EEA application problems

[c0nfused23]

Hi, I'm even more confused now. I am a Nigerian National with a 5yr temporary residence card as a family member of an EEA national. I was going to apply for permanent residence before applying for Citizenship.

However I met with a Solicitor recently who stated I did not qualify for the vignette that I currently have in my passport.
The background is:

My father is a Nigerian national, mother is a British citizen. They married in Ireland. I came to the UK from Ireland in 2002 to study. My mother and father returned to the UK in 2004. My father sought legal advice and applied as a family member of an EEA national (my mother) in 2004. I believe this application was refused, and it went to tribunal in 2008. It was granted on appeal on compassionate grounds as my mother was ill and died in 2006, whilst our application was still pending.

I've been told by my Solicitor that my mother was not an EEA national (She was a UK Citizen) and therefore I do not qualify for my current visa. He believes if I apply for permanent residence as a family member of an EEA national, it'll be refused and I may be removed from the country.
He wants to make a subject access request before going any further.

I'm just hoping someone has some advice or knows what other routes are available. I am no longer sure I meet the requirements for anything.

The other option was to apply as a spouse of a UK citizen. My husband is a British National and we've been married for 2 years. He is self-employed and earns about 12,000 a year (below the financial threshold required).

I guess I just want to check if I've been given correct information as it looks like we may have been left in a difficult situation due to the application made by my fathers previous legal representative.
Also to see if anyone can enlighten me as to what route to take next.

Any advice/thoughts would be appreciated.

[Jambo]

What did your mother do in Ireland?

Did she work there? If she did work there, then the application your parents made using the EEA regulations is fine as there is a special case (The "Surinder Singh" route) which is applicable to British citizens returning home after working in another EU state.

[Obie]

I believe you will qualify for PR under Regulation 15(1e)

Not really sure what the lawyer was talking about.

Then again, he may not even be aware of Singh and Eind.

[c0nfused23]

[quote="Jambo"]What did your mother do in Ireland?

Hi Jambo, she worked as a Nurse while she was there.

Thanks Obie. I'm really not sure now. The Lawyer kept saying that my mum was a UK Citizen and not an EEA national.

Would you both suggest that I apply for Permanent Residence then?

Thanks again.

[Jambo]

I suggest you don't use this solicitor...

As I already told you here you have probably obtained PR in 2009. Apply for confirmation using form EEA4. You will need evidence of your mother work in Ireland (section 6 in the form). Once confirmed (several months), you can apply the next day for British citizenship (as you are married to British citizen). In fact, you can apply today for British citizenship but as your case is not a standard one, I would recommend getting the PR confirmed first (the application is free) and then apply for BC.

[Obie]

Your mother died along the way. You will indeed need to prove that you meet the requirement of regulation 15 (1)(e).

On the basis of your post alone, it is not clear whether you do. Your mum returned to the UK in 2004 and she died in 2006.

I should have use "may qualify" as opposed to "will qualify".

[Jambo]

Obie,

Did the mother need to work in the UK in order to meet 15(1)(e) or would her work in Ireland be suffice to be considered a worker? Also, it doesn't specify how long the EEA national had to work. Would any period of time meet the requirement?

[Obie]

We have two overlapping provisions here. Regulation 15(1)(e), regulation 9, as well as the Eind Judgement.

I am prepared to accepted the fact that in the light of the caselaws, which indicates that even though a person loses their status as migrant workers when they cease work, that status may nevertheless continue to have effect, and that a person who return to their home country after having worked in another member state continue to retain their status as a worker.

In light of my above assessment, i believe she will not be required to show that the deceased was a worker or a Self Employed person, in the two years immediately preceding her death.

However, she will need to show, that on her return home, the migrant worker had resided in the UK for a continuous period of 2 years period, preceding her death.

She said from 2004-2006, but we don't know precisely whether this was 2 years or more.

She said, the court allowed their appeal on compassionate basis. This is not right, if she qualified under Regulation 15(1) (e), the Judge should have allowed the appeal outrightly, and order the UKBA to issue her with a right of permanent residence.

What was the findings and assessment of the Judge. Did he or she erred in law? why was the appeal not allowed under the Regulation, rather than on compassionate circumstance.

In light of all of this, i cannot say that PR has automatically being obtained, in the absence of further clarification.

[Jambo]

There is also the possibility that she has retained her residence according to Regularion 10(2) and might have obtained PR if she (or her father) have met the requirements in 10(6).

[Obie]

Again its all an hypothetical assessment. More information will need to be provided as to why the appeal was not outrightly allowed under the EEA regulation, and why UKBA issued a Residence Card.

I accept and in agreement with you, that at the very least OP may have retained rights under Regulation 10 (2) and by now, may have secured PR under Regulation 15 (1)(f).

[Jambo]

c0nfused23 - are you able to answer the following questions:

- After returning from Ireland in 2004, did your mother live in the UK for more than 2 years (exact dates) before she passed away?

- Are you able to have access to the determination from appeal in 2008? to help us understand your case then.

- What have you or your father been doing in the UK since 2006? Did you (or your father) work?

[c0nfused23]

Hi Jambo,

1 - yes march 04 to June 06.

2- I don't have information about the appeal at the moment. I'm hoping my dad's legal representative might have a copy. If not, I'm not sure how else I can find out.

3- Dad's been working since 2006. I was at Uni but am now working.

[Jambo]

I believe you should qualify for PR.

First, the fact that your mother worked in Ireland and lived there with your father and you, means that when she returned to the UK she (and her family) could make use of the EEA regulations (this is referred to a "Surinder Singh" route after a case law by this name). So the solicitor was wrong is saying your Residence Card was given by error.

Second, there are several provisions in the EEA Regulations for cases when the EEA national dieds. I believe you probably could meet the requirements for at least one of them if not two:

- According to regulation 15(1)(e), if the EEA national was a worker and died and has been living in the UK for two years before his death and his family member has been living with him, the family member qualifies for PR without the need to complete 5 years.

You didn't tell us of your mother was working in the UK or not but as she worked in Ireland and was a returning citizen, she should have kept her worker status even if she did not work in the UK. This means that you have probably have obtained PR in 2006. It is not clear why the judge in your appeal didn't order the HO to confirm your PR. that's why it would be useful to get hold of the appeal papers.

- According to Regulation 10(2), a family member of EEA national who died and lived in the UK for at least a year, has retained his rights of residence which allows him to live and work in the UK. This means that from 2006, you and your father have retained your rights. In order to qualify for PR, your (or your father) work would count for PR. if your father worked continuously from 2006-2009 and you were dependant on him (or living in his house when not in school), then you would have obtained PR in 2009.

Your case is not a standard case the HO sees everyday. I suggest you read the regulations and the HO caseworker instructions (here) to understand the requirements. I suggest you attach a cover letter to the application explaining why you believe you have achieved PR already (probably in 2006 and if not, probably in 2009). I would also try to get hold of the appeal papers.

The solicitor you talked to doesn't seem to be familiar with EU regulations. I would probably look for someone who is more knowledgable or apply alone (the application is free).

[Obie]

How old were you at the time your mother died, or at the time she returned. If 21 or over, were you dependent on her financially or in any way?

It is noteworthy that your mothers death predates the ECJ judgement in Eind, and your application predate the coming into law of Directive 2004/38EC. The protection afforded in the citizen directive is more extensive, than those provided in its predecessor Regulation 1612/68.

That may be the reason for the failure of that application.
Even though an unappealed determination has binding effect on all party,; the subsequent changes in law that came about, which has retrospective effect, will make it unjust for those finding to be used against you, especially if they were adverse towards determining your position under EU law.
In light of the information you provided, I believe you father has a strong case, as they lived together through out the material time. You had left them in ireland for nearly 2 years before they return to the UK. Whether this will be material for a Singh application, is yet to be seen.

This is a very interesting case, which raises very interesting Issues, which practioners interested or specialises in EU law, will love to take.

[c0nfused23]

Hi Obie and Jambo

Just wanted to say thanks for your advice. I got my passport back with PR yesterday and it took just under 3months.

[Obie]

That is a wonderful new indeed. Good luck with the rest of your life.

[Jambo]

Great to hear that.

As I said, if you wish you can apply now for naturalisation as a spouse of BC. Just make sure you meet the requirements (absences from the UK). You also will need to pass the Life in the UK test and meet the English language requirement.

[c0nfused23]

Thanks for that Jambo. I meet the requirements for naturalisation but can't afford the fee at the mo. I'll probably look at doing the life in the uk test next get that out of the way. Thinking of going away whilst I have a passport and enjoy not having to get a visa.

[OLUMUYIWA]

I am surprised no-one caught-up on the most important key point in the OP's case .
The OP's mother was a British citizen, therefore the OP automatically qualifies for British citizenship without need for any further ado!
So, OP doesn't even need all that PR/RC/ or whatever in the first place.

[Directive/2004/38/EC]

However, she will need to show, that on her return home, the migrant worker had resided in the UK for a continuous period of 2 years period, preceding her death.

Why is this at all an issue?


c0nfused23: Was your mother born in the UK? Where were you born? Were your parents married when you were born? What passport do you presently hold? On what basis did you enter the UK to study in 2002?

I suspect you may well have British citizenship and Irish citizenship. Plus a right to be here as a child of an EU citizen.

[Amber]

c0nfused23, on what basis was your Mother British? When were you born? Where were you born? What was your Mother's status when you were born?