British Citizen in the UK applying for a EEA family permit

[JA13I]

The DSPs, which Vinny posted a link to above, have been recently updated and they now state (as they didn't used to) that Surinder Singh applies to those family members of Brit cits working in another member country and who will simply be visiting the UK.

Because EEA nationals have an initial three month right of residence in the UK, there is no requirement for the British national to be a qualified person on arrival. Therefore, an EEA family permit can be issued to the family member of a British national even if they are only visiting the UK with the British national before returning to the Member State where they are resident.

Well spotted! Since I was confident that I know the European DSPs and the IDIs by heart, I did not bother read it up again and hence missed out on the part you pointed out.

Richard66, I still maintain that this is a generous interpretation by the UK officials of the EU law, as by EU standards, British nationals just visiting the UK , with or without their non-EEA family members,are not considered to be EEA nationals but as British citizens. Only UK nationals returning to the UK to settle in the UK after exercising treaty rights as self-employed or as a worker should be considered as an EEA national.

So, however happy as I am with the UK interpretation, I believe that the logic used in the DSPs is flawed if it is purely based on the Surinder Singh ruling as according to it, visiting nationals need not be considered to being EEA nationals. If your petition do get answered, I will be interested in the reply from the EC.

[Richard66]

I can't prove this, but to me this interpretation has come after I submitted the petition to the European Parliament. You see, I sent a copy of it to the Embassy in Rome that forwarded it to UK Visas. This certainly is the interpretation I have been hammering into them for three months now.

I notice the relevant Internet page of the British Embassy in Rome has been changed once again:

http://www.britishembassy.gov.uk/servle ... 7335957384

Though now this information is only in Italian. In English they suggest you look at UK Visas site. The list of documents has also shrunk dramatically and now is almost the correct one:

Valid passports of the EEA national's family member (no more mention of any 6 month's validity)

Original or certified copy of an EEA national's document

Birth or marriage certificate

Residence card of the EEA national's family member (illegal)

Photographs

A declaration form the EEA national stating that he will accompany or be joined by the family member.

They also mention the fact that UK citizen's family members may apply for an EEA FP if the UK citizen has worked in, say, Italy.

Anyway, my real issue is not this one and this I made clear in the petition, though of course I could not have taken these new changes into consideration: it's the fact the residence card issued under Directive 2004/38/EC is valid en lieu of a short-stay visa and this is what my wife has.

I repeat again, Surinder Singh is the basis for the Immigration (EEA Regulations 2006/1003 and that these regulations take into consideration the directive that came later. The regulations cannot be more restrictive in the case of returning citizens than thjey are for other EEA nationals. Given the initial three months of residence, how then could I prove that I am returning to work? Do I need to present a British work contract?

We can go further and state that students and people of independent means can also exercise treaty rights. At present my wife and I can (if we want to) apply for an EEA FP. Supposing tomorrow we win the lottery and I stop working? Will our right to apply for the FP cease, even if we still are exercising treaty rights? I might add this point in futher communication with Brussels.

[VictoriaS]

Looking at the definitions of exercising treaty rights, according to the JCW, visiting can count...


Victoria

[Richard66]

Looking at definitions of exercising treaty rights, I think it's quite hard not to exercise them, unless one decides to become a tramp (but I suppose tramps can be self-sufficient too).

As for all documents and questions, which I would refuse to answer, they look suspiciously like the sort of information the Goverment wants to obtain for their Big Brother ID scheme and I'm not subscribing to it. Let's hope the loss of those 8 disks means this scheme may be honourably be buried.

I also noticed on the Internet site of the Embassy in Rome there is no talk about fingerprints. Maybe they only say that later.

[JA13I]

Looking at the definitions of exercising treaty rights, according to the JCW, visiting can count...

Victoria

Victoria, visiting pre se is not a treaty right. But there is a unconditional right of entry for upto 3 months for EEA nationals and if after that they do remain without being a burden on public funds, then can take the period for exercising the right as being self-sufficient.

I think it's quite hard not to exercise them

True, but you do not have to be tramp for that to happen. All you have to do is sign up for all public funds that is possible and make is easy for the government to boot you on the basis of becoming a burden. etting back to your question-

Given the initial three months of residence, how then could I prove that I am returning to work? Do I need to present a British work contract?

According to the initial Surinder Singh ruling, the onus to prove that you are going to be working or self-employed would fall on the applicant. So, technically, even if they were to write the DSPs to reflect that, it would not be against any EU ruling to date.

Now, in such a scenario, if you were to claim that you are returning back to the UK while you only wanted to visit, you might get away with it the first time, but have trouble for subsequent applications as you will have to answer why you did not settle when the first EEAFP was issued. A similar example to compare would be applying for Schengen visa for the first time while never intending to visiting the country that you apply for. Subsequent applications would then be difficult via the same embassy if you have no proof that you did not misuse the visa.

But, since the UK have generously interpretted the part and has changed the DSPs, I do not think you will have any further trouble due to that. But had it been the other way round as mentioned above, based on all the rulings so far, I do not believe that visiting nationals, unlike the returning residents, will also have to be under the wing of the EU law.

[Richard66]

I don't mean any offense whatsoever, but I'd like to understand this frame of mind so many people in the UK have. It's like this:

1) We have Surnder Singh n 1992;

2) Then we have Directive 2004/38;

3) Then we have the Immigration (EEA) Regulations 1003/2006.

3 is a follows 2 and 1. This is to say, 1 is the basis that has been expanded by the new (not so new, really) rights given by 2. Why is it that everyone only looks at Surinder Singh, as if annulled the directive and the regulations? It no longer reflects the reality! People can exercise treaty rights in four different manners:

A) Worker
B) Self-Employed
C) Self-sufficient
D) Student

It seems that regulation 9 of the UK regulations is too restrictive, in that it only considers A and B. If I were a student or a person of independent means I'd be very reluctant to move to another EEA state just as much if I were a worker. People on a university course could stay as long as 5 years in another member state (longer than Surindr Singh stayed in Germany!). This is not my case, but in further communication with Brussles I shal certainly bring this up.

As for claiming public funds... I invite anyone to come to Italy (or to go to France, where I lived before) and try and see how long they'll laugh.

[Richard66]

Now, in such a scenario, if you were to claim that you are returning back to the UK while you only wanted to visit, you might get away with it the first time, but have trouble for subsequent applications as you will have to answer why you did not settle when the first EEAFP was issued. A similar example to compare would be applying for Schengen visa for the first time while never intending to visiting the country that you apply for. Subsequent applications would then be difficult via the same embassy if you have no proof that you did not misuse the visa.

This is exacly why I kicked up such a fuss. I knew I'd get away with misrepresenting my intentions... but only once.

I'm still taking all this to the European Commission. The UK might change their mind tomorrow and no need to change any laws.

[JA13I]

I don't mean any offense whatsoever, but I'd like to understand this frame of mind so many people in the UK have

I just point out the law as it stands and is not my personal "frame of mind". If you do not like it,...

It seems that regulation 9 of the UK regulations is too restrictive, in that it only considers A and B.

OK! Let me put it to you a question. Had it been too restrictive which part of the Surinder Singh ruling made you feel that it can be for any treaty right and not just employment or self-employment?

1 is the basis that has been expanded by the new (not so new, really) rights given by 2.

We are all aware of the chronological order of events that you point out. But quite simply put, on what basis do you decide that it has expanded to include ALL treaty rights and not just the ones that given in the Surinder Singh verdict? Do not forget that the ruling is not binding to include ALL treaty rights and if you believe that it already expanded to include all the treaty rights then your interpretation could be challenged.... although, by the recent change in the DSPs, it is not going to be the UK who does it. Until another ruling comes along to include ALL the treaty rights to be included in the Surinder Singh route as well, I will just have to conclude that the UK has erred in the side of caution by including visitors in the route as well.

So, in a nutshell, your claim that the route has automatically expanded to include ALL the treaty rights is just that... a claim.... and not based on any particular verdict or law.

[Directive/2004/38/EC]

One of the main drivers behind the Singh ruling was that you want citizens to not face impediments to exercising their right of free movement and residence in the EU.

Singh was focussed on returning to the mother country for work, and says that the EU rules should apply.

But the very same logic applies to restrictions on me returning to the mother country for a weekend visit to my parents. If I can not bring my family member with me easily, then it becomes a major impediment to me exercising my free movement rights.

The legal reasoning behind case law can be applied to other situations. Much as I would like to think the home office is trying to be generous, I tend to thing they have legal advice and realize that this is not a fight they can win (and one that would look bad).

[JA13I]

Directive/38/2004/EC, this is the first time that I have seen logic since this argument began and something I think is probable!

But if that is the reason, then should not the HO accept Residence Cards of other EEA countries in lieu of the visa requirement, or not take much longer time for processing applications than the 6 months alloted or not require everyone to have EEAFP, even the non-visa nationals etc.

These are more clear cut cases the HO will lose based on the Directive, and have yet taken a restrictive measure and is clearly impediment to exercising treaty rights here. So, it cannot just be the fear of losing a case or face!

[Richard66]

I just point out the law as it stands and is not my personal "frame of mind". If you do not like it,...

This was not a dig at you, JA131. This seems to be the general reasoning I see on the site.

Let me see... I remember when I studied law (I am a lawyer, though I've never worked as one) one of the main things when talking about civil law cases we learnt was "pertinence", that is, that one cannot just go to court and ask for anything. If restaurant-owner damages your car I can't go to a solicitor and say, "Hey, a restaurant-owner has damaged JA's car! Do something!" When you go to court you can ask only for the damage done to your car and anything that happens as a consequence. You can't ask for an indemnity because the food isn't to your liking.

Surinder Singh went to court with a specific complaint and the ruling addresses this specific complaint. This was his case and the court ruled to suit his case. Jurisprudence starts from the case and deduces general priniciples which can be applied generally. If this were not so, we could reverse and say the ruling is only valid for People who go to Germany to exercise treaty rights.

Another thing I learnt at university is that a good judge gives what has been asked for: Maybe less, but never in any case more. The court could not give more to Surinder Singh than he asked for and the court could not even dream of mentioning self-sufficiency or a student status because no one even mentioned it.

My point seems to be the same as that of the advocate-general of the ECJ, who, in his opinion concerning the Eind case, says that the principles derived from Surinder Singh are much wider than what is said in the decision. The Eind case concerns a family member of a Dutch national who returned to his home country and did not exercise treaty rights.

What I do is read the Directive. From reading this Directive I can tell you several points of the EEA regulations are in contradiction with it. Just like this one:

But if that is the reason, then should not the HO accept Residence Cards of other EEA countries in lieu of the visa requirement,

You hit the nail!!! This is just what the directive says: family members' residence cards issued by any member state are valid en lieu of short-stay visas and this is just where I'm challenging the UK. This is what I mention in my petition, this is what I'll mention to the European Commission. if you feel this is my interpretation, I can guarantee you I have received a letter from the Vice-Presidency of the European Commission saying just that and that I'm not the first person to make this complaint. At this very moment, the UK is being questioned about this violation of the Directive.

The legal reasoning behind case law can be applied to other situations. Much as I would like to think the home office is trying to be generous, I tend to thing they have legal advice and realize that this is not a fight they can win (and one that would look bad).

And they will lose any case that's brought before the ECJ, because you cannot pick and choose which treaty rights can be exercised. Either on your return you're EEA or you're not EEA. We don't yet have the half-EEA category. You can't be EEA if you come to found Macrohard and not EEA if you come to visit your sainted aunt.

[JA13I]

Richard66, the entire discussion was based on the Surinder Singh case alone. As for the Residence Card issue, this topic has come up in the board over and over again in this board and am quite happy that you are raising it up with the EC. Best of luck on that fight! We are all behind you on this.

[Richard66]

I'm planning on sending the complaint on 3 December, though I am awaiting for the European Parliament to receive the petition before contacting the Commission.

In matter of fact, as this is not a court-case, anyone can raise issues with the Commission. It's also rather safe, because, should this go to the ECJ it's not Mike or Joe X the Queen, but the EC X the Queen.

I'll keep you all posted on this.

If you ask me the Directive needs one amendment:

"For the purposes of this Directive the definition of EEA national is:

Any EEA national exercising treaty rights in another Member State;

If the EEA national is exercising treaty rights in another member state this EEA national shall also be so considered in relation to the member state from where this EEA national comes;

The paragraph above shall only apply after the 3 month of unqualified period has finished and the EEA national is established in the other member state."

As for the part about the residence card... This should be a regulation, with a uniform model for all the EEA and Switzerland.

Just to close the discussion: I forgot to mention that in my communication with the British Embassy in Rome they did write me, saying thay had mentioned Surinder Singh cases were not clearly made out in the UK Visas Internet site and that this would be corrected. I checked the other day and (this makes me look bad maybe) I noticed the changes mentioned above came before I sent my parcel to the EP (one of them 3 days before, to be more precise). The bit about the possibility to visit they also wrote to me in another letter. But as all this is but interpretation, it was perhaps better to leave the petition as it stands.

[JA13I]

As for the part about the residence card... This should be a regulation, with a uniform model for all the EEA

You would not believe this, but there already is a uniform format and the UK does take part in the regulation. The format of the Residence Card vignette endorsed in the passport is almost identical to the the Residence Cards issued in other EU countries.

I will dig up that regulation tomorrow.

[Richard66]

But isn't this uniform model only for the residence cards of third-country nationals (not family members)? I came across this regulation myself some time ago. If it's the same one you are speaking about, the UK, Ireland and Denmark have opted out of it.

My wife's (and mine, come to think of it) residence card is nothing like that: it's actually an A4 yellow sheet with the general parts (ie, Name, Surname, etc) in both Italian and English, while the parts they fill in (John Smith, etc) only in Italian. It is separate from the passport and is highly perishable.

[JA13I]

I do not know how the regulation in question,i.e- [urlhttp://eur-lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexplus!prod!DocNumber&lg=en&type_doc=Regulation&an_doc=2002&nu_doc=1030] Regulation1030/2002 [/url] is interpreted in the rest of the EU, but here in the UK, as there is no id cards, it means that any Residence Documentation that is not a visa, e.g- Permanent Residence Card or the Residence Card of non-EEA family members is of the pattern in the first image in this link.

In the above regulation, the part that currently states ">PIC FILE= "L_2002157EN.000701.TIF">" used to be linked to an image that is almost identical to the above image that I have posted. It has since been removed and was very similar to the images that was then available in the 2 similar links above which was the format laid down for the id cards in other EU countries.

Note that according to the Regulation,

2. For the purpose of this Regulation,

(a) "residence permit" shall mean any authorisation issued by the authorities of a Member State allowing a third-country national to stay legally on its territory, with the exception of:

(i) visas;

Visas for the UK still are issued on the format of this vignette.

Also, the UK has not opted out of this one as seen in (14) of the Regulation which states-

(14) In accordance with Article 3 of the Protocol on the position of the United Kingdom and Ireland annexed to the Treaty on European Union and to the Treaty establishing the European Community, the United Kingdom gave notice, by letter of 3 July 2001, of its wish to take part in the adoption and application of this Regulation

.

[Richard66]

Yes, I thought this was the regulation you were mentioning, but I also thought it did not apply in the case of family members of EAA citizens. Indeed:

Article 5

This Regulation shall not apply to third-country nationals who are:

- members of the families of citizens of the Union exercising their right to free movement,

- nationals of Member States of the European Free Trade Association party to the Agreement on the European Economic Area and members of their families exercising their right to free movement in accordance with that Agreement,

These residence cards have been adopted in Italy, this I know.