Do i qualify as a stepchild for permanent residence.

[kobytee]

Hello wonderful people
first if all apologies if im not posting in the right forum...But i kindly need advice on my situation
I am a stepchild to a retired German Stepfather who got married to my mother about 4 and half years ago (2010) and I recently joined them (Stepfather and Mother) on a family permit In Jan 2015. My Stepfather has lived in UK since 2004 and got his Permanent card in 2011 but he stopped working in 2012 because he became blind. Now my mother is due to Apply for Permanent Residence in few months along with mine.
So I did some reading on the processes because i wasn't sure on the type of form i will quantify under.

1. Since my Stepfather is retired now and my their marriage has lasted almost 5years, should apply for permanent residence as direct family member when my mother is apply her's too Or apply residence permit and still have to wait till after 5years

Because i read on the UK, EU regulations guidelines and it stated sometimes family members wont have to wait 5years in certain circumstances

[kobytee]

Helloo...Please any help ???

[rosebead]

Your stepfather became a permanent resident through the normal 5-year route so no you are not eligible for permanent residence now. You can only attain permanent residence early if your stepfather attained his permanent residence status early because of having to cease activity in exceptional circumstances such as becoming incapacitated or retiring (including some other criteria). You are only eligible for a 5-year residence card at this point which you can apply for through form EEA(FM).

[kobytee]

Your stepfather became a permanent resident through the normal 5-year route so no you are not eligible for permanent residence now. You can only attain permanent residence early if your stepfather attained his permanent residence status early because of having to cease activity in exceptional circumstances such as becoming incapacitated or retiring (including some other criteria). You are only eligible for a 5-year residence card at this point which you can apply for through form EEA(FM).

Thank you so much...for your rapid response Rosebead

[rosebead]

I've had a look at the EEA Regulations, which is the UK's version of the EU Citizenship Directive, and they seem to differ from the Directive on this matter. The Regulations simply say that if you are the family member of an EEA worker who has ceased activity, you are eligible for permanent residence. Unless my reading is wrong, there is no stipulation like there is in the Directive that the EEA worker must have acquired PR through incapacity or retirement for his family member to be eligible for PR. Home Office guidance (page 19) seems to require only evidence of cessation of the activity of the EEA worker. If that's the case, the UK is even more generous than EU law, which is quite unlike them. So unless my reading is wrong, it seems you could apply for PR status under the EEA Regulations, although not under the Directive which is rather curious.

[kobytee]

I've had a look at the EEA Regulations, which is the UK's version of the EU Citizenship Directive, and they seem to differ from the Directive on this matter. The Regulations simply say that if you are the family member of an EEA worker who has ceased activity, you are eligible for permanent residence. Unless my reading is wrong, there is no stipulation like there is in the Directive that the EEA worker must have acquired PR through incapacity or retirement for his family member to be eligible for PR. Home Office guidance (page 19) seems to require only evidence of cessation of the activity of the EEA worker. If that's the case, the UK is even more generous than EU law, which is quite unlike them. So unless my reading is wrong, it seems you could apply for PR status under the EEA Regulations, although not under the Directive which is rather curious.

So please if i understood you correctly i could qualify for PR ststus if i can prove my EEA stepfather stopped working due to his permanent illness and wont matter if he acquired his permanent card before ceasing employment as you read ?

As well can you inform other prominent members like yourself to help answer me on this issue

Thank you for the attention and responses

[Obie]

Your stepfather became a permanent resident through the normal 5-year route so no you are not eligible for permanent residence now. You can only attain permanent residence early if your stepfather attained his permanent residence status early because of having to cease activity in exceptional circumstances such as becoming incapacitated or retiring (including some other criteria). You are only eligible for a 5-year residence card at this point which you can apply for through form EEA(FM).

It is a good thing you revisited that advice in subsequent post. I am not convinced it is accurate.

Regulation 5(2) or (3) allows a person to attain the Status of a worker or self employed person who has ceased activity if they meet the conditions therein.

I am also not convinced that the UK regulations give these people anything more than Article 17 of the Directive 2004/38EC confer on then.

Regulation 15(1) (d) may confer a right of permanent Residence on the OP, if the step dad was indeed a worker who ceased activity, and she is able to prove on a balance of probabilities that the conditions therein are met.

[rosebead]

I would say the UK is more generous than the Directive in this respect because from the Directive it appears to say that family members only attain PR status if their EU sponsor attained PR status through incapacity, retirement, etc:

3. Irrespective of nationality, the family members of a worker or a self-employed person who are residing with him in the territory of the host Member State shall have the right of permanent residence in that Member State, if the worker or self-employed person has acquired himself the right of permanent residence in that Member State on the basis of paragraph 1.

[Obie]

I would say the UK is more generous than the Directive in this respect because from the Directive it appears to say that family members only attain PR status if their EU sponsor attained PR status through incapacity, retirement, etc:

3. Irrespective of nationality, the family members of a worker or a self-employed person who are residing with him in the territory of the host Member State shall have the right of permanent residence in that Member State, if the worker or self-employed person has acquired himself the right of permanent residence in that Member State on the basis of paragraph 1.

I am lost. Are you saying the directive precludes a person from acquiring PR in more than one capacity but the regulations does not?

I read nothing from Article 17(3) (c) to suggest that a person who acquired PR under Article 17. may not have also acquired this at a period before they acquired that status.

[kobytee]

Your stepfather became a permanent resident through the normal 5-year route so no you are not eligible for permanent residence now. You can only attain permanent residence early if your stepfather attained his permanent residence status early because of having to cease activity in exceptional circumstances such as becoming incapacitated or retiring (including some other criteria). You are only eligible for a 5-year residence card at this point which you can apply for through form EEA(FM).

It is a good thing you revisited that advice in subsequent post. I am not convinced it is accurate.

Regulation 5(2) or (3) allows a person to attain the Status of a worker or self employed person who has ceased activity if they meet the conditions therein.

I am also not convinced that the UK regulations give these people anything more than Article 17 of the Directive 2004/38EC confer on then.

Regulation 15(1) (d) may confer a right of permanent Residence on the OP, if the step dad was indeed a worker who ceased activity, and she is able to prove on a balance of probabilities that the conditions therein are met.

Thank you Obie for responds as well

so now since My Stepfather attained his permanent card before he ceased working in 2012, (As explained in my history)
do you think or not i still qualify under such regulation if i can prove my Stepfather ceased working and Not under the 5 year rule (where he has already attained his permanent card for excising his treaty rights ?

Sorry maybe wasnt too clear on your explanations

[rosebead]

No, I'm not saying that. I am saying from the context of this thread that under the Directive it appears that a family member can immediately achieve PR status (no 5-year rule) if their EU sponsor had ONLY attained his PR status through incapacity or retirement rather than through the 5-year rule. The Regulations seem to differs slightly in that the EU sponsor can cease activity many years after he had become a permanent resident through the 5-year rule (and not through incapacity or retirement) and a family member, who joins the sponsor after the sponsor became PR through the 5-year rule, can still gain immediate PR status.

[Obie]

No, I'm not saying that. I am saying from the context of this thread that under the Directive it appears that a family member can immediately achieve PR status (no 5-year rule) if their EU sponsor had ONLY attained his PR status through incapacity or retirement rather than through the 5-year rule. The Regulations seem to differs slightly in that the EU sponsor can cease activity many years after he had become a permanent resident through the 5-year rule (and not through incapacity or retirement) and a family member, who joins the sponsor after the sponsor became PR through the 5-year rule, can still gain immediate PR status.

There is nothing in the Directive, as far as i can see, that prevents a person who had already acquire a 5 years lawful residence from also acquiring the status of a worker who cease activity later on.

That person can acquire that status 5 years after entering the member state or 3 years, or 2 years, as the case may be.

Furthermore the family member of that person can at anytime acquire that PR under Regulation 15(1)(d), once that person has irrespective of how long the person has been a family member.

This case has been to the Court of Appeal and that was the judgement of the court.

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


Believe me, the UK do not give EEA national or their family member, that which the directive did not confer on them.

[kobytee]

So Rosebead and Obie

Please what should i go ahead and apply for ??
As expatiated from my history and situation.

Is anything my Stepfather is suppose to do as well as me ?

[rosebead]

@kobytee, under the EEA Regulations, you can apply for PR status, no problem just go ahead. I am just debating with Obie what I see is a subtle difference between the Directive and the Regulations.

I do not dispute under the EEA Regulations that a family member becomes immediately PR when a worker ceases activity. But under the Directive I still think that the sponsor's PR status must be attained solely on the basis of incapacity or retirement rather than the case of an EEA national who already has PR through the normal 5-year rule and then years later becomes incapacitated or retires. In the latter instance I do not feel the Directive supports the idea of a family member being able to skip the 5-year rule and become immediately PR. This is because of what the Directive says in this bit (paragraph 1 being the criteria of incapacity or retirement):

3. ... the family members of a worker or a self-employed person ... shall have the right of permanent residence .... if the worker or self-employed person has acquired himself the right of PERMANENT RESIDENCE in that Member State on the BASIS of paragraph 1.

[rosebead]

@Obie, after reading the case law you linked to, I will concede. I had overlooked the term "by way of derogation from Article 16" in Article 17(1), meaning that Article 17 is stand-alone and so an EEA national has the choice of attaining permanent residence through either Article 16 or 17, whichever suits him. I had got stuck on the idea that once you get permanent residence under the normal 5-year rule you can't then later claim to be a permanent resident by other means, such as under the rules for incapacity or retirement when those conditions arrive. Read alone, Article 17(3), which I had focused on without considering the fact of derogation, led me to the wrong conclusion.

[kobytee]

Thank you all for the clarification on this matter You guys are always the best

So you suggest i use a solicitor in help filing this up or i should need to write a cover letter stating why i think i qualify under the EEA regulation (5) conditions

And one more thing please what document should my stepfather provide showing “Worker or self-employed person who has ceased activity” aside the ones i have listed below.
He got:
Permanent card (acquired after his completion of 5years TR) 2004-2011
letter showing prove of illness from the hospital (2012)
Prove of resignation of Driving card due to his permanent blindness (Stopped working)
Pension letter as he reached he retirement as well

[rosebead]

A solicitor is not required, just write a cover letter. Proof that he has a permanent incapacity such as a doctor's letter or hospital letters are fine and the driving licence letter. You also need to provide proof that he was residing and working in the 2 years before he became incapacitated if you are aiming to apply for PR confirmation through your stepfather's ceasing of activity due to incapacity.

If you are wishing to apply for PR confirmation with the reason being your stepfather's retirement, then you need to provide proof he was working in the 12 months before he retired and that he resided in the UK for 3 years. You also need to provide proof of retirement such as pension letters.

[kobytee]

A solicitor is not required, just write a cover letter. Proof that he has a permanent incapacity such as a doctor's letter or hospital letters are fine and the driving licence letter. You also need to provide proof that he was residing and working in the 2 years before he became incapacitated if you are aiming to apply for PR confirmation through your stepfather's ceasing of activity due to incapacity.

If you are wishing to apply for PR confirmation with the reason being your stepfather's retirement, then you need to provide proof he was working in the 12 months before he retired and that he resided in the UK for 3 years. You also need to provide proof of retirement such as pension letters.

Thank you once again....I understand perfectly
And beside there wont be the need to include His PR or i need to add it as well ?