocate and take an Irish stance and say that the Surinder Singh route is no longer valid.

So, if you could make a life dependent case and make the route open to visitors as well, then that would be great.

Docterror wrote:So, if you could make a life dependent case and make the route open to visitors as well, then that would be great.

Actually, if you are going to make a case, I think it should be that the Residence Card grants you entry to any European country. That is what the Directive 2004/38 says, but many countries just ignore it.

And I continue holding the view that the Directive covers all EEA citizens exercising treaty rights, including UK citizens, when going to the UK for whatever reason and this is reflected in the UK EEA Immigration Rules.

Whereas one could use 2006 case-law to interpret a 1992 regulation, one cannot use 1992 EU case-law to interpret a 2006 regulation.

I'm not talking of visitors, I'm talking about family members of EEA nationals and here there is a lot of difference.

I appreciate the UK wants to keep illegal immigrants at bay and that, say a Vietnamese passport classifies one automatically as a potential illegal immigrant (even if this immigrant lives in Germany or in the US for that matter), but in this case it would be futile: all that the UK citizen exercising treatry rights needs to do is to declare he is going to the UK to settle.

Now, tell me this: supposing you have a UK citizen who has actually never lived in the UK, but who is nonetheless exercising treaty rights in another EEA country? Technically he can never return to the UK because he's never lived there. Can he go to the UK ever?

Richard66 wrote:And I continue holding the view that the Directive covers all EEA citizens exercising treaty rights, including UK citizens, when going to the UK for whatever reason and this is reflected in the UK EEA Immigration Rules.

They do, subject to the given conditions. Unfortunately, these conditions require the BC to be a "worker or self-employed person", they do not even include "self sufficient".

Whereas one could use 2006 case-law to interpret a 1992 regulation, one cannot use 1992 EU case-law to interpret a 2006 regulation.

Correct, but you have to look at the history. The Surinder Singh case is based on the EU Directive 73/148, which is incorporated into Directive 2004/38. Although it is a new directive, the relevant circumstances for the Surinder case have not change in any significant way. If anything, the Directive has created more rights of free movement. So it can be argued that the case is still applicable as a precedence.

And now comes the tricky part: you would expect the Surinder case to be mentioned in Directive 2004/38. Unfortunately, this is not so. Does this omission have any significance? Because you could also argue that the omission is a clear sign that the legislative does not support the result in the Surinder case.

The 2006 Regulations however do incorporate the Surinder Singh case. I don't think this happen out of generosity, but because the 2006 Regulations try to limit the applicability of this precedent as much as possible. I would assume that the Surinder Singh case is applicable to all the categories listed in the Directive 2004/38, including self supporting citizens. The 2006 Regulations seem to deny this right to self supporting BC.

Now, tell me this: supposing you have a UK citizen who has actually never lived in the UK, but who is nonetheless exercising treaty rights in another EEA country? Technically he can never return to the UK because he's never lived there. Can he go to the UK ever?

I think the word "return" is just chosen for the case, but it is not essential to the argument. As such, the same rights should also apply to a BC that has never been in the UK.

Richard66 wrote:You are saying that its far harder to visit the UK for a family member of a UK citizen exercising treaty rights than for the UK citizen to return with his family member to settle. It's absurd.

Yes.

Another way of thinking about this is that the UK would like to be quite restrictive with all entrants, and collect the large application fees from all applicants.

But they are required to provide an easy quick application with no fee for spouses of EU citizens moving to the UK, as well as UK citizens returning from other EU states. I am sure they would prefer to not have to do this, but they legally must.

Family of UK citizens returning to the UK from outside the EU have to use the UK rules. [corrected]

I would say that surinder Singh is not mentioned in the Drective for a very simple reason: case-law is rarely, if ever, mentioned in law . If this were to happen, can you imagine how big the legislation would be?

The EU doesn't really take care of Surinder Singh cases because normally states reserve to their citizens better treatment than they reserve to other EEA nationals, not the other way round. This certainly is the case of Italy, where I live. In matter of fact Italian law is even very generous, in that it states the Italian transposition of Directive 2004/38/EC is applicable to non-EEA family members of Italian nationals if they are more favourable. I might be going out on a limb here, but I believe the UK and Ireland to be alone in denying in effect the right of family reunion.

I realise the idea is to avoid people coming over altogether and that all tactics to achieve this end seem to be valid, including giving misleading information, not informing people of their rights and so on. There are times I get the feeling the UK would like to ask me for an entry visa, as I am rash enough to be a UK citizen but not to live there. It seems to me to create all these difficulties for a minority of a minority is not the best way to tackle illegal immigration or to raise revenue to pay for the heating bill at the British Embassy in Kinshasa. How many EU citizens live in other EEA states and have married non-EEA nationals? It must be remarkably small if one is to judge by the ignorance of most ECOs about EEA FPs.

UK citizens returning to the UK from outside the UK have to use the UK rules.

Do you mean ...from outside the EU...? This I agree: it's crystal-clear. Of course they can go to, say, Germany and from Germany go to the UK. It's like locking the front door and placing a guard in front of it but leaving the back door open.

The DSPs, which Vinny posted a link to above, have been recently updated and they now state (as they didn't used to) that Surinder Singh applies to those family members of Brit cits working in another member country and who will simply be visiting the UK.

Because EEA nationals have an initial three month right of residence in the UK, there is no requirement for the British national to be a qualified person on arrival. Therefore, an EEA family permit can be issued to the family member of a British national even if they are only visiting the UK with the British national before returning to the Member State where they are resident.

Richard66 wrote:

UK citizens returning to the UK from outside the UK have to use the UK rules.

Do you mean ...from outside the EU...? This I agree: it's crystal-clear. Of course they can go to, say, Germany and from Germany go to the UK. It's like locking the front door and placing a guard in front of it but leaving the back door open.

You are right. I did mean from outside the EU.

As a UK citizen you have a right of free movement in the EU. The ECJ recognizes that if the UK government makes it hard for you to return to the UK, then you will not be willing to go off to another member state. Thus the ruling that EU rules apply when a citizen returns from another member state to their home country.

I think a number of provisions of Directive 2004/38/EC are very well done. For example the provision that they have to allow you to cross the border with your family as long as you can prove that you have rights of free movement, even if you do not have a visa. This is a simple master stroke that prevents member states from putting onerous visa restictions in place.

Nice to hear that they have updated the DSPs to reflect your situation Richard66! Keep us informed of their crawl-down...

The DSPs, which Vinny posted a link to above, have been recently updated and they now state (as they didn't used to) that Surinder Singh applies to those family members of Brit cits working in another member country and who will simply be visiting the UK.

Indeed, this is new. Now, what am I going to do with my petition to the European parliament? That was one of the points I raised, the other being that the possesion of the residence card exempts my wife for the need for this EEA FP anyway. I'll need to update the petition to reflect this.

I am glad they have seen sense at UK visas. Well, sense... If you just saw the sort of question they ask in order to apply for an EEA FP...

Richard66 wrote:I am glad they have seen sense at UK visas. Well, sense... If you just saw the sort of question they ask in order to apply for an EEA FP...

You do not need to answer all those questions. You also do not need to answer their question about favorite ice cream flavor or your sexual orientation. They are allowed to ask anything they want, but you do not need to answer!

Try it. Submit the application without answering anything except for identifying information for the two of you, and submit it along with your marriage certificate. And send a letter explaining that you have left unanswered the questions that are not relevant (under EU and UK law) for the issue of an EEA family permit for this short visit to the UK.