Important Judgement : EEA Family Permits

John · Post by **John** » Fri Nov 28, 2008 8:54 pm

Following on from the judgement in the Metock case by the ECJ, we now have this judgement handed down at the AIT.

Clearly Senior Immigration Judge Spencer has been doing his homework.

The case is remarkable because not only was the applicant for the EEA Family Permit not present (obviously because they were not in the UK), but neither was the sponsor, and they were not represented. Nevertheless they still won the appeal!

A black day indeed for Mr M Blundell, the Home Office presenting officer!

Frontier Mole · Post by **Frontier Mole** » Fri Nov 28, 2008 9:58 pm

Do not get too excited it is not a starred case so can not be used in future appeals.

Mr B was not fussed one way or another actually! SIJ "S" is not a friend of UKBA he is another Ockelton type. If he can talk to over the rules he will go out his way to do so.

Win most, lose some

John · Post by **John** » Fri Nov 28, 2008 10:10 pm

Do not get too excited it is not a starred case so can not be used in future appeals.

OK, but now those presenting similar cases know exactly the arguments to put forward.

Mr B was not fussed one way or another actually

But there cannot be many cases that are lost when the other side does not turn up and is not represented. That is surely an unusual circumstance.

Frontier Mole · Post by **Frontier Mole** » Fri Nov 28, 2008 10:19 pm

It does not happen on a regular basis but it does happen.

As for Metock in this case, although featured it was not the main point. UKBA lost it on the application of a minimum earnings criteria that we tried to impose on an EEA national. That was the main no no.
We then tried to spin it on the "living in another EEA state" as well thats why Metock gets the mention.

There are far worse Metock cases out there - check out other SIJ Spencer determinations, we get bigger kickings than the one here!

vinny · Post by **vinny** » Tue Dec 02, 2008 1:10 pm

AIT Practice Directions (consolidated version as at 30 April 2007) wrote: 17. Reporting and citation of determinations

17.1 The decision whether to report a case is that of the Tribunal and is not perceived to be an issue in which the parties to the appeal have an interest.

17.2 A determination is reportable if and only if it follows a hearing or other consideration where the jurisdiction of the Tribunal was exercised by the President, a Deputy President or a senior immigration judge (whether sitting alone or with another member or members).

Wonder why this case was 'unreported'?

vinny · Post by **vinny** » Wed Dec 17, 2008 11:44 pm

21.4.1 - Handling and assessing applications for EEA family permits [Updated 17 December 2008] wrote:Requirement to demonstrate lawful residence - (Under review)

John · Post by **John** » Thu Dec 18, 2008 9:07 am

Vinny, great you spotted that. But have you spotted any differences, compared to the previous version? I cannot spot anything.

vinny · Post by **vinny** » Thu Dec 18, 2008 10:51 am

One difference is that the previous version included the definition of lawful residence and its requirement, with respect to 12(1)( b )(ii) and the Immigration Rules:

If the application is made from outside the EEA:

* Under Regulation 12(1)( b )(ii), if the applicant cannot demonstrate lawful residence in an EEA Member State (includes those applying from outside the EEA), they also meet the requirements of the relevant Immigration Rules for leave to enter the UK as the family member of the EEA national where the EEA national is a person present and settled in the UK, in order to qualify for an EEA Family Permit. This would include refusal considerations on general grounds under Paragraph 320. If they satisfied the Rules, they must be issued with an EEA Family Permit free of charge.

John · Post by **John** » Thu Dec 18, 2008 10:58 am

Vinny, that is great that you have spotted the difference! It is very difficult to spot something that is no longer there!

Metock is starting to make a difference!

eufreemovement · Post by **eufreemovement** » Thu Dec 18, 2008 2:45 pm

John wrote:Vinny, that is great that you have spotted the difference! It is very difficult to spot something that is no longer there!

Metock is starting to make a difference!

http://www.ukba.homeoffice.gov.uk/sitec ... dlaw/ecis/

Chapter 3 - Issue of an EEA Family Permit - This chapter has been temporarily withdrawn.

isceon · Post by **isceon** » Thu Dec 18, 2008 7:28 pm

European law in force another victory.

thsths · Post by **thsths** » Fri Dec 19, 2008 9:10 am

eufreemovement wrote:http://www.ukba.homeoffice.gov.uk/sitec ... dlaw/ecis/

Chapter 3 - Issue of an EEA Family Permit - This chapter has been temporarily withdrawn.

Is it just me, or is the UKBA withdrawing more and more procedures? The 14 years concession, the 7 year child concession, now the EEA Family Permit. And on which basis are the applications handled when there are no guidelines? If all the caseworkers were experienced lawyers, they could probably go by the legal situation and applicable case law, but somehow I doubt that.

Richard66 · Post by **Richard66** » Fri Dec 19, 2008 3:58 pm

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.

vinny · Post by **vinny** » Sun Dec 21, 2008 11:16 am

Immigration: the Metock case and its implications for UK rules on family members of EEA citizens

John · Post by **John** » Sun Dec 21, 2008 1:06 pm

Vinny the link strikes again! Vinny I don't know how you find all these links but keep up the good work!

This link in particular is extremely useful. Well worth a read!

charles4u · Post by **charles4u** » Tue Dec 23, 2008 9:23 am

I dont still believe the EEA family permit will be totally scrapped out, they will only make some ammendments.

But we shall see...

vinny · Post by **vinny** » Tue Dec 23, 2008 10:43 am

Frontier Mole wrote:I see a re-write of the UK EEA regs. which may not be a bad thing.
The EU law is busting great chunks out of the the regs. so why try and fix a sinking ship when they can build a new one that has a better chance of staying afloat.

Can't see the UK totally buying into free movement, there are just to many scare factors for the Gov to deal with.

charles4u · Post by **charles4u** » Tue Dec 23, 2008 4:56 pm

vinny wrote:
Frontier Mole wrote: Can't see the UK totally buying into free movement, there are just to many scare factors for the Gov to deal with.

Exactly...

charles4u · Post by **charles4u** » Wed Dec 24, 2008 3:24 pm

They just amended it...EU family members are still required to obtain an entry visa before traveling to UK.

http://www.bia.homeoffice.gov.uk/siteco ... dlaw/ecis/

eufreemovement · Post by **eufreemovement** » Wed Dec 24, 2008 4:01 pm

charles4u wrote:They just amended it...EU family members are still required to obtain an entry visa before traveling to UK.

http://www.bia.homeoffice.gov.uk/siteco ... dlaw/ecis/

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.

thsths · Post by **thsths** » Wed Dec 24, 2008 5:49 pm

charles4u wrote:They just amended it...EU family members are still required to obtain an entry visa before traveling to UK.

http://www.bia.homeoffice.gov.uk/siteco ... dlaw/ecis/

Interesting. My last copy is from a year ago, and a lot has changed since then. But it seems that all further tests for family members have been dropped: only the check for marriage of convenience and public policy (etc) is still listed. So it seems that it should be a lot easier now to apply for an EEA Family Permit as a family member.

charles4u · Post by **charles4u** » Wed Dec 24, 2008 7:33 pm

eufreemovement wrote:
charles4u wrote:They just amended it...EU family members are still required to obtain an entry visa before traveling to UK.

http://www.bia.homeoffice.gov.uk/siteco ... dlaw/ecis/
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.

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.

eufreemovement · Post by **eufreemovement** » Thu Dec 25, 2008 5:23 pm

charles4u wrote:
eufreemovement wrote:
charles4u wrote:They just amended it...EU family members are still required to obtain an entry visa before traveling to UK.

http://www.bia.homeoffice.gov.uk/siteco ... dlaw/ecis/
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.
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.

See the below link from the commission report.

http://ec.europa.eu/justice_home/news/i ... 840_en.pdf

Transposition with regard to the rights of other family members under Article 3(2) is less satisfactory. UK is one of the incorrect transposition. Clearly UK is in breach of community law obligations.

Article 3(2) of directive 2004/38 is based on Article 10(2) of Regulation 1612/68 and Article 1(2) of Directive 73/148, which call on Member States to facilitate the entry of other family members of the Union citizen who are dependant on him/her or lived with him/her in the country of origin of those family members or union citizen partner has a durable relationship.

The facilitation of entry and of residence of family members not covered by Article 2 where serious health grounds or union citizen partner has a durable relationship so require, is a novelty of this Directive.

Clearly EU family members have their right to entry and or residence if they meet the above conditions.

The member states must undertake an extensive examination means that the members states have to give sufficient opportunity for the eu family members to bring their evidence for the claimed dependency or members of the household or health grounds or union partner who has a durable relationship. The directive refers the member states give an every opportunity to consider these people in a broader sense. The obligations arise from Treaty those who move to other members to work. Instead UK is making more difficult for these family members by applying immigration rules for family members who are outside EU and other for inside EU where there is no such thing in Community Law

shandave2001 · Post by **shandave2001** » Thu Dec 25, 2008 9:07 pm

Anyone on update in regard to Certificate of Approval for marriage where non EEA national has overstayed, as home office website is threatening with deportaion proceeding in such a case.

charles4u · Post by **charles4u** » Thu Dec 25, 2008 10:21 pm

"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 ?

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Important Judgement : EEA Family Permits

Important Judgement : EEA Family Permits

Certificate of Approval for marriage