EEA FAMILY PERMIT - REFUSAL

[hirahim]

Hi

I am a Non-EEA National currently living in India. I am a dependant family member of an EEA or EU National who is currently working in UK.

I have applied an EEA Family Permit as a dependant family member (brother) of an EEA National.

BDHC refused the visa stating that there is no grounds to issue the family permit as per EEA Regulation 2006.

I have been supported by my brother financially since long time. We have the evidence fully.

Can any one advice me please?

[vinny]

See also Annex 21.1 Family members / Extended family members:

Extended family members

Regulation 8 of the Immigration (EEA Regulations) 2006 covers extended family members (for example, brothers, sisters, aunts, cousins). Important: It also covers family members (e.g. children over 21 or parents who have failed to provide evidence of financial dependency).

You should refuse cases involving extended family members (intending to move to the UK to live) where the EEA national is a student.

An applicant may be considered for an EEA family permit under Regulation 8 of the Immigration (EEA Regulations) if they fall within the following conditions:

* is residing lawfully in an EEA Member State in which the EEA national also resides and is dependent on the EEA national or a member of their household and;
* is accompanying the EEA national to the UK, or wishes to join him/her there.

If the extended family member does not meet the above criteria, they can alternatively qualify under any of the following conditions as an extended family member if they are:

* a relative of the EEA national, his spouse or civil partner and on serious health grounds, urgently requires the personal care of the EEA national, his/her spouse or civil partner, or
* a relative of the EEA national and meets the requirements in the Immigration Rules for indefinite leave to enter or remain in the UK as a dependent relative of the EEA national were the EEA national is a person present and settled in the UK, or
* the partner of the EEA national and can prove that he/she is in a "durable relationship" with the EEA national - i.e. the applicant would need to meet the requirements in the Immigration Rules for Unmarried Partners.

The Directives refer to facilitating or favouring the admission of any extended member of the family who meets any of the above conditions. Providing that a person falls within one of these categories, we may issue an EEA family permit if in all the circumstances it appears appropriate to do so.

When deciding whether it is appropriate in all the circumstances to issue a family permit, you will need to assess whether refusing the family member would deter the EEA national from exercising his/her Treaty rights or would create an effective obstacle to the exercise of Treaty rights.

Each case must be assessed on an individual basis but examples of where it may be appropriate to issue a family permit would be if the family member was very elderly or incapacitated. In such cases it would be appropriate to consider whether there were any relatives to care for him/her in their home country.

Where an applicant has produced evidence that they are financially dependant on the EEA national, (for instance they may be currently unemployed), it would be appropriate to consider whether the EEA national could remit money back to the third country national’s home country. Note - this only applies to extended family members .

In considering cases under Regulation 8, we will refuse those who have for example:

* lived in a third country whilst the EEA national has resided in another Member State prior to entering the United Kingdom;
* lived as part of the EEA national’s household many years ago;
* have their own family unit (unless there are sufficient compassionate circumstances).

The refusal wording should be:

You have 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 establishing the European Community in the United Kingdom. I have considered your application in accordance with Regulation 8 of the Immigration (European Economic Area) Regulations 2006 but I am not satisfied that there are sufficient grounds for issuing you with a family permit.

[hirahim]

Thanks for your law point which you highlighted. There is no such requirement in the directive 2004/38/EC that the third country national must reside in an another EU member state before entry to UK.

I saw the recent case Jia C-1/05, that the community law doesn't require that requirement.

In my understanding, both directive and the above Jia case have precedent effect over national legislation of any member state.

As such, is there anything we can go ahead to take the case to the court for our refusal.

[thsths]

Thanks for your law point which you highlighted. There is no such requirement in the directive 2004/38/EC that the third country national must reside in an another EU member state before entry to UK.

This is a difficult issue. The letter of the directive itself does not clarify this point, and the spirit is very much based on the idea of free movement within the EU.

In my understanding, both directive and the above Jia case have precedent effect over national legislation of any member state.

Not necessarily. Certainly in a UK court, the UK law is used, although you can appeal to a European court on the basis of European law. And the case you mentioned is based on previous legislation, not even on the Directive, and certainly not on current UK immigration law.

As such, is there anything we can go ahead to take the case to the court for our refusal.

You can try, but it will be difficult. I think your chances under UK law are slim, and even if you escalate all the way to a European court, the outcome remains uncertain.

[hirahim]

The directive extended the definition of family member as it was before who can accompanyh or join a union citizen in the host member state.

In addition,with a view to maintaining unity of the family in a broader sense,the Directive provides that Member States must facilitate entry and residence of other family members not covered by the above definition of family member.This obligation concerns any other family members who in the country from which they have come are dependents.

The directive is very clear in the wording. Otherwise, it would read as 'Member state from which they have come are dependants'.

The requirements of European law should have to be reflected in the national legislation of member state;Community law, including the rulings of the European Court of Justice, is to take precedence when interpreting such legislation.

Article 3 of the Directive states that it shall apply to all Union citizens who move and reside in a Member State other than that of which they are a national and their family members, regardless of their nationality, who accompany or join them.

As it is already the case under currently applicable Community instruments, it is not specified in the Article, or in any other Article of the Directive, that the provisions would only apply to family members who are already residing in the territory of another Member State.

Article 5 of the same Directive states that Member States shall grant leave to enter their territory to family members who are not nationals of a Member State, but who have a valid passport. This is a general rule that does not make a distinction on whether the person in question is entering from another Member State or from outside the territory of the Union.

The same article also says that family members who are not nationals of a Member State shall only be required to have an entry visa, and that Member States shall grant such persons all facilities to obtain such visas on the basis of an accelerated procedure.

How can we proceed to ECJ if the tribunal doesn't want to refer it to ECJ, Please?

[hirahim]

In my understanding, both directive and the above Jia case have precedent effect over national legislation of any member state.

Not necessarily. Certainly in a UK court, the UK law is used, although you can appeal to a European court on the basis of European law. And the case you mentioned is based on previous legislation, not even on the Directive, and certainly not on current UK immigration law.

Hi thsths

Thanks for your comments on the above. In your comment, you mentioned that UK court is used UK EEA Regulation 2006 for this additional requirement.

Could you please let me know which court has used this principle, whether court of appeal or high court or any?

[thsths]

Article 3 of the Directive states that it shall apply to all Union citizens who move and reside in a Member State other than that of which they are a national and their family members, regardless of their nationality, who accompany or join them.
...
Article 5 of the same Directive states that Member States shall grant leave to enter their territory to family members who are not nationals of a Member State, but who have a valid passport.

Unfortunately, the Directive 2004/38 is not always consistent. I think this is a consequence of throwing together so many pieces of previously scattered legislation.

So in my reading, Article 3 applies to you, but Article 5 does not (because of the definition in Article 2(2)). The UK Regulations are actually a lot more precise, because they differentiate between a family member and an extended family member.

How can we proceed to ECJ if the tribunal doesn't want to refer it to ECJ, Please?

Good questions, but I am afraid you have to ask a solicitor. You don't need one for the application, but you should absolutely seek legal advice if you want to appeal.

[hirahim]

Article 3 of the Directive states that it shall apply to all Union citizens who move and reside in a Member State other than that of which they are a national and their family members, regardless of their nationality, who accompany or join them.
...
Article 5 of the same Directive states that Member States shall grant leave to enter their territory to family members who are not nationals of a Member State, but who have a valid passport.

Unfortunately, the Directive 2004/38 is not always consistent. I think this is a consequence of throwing together so many pieces of previously scattered legislation.

So in my reading, Article 3 applies to you, but Article 5 does not (because of the definition in Article 2(2)). The UK Regulations are actually a lot more precise, because they differentiate between a family member and an extended family member.

Thanks for your comment. Everybody should know note one thing. According to the European law, the relatives always as defined as "Family Member" not as defined by UK law as extended family member or distant family member or more distant family member or ireland law described as "Permitted family members".

Article 5 refers to the family members. The only distinction is article 2 is automatic rights but article 3 do not have automatic rights. Once dependency established, they have the right to join an EEA national who is exercising treaty rights.

Therfore article 5 applies both to article 2 and 3.

[hirahim]

In my understanding, both directive and the above Jia case have precedent effect over national legislation of any member state.

Not necessarily. Certainly in a UK court, the UK law is used, although you can appeal to a European court on the basis of European law. And the case you mentioned is based on previous legislation, not even on the Directive, and certainly not on current UK immigration law.

Hi thsths

Thanks for your comments on the above. In your comment, you mentioned that UK court is used UK EEA Regulation 2006 for this additional requirement.

Could you please let me know which court has used this principle, whether court of appeal or high court or any?

Hi thsths

Thanks for your comments on the above. In your comment, you mentioned that UK court is used the UK EEA Regulation 2006 for this additional requirement (prior residence in an EEA member state prior to entry to UK) for the other family members like siblings, uncle, aunt etc.

I would appreciate, if you could you let me know which uk national court has used this principle, whether court of appeal or high court or any?

[vinny]

Search also AIT's case law:

RG (EEA Regulations – extended family members) Sri Lanka [2007] UKAIT 00034
ST and others (Article 3.2: Scope of regulations) India [2007] UKAIT 00078
AP and FP (Citizens Directive Article 3(2); discretion; dependence) India [2007] UKAIT 00048
AK (Citizens Directive; AP and FP applied) Sri Lanka [2007] UKAIT 00074
etc.,

[hirahim]

Search also AIT's case law:

RG (EEA Regulations – extended family members) Sri Lanka [2007] UKAIT 00034
ST and others (Article 3.2: Scope of regulations) India [2007] UKAIT 00078
AP and FP (Citizens Directive Article 3(2); discretion; dependence) India [2007] UKAIT 00048
AK (Citizens Directive; AP and FP applied) Sri Lanka [2007] UKAIT 00074
etc.,

Thanks for your comments on the Tribunal determination.

Since our thsths has written that the court is used UK EEA Regulation 2006 for the purpose of article 3(2) of directive 2004/38/EC, I am quite surprised.

I noticed the above determination from Tribunal. I hope that these determinations might be on the way to further appeal to the court of appeal or High Court.

In my view, ECJ is the one for the interpretation for this article which I believe the tribunal determination won't stand in the near future.

[sakura]

Hirahim, how old are you? How old is your brother, and what country is he a national of? Are you (or your brother) married or have kids? Any other family members in your country or abroad?

[hirahim]

Hirahim, how old are you? How old is your brother, and what country is he a national of? Are you (or your brother) married or have kids? Any other family members in your country or abroad?

Thanks for your comments. My brother married, have kids and working in UK. He is an EU National. We are the younger brothers of him. We are dependant of him financially. No other family along with us in India. Further info, please contact hirahim@hotmail.co.uk

[hirahim]

Hi, Please look into the Portugal implemented national legislation. I believe that they implemented correctly the article 3(2) a from the EU directive 2003/38/EC into their national legislation .

http://www.sef.pt/portal/V10/EN/aspx/le ... nha=4559#0
----------------------------------------------------
Article 3.º

Beneficiaries

This law applies to all citizens of the Union who move to or live in Portugal, as well as their family members, according to the definition of sub-heading e) of the preceding article, travelling with them or joining them.

Without prejudice of the personal right to move and reside freely of the citizen, according to the general law, the entry and residence of any other family member regardless of his/her nationality not included in the definition provided by sub-heading e) of the preceding article, is rendered easy if in the country from which he/she comes lives in ward of the citizen of the Union entitled to a residence permit, or living with this citizen in communion, or if the citizen of the Union imperatively has to look after the member of his/her family because of a serious health condition.
----------------------------------------------------
In case Jia C-1/05 under Para 36 .... The Court has also held that the status of dependent family member does not presuppose the existence of a right to maintenance, otherwise that status would depend on national legislation, which varies from one State to another (Lebon, paragraph 21).

Para 37 ..... The need for material support must exist in the State of origin of those relatives or the State whence they came at the time when they apply to join the Community national.

Therefore, I believe that the UK implementation for article 3(2)a is incorrect.

Please update this forum if you find some other supporting facts for this.

[thsths]

Could you please let me know which court has used this principle, whether court of appeal or high court or any?

I am not a lawyer, and I have certainly seen conflicting statements on this issue. I found some thoughts on this page:
http://www.richinstyle.com/masterclass/ ... urope.html , but I know there is more (which I cannot find right now).

The UK always had difficulties with the supremacy of European law. As far as I understand this has been solved now for cases where European law has not be transposed into national legislation. But if there is national legislation, it is usually considered final.

Since the 2006 Regulations are only in place for just over a year, there is not much case law based on it.

[hirahim]

.... I have certainly seen conflicting statements on this issue. I found some thoughts on this page:
http://www.richinstyle.com/masterclass/ ... urope.html , but I know there is more (which I cannot find right now).

The UK always had difficulties with the supremacy of European law. As far as I understand this has been solved now for cases where European law has not be transposed into national legislation. But if there is national legislation, it is usually considered final.

Since the 2006 Regulations are only in place for just over a year, there is not much case law based on it.

Thanks thsths

There is one good point in your attachment from the case C-106/89 Marleasing SA v La Commercial...

Under Para 8..... applying national law, whether the provisions in question were adopted before or after the directive, the national court called upon to interpret it is required to do so, as far as possible, in the light of the wording and the purpose of the directive in order to achieve the result pursued by the latter and thereby comply with the third paragraph of Article 189 of the Treaty ...

This is the clear information from the ECJ for the interpretation of the directive.

[avjones]

How old are you? How old is your brother? What education do you have / are you having at the moment? Do you work, and if not, why not?

How long did you and your brother live together in the same household? How long since he and you stopped living together? Who do you live with now?

[hirahim]

How old are you? How old is your brother? What education do you have / are you having at the moment? Do you work, and if not, why not?

How long did you and your brother live together in the same household? How long since he and you stopped living together? Who do you live with now?

Thanks for your questions.

My brother age is 32. We are 3 brothers of him ages are 30 ,26 and 17. We are studying Arts,computer science and schooling respectively.

I have seen that there is no requirement of age concerning the article 3(2)a of dependants.

Further I have seen in the EU commission guide, which contains no age concern for us as per EU law.

http://ec.europa.eu/commission_barroso/ ... _ec_en.pdf

"..Other family members such as siblings, cousins, aunts and uncles and other relatives have the right to have their entry and residence facilitated by the host Member State if they are dependant on you or are members of your household..."

In Case C-200/02, Kunqian Catherine Zhu and Man Lavette Chen v Secretary of State for the Home Department, ECJ pointed out under para 7,....to examine the provisions of Community law concerning the right of residence in the light of the situation of a national not of legal age such as Catherine,..."

Since born to 2002 year, we lived together in the same house hold. But even up to this time, we are supported by him financially for our day to day requirements.

Our parents got EEA resident permit based on dependency. Our family now splitted although the directive recital is called upon ' to maintain the unity of the family in a broader sense, article 3(2) should have to be interpreted. See how we are suffering and since we are alone here, my parents spent sometimes in london and here as well.

Yours valuable advice always welcome.

[sakura]

Our parents got EEA resident permit based on dependency. Our family now splitted although the directive recital is called upon ' to maintain the unity of the family in a broader sense, article 3(2) should have to be interpreted. See how we are suffering and since we are alone here, my parents spent sometimes in london and here as well.

Yours valuable advice always welcome.

So your brother has already brought in your mother and father, and now you want him to facilitate entry for three more people? Sounds odd. Just how dependent are you? You are all pretty well qualified; you can all probably get a job if you sought one. Remember that dependency has to be seen as one that is based on necessity. e.g. if you're not working but are able to, then that is dependency based on choice.

The other things are your age. Age is not a real issue, but at 30 you are more or less able to lead independent lives....e.g. set up your own family. Again, this relates back to the dependency issue. I can understand your brother who is 17, but you and the other brother, I cannot. Just because you are students does not mean you're dependent - you can finish school and start working.

I cannot see how your family have split up and how that can be used as a basis to 'unite' yourselves.

That fact that all three are applying...if he has his own family, I fail to see how he can support (i.e. be a sponsor of) three more dependents.

I think this might have been why your application was refused. Are you going to appeal? I guess this could be a case law - an EU national with his own family unit, sponsors two parents, then three other adult dependents...

[avjones]

Your parents' cases were different from you - as ascendants of an EU national, they are "family members" and not "extended family members".

Ages do matter, because they go to the factual matrix of dependency.

The "we are all alone" point isn't going to cut much ice. Your parents voluntarily left India, and apart from your younger brother, you are adults and capable of living independent lives. You aren't exactly alone anyway, as there are 3 of you!

What the 2006 directive says is that:

(2) An Entry Clearance Officer may issue an EEA family permit to an extended family member of an EEA national who applies for one if -
(a) the relevant EEA national satisfies the condition in paragraph (1)(a);
(b) the extended family member wishes to accompany the relevant EEA national to the United Kingdom or to join him there; and
(c) in all the circumstances, it appears to the Entry Clearance Officer appropriate to issue the EEA family permit.
(3) Where an Entry Clearance Officer receives an application under paragraph (2) he shall undertake an extensive examination of the personal circumstances of the applicant and if he refuses the application shall give reasons justifying the refusal unless this is contrary to the interests of national security.

So "all the circumstances" are relevant. That does include age.

Extended family members are defined in the directive thus:

Extended family member

8.-(1) In this these regulations 'extended family member' means a person who is not a family member of an EEA national under Regulation 7(1)(a), (b) or (c) and who satisfies the conditions in paragraph (2), (3), (4) or (5).

(2) A person satisfies the condition in this paragraph if the person is a relative of an EEA national, his spouse or his civil partner and -

(a) the person is residing in an EEA state in which the EEA national also resides and is dependent upon the EEA national or is a member of his household;

(b) the person satisfied the condition in paragraph (a) and is accompanying the EEA national to the United Kingdom or wishes to join him there; or

(c) the person satisfied the condition in paragraph (a), has joined the EEA national in the United Kingdom and continues to be dependent on him or to be a member of his household.

(3) A person satisfies the condition in this paragraph if the person is a relative of an EEA national or his spouse or his civil partner and, on serious health grounds, strictly requires the personal care of the EEA national his spouse or his civil partner.

(4) A person satisfies the condition in this paragraph if the person is a relative of an EEA national and would meet the requirements in the immigration rules (other than those relating to entry clearance) for indefinite leave to enter or remain in the United Kingdom as a dependent relative of the EEA national were the EEA national a person present and settled in the United Kingdom.

(5) A person satisfies the condition in this paragraph if the person is the partner of an EEA national (other than a civil partner) and can prove to the decision maker that he is in a durable relationship with the EEA national.

I don't see how you come within this definition. You are not living in an EEA state (2)(a), and nothing you've said implies that you've been living in an EEA state in the past, so you don't come within (2)(b) or (2)(c). You don't seem to me to come within (3), (4) or (5) either.

The relevant EU framework is Directive 2004/38/EC.

The general thrust in relation to extended family members says:

(5) The right of all Union citizens to move and reside freely within the territory of the Member States should, if it is to be exercised under objective conditions of freedom and dignity, be also granted to their family members, irrespective of nationality. For the purposes of this Directive, the definition of "family member" should also include the registered partner if the legislation of the host Member State treats registered partnership as equivalent to marriage.

(6) In order to maintain the unity of the family in a broader sense and without prejudice to the prohibition of discrimination on grounds of nationality, the situation of those persons who are not included in the definition of family members under this Directive, and who therefore do not enjoy an automatic right of entry and residence in the host Member State, should be examined by the host Member State on the basis of its own national legislation, in order to decide whether entry and residence could be granted to such persons, taking into consideration their relationship with the Union citizen or any other circumstances, such as their financial or physical dependence on the Union citizen.

So the UK has a duty to examine your circumstances on the basis of its own national legislation, taking into account the relationship and dependence.

Article 3 states that:

2. Without prejudice to any right to free movement and residence the persons concerned may have in their own right, the host Member State shall, in accordance with its national legislation, facilitate entry and residence for the following persons:

(a) any other family members, irrespective of their nationality, not falling under the definition in point 2 of Article 2 who, in the country from which they have come, are dependants or members of the household of the Union citizen having the primary right of residence, or where serious health grounds strictly require the personal care of the family member by the Union citizen;

(b) the partner with whom the Union citizen has a durable relationship, duly attested.

The host Member State shall undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people.

So you come potentially within this Article. You aren't a member of the household of the EU citizen, because you haven't lived together since 2002. So the Member State, the UK in this case, has the duty under the directive to examine the circumstances. The directive and the regs don't seem to be to be inconsistent.

The BIA's European case work guidance says:

2.4 Extended family members

Regulation 8 of the 2006 Regulations covers extended family members (for example, brothers, sisters, aunts and cousins).

When deciding whether it is appropriate in all the circumstances to issue a residence card, we must assess whether refusing the family member would deter the EEA national from exercising his/her Treaty rights or would create an effective obstacle to exercise of Treaty rights. Each case must be assessed on an individual basis but an example of where it might be appropriate to issue a residence card would be if the family member was very elderly or incapacitated. In assessing such cases, it would be important to consider whether there were any relatives to care for him/her in the home country.

As your brother's been exercising his Treaty Rights, I reckon the Home Office is going to say that the EEA isn't being detered from free movement.

You said in a post, "Once dependency established, they have the right to join an EEA national who is exercising treaty rights."

I don't think it's that simple. Although Article 3 does say, as you state, that the Member State must "facilitate entry and residence", it also says, "in accordance with its national legislation". I don't think you can say that dependency = a right to join, necessarily.

The matter has been considered in the case of 2 sisters from India, married to the sons of an EU national living in the UK - AP and FP (Citizens Directive Article 3(2); discretion; dependence) India [2007] UKAIT 00048.

In that case it was argued that the Regs didn't reflect the language of the directive. The Asylum and Immigration Tribunal found:


First, by Article 3(1), the Directive is made simply to “applyâ€

[hirahim]

Hi Amanda Jones

Thanks a lot for your fantastic suggestion.

We will follow it up.

[hirahim]

Can any one knows

1. what is the approximate time period for AIT Reconsideration hearing Date, if the reconsiderations has been granted?

2. What is the approximate time period for High Court to review the Decision, if AIT not granted Reconsideration?

Regards

[avjones]

You have 28 days to apply for reconsideration to the AIT (if you are outside the UK) and 5 days (if wihtin the UK).

If you are refused by the AIT, you have the same times to apply for statutory review to the High Court.

[hirahim]

You have 28 days to apply for reconsideration to the AIT (if you are outside the UK) and 5 days (if wihtin the UK).

If you are refused by the AIT, you have the same times to apply for statutory review to the High Court.

Thank you very much.

Sorry may be the way I asked the question is wrong.

My question here is once we apply for statutory review to the High Court, how long does that high court will take to give the decision?

and

If that court order the reconsideration, how long will it take to proceed for the hearing, please

Regards

[avjones]

As long as they feel like, depending on how busy the High Court is, whether it is in term or out of term, etc.

In my experience, it's currently 3-4 months.

Usually, it's then another c.3 months before it is listed for a 1st stage reconsideration at Field House.