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sblex wrote:Hi any body help me out with issue relating to my niece.

Niece arrived in UK with student visa in 2007 extended until Oct 2012 - refusal of article 8 then appeal, permission to appeal to FT, UT, HC, CoA ended unsuccessfully and case in now on ECtHR. She is recently detained. While detention her above EEA application made which is pending: Anybody can help out -
1) if she should be released while EEA pending unconditionally, if so then what is reference point, link, policy guidance
2) Is there anyway she can be here freely without immi interruption until ECtHR application is pending.
3) Or any better suggestion re her release or her staying permanently in the UK.

Many thanks
S

British adult grandmother.

sblex wrote:3) Or any better suggestion re her release or her staying permanently in the UK.

Many thanks
S

Casa wrote:Have I missed something here? How can an EEA application be appropriate when the Aunt is British?

The right to reside as a primary carer of a British Citizen

The 2011 European Court of Justice’s determination of the case of Ruiz Zambrano (European citizenship)
[2011] EUECJ C-34/09 set out the right to reside for primary carers of European Union citizens, derived from Article 20 of the Treaty on the Functioning of the European Union.

Eligibility requirements

On 8 November 2012, the Immigration (European Economic Area) Regulations 2006 were amended
to set out the criteria that non-EEA nationals must meet in order to acquire the right to reside in the UK, as follows:

the applicant must be the primary carer of a British citizen who is residing in the UK, and that British citizen would be unable to reside in the UK or in another EEA State if the applicant were required to leave.

sblex wrote:Thank you. Yes she does, but all are in full time work or study. And niece is very closed to her due to living with her since she was born.

CR001 wrote:Fair point noajthan, but the British Grandmother has other family in the UK who could possibly look after grandmother, nevermind the care system in place for elderly citizens. OP doesn't state why the Grandmother needs a carer or why it has to be the niece from Pakistan (I am being cynical I know).

sblex wrote:Thank you. Yes she does, but all are in full time work or study. And niece is very closed to her due to living with her since she was born.

If there is another person in the UK who can care for the British citizen, then a derivative family permit must be refused on the basis that such a refusal would not result in the British citizen being forced to leave the EEA.

Therefore ECOs must assess whether there is another direct relative or legal guardian in the UK who can care for the British citizen and, in the case of a child, who has already established contact.

In making this assessment, the burden of proof remains on the applicant and the standard of proof is the balance of probabilities. This means the onus is on the applicant to demonstrate that refusal of an EEA family permit would force the British citizen to leave the EEA. If there is no information to demonstrate this, then ECOs may wish to make further enquires with the applicant at to the status whereabouts of the other parent in the case of a child, or alternative care provisions in the case of a British citizen adult.

Examples of when it may be appropriate to issue a derivative family permit to a primary carer would be where:

• there are no other direct relatives or legal guardians to care for the British citizen; or
  there is another direct relative or legal guardian in the UK to care for the British citizen but there are reasons why this carer is not suitable; or
  in the case of an adult British citizen, there are no alternative care provisions available in the UK.