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Important Judgement : EEA Family Permits

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

thsths
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Post by thsths » Fri Dec 26, 2008 10:27 am

eufreemovement wrote:The amendment is not what the EU law says. Still they are applying Immigration Rules especially for other family members, where there is no such basis in the community law. Soon the EU law will force to change the illegality of HO procedures and Laws.
Not quite, but I think it is a lot closer now. And the handling of extended family members is very much left to national legislation, so I am not sure that the current procedures is a clear infringement on human rights. That would depend on the individual case - and the procedures are very vague in this respect.
charles4u wrote:We shall see when this will happen cus I personally dont think UK will ever drop it making visa-free for EU family members..but lets see when this will happen..maybe 2011.

thsths is is better? cus they request for all the same documents and I dont see whats changed when you still have to show financial status and other stuffs.
I think that only the procedures have been updated so far. The application form and guidance will need to be changed accordingly, but this has not happened yet. Also the form may ask for additional documents just in case (it always did), even if the documents are not required in a given situation. So you may well be successful submitting much less than is asked for.

charles4u
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Post by charles4u » Fri Dec 26, 2008 10:41 am

thsths wrote: Not quite, but I think it is a lot closer now. And the handling of extended family members is very much left to national legislation, so I am not sure that the current procedures is a clear infringement on human rights. That would depend on the individual case - and the procedures are very vague in this respect.

I think that only the procedures have been updated so far. The application form and guidance will need to be changed accordingly, but this has not happened yet. Also the form may ask for additional documents just in case (it always did), even if the documents are not required in a given situation. So you may well be successful submitting much less than is asked for.
Whats less in the document when one still have to show financial proves, accomodation in UK and some other proves, to me nothing as being changed. They are just manipulating this things as if they dont know the main thing.

No EEA family permit for EU family member mostly for those who hold a residence permit from EU states as a family member..SIMPLE !!!

So whats hard about this and why turning around in the same circle..
Charles4u

eufreemovement
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Post by eufreemovement » Sat Dec 27, 2008 10:37 am

charles4u wrote:"eufreemovement"

Well I guess we all know this all this while and thats why some of us made a complaint to the EU and other means but we didnt get any result and the European commission is not doing anything about it.

So in this case what can we ordinary people do when UK is above the law ?
It will happen brother. I knew lot of complaint already been through for this. It is a matter of time. In Ireland, lawyers fought for their apellants rights and finally they achieved although Irish Government so stubborn in that 'Prior Lawful Residence' requirement. Now there is no requirement either in article 2 or article 3(2).

But UK seems to be arguing till now. We all knew that their argument is baseless. However it is the only appeal system to achieve the EU citizens rights here. The time and mental agony is one of the worst affecting factors for all EU families. Anyhave, those who know the EU law can get remedy for their all losses.

There are judgements from ECJ or EU law which will give you all detailed community law remedy against those member states mal administrations.

Here the very surprised one is even the tribunal restricts the apellants not to rely directly on the directive where the directive is a Vertical Direct Direct. Every union citizen can able to enforce a right granted by European Community legislation against the state.

eufreemovement
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Post by eufreemovement » Thu Feb 19, 2009 2:52 pm

http://www.bailii.org/ew/cases/EWCA/Civ/2009/79.html

Guys. See the court of appeal judgement.

eufreemovement
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Post by eufreemovement » Thu Feb 19, 2009 3:42 pm

eufreemovement wrote:http://www.bailii.org/ew/cases/EWCA/Civ/2009/79.html

Guys. See the court of appeal judgement.
In case BIGIA & ORS - and - ENTRY CLEARANCE OFFICER

In Para 41 "........ However, it is accepted on behalf of the Secretary of State that the reasoning which underlies the conclusion that, in relation to Article 2.2 “family membersâ€

brownbonno
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Post by brownbonno » Mon Jun 01, 2009 3:51 pm

UK Immigration regulation 2006( regulation 12(1)(b)) set aside by THE ADMINISTRATIVE COURT -Justice Blake

Owusu, R (on the application of) v Secretary of State for the Home

http://www.bailii.org/cgi-bin/markup.cg ... od=boolean
Knowledge is Power

eufreemovement
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Post by eufreemovement » Fri Jun 05, 2009 4:26 pm

brownbonno wrote:UK Immigration regulation 2006( regulation 12(1)(b)) set aside by THE ADMINISTRATIVE COURT -Justice Blake

Owusu, R (on the application of) v Secretary of State for the Home

http://www.bailii.org/cgi-bin/markup.cg ... od=boolean
UK Immigration Regulations and Policies are still annoying one. Nothing is so far compatible for the entry as well as Residency.

Bigia Case, AK Srilanka etc are all well breach of Community law.

There are cases still pending before the High Court. Either they should follow the community law correctly or have to refer the matter to ECJ. They (UK court, Home Office etc) are liable for all losses which are occuring for the EU national family members.

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Post by Obie » Sat Dec 12, 2009 3:48 pm

Dependancy a question of fact.

Another questionable, or rather, a poor determination by the AIT being overturned.

A victory for Article 3 family member, or Article 2 family member (besides Non EU spouse) who are seeking to have family reunification facilitated under EU law.
Smooth seas do not make skilful sailors

John
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Post by John » Sat Dec 12, 2009 4:15 pm

Obie, that is clearly a step in the right direction, but before we get too excited, the decision of the Court was to remit the cases back to the Tribunal. So the appellants have not won, yet, but have a further hurdle to get over.

But of course the Tribunal will of course take account of the new Court judgement when making their new determinations, so the signs are hopeful.
John

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Post by Obie » Sat Dec 12, 2009 5:02 pm

[b] Paragraph 27 of AIT previous ruling[/b] wrote: 27. There are at least two possibly relevant definitions of dependence for these purposes. The Immigration Rules require that a person seeking admission as a dependent relative be "wholly or mainly dependent" on the family member he seeks to join (Statement of Changes in Immigration Rules, HC 395, paras 317(iii)), and the authorities establish that, for these purposes, the dependence must be of necessity, not of choice (Zaman v ECO Lahore [1973] Imm AR 71; Musa v ECO Bombay [1976] Imm AR 28). Where the requirement of dependency is outside the Rules but is instead imposed by regulations introduced with reference to EU free movement legislation, the Tribunal, interpreting regs 6(4) and 10(4) of the Immigration (European Economic Area) Regulations 2000 (SI 2000/2326), implementing reg (EEC) No 1612/98 of the Council of 15 October 1968, in PB and others [2005] UKIAT 00082 said at [8]:


"In deciding whether an applicant is a family member for these purposes, it may be necessary to make a finding of fact on dependency. For these purposes, it is clear that dependency is a question of fact. There is no requirement that dependency be of necessity
I fully agree with you John, as always, that there is still a long way to go, and it is too early to start celebrating or crack opening the champagne, but the essential aspect of this case, if i understand it clearly, is that, the AIT had wanted to ignore the dependancy aspect of the appeallant's case, which gave legitimacy to their ruling. With this ruling, they would not have a right to examine whether or not an applicant is wholly dependant on an EEA national,in future, they will only need to establish that there is a relationship of dependancy.


I suppose it sets a precedent which could be used in other cases.
Smooth seas do not make skilful sailors

Obie
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Post by Obie » Sat Mar 27, 2010 12:42 pm

These are the Court of Appeal Rulings on the construction of Article (3)2 of Directive 2004/38EC. I thought people who are applying on this basis would appreciate this information.

1. KG &AK Prior to Metock

2. Bigia & Ors following Metock.

The court and the Secretary of State have conceded that Metock affects extended family member as far as the prior Lawful residence in another member state will no longer be required.

However, it does not affect the wording that the Extended family member should have lived with the EEA sponsor before coming to the UK, in an EEA state.

This leaves Extended family member with the big hurdle of meeting the stringent rules set on
Smooth seas do not make skilful sailors

DFDS.
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Post by DFDS. » Sat Mar 27, 2010 4:42 pm

Obie wrote:These are the Court of Appeal Rulings on the construction of Article (3)2 of Directive 2004/38EC. I thought people who are applying on this basis would appreciate this information.

1. KG &AK Prior to Metock

2. Bigia & Ors following Metock.

The court and the Secretary of State have conceded that Metock affects extended family member as far as the prior Lawful residence in another member state will no longer be required.

However, it does not affect the wording that the Extended family member



should have lived with the EEA sponsor before coming to the UK, in an EEA state.

This leaves Extended family member with the big hurdle of meeting the stringent rules set on

No specific period has ever been given, as to how long one should have lived with the EEA sponsor in order to qualify. Is their a difference between leaving with, and staying with?
Relax! and this too shall pass, secrets are like seasons, they change.

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Post by Obie » Mon Mar 29, 2010 3:14 pm

There is no specified time limit set. Although the UK insist the extended family member should have lived with the Union Citizen for about six months in the memberstate from which the are arriving, in order for the non-EEA national to qualify.


I shall forward the guidance if i find it. The directive does not mention anytime limit, neither does the incomplete directive.
Smooth seas do not make skilful sailors

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Post by DFDS. » Tue Mar 30, 2010 12:41 pm

Obie wrote:There is no specified time limit set. Although the UK insist the extended family member should have lived with the Union Citizen for about six months in the member state from which the are arriving, in order for the non-EEA national to qualify.


I shall forward the guidance if i find it. The directive does not mention anytime limit, neither does the incomplete directive.
Obie I've tried to exhaust the directive, as well as CW guide line and I've never come across the six months regulation. Unless there is other CW guide lines other than the usual UKBA ones we are used to.

Besides, I'll appreciate if you can forward them to me.

To me this is just similar to the dilemma of having leaved in another EEA member state legally. I wonder, if the later ( leaving leaved legally in another member state) is no longer an issue why should then time limit for leaving in another member state be an issue????

Same happens to method of entry. Once a member on board here was trying to convince members that for one to qualify under OFMs, they must have entered with a family permit. Hence we have seen that AIT & the secretary of state conceived that if Family members under article 2 (2) are not obliged to have leaved legally in another member state before, then it does apply to those in article 3.(2) as well.

It is written no where under the CW guidance, that OFMs should hold a family permit in order to qualify. However, CW are rather reminded to examine that the applicant is not an illegal entrant.

They go ahead and say that if someone applies after he or she has overstayed the visa, that shall be taken into account as well.
Relax! and this too shall pass, secrets are like seasons, they change.

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Post by Obie » Tue Mar 30, 2010 3:03 pm

Sorry DFDS if i misled you, what i was meaning to say is ECO guidiance on EEA family permit. It is safe to say that this will possibly apply Mutatis mutandis to residence card application.
[b] EEA Family Permit guidiance[/b] wrote: Criteria
Criteria for non-EEA national extended family members:
•
Holds a valid passport,
•
Has evidence that s/he is related as claimed (e.g. genuine birth certificate), and
•
Has proof that they are a member of relevant EEA national’s household. This should mean living under the same roof for a period of at least six months in the country of origin.
It is important to note that in light of Metock and Bigia ruling at the Court of Appeal, the requirement in Regulation 12 (1b) that the Family member or Extended Family member should have resided lawfully in another member state to qualify for EEA family permit is unlawful and against the ruling.

The ruling state that the requirements still remain that the extended family member should have resided with the Union Citizen in an EEA state, but there is no requirement that the residence should have been a lawful one as previously demanded.
[b] Bigia & Ors Judgement[/b] wrote:
41. At no point in the judgment in Metock does the ECJ expressly consider OFMs. Indeed, in the extracts from the Directive which it carefully set out, Article 3.2(a) is omitted. However, it is accepted on behalf of the Secretary of State that the reasoning which underlies the conclusion that, in relation to Article 2.2 "family members", there is no need for prior lawful residence in another Member State, must also apply to OFMs. To that extent, the fourth and sixth propositions expounded by Buxton LJ in KG and AK (see paragraphs 10 and 11 above) require modification. This stems from the ECJ's reconsideration of and departure from Akrich. It follows that the provisions in Regulations 8 and 12 of the 2006 Regulations, to the extent that they require an OFM to establish prior lawful residence in another Member State, do not accord with the Directive. It cannot be the case that the policy which produced the result in relation to Article 2.2 family members in Metock is inapplicable in relation to OFMs
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DFDS.
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Post by DFDS. » Tue Mar 30, 2010 3:18 pm

This the way i understand it then:

That if the applicant can prove that he/she has previously stayed with the EEA sponsor in another member state( under the same roof), that applicant could be ok. Thats step N0.1, before other issues into consideration.( such as Valid ID, Being dependant on that same sponsor here in UK as well etc)

The techenicalities involved in OFMs makes things a beat complex, however straight forward sometime they look to be. And i a sume the directive its self is to blame for this, for up to now they have not come out to put this clear.
Relax! and this too shall pass, secrets are like seasons, they change.

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Post by Obie » Tue Mar 30, 2010 3:28 pm

Just to add another thing, the UK's requirement that the Durable partner should be living lawfully in the UK to Qualify for Residence card , is unlawfully.

It is important to note that this requirements does not apply to Other family member who have lived in the Same household or dependant on the EEA national exercising treaty rights in the UK.

Once you can established you were resided in another member state with the Union Citizen, then you are accompanying or joining the Same Union Citizen in another member State, and would be dependant or living under the same roof, then you qualify for your entry and residence to be facilitated, and for an extensive examination to be undertaken of your personal circumstance.
Smooth seas do not make skilful sailors

Forza_RC
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Post by Forza_RC » Fri Apr 30, 2010 11:26 pm

Do EEA2 holders have to queue as other or EU citizens' queue at the UK airports and have their passport stamped every single time they enter the UK?
Does anyone know any official quide or any web link where I can get some info?Could not find on UKBA's website.

Thanks...

msmoby_ru
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Post by msmoby_ru » Wed May 05, 2010 2:42 pm

Forza_RC wrote:Do EEA2 holders have to queue as other or EU citizens' queue at the UK airports and have their passport stamped every single time they enter the UK?
Does anyone know any official quide or any web link where I can get some info?Could not find on UKBA's website.

Thanks...
We queue in NON-EU.. I am an EU citizen, and the EEA FP / Residency permit, non EU passport holders still have to fill in landing cards and have their passports stamped.

Sorry, no links - just first hand experience !

86ti
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Post by 86ti » Wed May 05, 2010 3:37 pm

msmoby_ru wrote:... the EEA FP / Residency permit, non EU passport holders still have to fill in landing cards and have their passports stamped.!
Both wrong as the question was regarding residence card holders (residency permits do not exist under EEA regulations). The question has been answered before, see the other sticky in this subforum.

msmoby_ru
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Post by msmoby_ru » Thu May 13, 2010 6:55 am

86ti wrote:
msmoby_ru wrote:... the EEA FP / Residency permit, non EU passport holders still have to fill in landing cards and have their passports stamped.!
Both wrong as the question was regarding residence card holders (residency permits do not exist under EEA regulations). The question has been answered before, see the other sticky in this subforum.
Hmm,

I am looking at a "Residency Document" issued by the UKBA under a EU Directive, applying to EEA nations.

I can also look at a EEA FP, clearly marked "EEA FP to accompanying spouse"

I'm 'sorry' if the question is answered elsewhere, but how is the answer 'incorrect'?!

Forza_RC, it may well be that the UK "Residency Document" issued to an EU dependant should NOT be stamped.. but as it is issued to allow the holder to accompany / to be with the EU citizen, you can be sure my answer was 'correct'.. as 'tested' at Glasgow, Manchester and Bristol airport ;)

to 86ti: if I have misunderstood, please expand

jackEM
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Post by jackEM » Mon Jul 19, 2010 1:16 pm

With due Respect to 86ti....

what he means that FP are not issued under EU rules, and they FP holders are stamped etc....

But RC and PR are issued under EU rules and are not supposed to be stamped under EU rules..

So the questions and the answer are mixing FP with RC & PR ....
so from EU rule Q and A were both wrong...

Regards
[To 86ti: I hope i understood ur statement]

jotoia
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Post by jotoia » Sat Aug 14, 2010 5:22 pm

hi all has anyone recently had marriage interview and how long after that they got response thanks

MelC
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Post by MelC » Sat Sep 25, 2010 2:29 pm

Richard66 wrote:They stop the car and call base and ask for instructions. Whenever I challenged them about the EEA FP nonsese that is what they did in Rome.
HI Richard66, I have been reading the forum, I am a newbie here, so please everyone accept my apologies if I am doing something wrong here ~ i don't get chance to be online too often so might have missed a lot ~

i noticed your tagline ~

I had cause to have several discussions with the EEA/fp manager at the UKBA, hes really nice!

i quizzed him on the point of the residence card issue and he confirmed to me that if a non-eu family member has a residence card from that EU state then as the EEAfp is NOT mandatory it does NOT need to be completed, and no EEA/fp is required.

I DO have that in writing if anyone should need it at anytime.

regards
MelC

gr8.khan
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Hi

Post by gr8.khan » Tue Oct 26, 2010 4:33 am

MelC wrote:
Richard66 wrote:They stop the car and call base and ask for instructions. Whenever I challenged them about the EEA FP nonsese that is what they did in Rome.
HI Richard66, I have been reading the forum, I am a newbie here, so please everyone accept my apologies if I am doing something wrong here ~ i don't get chance to be online too often so might have missed a lot ~

i noticed your tagline ~

I had cause to have several discussions with the EEA/fp manager at the UKBA, hes really nice!

i quizzed him on the point of the residence card issue and he confirmed to me that if a non-eu family member has a residence card from that EU state then as the EEAfp is NOT mandatory it does NOT need to be completed, and no EEA/fp is required.

I DO have that in writing if anyone should need it at anytime.

regards
hi MelC;

can you please forward me a copy of that letter as i might need to show to immigration officer on my next visit to UK. thanks!!!

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