Immigration Regulations (EEA) 2006 simple? Or not??

[miki61]

I am opening this as a new topic/query as it has moved on significantly since my first posts.

I am a British citizen with a non-EEA spouse. I am aged 61, have ceased economic activity and receive UK State Pension Credit. For 6 years I was living and working in Spain where I met, married and lived with my partner. We have now moved back to UK. We entered via Calais and my spouse was given a 6 month entry clearance stamp with no restrictions (believed to be code 1A although it does not say any class). We are now wanting to apply for a residence card. Having started to fill in EEA2 I got sidetracked by the statement that if permanent incapacity applied to me we should use EEA4. Now having read the regulations I have formed the opinion that our situation exactly satisfies the requirements for immediate application for permanent residence for my spouse simply based on my age and pension status.

I quote here what to me seem the relevant parts of The Immigration (European Economic Area) Regulations 2006 :-

“Worker or self-employed person who has ceased activityâ€

[Directive/2004/38/EC]

Have you worked previously in the UK in addition to Spain?

Does your wife need to work immediately in the UK?

[Rolfus]

Dear miki

I agree with you, look at this thread http://www.immigrationboards.com/viewto ... highlight=.

I think the key is whether you have, at some previous time, worked in the UK. But you can expect a lot of resistance from the authorities! Please keep us posted.

[miki61]

Thanks for the input. Answer to second question first - My wife will be looking for work, time pressure is not a problem. She has an appointment next week at the jobcentreplus re her application for a NI number, which I hope is just a formality for original ID and marriage certificate checks, since the postal application form specifically asked for photocopies of passport and "visa".

The main question you both raise is whether I had worked in the UK prior to living and working in Spain. The answer is that I worked in the UK for at least 25 years. However, my reading of the 2006 regulations quoted above is that this is irrelevant.

Part 1, section 5 (2) and (3) require prior work and residence in the UK but I am covered by section 5 (6) :-

"(6) The conditions in paragraphs (2) and (3) as to length of residence and activity as a worker or self-employed person shall not apply in relation to a person whose spouse or civil partner is a United Kingdom national."

Am I right in my understanding?

[John]

I think you are wrong. You are trying to get within Surinder Singh, but to do so that requires you to have been economically active in another EEA country .... employed or self-employed.

So please confirm whether or not you were employed or self-employed in Spain.

Have a read of reg. 9.

[Obie]

I believe the op will qualify under surinder Singh Principles as he lived and work in Spain with his spouse for six years. I believe his employment history in the UK is irrelevant in light of Eind. Even without eind, i believe he will qualify under the regulations as a worker who ceased activity, as a result of reaching the age of retirement.

[miki61]

John, I have read and re-read these regulations countless times. I quoted Reg.9 above since we seem precisely covered in our case. Indeed we relied on this, in the light of Surinder Singh, to present ourselves unannounced at UK Border Control at Calais, and my wife was duly granted entry clearance because of that.

My view is that I come under 5.(2)(a)(i) taken in conjunction with 5 (6), leading to 9.(1) and (2)(a)and (b). This leads me on to 15.(1)(c)and (d) which seem to apply, which give me and my wife the right to reside in the UK permanently.

So I then look at 18.(2) and see that my wife must be issued with a permanent residence card within 6 months of submitting the application providing the necessary proof that the conditions mentioned here are satisfied.

Hence my initial question asking whether this is too good to be true? And if it is as clear as it says on paper then, to Rolfus, on what grounds could the authorities resist the application?

To Obie, I think you are agreeing with me, which is very good to know, and I continue to hope that the authorities will also.

Thanks to all for continuing interest.

[Obie]

I wish to retract the statement, that you will qualify as a worker who has ceased activity. This may be under regulation 7 as a Self _sufficient person, but certainly not under regulation 5(4), as you were never a frontier worker.

The consequence of this, is that your wife may not qualify for Permanent residence card, but will most certainly qualify for Residence Card.

[Directive/2004/38/EC]

For 6 years I was living and working in Spain where I met, married

In reading your nice excerpts of the rules, I think you are right - you could just apply directly for a PR Card.

I personally would tend to lay out the facts of your case in a cover letter. And explain briefly why the rules allow you to apply for PR.

It will be interesting to see what happens when your wife goes for the NI card. Please let us know! I would be very patient and firm with the staff, and have them call the home office while you wait if they have any questions. Get everything in writing if they refuse you, and get them to explicitly write that they believe your wife is not legally allowed to work and so they can not issue her a NI card. They will of course not want to write anything like this down, which may force them to return to the issue and be a bit more thorough.

[miki61]

Obie, you refer to regulation 7, but surely the only paragraph relevant here is 7.(1)(a) which establishes that my spouse is my family member, with no other conditions.

You go on to 5.(4) :-

"5.—(1) In these Regulations, “worker or self-employed person who has ceased activityâ€

[Obie]

Firstly, i apologise for the error in typing. I meant to make reference to regulations 6 which deals with the definition of qualified person.
The point i was trying to make was that, if they insist you provide evidence you are a qualified person, which i must say is strictly speaking not required in light of Eind, then your pension should be sufficient for that purpose.

I am not convince you are qualified under regulation 5(2), because paragraph (5) state that you have to meet the requirement of at least 5(4a) in order to fall within the scope of regulations 5(2).

The most you can hope for is a residence card.

Your view is perfectly arguable, but it is not provided for in the EEA regulations.

An argument can be constructed that eind precludes member states from demanding the evidence that the returned national is exercising treaty rights in their state of nationality before the family members can qualify for the rights of residence. therefore people in those situation should be treated as if they are workers who have ceased activity.

[miki61]

Obie, I realise you are playing devil's advocate, which I greatly appreciate, to pick potential holes in my argument, thank you.

I think you are right that I would struggle to satisfy reg.6 as a "qualified person", but I really do not think I have to. My reading says if I satisfy reg.5 then we can go straight to reg.9 and then to reg.15, neither of which refer to my being a "qualified person". This phrase seems particularly concerned with regs.10 and 14 about retained right of residence and extended right of residence. I cannot see these are currently applicable to our case.

Regarding reg.5, my view is that I satisfy para (2)(a)(i) and that paras (3),(4),(5) and (7) are therefore not applicable. Even para (6), which I quoted earlier, removes the requirement to satisfy the length of time conditions in para (2)(b) and (c). On this reading, how could I not be hopeful of satisfying reg.5?

I am feeling increasingly confident that this application for permanent residence for my wife will be successful, but it may well be that I am in fact becoming increasingly delusional!

[Rolfus]

miki,

I think that your reading of the regulations is basically right. But, the civil servants who administer all this do not read the law, let alone case law, they read and follow their internal guidance. So if something unexpected crops up they just ignore the arguments and do the usual thing. Then it is up to you to make your case in front of an appeal tribunal. You pay the legal costs, they appeal, you pay more legal costs etc.

My partner, mother of a British child, applied for an EEA FP on the basis of Zambrano. They didn't even mention Zambrano in the rejection.

In your shoes I would make an application for permanent residence and see what happens. Please keep us informed.

[Directive/2004/38/EC]

I think that your reading of the regulations is basically right. But, the civil servants who administer all this do not read the law, let alone case law, they read and follow their internal guidance. So if something unexpected crops up they just ignore the arguments and do the usual thing. Then it is up to you to make your case in front of an appeal tribunal. You pay the legal costs, they appeal, you pay more legal costs etc.

Not always. I think if you make a very clear presentation, quoting from the UK law, then the UKBA employee will realize that this may be an unusual case and may escalate it to the European Casework group.

[Obie]

[quote="[url=http://www.legislation.gov.uk/uksi/2006 ... ion/5/made]“Worker or self-employed person who has ceased activityâ€

[miki61]

Even closer reading of the 2006 Regulations when looked at together with Directive 2004/38/EC itself has cast doubt on my own argument.

I have been quoting reg.5(6) and believing that this removed the time conditions in reg.5(2)(b) and (c) because I am a UK national. It now dawns on me that I am mistaken. It would remove the time conditions if my wife was a UK national.

So to satisfy reg.5 I must satisfy 5(2)(a) and (b) and (c).

"(2) A person satisfies the conditions in this paragraph if he—

(a)terminates his activity as a worker or self-employed person and—

(i)has reached the age at which he is entitled to a state pension on the date on which he terminates his activity; or

(ii)in the case of a worker, ceases working to take early retirement;

(b)pursued his activity as a worker or self-employed person in the United Kingdom for at least twelve months prior to the termination; and

(c)resided in the United Kingdom continuously for more than three years prior to the termination."

Therein lies the problem!

I satisfy (a) certainly. I satisfy (b) and (c) if they define "prior" as "at some time before", as it is more than 6 years since I worked in the UK.

Unfortunately 2004/38/EC puts it differently :-

"1. By way of derogation from Article 16, the right of permanent residence in the host Member State shall be enjoyed before completion of a continuous period of five years of residence by:
(a) workers or self-employed persons who, at the time they stop working, have reached the age laid down by the law of that Member State for entitlement to an old age pension or workers who cease paid employment to take early retirement, provided that they have been working in that Member State for at least the preceding twelve months and have resided there continuously for more than three years."

So it could hinge on the difference between "twelve months prior" and "the preceding twelve months".

I am getting bogged down, all opinions welcome please.

In passing, both my wife and I already qualify under the EEA regulations for permanent residence in Spain but wish to be in UK.

[miki61]

The responses from Directive and Obie were posted while I was writing my own, so I have not yet had time to take them fully into account. Thanks, I will now.

[Rolfus]

So it could hinge on the difference between "twelve months prior" and "the preceding twelve months".

This is exactly what I agree with.

2004/38/EC

(29) This Directive should not affect more favourable national provisions.

So what we have is a more favourable national provision: "prior" instead of "the preceding".

Does prior have any sense of 'immediately prior' - I don't think so. I put a couple of examples on the thread I referred you to above.

Pace, Directive, it is true that sometimes a clear case, well explained, may convince the administrators. It is just rare.

[Rolfus]

You may also want to look at this thread on permanent residence
http://www.immigrationboards.com/viewto ... highlight=

NB

Third: third country nationals may apply for (it is not automatic) long-term resident status, attested to by a residence permit issued by the host state. This is the status which opens the possibility of moving to work in other EU states (always excepting the UK, Ireland and Denmark). This status is transferred to another member state after 5 years in that state, and is only lost after 12 months absence from the EU. There is also supposed to be a facilitated procedure to regain this status if lost.

I suggest that it is very important for third country nationals to know that they need to apply for long term residence permits in addition to either or both of the others. It is very difficult to discern this from the information governments publish.

We never teased out on that thread anything about the facilitated procedures for regaining permanent residence status if lost. This is important if you move to the UK, because after 6 years the EU Permanent Residence Status will be lost (I think) because the UK has opted out of the Directive.

[Directive/2004/38/EC]

Basically the rule is that member states must implement either what is written in Directive 2004/38/EC, or they can implement something which is more favorable to the applicants.

According to the Directive, PR normally happens after 5 years of residence. A member state could (but none do) decide that PR happens after 3 years and that would be fine and lawful. They could NOT decide that it happens after 8 years.

[vinny]

See also Some case about dual citizenship.

[miki61]

Taking everything written above and in the Regulations into account, I now feel we have reached the point of submitting the application for Permanent Residence for my wife. I am not so confident of success immediately, but feel there is nothing to lose and that in the worst case we will have to reapply for the 5 year residence card.

To sum up our situation regarding the regulations:-

1. Everything is based on satisfying reg.9 and we fit 9.(2)(a) and (b) exactly (Surinder Singh).
2. Reg.15(c) and (d) apply, and (d) gives my wife the right to reside in the UK permanently without the 5 year condition. But this does depend on my coming within the definition of “a worker or self-employed person who has ceased activityâ€

[Directive/2004/38/EC]

4. Given that the use of and the full completion of EEA4 is not mandatory, that it constantly refers to 5 years continuous residence and that it uses phrases which are not in the Regulations, I am minded to apply by way of a letter providing all the relevant information and quoting the regs.

I believe there is no particular requirement that you use UKBA's forms when applying. So this should be fine.

You will HAVE to keep us informed as things develop!!! (Please!)