EEA2 and also TB query

[Gledow]

Hi everyone,

I was born in the UK and hold dual-citizenship with the UK and the Republic of Ireland. My wife and step-daughter (both non-EEA nationals) recently received their EEA Family Permits and will soon be joining me in the UK. If somebody could clear up a few points I would be very grateful.

Firstly, is it the case that once my wife and step-daughter join me here in the UK, they need not apply for anything else, however, by applying for a residence card (EEA2), it may help getting employment and also revoke the need to apply for a FP each time they subsequently re-enter the UK, after a holiday, for example? They are free to live here for as long as I am exercising my rights as an EEA national and after 5 years they will automatically receive PR?

Secondly, my step-daughter was 10 years of age when she applied for the EEA FP so she wasn’t required to have a chest X-ray to be tested for TB (as is the case for children under 11). However, by the time she comes to join me in the UK she will be 11. Will this pose problems on arrival in the UK or, will it be recognised, that since the application for the EEA FP was made whilst she was still 10, she does not need a certificate to show that she does not have TB?

Thanks in advance.

[Jambo]

I was born in the UK and hold dual-citizenship with the UK and the Republic of Ireland. My wife and step-daughter (both non-EEA nationals) recently received their EEA Family Permits and will soon be joining me in the UK. If somebody could clear up a few points I would be very grateful.

I wonder, have they made the application before July this year? The rules have changed in July to prevent from British dual nationals of using their other EU nationality. If the application was made after July based on the Irish nationality without disclosing the British one, they might face issues when applying later in the UK for a Residence Card.

Firstly, is it the case that once my wife and step-daughter join me here in the UK, they need not apply for anything else, however, by applying for a residence card (EEA2), it may help getting employment and also revoke the need to apply for a FP each time they subsequently re-enter the UK, after a holiday, for example?

Correct. The EEA FP is a multiple entry clearance but once expired, a visa national might need to apply for a new one in order to travel back to the UK if he doesn't hold a Residence Card.

They are free to live here for as long as I am exercising my rights as an EEA national and after 5 years they will automatically receive PR?

Yes.

Secondly, my step-daughter was 10 years of age when she applied for the EEA FP so she wasn’t required to have a chest X-ray to be tested for TB (as is the case for children under 11). However, by the time she comes to join me in the UK she will be 11. Will this pose problems on arrival in the UK or, will it be recognised, that since the application for the EEA FP was made whilst she was still 10, she does not need a certificate to show that she does not have TB?

TB is not required for EEA FP in any case.

[Gledow]

I appreciate your reply Jambo.

The application was made after July this year. October, in fact, but before the new rules were enforced (October 16th, I believe, is when they were enforced). The application was made based on my Irish nationality; however, my British nationality was also disclosed in a covering letter – if disclosing this fact makes a difference?

I was also wondering if applying for a Residence Card in the future may pose problems. My wife and step-daughter managed to apply for an EEA FP before the Oct 16th deadline, based on my Irish nationality but will be applying for a Residence Card, based on the same nationality, after this deadline and therefore, when the new rules have been implemented. Do you think my concerns here are justified?

Thanks for the information regarding TB. Whilst the money spent on my wives chest X-ray was not necessary, at least further money will not need to be spent on an X-ray for my step-daughter (which no doubt we would have proceeded with for fear of being turned around at immigration).

[Jambo]

If my understanding of the new rules is correct, the EEA Family Permit has been issued in error. Although the rules only come into force in October, the cut date for EEA Family Permit was in July. There are transitional arrangements for people already under the EEA regulations in July to apply for RC until October. You are not covered by the transitional arrangements.

Do you mind saying which country did they apply from? (because of the TB test)

[Gledow]

Well that is worrying. They applied from Thailand.

[Jambo]

Interesting. An application from Singapore(?) in September was reject on the basis of the new regulations (see EEA FP refused on McCarthy).

Do you live in the UK? Was this the first time they applied for an EEA Family Permit?

See more in the HO internal policy guide - McCarthy and Revision to the Definition of EEA National.

[Gledow]

Yes I live in the UK and it was their first application for an EEA Family Permit.

Quite confused by it all now.

[Jambo]

Well, I would think they should apply for a Residence Card using EEA2. Better to find out the HO view sooner than later.

If refused, maybe they can argue that as the EEA FP was issued on pre-McCarthy definition, they could be left entering or residing in the UK without any valid basis to remain and unable to switch into the Immigration Rules and therefore should enjoy from the transitional arrangements.

[Gledow]

Yes, I guess that's all we can do. I'll see what other information I can gather in the meantime.

Thanks very much for you help Jambo

[Gledow]

Well, today, after around a 7 month wait, my wife and step-daughter received a letter of refusal to issue a residence card, with no further basis of stay in the UK, but with entitlement to appeal.

As Jambo pointed out, the rules changed before the application for residence card was submitted, preventing British dual nationals using their other EU nationality, and as the application was made after 16 July 2012, I do not meet the transitional arrangements put in place.

Another reason for refusal is that, at the time of application, I was only working 7.5 hours per week (due to caring for somebody as well) and as I did not provide any other evidence of additional employment or other income or benefit details, we failed to provide sufficient evidence to demonstrate that I am currently a qualified person in the UK as a worker. A month or so after the application was submitted my working hours increased to 30 hours per week, so I should have notified and provided evidence of this, but didn't.

Any ideas on what my next steps should be? If I appeal arguing, as Jambo suggested, that as the EEA FP was issued on pre-McCarthy definition, they should enjoy from the transitional arrangements, there is still the issue of my working hours. Wouldn't the change in working hours require a new application, rather than appealing on the current decision?

[el patron]

Don't panic, run the appeal and if all else fails renounce your british nationality (costs £179 to do so)

[EUsmileWEallsmile]

Well, today, after around a 7 month wait, my wife and step-daughter received a letter of refusal to issue a residence card, with no further basis of stay in the UK, but with entitlement to appeal.

As Jambo pointed out, the rules changed before the application for residence card was submitted, preventing British dual nationals using their other EU nationality, and as the application was made after 16 July 2012, I do not meet the transitional arrangements put in place.

Another reason for refusal is that, at the time of application, I was only working 7.5 hours per week (due to caring for somebody as well) and as I did not provide any other evidence of additional employment or other income or benefit details, we failed to provide sufficient evidence to demonstrate that I am currently a qualified person in the UK as a worker. A month or so after the application was submitted my working hours increased to 30 hours per week, so I should have notified and provided evidence of this, but didn't.

Any ideas on what my next steps should be? If I appeal arguing, as Jambo suggested, that as the EEA FP was issued on pre-McCarthy definition, they should enjoy from the transitional arrangements, there is still the issue of my working hours. Wouldn't the change in working hours require a new application, rather than appealing on the current decision?

What exactly did the refusal letter say? Were they clear as to why the application was refused? From what you post, you are suggesting that it was due to dual nationality on the other hand you suggest it might have been through lack of evidence of work.

[Gledow]

The 'notice of immigration decision letter' says:

'You have applied for residence cards as confirmation of a right of residence for yourself and your daughter, as the family members of an EEA national, but your EEA family member has failed to provide evidence that they are a qualified person as set out in regulation 6 of the Immigration (EEA) Regulations 2006.

Your application has also been considered under Article 8 of the Human Rights Act. Aafter careful consideration of your case we are satisfied that this decision does not represent a breach of Article 8 of your human rights.

You do not have a basis of stay in the UK under the Immigration (EEA) Regulations 2006.'

The 'Reasons for Refusal Letter' then says:

It is noted that your EEA sponser's place of birth is the UK, and not in another EEA state.

Upon accessing your application your application has been considered under the McCarthy judgement McCarthy v United Kingdom (C434/09). In McCarthy the ECJ determined that a person who holds the nationality of the host Member State (so in our case British nationalility) and has never exercised their right of free movemet and residence
[b]does not[/b] benefit from the terms of the Free Movement Directive. This is regardless of whether or not they hold dual nationality with another EEA member state. This means that family members are also unable to derive a right of residence under the Directive on the basis of their relationship to such a national.'

It then mentions the transitional arrangements in place but says:

'However your EEA spouse does not meet the transitional arrangements that have been put in place, as neither of you have previously made an aplication under the European Regulations 2006 prior to July 16 2012.

Your application has also been assessed under Regulation 6 of the Immigration (EEA) Regualations 2006. In order to qualify for a residence card under Reg 6 of the Immigration (EEA) Regulations 2006 an applicant must provide evidence to demonstrate that their EEA family member is exercising their Treaty rights in the UK as defined. You have provided a wage slip in support of this.

However, it is noted that your EEA national sponser's hours of work are detailed as 7.5 hours per week and his wage is £X per month before deductions. As you have not provided any other evidence of additional employment or other income or benefit details, it is concluded that you have failed to provide sufficient evidence to demonstrate that your EEA family member is currently a qualified person in the UK as a worker, as detailed under Reg 6 of the Immigration (EEA) Regs 2006.'

[EUsmileWEallsmile]

I suggest you concentrate on the nationality issue rather than the worker one in the first instance.

McCarthy judgement essentially precludes those who are nationals of a member state, who happen also to have nationality of another member state and have never exercised their right to reside in another member state from relying on their other nationality in their own nation state. Complicated? Yes it is.

The UK has perhaps made a rather blunt interpretation of this without perhaps considering the judgement in full (this remains to be seen).

1. You were born in the UK? One or other of your parents was Irish. Please confirm exact circumstances. Where exactly were you born? Where were your parents born? What were their nationalities when you were born?

2. Have you ever lived in a member state of which you are not a national? If so, what did you do there?

[Gledow]

1. I was born in the UK. Both my parents were born in the UK. My grandfather was born in the Republic of Ireland and it is through him that I obtained Irish citizenship.

2. I have never lived in a member state of which I am not a national.

[EUsmileWEallsmile]

It would appear that your case has many of the elements of the the McCarthy case.

What do you propose to do?

[Gledow]

The UKBA are at fault for issuing the FP in the first place, due to the rules changing, but now they tell us my family have no right to stay here? That's unjust. I'll get in touch with an immigation lawyer. I just hope something can be done about this

[EUsmileWEallsmile]

The UKBA are at fault for issuing the FP in the first place, due to the rules changing, but now they tell us my family have no right to stay here? That's unjust. I'll get in touch with an immigation lawyer. I just hope something can be done about this

Well that may indeed be a basis for a successful appeal. I could not say whether it would be successful or not. I would try and consult a immigration lawyer, but be careful that you chose one with a track-record in EU law.

You might also start giving some thought as to what to do in the event that your application ultimately fails. Moving to another EU state perhaps?

[Gledow]

Moving to another EU state wouldnt be possible for me due to responsibilities here but yes, lots to consider. Hopefully I can find a decent lawyer for this. Thanks for your input

[Gledow]

Good news. Although the appeal was unsuccessful under the EEA Regulations, it was allowed on human rights grounds. Hopefully the decision won't be appealed by the Home Office

[el patron]

Well done! Let us know when the 'all-clear' sounds!

[Gledow]

If you dont want to read the whole thread, my wife and step daughter applied for EEA2 Residence Card in Jan 2013, were refused, won the appeal in Dec 2013, and the Home Office were refused right of appeal in Jan 2014. After hearing nothing since then, today I recieved a letter. Its an application form for a biometric residence permit for my step daughter, which they have asked us to complete. My first thought was why have they only sent one for my step daughter and not my wife. My second thought was, my wife and step-daughter didn't apply for a Residence Rermit, they applied for an EEA2 Residence Card. Am I correct in thinking Residence Permit and Residence Card are 2 seperate things and they have sent us this in error?

[Directive/2004/38/EC]

What is the form number and the exact words used on the form to describe it?

I am not sure what a Residence Permit is