EEA family permit Mexican wife and kid

[taniaarthur]

Hallo
we are a family composed by british dad Mexican mum , British 3 year old and Mexican 9 year old girl (she is mum'd biological kid, adopted in Mexico by British dad, therefore nationality didn't pass on to her)
we have been married for 3 years and a half and live in Mexico.
My husband wants us all to go back to the U.K cos Mexico is getting a bit nasty, the thing is it would take us many years (earning pesos) to get the money together for all those plane tickets and spouse and kid visa, so we are trapped in Mexico.
we just found out about this EEA family permit track, and we have been reading lots and ended up just really confused.
basically my British husband can't believe that we would have to move first somewhere in the EU to be able to get the permits.
he can't believe that means that for example a German man can bring is family into the U.K but a Brit CAN'T unless he has been living somewhere else in the U.K
is that right?
do we really have to move somewhere else in Europe
Cos if it the answer is yeah, then i suposse me,being Mexican would have to tramit another probably jsut as hard to get permit to live in another EU country with him!
it just doesn't make any sense
makes us depressed
after years of marriage it is still an everyday fight just to keep our family together anywhere.

[Plum70]

To benefit from the EU route ie. enter the UK on a EEA Family permit, you will have to have lived in another EU country with your hubby exercising treaty rights for up to 6 months (so the UK demands) before you can return to the UK under the EU route.

If you all wanted to move straight to the UK from Mexico then it would have to involve applying and paying for a UK spouse visa for you and a visa for your daughter.

[taniaarthur]

It is just crazy
it's all I can say

[Wanderer]

Yes it's right and it's quite fair really.

A German in the UK can't use German Immigration Law for his family, neither can he use UK immigration law, hence EEA law was created, happens to be free, local immigration isn't.

So either use the expensive but quicker UK system, or to take advantage of the EEA system, you will have to 'exercise a treaty right' first.

[John]

taniaarthur, given the language situation, why don't you and your family plan to live and work for a few months in Spain?

After that cost-free EEA Family Permits can be applied for.

The background to all this is that your British husband has EU/EEA Treaty Rights, and that means that he can live and work in any other EEA country. Assuming he is doing that, his family members can also exercise those same Treaty Rights.

[eldane]

To benefit from the EU route ie. enter the UK on a EEA Family permit, you will have to have lived in another EU country with your hubby exercising treaty rights for up to 6 months (so the UK demands) before you can return to the UK under the EU route.

I still do not agree with that interpretation....

There is no minimum requirement for the length of a EU national's residence in the other EU/EEA Member State or Switzerland, but it is a precondition that s/he has genuinely exercised the right of residence on the basis of the EU rules.


When is a Union citizen/an EEA national deemed to be a worker under EU law?

It actually depends on an induvidual assessment of the specific circumstances of each case as to whether a Union citizen/an EEA national, is deemed to be a worker under EU law. What is crucial is whether a person has had genuine and effective employment. Accordingly, employment appearing to be a mere marginal supplement is excluded from the scope of application of the concept. It is therefore a condition that the relevant employment was for at least 10-12 hours a week.

It is not possible to set a threshold for the duration of the employment for pre-assessment purposes.

The European Court of Justice ruled in Franca Ninni-Orasche (C-413/01) that a fixed-term contract of employment for ten weeks was sufficient for the applicant to be a worker under EU law. The case concerned educational grants and led to the issue of guidelines to the local authorities about when a person is deemed to be a worker. The guidelines concern employment relationships for which a short-term contract has been concluded in advance. The guidelines fix a minimum period of ten weeks for such situations. However, it should be emphasised that an invidual assessment must be made in each case.

Accordingly, an individual assessment must be made in each case, and the ten-week period fixed by the Court in the Ninni-Orasche judgment is thus only to be seen as an example of a situation in which ten weeks of employment were deemed to suffice.

A Union citizen/an EEA national who has permanent employment, but ceases working after less than ten weeks, may satisfy the conditions for being a worker under EU law in certain circumstances, while another person having worked for more than ten weeks may not always satisfy the conditions because it is not genuine work or for other reasons.

[John]

There is no minimum requirement for the length of a EU national's residence in the other EU/EEA Member State or Switzerland, but it is a precondition that s/he has genuinely exercised the right of residence on the basis of the EU rules.

I agree with you, and indeed over the years a number of members of this Board have reported that they have succeeded in using the Surinder Singh route even though Treaty Rights were used economically for less than 6 months.