Residence Permit after EEA family permit

[Ben]

If a non-EEA family member is issued with EEA family permit, are there any circumstances in which a Residence Permit may then not be issued, upon submission of form EEA2 and all supporting documents, after arrival in the UK?

[vinny]

See also European Casework Instructions > Chapter 5 - Residence Card Applications (1.15 Refusing residence card applications)

[Ben]

See also European Casework Instructions > Chapter 5 - Residence Card Applications (1.15 Refusing residence card applications)

Thank you very much Vinny.

What concerns me is the following circumstance, in 1.15 Refusing residence card applications:

• The third country national is not genuinely a dependant family member.

What if the non-EU family member is indeed not a dependant family member, rather, and in accordance with Directive 2004/38/EC and Statutory Instrument 2006 No. 1003, is a member of the Union citizen's household, prior to moving the UK?

[vinny]

They would have to follow The Immigration (European Economic Area) Regulations 2006.

[Ben]

They would have to follow The Immigration (European Economic Area) Regulations 2006.

I see, thank you. It's just, the two contradict each other.


Directive/2004/38/EC states:

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;

The Immigration (European Economic Area) Regulations 2006 states:

"Extended family member"
8. —(1) In 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 upon him or to be a member of his household.

But then Chapter 5 - Residence Card Applications states:

1.15 Refusing residence card applications:

The third country national is not genuinely a dependant family member.

We can see then, that according to Directive/2004/38/EC and transpiring into The Immigration (European Economic Area) Regulations 2006, family members other than the spouse, partner, parents or children of the Union citizen exercising Treaty rights, have the right of residency providing they have lived previously, in the country from which they have come, in the same household as the Union citizen exercising Treaty rights (interestingly, The Immigration (European Economic Area) Regulations 2006 requires that this same household residence must have occurred in another EEA State, contrary to Directive/2004/38/EC which is not specific).

Why, therefore, does the quotation from Chapter 5 - Residence Card Applications state that a Residence Card application may be refused if the third country national is not genuinely a dependent family member? Refusal in these circumstances would contravene both Directive/2004/38/EC and the UK's own Immigration (European Economic Area) Regulations 2006.

[thsths]

Why, therefore, does the quotation from Chapter 5 - Residence Card Applications state that a Residence Card application may be refused if the third country national is not genuinely a dependent family member? Refusal in these circumstances would contravene both Directive/2004/38/EC and the UK's own Immigration (European Economic Area) Regulations 2006.

I think the key is the sentence "the host Member State shall, in accordance with its national legislation, facilitate entry" in the directive. How and when entry is granted can be determined in national legislation. The regulations require the household to be within the EU. This is similar to the stricter requirement for family members applying from outside of the EU - a disputed issue, but so far it has not been stopped by the ECJ.

So I think the truth is in the regulations. If the casework instructions differ, they are wrong. Whether the caseworker knows that is a different questions.

Tom

[Ben]

Thanks for your reply

I think the key is the sentence "the host Member State shall, in accordance with its national legislation, facilitate entry" in the directive. How and when entry is granted can be determined in national legislation.

This is true. However in my experience in Ireland, the "type" of residency granted to family members defined in point 2 of Article 3, is equivalent to that granted to family members defined in point 2 of Article 2. The only difference has been the length of time the permit has been valid for (one year renewable, rather than five). To deny residency for family members defined in point 2 of Article 3 would be illegal in respect of Directive 2004/38/EC and so, as far as I can see, a residence permit can never be refused to such family members, even if the entry of such family members is facilitated in accordance with the host Member State's national legislation.

The regulations require the household to be within the EU.

I cannot find any reference to this requirement in Directive 2004/38/EC. Could you help me out with that?

So I think the truth is in the regulations. If the casework instructions differ, they are wrong. Whether the caseworker knows that is a different questions.

Aint that the truth.

[thsths]

The regulations require the household to be within the EU.

I cannot find any reference to this requirement in Directive 2004/38/EC. Could you help me out with that?

You are right, it is not in the directive. However, this is a long standing legal argument with a significant amount of not quite consistent precedent cases. I think the best articles on this subject are http://www.gherson.com/articles/eea-reg ... ly-members
and http://www.legal500.com/index.php?optio ... ew&id=3074 .

You should certainly be able to find something that supports your case, the problem is that the other side will also find a lot of support in other judgements.

Tom

[Ben]

The regulations require the household to be within the EU.

I cannot find any reference to this requirement in Directive 2004/38/EC. Could you help me out with that?

You are right, it is not in the directive. However, this is a long standing legal argument with a significant amount of not quite consistent precedent cases. I think the best articles on this subject are http://www.gherson.com/articles/eea-reg ... ly-members
and http://www.legal500.com/index.php?optio ... ew&id=3074 .

You should certainly be able to find something that supports your case, the problem is that the other side will also find a lot of support in other judgements.

Tom

I can't thank you enough for this information.

The articles you have linked to contain information that I was not aware of. I have learned a lot, and it will be very helpful indeed to me and my family members.

I can see what you mean about finding something that supports my case, but the problem being that the other side will also find a lot of support in other judgements. However, what I can see that is invariably of the highest importance in all of these examples, is to not deviate from the "spirit" of Directive 2004/38/EC (or other EU Directives for that matter). It would seem almost that, if in doubt of any apparent "grey" area of Directive 2004/38/EC, the "spirit" of the EU citizen's right (and the rights of his family members) to move and reside freely throughout the European Union, is paramount. The operative word there is throughout (not in to the European Union).

Thanks again, thsths.

[eufreemovement]

[/quote]

I can't thank you enough for this information.

The articles you have linked to contain information that I was not aware of. I have learned a lot, and it will be very helpful indeed to me and my family members.

I can see what you mean about finding something that supports my case, but the problem being that the other side will also find a lot of support in other judgements. However, what I can see that is invariably of the highest importance in all of these examples, is to not deviate from the "spirit" of Directive 2004/38/EC (or other EU Directives for that matter). It would seem almost that, if in doubt of any apparent "grey" area of Directive 2004/38/EC, the "spirit" of the EU citizen's right (and the rights of his family members) to move and reside freely throughout the European Union, is paramount. The operative word there is throughout (not in to the European Union).

Thanks again, thsths.[/quote]

Hi Benifa

http://www.bailii.org/ew/cases/EWCA/Civ/2008/13.rtf

In the above judgement, court of appeal discussed about the article 3(2) of directive 2004/38/EC

In my view, the discussion which was carried out by Justice Buxton is not in accordance with EU law.

Justice Sedley is pointed out correctly the family members may be from EU or country of origin or any country they reside and lived. There is nothing to do with the movement in the EU for the family members. Their rights are derived rights.

EU citizen, if want to work in any EU apart from his own state, they are having rights to do so.

The court was confused in their discussions to come to a conclusion that Non-EU national family member of an EU national first entry is based on national law and those who are coming from EU is based on EU law. This type of discrimination is not at all allowed in community law.

Hope their stance cannot stand further. Hopefully there will be some cases pending in the same related issues.