Parents live here - can I?

I am currently on a student visa studying a degree recognized course.

However, i have been here since 2005 (on another visa) and was wondering if i am entitled to apply for IRL? My parents have moved over here and my Mum has EU Passport and my Dad has ILR.
I am 25yrs and currently live with them. I have heard that this might be possible?

Any help is greatly appreciated![/b]

veefaulds wrote:I am currently on a student visa studying a degree recognized course.

However, i have been here since 2005 (on another visa) and was wondering if i am entitled to apply for IRL? My parents have moved over here and my Mum has EU Passport and my Dad has ILR.
I am 25yrs and currently live with them. I have heard that this might be possible?

Any help is greatly appreciated![/b]

What is the citizenship of your mother? You mentioned EU, but British or other than British?
Do you currently live with your mother under one roof?
Did you live with your mother under one roof, in the country from which you have come?

veefaulds wrote:I am currently on a student visa studying a degree recognized course.

However, i have been here since 2005 (on another visa) and was wondering if i am entitled to apply for IRL? My parents have moved over here and my Mum has EU Passport and my Dad has ILR.
I am 25yrs and currently live with them. I have heard that this might be possible?

Any help is greatly appreciated![/b]

On the face of it, no - but give is more info.......

The OP just PMd me to say that his mother is an Irish citizen and they currently live under one roof.

OP, the important thing is, did you both live under one roof in the country from which you have come? Also, who came to the UK first?

In addition, what is your country of citizenship?

Also, is your mother employed, self-employed, studying or self-sufficient in the UK?

yes, i lived under their roof before i came here. i came over first to travel and then decided to study. My country of citizenship is south africa and my mother is employed here full time.

veefaulds wrote:yes, i lived under their roof before i came here. i came over first to travel and then decided to study. My country of citizenship is south africa and my mother is employed here full time.

Ok, in my opinion, you are not, in your present circumstances, a person who is eligible to benefit from the provisions of Directive 2004/38/EC.

This is because you did not enter the UK in the company of, or to join, an EU national (your mother). Rather, you entered first and she came later.

However, if you were to leave the UK, with your mother, and return to the UK with her, you would then be eligible.

Directive 2004/38/EC Article 6 wrote:Right of residence for up to three months
1. Union citizens shall have the right of residence on the territory of another Member State for a
period of up to three months without any conditions or any formalities other than the requirement to
hold a valid identity card or passport.
2. The provisions of paragraph 1 shall also apply to family members in possession of a valid
passport who are not nationals of a Member State, accompanying or joining the Union citizen.

Directive 2004/38/EC Article 3 wrote:2. Without prejudice to any right to free movement and residence the persons concerned may have
in their own right, the host Member State shall, in accordance with its national legislation, facilitate
entry and residence for the following persons:
(a) any other family members, irrespective of their nationality, not falling under the definition in
point 2 of Article 2 who, in the country from which they have come, are dependants or
members of the household of the Union citizen having the primary right of residence, or
where serious health grounds strictly require the personal care of the family member by the
Union citizen;

It might be an idea to go on holiday with your mother, to Ireland (for example), then return with her. Upon your return to the UK, you will be returning in the company of the EU citizen, and a family member described in Article 3(2) of the Directive.

This is true in theory, anyway. In practice, it may be difficult for you to produce the following:

Directive 2004/38/EC Article 10(2) wrote:(e) in cases falling under Article 3(2)(a), a document issued by the relevant authority in the
country of origin or country from which they are arriving certifying that they are dependants
or members of the household of the Union citizen, or proof of the existence of serious health
grounds which strictly require the personal care of the family member by the Union citizen;

Unless, does your mother have an address in Ireland? Family there? If you and her go to stay with them, and while there, you submit an EU1 application (Irish EEA2 equivalent) to the Irish Department of Justice, based on Surinder Singh conditions. About two weeks after submission, the DoJ would send you a Certificate of Application, which is, without doubt a document issued by the relevant authority in the country from which you are arriving from, certifying that you are a member of the household of the Union citizen. You mother would also need a document confirming her address there.

Do you have a grandparent that was born in Ireland? If so, you may be entitled to Irish Citizenship but first you may be required to register on the Foreign Births Register first.

Is your Mum Irish by birth?

An Irish passport, as you know, will allow you to live in work in the UK without the immigration controls that you will be subject to.

See the following link for more information. Generally, if you have a grandparent born in Ireland but you was born outside of Ireland to parents also born out of Ireland, you may be eligible. The registration of your birth is required in this case.

This is popular with Americans that have Irish grandparents.

http://www.citizensinformation.ie/categ ... or_descent

Frontier Mole wrote:The crux will be the dependent part.

<snip>

But, and crucially to the OP, persons falling under the category of "members of the household of the Union citizen" are not required to be dependant.

From Article 3 (2) of the Directive:

"in the country from which they have come, are dependants or
members of the household of the Union citizen"

The key word here is "or". Either that before or after "or" can be true.

Respectfully Frontier Mole, I must disagree. Though I understand why this seems far fetched.

Contemplate this scenario: the OP leaves the UK with his mother, and the pair enter Ireland, and live under one roof. They reside as one household (however short this period of residence may be). They both then enter the UK together.

It is a fact that the OP would be entering the UK in the company of his EU citizen family member. Article 6 of the Directive is fulfilled.

It is a fact that the OP would be a family member who falls into the category described in Article 3(2)(a) - a member of the household of the Union citizen in the country from which they have come.

The requirements of the Directive would be fulfilled. Previous instances of residence in the UK cannot affect the rights he holds as a family member of an EU citizen, in accordance with Directive 2004/38/EC.

Frontier Mole wrote:If it works that easily why is the forum not littered with such cases?
Never seen it in court or heard of it from the customer facing side. Why would that be?

I don't know. Perhaps not many people fall into the category of member of the household? Perhaps some people wrongfully assumed that this category of family member required dependency?

Frontier Mole wrote:I have read and re read the UK EEA regs and I can not see where the term household member gets a mention. So this is perhaps another one of those cases where the UKBA computer says "NO" but the EEA computer says "YES"

The UK Immigration (European Economic Area) Regulations 2006 wrote: 8.—(1) In these Regulations “extended family memberâ€

I'm leaving the country for a few weeks with my mother to SA - would this make a difference then on me having any right to be a dependent on her once again when we arrive back in the UK ?
Does my Mother paying my fees not make me dependent on her as well as living under her roof?

veefaulds wrote:I'm leaving the country for a few weeks with my mother to SA - would this make a difference then on me having any right to be a dependent on her once again when we arrive back in the UK ?

According to EU Directive 2004/38/EC, you would then qualify:

Directive 2004/38/EC Article 3 wrote:2. Without prejudice to any right to free movement and residence the persons concerned may have
in their own right, the host Member State shall, in accordance with its national legislation, facilitate
entry and residence for the following persons:
(a) any other family members, irrespective of their nationality, not falling under the definition in
point 2 of Article 2 who, in the country from which they have come, are dependants or
members of the household of the Union citizen having the primary right of residence, or
where serious health grounds strictly require the personal care of the family member by the
Union citizen;

However, the UK's implementation of the Directive requires that the country from which you have come, is an EEA State (so not South Africa):

The UK Immigration (European Economic Area) Regulations 2006 wrote:8.—(1) In these Regulations “extended family memberâ€

veefaulds,

I have been thinking about your case a lot. Even if you proceed in the way that has been discussed, becoming a family member described in Article 3(2) of Directive 2004/38/EC and entering the UK in the company of, or to join, your EEA family member, you may find that your application might not be considered a straightforward one, by an EEA caseworker.

For this reason, it may be unwise to submit your application based on being a member of the household of an EEA citizen in the country from which you have come, if that country is not in the EEA. This is because the UK's interpretation of Article 3 of the Directive (Section 8 of the UK Immigration (European Economic Area) Regulations 2006) requires that:

(a) the person is residing in an EEA State in which the EEA national also resides and is
dependent upon the EEA national or is a member of his household;

Even though the judgement of the Metock case discounts the above, as I mentioned previously, you may find that your application is complicated further than if you were entering the UK as a member of the household of an EEA citizen in the country from which you have come, if that country was within the EEA.

Well benifa I was in agreement with Frontier Mole - this would have been like manna from heaven for too many individuals - but I was very intrigued by your interpretation- especially given that the OP is over 21.

Metock might be useful for some but I think this would have been really swinging it.

Ah well, next time.

Hi jei2,

It's quite simple really. The OP doesn't qualify to use EEA regs in his current position, because he's not, at the present time, a family member described in Article 2(2) or Article 3(2) of the Directive.

However, the OP would be a person described in Article 3(2) of the Directive and in Section 8 of the UK EEA regs, if he were to leave the UK and enter Ireland (for example), with his mother and live under one roof there, then return to the UK.

So long as he is able to provide documentary evidence of this period of residence, after re-entry to the UK as his new status of "Extended Family Member", his EEA2 application would be clear cut.

veefaulds wrote:

I'm leaving the country for a few weeks with my mother to SA - would this make a difference then on me having any right to be a dependent on her once again when we arrive back in the UK ?

According to EU Directive 2004/38/EC, you would then qualify

I was more referring to the above point, but you corrected yourself.

Still, I'm certainly going to be taking a closer look at the EEA regs again. Who knows what loopholey gems have been missed? Now, don't spoil it for us, Frontier Mole!

jei2 wrote:

veefaulds wrote:

I'm leaving the country for a few weeks with my mother to SA - would this make a difference then on me having any right to be a dependent on her once again when we arrive back in the UK ?

According to EU Directive 2004/38/EC, you would then qualify

I was more referring to the above point, but you corrected yourself.

Still, I'm certainly going to be taking a closer look at the EEA regs again. Who knows what loopholey gems have been missed? Now, don't spoil it for us, Frontier Mole!

Indeed!

Incidentally, the UK EEA regs require that the previous residence under one roof with the EEA family member occurred "in an EEA State" - but the words of the Directive do not specify this. The Directive says simply, "in the country from which they have come". Certainly, in light of the Metock case, we know that prior lawful residence in another EEA State cannot be made a precondition. Importantly, after being resident in the same household, the non-EEA family member should only enter the UK in the company of, or to join, his EEA family member.

Nonetheless, I do agree that if the period of residence with the EEA family member, as members of the same household, were to have occurred in a non-EEA state, it may make the EEA2 application less clear cut. Lawful and valid, but less clear cut.