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Unmarried UK/Non-EU couple: EEA2 vs FLR(M) vs ?

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

Rolfus
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Post by Rolfus » Sun Oct 23, 2011 8:21 pm

Good news about the unmarried partner application!

Have received a written decision from the Upper Tribunal. Our original appeal is confirmed as allowed. And the court has made a direction that a family permit under the EEA Regs be promptly issued.

The way they reached this decision is :
"We have in mind determinations such as MR and Or, Ihemedu, and Moneke. We conclude the discretion conferred by Reg 17(4) of the EEA regs should be exercised in favour of the Applicant, and we so exercise that discretion."
and
"in this case the exercise of discretion was not dependent on the outcome of the disputed issues of law about the construction and application of regs 8 & 9 of the EEA Regs."

At the hearing the HOPO agreed that discretion had previously been exercised, particularly when the first EEA FP was issued, so the court was entitled to re-exercise that discretion.

It remains to be seen whether the ECO will appeal to the Court of Appeal.

We do not intend to take up residence in the UK until 2013. This means that we will be seeking two renewals of the FP. Does anyone have a view on whether this decision will be binding on how UKBA exercise discretion at those renewals?
civis europeus sum

EUsmileWEallsmile
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Post by EUsmileWEallsmile » Sun Oct 23, 2011 8:30 pm

Best of luck to you. What I note is how long it can take to get recognition if one has to go to court.

Obie
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Post by Obie » Sun Oct 23, 2011 8:34 pm

That is very interesting. They are basing their decision on the fact that discretion was exercised in the past, so they could now exercise it themselves. That does not sound right, as we are talking about two separate application, made at two material time.

If you are going to set aside the first tier tribunal's decision, at least provide a valid reason for doing so. The reason given, was clearly in my view not valid.

They could have allowed it on the basis that, the Czech authorities has exercised discretion, and it will affect your ability to circulate within the European Union, or the principal of community law, which provides for protection of family life in order to prevent obstacle to treaty rights, will be seriously compromised, if the family life recognised in Czech republic was not recognised in the UK.

I don't think ECO will appeal against it, as it is first not reported, and secondly, the procedure is too long, and they will likely loose anyway.

I wish you all the best Rolfus, you and your partner has suffered a lot over the past year, you need a bit of laughter now.

It would be nice to know the Judge/s on the Chair.

If you don't want to display their names in public, perhaps you could PM me, and also the operating part of the promulgated decision.
Smooth seas do not make skilful sailors

Rolfus
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Post by Rolfus » Sun Oct 23, 2011 9:25 pm

Confusing developments on the Zambrano application.

On Oct 11th, the Clerk to the first tier tribunal wrote to Home Office and the ECO reminding them that they had not filed documents under AIT (Procedure) Rules 2005 Rule 13 by the specified date, Oct 10th.

This is code for saying there was no Entry Clearance Managers review letter, I think..

On Oct 19th, I got an email from the ECO saying
Your Application
On 25/05/2011 you applied for admission to the United Kingdom by virtue of European Community Law as the family member of a European Economic Area national who is exercising, or wishes to exercise, rights of free movement under the Treaty of Rome in the United Kingdom. Your application was refused and a notice of refusal duly served.

The Decision
The notice of refusal of EEA Family Permit dated 07/06/2011 has been revoked. This notice serves as a revised notice. You are therefore entitled to a further 28 day appeal period in which to address the subsequent reasons for refusal outlined below.
The new decision simply recasts the previous decision in new language, still making no reference to either M (Ivory Coast) or Zambrano. And says a fee has to be paid to be considered as a Chen parent.

My interpretation is that this is simply a procedural device to cover for their failure to respond to the original appeal.

My inclination is to fill in the form of appeal attached to the new decision and send it to the clerk of the tribunal with a letter referring them to the same grounds of appeal as before, and asking the Tribunal to use its case management powers to proceed with a hearing on the original schedule. It is after all now six months since the electronic application was made!

Does anyone have any ideas? (I am doing this myself without legal advice).
civis europeus sum

pads
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Post by pads » Mon Oct 24, 2011 12:41 pm

I don't have any idea's rufus but because we are in the same position as you but without the surrender sing rights I am doing some research myself and if I turn anything up I will message you.

If you want more details on my case message me.

Basically I am a brit, my son is a brit, my grand daughter is a dual british/American citizen living in America with her mother. We are trying to establish whether zambrano should apply to entry clearance or not.

Will keep you informedl.

Love pads x

Rolfus
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Post by Rolfus » Tue Nov 08, 2011 9:08 pm

Received this gracious email from UKBA on Nov 2nd
Your application for EEA family permit received on 25/06/2010 is currently under review, following the outcome of your appeal. Your passport is therefore required, so that entry clearance can be issued without delay, if your application is approved. Please submit your passport at your earliest convenience to the British Embassy in Prague.

Kind regards
Given that the UIT has made a Direction to give effect to its ruling I wonder what they are reviewing and under what conditions they would not approve the FP. But at least it appears that they have decided not to apply for leave for a further appeal. Because of travel commitments etc the passport won't be submitted until the end of December. I wonder whether that will cause a new problem.

In the meantime I have renewed the Zambrano appeal as planned in my post of Oct 23rd.
civis europeus sum

Rolfus
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Post by Rolfus » Mon Nov 21, 2011 11:49 pm

I am thinking about implications of Dereci C-256/11, which clarifies some questions from Zambrano.

In paragraph 66 the Judges say
66. It follows that the criterion relating to the denial of the genuine enjoyment of the substance of the rights conferred by virtue of European Union status refers to situations in which the Union Citizen has, in fact, to leave not only the territory of the Member State of which he is a national but also the territory of the Union as a whole.
This worries me, because the mother of my British son has a Residence card issued by the Czech republic as a family member (the mother) of an EEA Citizen. Czech law (The Alien Act) treats parents of EU citizens under 21 as family members. This is a more favourable provision of their national law.

So maybe she can't claim Zambrano residence in the UK because she could return to Prague. But then Mr & Mrs Zambrano could also have gone to live in Prague. So no Zambrano parent would actually ever have to leave the territory of the Union.

The opinion of AG Paolo Mengozzi is rather different. He says (my translation):
34. In fact, at first sight, concerning the situation of the family Dereci, there is no risk that the refusal of the residence card that the Austrian authorities have refused to grant to Mr Dereci could result in the wife and three young children of Mr Dereci, all four being Union Citizens, being deprived of the benefit of one of the rights listed in Article 20, paragraph 2, TFEU. In particular, concerning the right of free movement and residence in the territory of the Member States, mentioned in Article 20, para 2) sub para a), TFEU, Mrs Dereci, as an Austrian, can continue to benefit from a right to reside in Austria and can genuinely benefit from her right to free movement between the Member States. This is also true for her children who, owing to their age, could not exercise this right independently of their mother. Furthermore, and as opposed to the situation at the heart of the Zambrano case, it does not help the case that none of the four Citizens of the Union are dependent on Mr Dereci, a third country national. Finally, if Mr Dereci is not granted a residence permit, and/or is deported to Turkey, neither his wife, nor his children, unlike the children of Mr Zambrano, risk being obliged to leave the territory of the Union.
Article 20, paragraph 2, TFEU says:
2. Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties. They shall have, inter alia:
(a) the right to move and reside freely within the territory of the Member States;
(b) the right to vote and to stand as candidates in elections to the European Parliament and in municipal elections in their Member State of residence, under the same conditions as nationals of that State;
(c) the right to enjoy, in the territory of a third country in which the Member State of which they are nationals is not represented, the protection of the diplomatic and consular authorities of any Member State on the same conditions as the nationals of that State;
(d) the right to petition the European Parliament, to apply to the European Ombudsman, and to address the institutions and advisory bodies of the Union in any of the Treaty languages and to obtain a reply in the same language.
These rights shall be exercised in accordance with the conditions and limits defined by the Treaties and by the measures adopted thereunder.
This immediately begs the question of what rights are covered by that "inter alia". But only (a) will be of practical value to Zambrano parents.

What I can't get my head round is that para 66 of the Dereci judgment (and the UKBA guidance) seem to say that a Zambrano application will not succeed if the parent and child can reside in any other union state. (And all such parents can reside in the Czech republic). But 20.2.a TFEU and the AG seem to say that a Zambrano application must succeed if it would otherwise deprive the citizen child of free movement rights to all union states.

Does anyone have any ideas?

Finally there is nothing in Dereci to comfort UKBA in their very curious suggestion that the Zambrano ruling only applies to sole carers. Do they think it was Mr Zambrano, or was it Mrs Zambrano who was the sole carer...
civis europeus sum

Rolfus
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Post by Rolfus » Thu Dec 08, 2011 8:15 pm

I had another day in court, first-tier tribunal, arguing for a family permit on the basis of Chen and Zambrano, but also on the basis of the mother as an extended family member. The judge was not unsympathetic, but his written ruling will be the test! Probably early in January.
civis europeus sum

grfial
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Post by grfial » Thu Dec 29, 2011 1:40 am

Rolfus wrote:I had another day in court, first-tier tribunal, arguing for a family permit on the basis of Chen and Zambrano, but also on the basis of the mother as an extended family member. The judge was not unsympathetic, but his written ruling will be the test! Probably early in January.
I have no words to express what I feel about UKBA`s attitude. What exactly are they traying to achieve?
You have a partner since a few years plus kid so it is clear you marriage is genuine. They can allow non EEA family of EEA nationals on EEA FP by an accelerated procedure but not some one who is a family of a British national. This is just a joke and I feel there is no EU rights, Human rights or what so ever babble the EU offers. I genuinly feel sorry for the situation you are in and I hope UKBA changes their attitude to the family of British National returning home. You deserve a medal for staying so strong while going through this mate. :)

Rolfus
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Post by Rolfus » Thu Dec 29, 2011 6:39 am

Good News! My partner has finally got an EEA Family Permit stamped in her passport. Only18 months after the initial refusal!
civis europeus sum

Directive/2004/38/EC
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Post by Directive/2004/38/EC » Fri Dec 30, 2011 4:50 am

Rolfus wrote:I had another day in court, first-tier tribunal, arguing for a family permit on the basis of Chen and Zambrano, but also on the basis of the mother as an extended family member. The judge was not unsympathetic, but his written ruling will be the test! Probably early in January.
Rolfus, congrats on the FP!

Did you get the written ruling? If so, any interesting content?

pads
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Post by pads » Tue Jan 17, 2012 7:43 pm

rufusdid you get anywhere with zambrano.

congrats on the family permit x

Rolfus
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Post by Rolfus » Wed Jan 18, 2012 9:59 am

I still haven't received the ruling. I will comment on it as soon as I have it.
civis europeus sum

pads
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Post by pads » Wed Jan 18, 2012 10:12 am

Rolfus wrote:I still haven't received the ruling. I will comment on it as soon as I have it.
Thanks we still haven't got anywhere.

Visit visa was refused, can't get legal aid to apply for a spouse visa, and apparently we need a solicitor has the refusal was particularly bad.

So kind of stuffed here.

Love pads x

Rolfus
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Post by Rolfus » Thu Jan 19, 2012 1:55 pm

I checked with the Tribunal service today, and there is still no determination in our Zambrano appeal. That is about four working weeks. I am not surprised, as the legal issues are very complex, as we have discussed on this thread.
civis europeus sum

Rolfus
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Post by Rolfus » Wed Feb 08, 2012 5:02 pm

Appeal allowed by direct application of treaty rights as per Zambrano. (Mother as extended family member not accepted.) Regret that for legal reasons I cannot give more details.
civis europeus sum

Obie
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Post by Obie » Wed Feb 08, 2012 5:50 pm

That is a fantastic news Rolfus. I am really happy for you. I am not surprised appeal was not allowed as an Extended family member, as it is difficult to see your partner being an extended family member, when she was not dependent or member of an household owned by your daughter.

Let see how the implementation of the appeal goes.

Correct me if i am wrong, but she had an appeal allowed under Regulation 8(5), has that been implemented?
Smooth seas do not make skilful sailors

Rolfus
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Post by Rolfus » Wed Feb 08, 2012 6:18 pm

The scorecard so far is Appelant 3: Home office nil.

Application for EEA FP as unmarried partner of a British Citizen with Surinder Singh rights: Appeal allowed, upheld at Upper Tribunal.

Application for two year visit visa: refused by ECO on grounds that applicant might work. Appealed and ECM granted six months visa.

Application for EEA FP as mother of British child with Surinder Singh rights: Appeal allowed.
civis europeus sum

Obie
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Post by Obie » Wed Feb 08, 2012 6:55 pm

That is a good score. A bit of an hat-trick.

It is a shame all the appeals were not combined as one or Home Office did not concede.

Zambrano, in the light of Dereci, is a bit complicated. Even if they appeal and they find an err in Law, i don't think it will be material, as your partner could qualify under Article 20 and 21, as your son has indeed exercised his treaty rights in another memberstate, and his situation could be assimilated to a Surinder Singh, or Chen principle.
Smooth seas do not make skilful sailors

Rolfus
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Post by Rolfus » Mon Feb 13, 2012 9:26 am

I checked with the tribunals service today, and no appeal has been lodged by the Home Office. I think they are therefore out of time.
I wonder how long it will now take to hear from the Embassy that they are ready to stamp in the EEA FP.
I also wonder how they are going to do it. Two stickers, one giving rights as an unmarried partner and the other as a Zambrano mother? Or one sticker saying "to accompany either... or..."
civis europeus sum

Directive/2004/38/EC
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Post by Directive/2004/38/EC » Mon Feb 13, 2012 1:12 pm

Do you already have the EEA FP sticker from the first decision?

It may be that UKBA takes so long to actually issue the new sticker that the first one has long expired... :-)

Rolfus
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Post by Rolfus » Fri Apr 13, 2012 9:48 am

We got a call from the embassy asking for my partner's passport. That will be for them to stamp in the Zambrano EEA FP as the mother of a British child. It is truly amazing how long it takes to rectify a mistaken refusal to issue an EEA FP.
As her current EEA FP as an unmarried partner expires in June it is questionable whether it is best to renew that at the same time, or to have two permits that are staggered.
I feel very aggrieved that the visit visa they issued was only for 6 months despite having paid for two years. Extraordinary that despite her having the right to live and work in the UK, they decided that "in the circumstances" 6 months was "appropriate".
civis europeus sum

Rolfus
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Post by Rolfus » Mon Jul 30, 2012 8:34 pm

My partner finally submitted her passport a little over 2 weeks ago. This was in response to the request for the passport to stamp the Zambrano EEA FP.
She also submitted a new application for an EEA FP as my partner.
Last week she got a call from Warsaw "Do you really want two EEA FPs?"
Lo and behold, today she got her passport back with two stickers. One saying EEA Family Member to acc xx (her son). The other saying EEA Family member to join Rolfus (her partner).
Is there any difference between "to accompany" and "to join"?
For my next trick, I am representing my partner in the Employment Tribunal complaining that the Department of Health has rules that prevent doctors graduated from Czech universities from obtaining employment in the UK Foundation Programme. This prevents them entering specialised medical training, and after two years the medical degree is no longer recognised. Main hearing in October!
civis europeus sum

EUsmileWEallsmile
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Post by EUsmileWEallsmile » Mon Jul 30, 2012 9:23 pm

Rolfus wrote: Is there any difference between "to accompany" and "to join"?
For all practical purposes there is no difference. From what I can make out, if the EU national is already in the UK (or has a job there), they will use "to join" even if the applicant states that they will travel together.

Mark.Boats
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Post by Mark.Boats » Thu Apr 25, 2013 9:21 pm

Rolfus wrote:Application for EEA FP as unmarried partner of a British Citizen with Surinder Singh rights: Appeal allowed, upheld at Upper Tribunal.
Hi Rolfus

My partner and I are currently going through the meat grinder that is the FP application process as an unmarried Singh case

So glad to hear that you were successful, do you have any advice for us?

http://www.immigrationboards.com/viewtopic.php?t=133293

Thanks

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