point of law 2004/38/EC Article 3 Regulation 2(a)

[marius22]

Dear Sir/Madam,

I would really appreciate some help with this matter. It is really important to me.

Self-employed A2 national wants to bring my parents (who are A2) over to the UK. I want to apply for a registration certificate for both me and my parents.

I cannot rely on Directive 2004/38/EC Article 2 (d) as it states:

(d) the dependent direct relatives in the ascending line and those of the spouse or partner as defined in point (b)

and I cannot prove dependency but instead I want to know if there is anything preventing them from relying on Article 3 of the same directive:

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...


they do not fall under the definition of point 2 article 2 as they are not "dependant" and that point refers strictly to dependant direct relatives... so I see no reason why not to rely on Article 3, 2(a).

They were living together with me before I came to the UK. So they were members of my household.

My questions are:

Am I right?

I mean I am quite confident that this Article had in mind people in my exact situation where one moves away from one member state to the other and leaves his family behind. Surely the member state in which he has moved has to facilitate bringing his family that was left behind, over to the member state.

If I am wrong can you please point out which article creates the derogation from this Article 3

In terms of proving that they are members of my household.

I found this ukba guidance:

http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary

(e) in cases falling under Article 3(2)(a), a document issued by the relevant authority in the country of origin or country from which they are arriving certifying that they are dependants or members of the household of the Union citizen, or proof of the existence of serious health grounds which strictly require the personal care of the family member by the Union citizen;

Would the National ID cards be sufficient. The national ID cards have the address of residence on them. Both my parents and mine have the very same address on them. Would any other document be necessary? As english is not my first language, can you clarify if there is emphasis on the fact that they have to be part of my household and not me of theirs?

Have you had cases where you relied on this article 3, 2(a)?

What do you recommend ? Applying in person or via post? Having legal representation?

Thank you so much, I really appreciate your help...

Warmest Regards!!

Marius

[vinny]

See also VN (EEA rights – dependency) Macedonia [2010] UKUT 380 (IAC).

[marius22]

See also VN (EEA rights – dependency) Macedonia [2010] UKUT 380 (IAC).

Hi, thanks. I read as much as I could of it but I'm still as confused as I was about it because it mainly discusses dependency.

Am I right to say that Article 3, 2(a) was transpotted incorrectly into UK legislation ?

Article 8 of the 2006 Immigration (EEA) regulations states:

“Extended family memberâ€

[John]

Your parents are A2 nationals. Why do you think they need to be dependent upon you?

Assuming they come to the UK, how will they survive financially?

[Obie]

John is perfectly right, you are getting yourself muddled up with this dependancy issue. As flawed as regulation 8 is, i believe on the face of it, without taking into consideration the waterdown versions that came about as a result of series of national caselaws, your parents will qualify, if you can show that the household they lived in before coming to the Uk was yours, you have primary ownership. That the household membership occurred shortly before you entered the UK.

On the basis of the judgement in Pedro, which was citated in the judgement that Vinny provided you with the link to, the dependancy can commence once they have entered Uk, and your parents will qualify under Article 2

[John]

I think it is as simple as this. The parents, A2 nationals, have a perfect right to come to the UK .... to exercise Treaty Rights. So the question is .... in what way will they be exercising their Treaty Rights?

As we know, for A2 nationals, employment is restricted, but A2 nationals have a perfect right to be self-employed, a student or to be self-sufficient.

[marius22]

John is perfectly right, you are getting yourself muddled up with this dependancy issue. As flawed as regulation 8 is, i believe on the face of it, without taking into consideration the waterdown versions that came about as a result of series of national caselaws, your parents will qualify, if you can show that the household they lived in before coming to the Uk was yours, you have primary ownership. That the household membership occurred shortly before you entered the UK.

On the basis of the judgement in Pedro, which was citated in the judgement that Vinny provided you with the link to, the dependancy can commence once they have entered Uk, and your parents will qualify under Article 2

Thank you very much for all your help! I really appreciate it!

Yes, I should be able to prove the household membership so it should be fine... What sort of documents would I have to provide to prove that? A letter from the local council in Romania should be sufficient maybe? Should I perhaps make enquiries with the ukba prior to applying as to what documents they will be able to accept to prove that? I'll be looking to some legal assistance anyway just to get the wording right for whatever letters I will have to provide from abroad and also probably attach an explanatory note to the application. How long can I expect the process to take? Can I ask for it to be considered as a matter of urgency? Can I maybe get Solvit involved to help ? I do have strong sort of emergency reasons to reintegrate with my family... there surely have to be some provisions on which I can rely if there is an emergency for which they have to come live here... even maybe using the Article 3, (3) retrospectively... as I am the one ill and in need of urgent care and the doctors totally agree with me that they should come here and take care of me... so to answer John's question. I am ill, they are old and my father is ill too - I am on ESA(IR) and that is why I don't want to get into the dependency thing because there is no way a DM will agree that my parents can be dependent on me if 'I am on benefits'. They will mainly be self-sufficient as they are pensioners but their pension is lower than what they'll need to survive here on the long term... they've got some savings so they should be alright for a while if I get better and all, but if not and I still can't work I would rather have them possess a 'blue card' so they can claim pensions credit to top-up their income instead of going with my old parents through administrative tribunals to argue habitual residence and bs.... I sympathize that some of you don't quite agree with me as a result of the mass-media impact of 'people living on benefits' but my circumstances are quite simple and I don't see any choices. I was self-employed for a couple of yrs, I became ill - exhausted all my savings, claimed ESA(IR) and argued for 6 months for the ESA as I was obligated to take the HRT and R2R tests when I was in an exempt class and even so I was first told I am a 'person from abroad' even though I was even exempt. Had to get the chief executive office to change that decision because I left to starve by people taking personal opinions from a office chair about 'people living on benefits' so I guess I have little sympathy of them. but anyway off-topic again...

One more question and everything should be clear hopefully. This is the answer that I got from the EU solicitors.

Dear Mr,
Thank you for contacting Your Europe Advice.
Under Article 3(2) of the Directive, other family members may be allowed to reside with the EU citizen in four distinct cases, namely that, in the country they have come from, the other family members are either (1) dependent on the EU citizen, or (2) members of the citizen’s household, or (3) reliant on the EU citizen for their personal care due to serious health grounds, or (4) in a durable relationship, duly attested.
(1) Dependence
According to the European Court of Justice, dependence constitutes a situation where a person is reliant upon “the material support of that Community national … in order to meet [their] essential needs in the State of origin … or the State from which [they have] come at the time when [they] appl[y] to join the Community nationalâ€

[marius22]

I'm pretty sure there is no suitable form that I can use - the closest one would be EEA1 I guess.... In no case EEA2 and normally they would want it to be BR1 or something... Also please have a look at this: http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary

"An application form, EEA1, is available for use when applying for a registration certificate. However, there is no requirement for the applicant to complete this form. Furthermore, in contrast to the regulations governing applications made under the Immigration Rules, an application cannot be rejected because the form has not been used or has not been fully completed"

If you know the legislation in question please share it, otherwise I will probably quote 'Chapter 4' of their own guidance...

I'm thinking of applying on EEA1 for myself and including my parents + attaching a letter explaining everything... I'd actually want to apply in person as they would issue the reg. certificate on the day if successful... What's your view on this?

Is there any requirement that they have to be in the country for a registration certificate to be issued? ( There probably isn't because it is just a confirmation of a right to reside - no mandatory requirement for it to be exercised I guess... especially preemptively ...

Thanks

[John]

Thank you very much for all your help! I really appreciate it!

Yes, I should be able to prove the household membership so it should be fine... What sort of documents would I have to provide to prove that

You say thanks, but ignore what I have posted. You are perfectly entitled to have a different opinion to me, but it would be helpful to this discussion for you to say I am wrong, if you think that, and why you think that.

Simply, why are you still thinking you need to prove household membership?

The parents, A2 nationals, have a perfect right to come to the UK .... to exercise Treaty Rights. So the question is .... in what way will they be exercising their Treaty Rights?

The answer to that?

To me you are over-complicating a very simple matter.

[Obie]

I may be wrong, but to my understanding, the OP's parents would not be exercising treaty rights, as they are intending on coming to the UK to care for him. He claim to be a self-employed person who has ceased activity. The question is, has he ceased activity temporary or permanently. Does he meet the criteria for either category. If he is temporary unable to work due to illness, he will retain his status as self employed person, and he may be able to sponsor his parents, who have no intention of exercising treaty rights or do not have the means to qualify under self sufficiency category. They intend to claim pension credits, and they cant do this if they are exercising treaty rights in a self-sufficient capacity. His ability to sponsor them and for them to secure a registration certificate under regulation 16(5) or Article 8(5) of directive 2004/38EC, is dependant on whether he will still be classed as a self employed person, or whether he could benefit from the provision that applies to self employed people, who have ceased activity

[marius22]

I may be wrong, but to my understanding, the OP's parents would not be exercising treaty rights, as they are intending on coming to the UK to care for him. He claim to be a self-employed person who has ceased activity. The question is, has he ceased activity temporary or permanently. Does he meet the criteria for either category. If he is temporary unable to work due to illness, he will retain his status as self employed person, and he may be able to sponsor his parents, who have no intention of exercising treaty rights or do not have the means to qualify under self sufficiency category. They intend to claim pension credits, and they cant do this if they are exercising treaty rights in a self-sufficient capacity. His ability to sponsor them and for them to secure a registration certificate under regulation 16(5) or Article 8(5) of directive 2004/38EC, is dependant on whether he will still be classed as a self employed person, or whether he could benefit from the provision that applies to self employed people, who have ceased activity

Hi, you are perfectly right. I don't see any possibility not to retain my status as I already do (in receipt of ESA(ir) after long arguments).

The only possibility as I see it not to retain my status is if a doctor will say I am not ill. Which isn't the case.... or actually never say never cos I think there is nothing that can still surprise me

It is either 'temporarily unable to work due to illness' or 'permanently incapacitated' as for 'permanently incapacitated' the only criteria that I have to fulfil is to have been self-employed for 2 years or more - which I do and for temporarily - there is no criteria.

So which way do you think I should go about applying for a reg certificate?

Thank you !

[marius22]

Thank you very much for all your help! I really appreciate it!

Yes, I should be able to prove the household membership so it should be fine... What sort of documents would I have to provide to prove that

You say thanks, but ignore what I have posted. You are perfectly entitled to have a different opinion to me, but it would be helpful to this discussion for you to say I am wrong, if you think that, and why you think that.

Simply, why are you still thinking you need to prove household membership?

The parents, A2 nationals, have a perfect right to come to the UK .... to exercise Treaty Rights. So the question is .... in what way will they be exercising their Treaty Rights?

The answer to that?

To me you are over-complicating a very simple matter.

Hi John, Obie is perfectly right but let me explain in more detail.

First in order to use the fast track NINO procedure the only way for an A2 (and even so quite stretched) is to have a registration certificate, otherwise one needs to attend a EOI interview. The allocation of a NINO to an A2 is purely luck.It has nothing to do with anything besides their quota of NINOs that they want to allocate during that certain month/etc and on the DM's sense of 'nationalism' . So there is no way I am having my parents go through all this crap. There are people who went to a NINO interview with a ID,claimed to be self-employed and got allocated a NINO in less than 2 weeks and there are people who attended 3 interviews with self-assessments, letters of recommendation and letters from accountants and failed it on grounds such as ' we weren't unable to contact accountants' - when accountants had a record of the call made from the Glasgow Central Control Unit which confirmed everything. They just claimed they can't trace it on their side and offered a next-day appointment for a EOI and issued a NINO in 3 days! And if u wanna see something funny regarding the HRT test if you are familiar with it:

"Dear Mr,

Although there are groups who are exempt from the habitual residence test everyone is still subject to the test and it is for a decision maker to decide if the individual is in the exempt group or not. Therefore, everyone who claims an income-related benefit is issued with form HRT2R which requests information which is used by a specialist decision maker when considering if the claimant is subject to the test.

People from Abroad Team
DWP
Level 1
Caxton House
Tothill Street
London
SW1H 9NA

Laymans terms: "everybody has to take the test in order for us to know if one has to take the test or not" But that is by far the 'official' position of the government I'm sure.

In reality the people working for the Benefit delivery centres said this: " I've been working here for years, every single person who makes a claim has to undergo this test, unless he holds a british passport or home office documents, there is an entire building of people in Wick paid to do this - you write to your MP and tell him that they shouldn't be paying all those people'.

That HRT was transposed even in the ESA regulations 2008 and also the test itself clearly has exempt categories:

http://www.parliament.uk/briefingpapers ... -00416.pdf

You know what the government did? They paid me the benefit in 2 days of bringing this matter to the attention of the Chief Executive, to keep my mouth shut as if nothing happened. Clerically...

So they'll get pension credits like after 2 years of tribunals if they don't have a 'blue card'... You'd be surprised by the real amount of A2's working illegally undisturbed on 3 pounds / h , 90 hours a week... and central london companies making loads of money in tax evasion and nobody stepping in even when reported... the government for some reason wants it this way. Probably they don't want the stats to show the truth ? The country would benefit greatly from immigration.. or maybe they've got better reasons either way they are creating this whole anti-immigration way of thinking... off topic again.

And even so they wouldn't be exercising any treaty rights. In the UK my mom would be of pension age my father wouldn't. Your choice would imply to make my father self-employed for a year or so and even so it would be a pain to get pension credit afterwards.

There is simply no other effective way... now I guess there aren't so many EU nationals relying on that Article 3. How do I go about applying for a registration certificate in this case?

just for the fun of it I'm sure there is not even 1 case of an self-sufficient reg certificate A2 claiming any Income related benefit, I think they even struggle with the contribution based ones lol

The first view that the Jobcentre's District manager and a benefit 'specialist' took on my ESA claim was that I will become an unreasonable burden so in their opinion the law somehow said that if somebody for example gets hit by a car on his way to work he will be left to starve with no financial help as he doesn't have a right to reside

It's no surprise though, even British citizens are being told they don't have a r2r for benefit purposes some times now that's something to be worried about

Thanks! let me know how to go about applying for a reg certificate if u have any ideas....

[marius22]

. Does he meet the criteria for either category.

Just to avoid confusing. I fit the criteria for temporarily unable to work. It is unclear at this point if it can be a permanent incapacity. It's not out of the question...