EEA family permit for non-EEA mother-in-law

[catcherintherye]

Hi Everyone
I am looking for some help given my current situation. Ok here we go:

I live in the UK with my wife and 2 children. I am a British passport holder and my wife holds a Filipino passport with indefinite leave to remain. She has resided in the UK for 8 years, we have been married for 4 years and she is just applying for UK citizenship which should be a formality.

Here is where the fun and games start. My mother in law is a US citizen/passport holder and resides in the US. She is age 65 retired and has a pension of around £600pm, no other assets or income.

We would like her to join us in the UK permanently.

I have been reading the UKBA website and various forum posts. There is a specific VISA for US citizens wishing to retire in the UK but she cannot meet the income requirements so that route is ruled out. There is then the elderly dependent visa which requires us to prove all manner of things and will likely be declined.

My thinking is that the best option for us is for us as a family to move to another EEA country, we would probably choose Spain. I could start a business there and we could register as Spanish residents getting out Spanish resident cards. Once we are settled in Spain the mother-in-law can then join us there and we would get her a Spanish residence card.

After 3 months I would then exercise my EU treaty rights as a qualifying person and apply for an EEA family permit for the mother-in-law to enter the UK with us when we return to the UK after 3+ months.

Once we get back to the UK we would immediately apply for a 5 year residence permit for the mother-in-law. Once she has been in the UK 5 years we would then apply for indefinite leave to remain in the UK and following that UK citizenship (which would be dual with the US citizenship).

Can anyone help out and tell me if the above is possible?

Things that concern me are:

• To get an EEA family permit to enter the UK would we go to the UK embassy/consulate in Spain?
• Would we need to prove that the mother-in-law is dependent on us? This could be tricky as her pension income would allow her to scrape by an existence in the US.

As she is a US passport holder she can travel in and out of the UK and Spain without any visa issues (to my knowledge). Someone suggested in another forum post that once we all had our Spanish residence cards we could go on a ‘holiday’ to the UK at which time decide to stay permanently and miss out the whole EEA family permit thing.

Your help is much appreciated.



Catcherintherye

[Obie]

I need not answer your question as you have identified the flaws in your approach.

Your in law is a person of independent means. She is not dependent on you. She therefore cannot qualify as a family.

She may qualify as extended family member, but issuance of EEA family permit will be discretionary. In amy event, it is not even clearly or explicitly provided for in the EEA Regulations.

[catcherintherye]

I need not answer your question as you have identified the flaws in your approach.

Your in law is a person of independent means. She is not dependent on you. She therefore cannot qualify as a family.

She may qualify as extended family member, but issuance of EEA family permit will be discretionary. In amy event, it is not even clearly or explicitly provided for in the EEA Regulations.

Hi Obie

Thanks for the quick reply. Yes I figured the dependency thing would be a stumbling block. She gets around £600pm (US$ equivalent) in pension income and that is enough for a minimal independent existence in the US.

Someone else was suggesting getting the EEA Spanish residence card for her when we are in Spain, then applying for UK residency after coming to the UK on a holiday. i.e. missing our the EEA family member thing. I am guessing that either she wouldn't be granted the Spanish residence card on the basis that she is not dependent or the UK residency card would not be granted as she is not fully dependent and you cant just 'port' an EEA residence card.

[catcherintherye]

Can anyone else help me with my predicament?

Thanks in advance.

[el patron]

Someone else was suggesting getting the EEA Spanish residence card for her when we are in Spain, then applying for UK residency after coming to the UK on a holiday. i.e. missing our the EEA family member thing. I am guessing that either she wouldn't be granted the Spanish residence card on the basis that she is not dependent or the UK residency card would not be granted as she is not fully dependent and you cant just 'port' an EEA residence card.

This may work, if you can get her to the UK she can apply on the basis of living under the same roof as opposed to pure financial dependency, read Pedro -

http://www.bailii.org/ew/cases/EWCA/Civ/2009/1358.html

'At 69. Article 2(2) does not specify when the dependency has to have arisen. Neither does it require that the relative must be dependent in the country of origin. Article 3(2)(a), on the other hand, requires actual dependency at a particular time and place. That difference, as I have said, is reflected by Article 8(5)(d) as compared with 8(5)(e). It cannot be an accident of drafting. It contemplates, as it seems to me, that where in an Article 2(2)(d) case reliance is placed on dependency, it can be proved by a document from the host state without input from the state of origin. Taking Article 2(2)(d) together with Article 8(5)(d), suggests that dependency in the state of origin need not be proved for family members. It is sufficient if, as is alleged here, the dependency arises in the host state. Such an interpretation reflects the policy of the Directive to strengthen and simplify the realisation of realistic free movement rights of Union citizens compatibly with their family rights. On the one hand, close family members of Union citizens can move freely with Union citizens who might otherwise be inhibited from exercising their rights of free movement. On the other, Member States are merely obliged, as Miss Mountfield put it, to give open-minded consideration to those extended family members who have demonstrable need. Such an interpretation, as well as being in accordance with the language of the Citizens' Directive, is consistent with the approach of the European Court of Justice in Metock [84-9]. '

[catcherintherye]

Thanks El Patron. I will look into this further. I wonder if anyone has successfully taken this 'living under the same roof' route instead of the financially dependent test.

Someone else was suggesting getting the EEA Spanish residence card for her when we are in Spain, then applying for UK residency after coming to the UK on a holiday. i.e. missing our the EEA family member thing. I am guessing that either she wouldn't be granted the Spanish residence card on the basis that she is not dependent or the UK residency card would not be granted as she is not fully dependent and you cant just 'port' an EEA residence card.

This may work, if you can get her to the UK she can apply on the basis of living under the same roof as opposed to pure financial dependency, read Pedro -

http://www.bailii.org/ew/cases/EWCA/Civ/2009/1358.html

'At 69. Article 2(2) does not specify when the dependency has to have arisen. Neither does it require that the relative must be dependent in the country of origin. Article 3(2)(a), on the other hand, requires actual dependency at a particular time and place. That difference, as I have said, is reflected by Article 8(5)(d) as compared with 8(5)(e). It cannot be an accident of drafting. It contemplates, as it seems to me, that where in an Article 2(2)(d) case reliance is placed on dependency, it can be proved by a document from the host state without input from the state of origin. Taking Article 2(2)(d) together with Article 8(5)(d), suggests that dependency in the state of origin need not be proved for family members. It is sufficient if, as is alleged here, the dependency arises in the host state. Such an interpretation reflects the policy of the Directive to strengthen and simplify the realisation of realistic free movement rights of Union citizens compatibly with their family rights. On the one hand, close family members of Union citizens can move freely with Union citizens who might otherwise be inhibited from exercising their rights of free movement. On the other, Member States are merely obliged, as Miss Mountfield put it, to give open-minded consideration to those extended family members who have demonstrable need. Such an interpretation, as well as being in accordance with the language of the Citizens' Directive, is consistent with the approach of the European Court of Justice in Metock [84-9]. '