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Hi
I am the non-eu family member of a British Citizen spouse. We exercised treaty rights in Malta and have since returned to the UK since 2015. I currently have a UK issued Residence Card as the family member of an EU national [under the Surinder Singh judgement].

We have tried to apply for an EEA Family permit for my daughter, but her application was denied the first time because my wife didn't prove that she was exercising treaty rights [this was incorrect as we sent the relevant documents].

We subsequently reapplied sending more proof of her exercising treaty rights. Daughter's second application has been denied because she didn't live with us when we exercised treaty rights in Malta. I will appreciate if knowledgeable members of this forum, can help with this situation as am not sure the UK embassy have correctly evaluated daughter's application.

Your help will be appreciated.

Thank you

Can you post the exact wording of the refusal (taking out personal details)?

How old is your daughter?

Where does she live and where was she living when you were in Malta??

What does the British citizen do now in the UK?

What are the dates you applied for the EEA FP for your daughter?

My understanding is that under Surinder Singh, all 'dependents' must have resided in the other EU state with you to qualify for an RC in the UK.

Hi. Thank you for your feedback. Am sorry if this is a stupid question, how do i attach images to my post? I wanted to attached the full refusal letter but i couldn't figure out how to do it.

Thank you

My daughter is 17. I was 19 at the time of her birth, unfortunately i lost my girlfriend at the time (mother of my daughter) when my daughter was 10 months old. So my parents had helped me with raising my daughter. However, I left for the UK when she was 7 and my parents had continued to take care of her.

All relevant documentation was provided as part of her EEA family permit application. We exercised treaty rights in Malta from 2014 - 2015, during which time my daughter was in school preparing for her O-Level qualification, so she couldn't have lived with us in Malta. She finished her A-levels in August 2018.

The first FP application was in Nov 2018 and the second was rejected 7th December 2018. I will type the full refusal letter in here.

Thank you

The full refusal statement...

The Decision
You state that your stepmother is a British Citizen. You have provided evidence that your sponsor holds a British passport.

A non-EEA national who is the spouse or civil partner or other direct family member of a British citizen may have a right of admission in the UK under European Union law if certain conditions are met. The conditions are set out in regulations 9 and 11 of the Immigration (European Economic Area) Regulations 2006 (`the EEA Regulations'). The conditions for issuing an EEA family permit are set out in regulation 12 of the EEA Regulations.

You have applied for an EEA family permit on the basis that your British citizen sponsor was residing and exercising their right to free movement in Malta immediately before returning to the UK (hereafter referred to as 'the EEA host country). All the evidence provided has been carefully considered to determine whether you have a right of admission to the UK under the EEA Regulations and should be issued a family permit.

It is accepted that your sponsor is a British citizen as claimed. This is because you have provided their British passport.

You claim to be a direct descendant of your British citizen sponsor’s spouse or civil partner. It is accepted that you are related to your British citizen sponsor as claimed. This is because you have provided evidence that your father is married to your British citizen sponsor.

For a British citizen to be treated as if they were an EEA national for the purposes of sponsoring an application for an EEA family permit, if they have returned to the UK and resided there for more than three months, they must be equivalent to a 'qualified person in accordance with regulations 6 and 9(7) of the EEA Regulations because they a jobseeker, worker, self-employed person, self-sufficient person or student in the UK (subject to certain exceptions relating to jobseekers, retained workers and comprehensive sickness insurance as set out at regulation 9(7)). It is accepted that your British citizen sponsor is a 'qualified person' in the UK in accordance with regulations 6 and 9(7). This is because you have provided sufficient evidence of your sponsor's employment in the United Kingdom.

The other conditions which must be met are as follows:
(a) the British citizen is residing in the EEA host country as a worker. self-employed person, self-sufficient person or a student, or so resided immediately before they returned to the UK, or they have acquired the right of permanent residence in the EEA host country;

(b) the British citizen and the family member reside together in the EEA host country.
or so resided immediately before the British citizen returned to the UK, and their joint residence in the EEA host country is or was genuine:

(c) the purpose of the residence in the EEA host country is or was not as a means for circumventing any immigration laws applying to non-EEA nationals to which the family member would otherwise be subject (such as any applicable requirement under the Immigration Act 1971 to have leave to enter or remain in the UK)

In considering whether you and your British citizen sponsor's residence in the EEA host country is or was genuine, relevant factors include:
(a) whether the centre of the British citizen's life transferred to the EEA host country. It is accepted that the centre of your British citizen sponsor's life transferred to the host country.

(b) the length of the British citizen and the family member's joint residence in the EEA host country. Having carefully considered the evidence provided, it is not accepted that you reside or resided with your British citizen sponsor in the EEA host country. This is because you have not provided any evidence that you resided with your British citizen sponsor in the EEA host country.

(c) the nature and quality of the British citizen and the family member's accommodation in the EEA host country, and whether it is or was the British citizen's principal residence. It is accepted that the accommodation in the EEA host country was the British citizen's principal residence.

(d) the degree of the British citizen and the family member's integration in the EEA host country

(e) whether the family member's first lawful residence in the EU with the British citizen was in the EEA host country. It is not accepted that your first lawful residence in the EU with the British citizen was in the EEA host country. This is because you have not provided any evidence that you have resided with your British citizen sponsor in the EEA host country.

Having considered all of the evidence and information provided in support of your application and applying the civil law standard of the balance of probabilities, it is not accepted that you and your British citizen sponsor's residence in the EEA host country was genuine. This is because you have never resided with your British citizen sponsor in the EEA host country.

For the reason explained above, it is not accepted that you have a right of admission to the UK under EU law as the family member of a British citizen and your application for an EEA family permit is hereby refused. For the reasons noted above, I am not satisfied that you have provided sufficient evidence that you meet all of the requirements in accordance with Regulation 9 (2) of the Immigration (European Economic Area) Regulations 2016.

I therefore refuse your EEA family permit application because I am not satisfied that you meet all of the requirements of regulation 12 of the Immigration (European Economic Area) Regulations 2016

Family life must have been created or strengthened while the British citizen was exercising treaty rights in a member-state of which he is not a citizen.

For the Surinder Singh route to work, the family member needs to have lived with the British citizen in the other EEA member-state while the British citizen exercised treaty rights. It applies only to those family members that were with the British citizen when he was exercising treaty rights and not to all his family members.

As the daughter did not reside with the British citizen when s/he was exercising treaty rights in Malta, she is not eligible for the SS route and the refusal is correct.

She will need to apply either under the UK Immigration Rules or the UK citizen will need to move to another EEA member-state and exercise treaty rights again.

Be aware that SS route rights will not be protected under the Withdrawal Agreement anyway.

What is your daughter's UK Immigration history?

Thank you for your feedback guys.
@secret.simon I understand what you mean, and all those conditions were fulfilled at the time with the exception of having my daughter and this was due to her personal circumstance at the time. Moreso, I recall having read posts on this great forum where individuals had successfully applied for a FP for their overseas family members, although i did observe that amendments to the Immigration Regulations seem to have made this an additional burden on not just spouses but other direct family members.

@vinny She hasn't got much of an immigration history. My parents have been taking care of her since she was 7 (when i came to the UK) as am her only surviving biological parent. We've been the one going back to visit and her first visa application is the EEA FP refusal.

What would you guys advise me to do as a next course of action? Once again, thank you. I appreciate your thoughts and contribution.

d3vc0d3 wrote: ↑

Thu Dec 13, 2018 12:19 pm

all those conditions were fulfilled at the time with the exception of having my daughter

By definition, if your daughter did not meet the conditions, the SS route does not apply to her.

d3vc0d3 wrote: ↑

Thu Dec 13, 2018 12:19 pm

I recall having read posts on this great forum where individuals had successfully applied for a FP for their overseas family members

Were those individuals EEA citizens in their own rights or were these SS returnees? There are differences in rules between the two.

An EEA citizen can sponsor any family member while resident in the UK. A UK citizen can only sponsor those family members who were resident with them during their residence in another EEA member-state (under EU rules).

Have you looked at applying under the UK Immigration Rules?

Thank you Simon. I observed the differences between an EEA and SS returnee. I am just considering the Immigration rules as an alternative but am not sure under what category exactly. Family visa? The gov.uk website is not particularly clear on this. Any help would be appreciated.

Thank you