ILR for extended family members on EEA family permit

[david.K]

Dear Sir/Madam

I am writing to you regarding a complicated matter to start,

I have 2 status in UK
- Family member cart get through my wife who has a polish nationality which is still valid and never been canceled.
- Indefinite leave to remain in UK which I got through my own right due to my strong link and integration to UK( legacy) in 2010.

In 2011 I applied for a family permit under European rule for my 2 brothers and a sister( 2 under 18 and 1 just got 18 ) back home which has been denied by the high commission back home.

I made an appeal and won and 6 months Family permit was granted to them.

On their Visa it was mentioned that they all depend on me, I am a non EEA nationality and my wife is a EEA nationality and she is going to apply for the British nationality in the next few weeks that is the reason why I want to apply with my indefinite leave.

- Was is a mistake to put them under my dependency with my status of non EEA ?

- On their Visa it was mentioned that, they all depend on me and I will like to use my second status which is indefinite to leave in UK to extend their stay after the 6 Months Family permit that was granted to them.

-IS IT POSSIBLE TO EXTEND THEIR STATUS WITH MY INDEFINITE LEAVE TO REMAIN IN UK ?

-IF YES WHICH FORM WILL I USE?

-WHICH DOCUMENT DO I HAVE TO ATTACH TO THE APPLICATION ?

NOTE : I DON'T WANT TO APPLY UNDER THE EUROPEAN RULES WHERE A RESIDENT CART WILL BE GIVEN TO THEM.

Please I know you can all help me, I need all you experience on this matter.

THANKS

[geriatrix]

The persons in question are in UK under EU regulations and therefore cannot apply for (further / indefinite) leave to remain under UK immigration laws.

[david.K]

Thank for your point of view, we have contacted 2 solicitors who certified us that is was possible to apply under the immigration rule if the person mention in the Visa has as well indefinite leave to remain in UK. Since you are saying that it is not possible,please how can I extend their stay in UK without using the European Rule.

[Obie]

This topic is better suited for this forum.

You cannot apply for them on the basis of your ILR as they done have leave to remain under UK national rules and secondly, they are over 18 and cannot be said to be living in the most exceptional circumstance in the country from which they came.

You will need your wife's passport and evidence of her treaty rights together with evidence confirming they were dependant on her in the country from which they came.

If you are able to provide this, they will be issued a 5years residence Card.

I hope this answers your question. Take care.

[david.K]

Thank for your contribution OBIE but they are under 18

[david.K]

Osie and sushdmehta I forgot to mention that,my wife is going to apply for the British nationality in the next few weeks that is the reason why I want to apply with my indefinite leave. 2 are under 18 and 1 has just got 18.

Thanks.

[Obie]

Difficult to see how your sibling will meet the requirement Paragraph 298 of the immigration Rules. They may succeed under Article 8 but this is not clear cut. I suspect the sibling over 18 will need to satisfy paragraph 317 which seems quite demanding.

They will have to apply for EEA residence Card for a variety of reasons.

[david.K]

Thank Obie

The decide I received from the First Tiers Tribunal for their Visa to be given was based under the HUMAN RIGHT (article and EUROPEAN LAW.This is what was mentioned on the decision I received from the court.

[geriatrix]

Minor sibling(s)
1. There is no provision for "(limited / further) leave to remain" for a minor who is a relative (and not son or daughter of the sponsor).
2. Settlement application under 298 requires valid leave under specific UK immigration laws.

Adult sibling
317(i)(f) is too demanding as Obie has already mentioned. That said, 317 is not applicable here because for applications submitted after 09-Jul-12 Appendix FM applies.

Under the relevant section of Appendix FM:
1. There is no provision for "(limited / further) leave to remain" for adult dependant relative.
2. Settlement application requires valid leave as adult dependant relative (E-ILRDR.1.2.).

Article 8
Since 09-Jul-12:

15. A person who does not meet the requirements of the Immigration Rules will no longer be considered for Discretionary Leave outside the rules on Article 8 grounds.

Only option, IMHO - EEA regulations.

[Obie]

Sushdmehta i agree with you totally that settlement under 298 will require an EC. But a minor dependant family members are not precluded. They may be considered as relative, which 298(i)(d) provides for. However as the OPs siblings never applied for EC in that category it is difficult to envisage a successful application as you properly observed.

In regards to article 8 and its relationship with the immgration rule, i will not go as far as saying that statement of change has no meaning in real terms. It is a purely political provision for political expediency.

For the minors, i believe ZH Tanzania will be considered and the fact that these children are in the UK lawfully and possibly in education. They had realistic expectation that they will be settled in the UK. The UK courts are oblidged to apply article 8 and section 55 of the UKBA act 2007, whereever it is applicable. Therefore it is not straight cut that they will not qualify under Article 8. Whatever duration of leave to remain the UK choose is up to them,but these people are not precluded from having their appeals allowed under article 8.

In all the circumstances i believe the OP's wife should delay naturalisation until Residence card has been issued. It makes no sense them going in this direction.

[EUsmileWEallsmile]

Thank for your point of view, we have contacted 2 solicitors who certified us that is was possible to apply under the immigration rule if the person mention in the Visa has as well indefinite leave to remain in UK. Since you are saying that it is not possible,please how can I extend their stay in UK without using the European Rule.

Can I ask, what do you not want to continue under the European route?

[Jambo]

In all the circumstances i believe the OP's wife should delay naturalisation until Residence card has been issued. It makes no sense them going in this direction.

Why would she need to delay her naturalisation application? Her becoming British won't change the fact that they are still family members of EEA national (AFAIK Poland allow dual nationality).

[Obie]

Well some people get nervous that they will fall foul of the changes in the EEA regulations if they naturalise. That fear is not well founded in my view. It is nevertheless worth considering. The potential legal cost, should UKBA act in this way could be huge

[Jambo]

That fear is not well founded in my view.

I agree.
Even with all the changes (in regulation 2), the HO allows family members of British citizens who are dual nationals to enjoy from the EEA regulations if they have been issued a document before July 2012 which is in this case.

I would argue that in case of a naturalised British citizen (who was naturalised after July), his family members could continue enjoying the regulations as well (although the HO might have a different view).

[david.K]

So guys according what you are saying,there is no chance they can be given ILR if they apply?

[Obie]

Except out of the rules, but certainly not within the rules. You would need some exceptional barrister to argue that in all the circumstance, your siblings could be granted ILR.

Yes they will not be removed, which is the essence of Article 8. But in regards to the form of leave granted, that is down to the immigration rules.

[geriatrix]

Obie,

At this moment in time will an Article 8 claim be entertained - when the persons are in the UK under EEA regulations, can expect to receive a residence card if they apply for it, expect to be granted PR in accordance with EU regulations in due course of time and also can expect to become BC subsequently?

Wouldn't a Article 8 claim be clearly seen as an attempt to fast-track the applicants' settled status under invalid pretext(s)?

Sushdmehta i agree with you totally that settlement under 298 will require an EC. But a minor dependant family members are not precluded.

Sorry, should have written more clearly. The reference to "leave to remain" in the first statement below was to limited leave to remain (FLR), not indefinite leave to remain.

Minor sibling(s)
1. There is no provision for "leave to remain" for a minor who is a relative (and not son or daughter of the sponsor).
2. Settlement application under 298 requires valid leave under specific UK immigration laws.

[Obie]

You have a point. An Article 8 claim will not be accommodated, because there is no threat to removal, the people in question have EEA family permit, have right of Residence in the UK. They are choosing to explore an avenue which is not open to them, which they never applied for before entering the UK.

In a scenerio where the EU national withdraw her support, then perhaps an Article 8 claim might have been properly considered.

[david.K]

so guys are you advicing me to apply for a limited leave to remain FLR?

[Jambo]

As explained already, the fact that your wife will apply for BC doesn't stop them from applying for a 5 years Residence Card under the EEA regulations.

There is no need to switch to another (costly) route (and in any case, I believe they can't switch and if they could, this can't be within the UK but from their home country).

[Greenie]

To put in another way, they don't have leave to remain so cannot apply for further leave to remain under the rules. It would be entirely misguided to make these applications as the requirements are totally different and far more onerous than requirements for an Eea residence card. Count yourself lucky that you are able to make use of these regulations when most British citizens are not and are stuck with the immigration rules.

[david.K]

Thank Jambo but I am just from one the most experimented solicitor of our locality,he read all your comments and approved it them.He raced another point, the fact that in my siblings passport it is mentioned (VISA EEA FP FAMILY MEMBER TO JOIN ME)the non EEA person but not my wife( the EEA ).
In this case I can use my immigration Rule on my siblings.
What do you think about this Guys?

[Jambo]

In this case I can use my immigration Rule on my siblings.

No.

This was a mistake by the visa section. The EEA FP vignette should have stated your wife's name (the EEA national) and not yours.

The EEA FP was issued under EEA regulations and their stay in the UK is under EEA regulations. Under EEA regulations, you as a Non EEA can't sponsor other family members. It's the EEA national that can do that.

[Greenie]

Have you read the relevant immigration rules? Perhaps if you did it would be clearer. Paragraph 298 would apply t your siblings under 18. They can't apply from within the UK because they don't have 'limited leave to enter or remain in the UK' (see para 298 ii) even if they could argue against this, (which i don't believe they can) they also have to meet the following requirement:

(d) one parent or a relative is present and settled in the United Kingdom and there are serious and compelling family or other considerations which make exclusion of the child undesirable and suitable arrangements have been made for the child's care

This is far harder to prove than the requirement under the Eea regulations that they are dependent on you.

Who were the children living with before they came the the UK? How old are they?

Regarding your sibling is over 18, such an application can only ever be made from outside the UK. The requirements are almost impossible to satisfy:

Your sibling must show that:

as a result of age, illness or disability require long-term personal care to perform everyday tasks E-ECDR.2.5. The applicant or, if the applicant and their partner are the sponsor's parents or grandparents, the applicant's partner, must be unable, even with the practical and financial help of the sponsor, to obtain the required level of care in the country where they are living, because-(a) it is not available and there is no person in that country who can reasonably provide it; or(b) it is not affordable. Financ

See para 298

adult dependent relatives

[david.K]

So obie do you thing an immigration board representative can stand before the judge and argue or say it was a mistake with a legal and juridic document essui by them and a stamp of the boarder immigration certifying and allowing my sibling to join me in uk????