UK Residence card for Non-EEA parents, if I visit part time?

[heyitsme]

No I hasn't been stamped as a visitor

[secret.simon]

Get your wife to apply for an SAR with the UKV&I to see if there are any comments, adverse or otherwise, on her immigration file.

As Noajthan mentioned in a previous post, the SS route exists not to get around national immigration rules, but so that the EEA citizen is free to exercise his/her freedom of movement across the EEA without worrying as to whether he would be able to bring his family back to his home country after exercising his freedom of movement.

The way I would interpret it, the family unit must stay with you in all your sojourns across the EEA and SS will only kick in when you return to the UK for good. If you were to leave again, I suspect the Home office would see it as a transparent attempt to frustrate the UK Immigration Rules.

EDIT: I concur with Noajthan's subsequent post. Mind you that both of us are laymen and not legal professionals.

[noajthan]

Thanks everyone for replying.

...

Yes @simon I also need answer to this query " if there is any requirement for the British citizen doing the SS Route to then reside in the UK or can he move to another EEA country again?"

I don't think the Union citizen can do that. Unless by virtue of some EU case law; (would need investigation).

So this is where I am at odds with secret.simon's point f) from above, ie:

f) In the meanwhile, you can return to work in France, if you so wish.

The UK citizen is a proxy EEA national and the sponsor of her/his dependents only by virtue of having completed SS and returned to the Union homestate (in this case Blighty).

It is only the case law of SS (& Eind) that lets any of this happen for a UK national.

The basis of the dependency is s/he can only survive/exist/exercise treaty rights as a human economic unit with the dependents en famille.
That is the proposition that has to be proved (and the reason for investing in SS route in first place, together with the dependents);
ie to strengthen family ties and so to get them into the country and residing in the household.

Any FP will only be issued on the basis of moving/joining sponsor in UK.
For SS-related applicants it's issued for those returning to UK with their sponsor.

Setting dependents up in one's own country then leaving them to work elsewhere surely degrades that proposition and argument.
It begs the question why not support from afar (in original home country).
It also places the dependents' continuity of residence at risk as per regulation 3 of the EEA regs.

Takeaway: sponsor needs to be residing in home country with dependents.
Doing SS does not make the UK citizen an honorary, general-purpose and fully-fledged EEA national.

[noajthan]

Digging deep on this one.

OP, suggest you need to research into topic of frontier workers.
Even though, by virtue of Eind, you don't need to exercise treaty rights once back in UK you could ofcourse do so.

If you return to UK and live with main residence in UK yet work in France you may fall into the category of a frontier worker.

There is not much to go on either in forum or in WWW but here goes...

Get up to speed (slowly) here:
https://www.etuc.org/documents/etuc%E2% ... 0to1Pnu5pg
&
http://www.europarl.europa.eu/workingpa ... ary_en.htm

Here are two members' experiences - somewhat inconclusive but a few pointers:
http://www.immigrationboards.com/eea-ro ... 81649.html
&
http://www.immigrationboards.com/eea-ro ... 73274.html
- note RC refused for family dependent; final outcome indeterminate.

Some discussion relating to frontier workers:
http://www.immigrationboards.com/eea-ro ... l#p1004676

Takeaway
Research Regulation 6 & Case C‑457/12 (S&G); I leave that as an exercise for the interested reader.

To whet your appetite:

In the light of all the foregoing, the answer to the questions referred is as follows:

Directive 2004/38 must be interpreted as not precluding a refusal by a Member State to grant a right of residence to a third‑country national who is a family member of a Union citizen where that citizen is a national of and resides in that Member State but regularly travels to another Member State in the course of his professional activities;

Article 45 TFEU must be interpreted as conferring on a third‑country national who is the family member of a Union citizen a derived right of residence in the Member State of which that citizen is a national, where the citizen resides in that Member State but regularly travels to another Member State as a worker within the meaning of that provision, if the refusal to grant such a right of residence discourages the worker from effectively exercising his rights under Article 45 TFEU, which it is for the referring court to determine

Ref: http://eur-lex.europa.eu/LexUriServ/Lex ... 57:EN:HTML

Whether or not any of this is recognised by UK and transposed into the UK's EEA Regulations I do not know.

I would still caution to be aware of maintaining continuity of residence for dependents.
Possibly splitting time approx 50:50 may be a good and prudent approach;
ie to remain compliant with the prescribed maximum of 6 months absence from UK within a 12 month period (based on anniversary of entry into UK).

Ref: http://www.eearegulations.co.uk/Latest/ByPage/part1_3

The UK doesn't seem to recognise frontier workers in its issuance of residence cards (etc) so it may be that the sponsor needs to be self-sufficient & nominally living in UK instead? (& with CSI in place).

SS rights will only start once British sponsor has returned to UK and that would somehow have to be reconciled with the above for a frontier worker strategy to work.
So, overall, am still not sure this approach is in any way viable and 'legal' within the prevailing UK regime.

[noajthan]

If anyone is interested, Regulation 5 of UK's EEA Regulations appears to cover the case of frontier workers:
http://www.eearegulations.co.uk/Latest/ByPage/part1_5

Note clause 5(4) ...

(4) A person satisfies the conditions in this paragraph if

(a)he is active as a worker or self-employed person in an EEA State but retains his place of residence in the United Kingdom, to which he returns as a rule at least once a week; and

(b)prior to becoming so active in that EEA State, he had been continuously resident and continuously active as a worker or self-employed person in the United Kingdom for at least three years.

(5) A person who satisfies the condition in paragraph (4)(a) but not the condition in paragraph (4)(b) shall, for the purposes of paragraphs (2) and (3), be treated as being active and resident in the United Kingdom during any period in which he is working or self-employed in the EEA State.

(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 British citizen

No mention of dependents so a little more digging may be required in order to fully utilise and invoke this regulation.
A key question seems to be whether the Union citizen needs to spend 3 years in UK before triggering the regulation ie as per 4(b).

Now need some EU aficionados to help out here.

[heyitsme]

Thanks @noajthan, its a helpful finding!

So does my condition (going to UK every weekend) qualify as a frontier worker? Prior to working in France for 2 years I had been working in a non-EU country for 3 years. I was resident in UK before 2011.

[noajthan]

Thanks @noajthan, its a helpful finding!

So does my condition (going to UK every weekend) qualify as a frontier worker? Prior to working in France for 2 years I had been working in a non-EU country for 3 years. I was resident in UK before 2011.

I'm not sure if BCs can do this. You are not a fully-fledged EEA national.

You are only considered an EEA national in relation to relatives/dependents who have undertaken a SS journey with you.
So I don't think you are a frontier worker yet.

Maybe you will become one if you come back from France, spend 3 years in UK and then leave again to work away from UK every week.
Something like that.

Obviously those dates don't sit with your plans but I'm just trying to apply the above regulation.

[heyitsme]

The Your europe advice has given me the following reply, they also say that I may qualify as a fronter worker just like @noajthan has said, however they don't appear to be sure too if the UK law for frontier workers would apply in my case

Your plan to return to the UK will in fact be a partial return, given that you will continue to be working in France. Accordingly, you will only be coming back to the UK every week-end and staying in France during the week.

As such, you would be a Frontier worker, working in France and coming back to the UK every single week-end.

The fact that you would be maintaining residence in both France and the UK may not be a bar to your parents deriving a right of residence in the UK, by reference to the Surinder Singh caselaw.

However, we must draw your attention to the way in which the UK authorities have interpreted the Surinder Singh caselaw.

Your parents falls under the definition of a "family member" by virtue of Article 2 Directive 2004/38, with the right to enter the other member state (and thus the right to the issue of an entry visa, by the relevant authorities of that member state), providing they can show that they are financially dependent upon you.

In essence, your query relates to how you may be able to rely on EU law in order to bring your parents to the UK, by means of bringing them from another member state of the EU first, as a preliminary step to take them back to the UK at some point in the future. We believe we have answered your query in the way described above.

Your parents are eligible to return with you to the UK, as your family members, subject to the following conditions:

Your parents must prove that:

You are their son (your birth certificate ),
You are returning to the UK, immediately following a period of residence in another member state of the EU
That you have cohabited in the other member state of the EU, prior to your return to the UK,
That you have exercised your rights of residence in the other member state of the EU, by engaging in an economic activity (whether as a worker or a self employed person in the other member state)
And
That you have shifted your centre of life from the UK to France, which is assessed in terms of the following factors:

(a) the period of residence in France as a worker or self-employed person;
(b) the location of your principal residence;
(c) your degree of integration in France.

In your case, it appears that you may be able to prove that you have shifted your centre of life from the UK to France, owing to the duration of your stay in France, the fact that both your children and wife have been living with you there and that you have been working for 2 years in France.

The above arises out of the recent changes to the EEA 2006 Regulations, which entered into force on the 1st January 2014;
http://www.legislation.gov.uk/uksi/2013 ... 032_en.pdf;

The amended UK Regulations appear to be in breach of the caselaw, as most recently clarified by the Court of Justice in the joined cases C456/12 and C457/12.

These EU rights stem from the European Court of Justice s ruling in Singh (case C-370/90) and Eind (case C-291/05).These cases concerned the rights of family members of EU citizens to benefit from EU rights of residence when returning back to the EU citizen s home country after spending some time working in another EU country (in the Singh case two years and in the Eind case for twenty months).

In the two joined cases referred to above (C456/12 and C457/12), the Court of Justice held the following:

i) The Union citizen must reside in the Host Member State for a period in excess of 3 months, exercising rights as a worker, self employed, student or self sufficient person under Article 7 Directive 2004/38;

AND

ii). There must be a genuine family life in the Host Member State (i.e. cohabitation in the Host Member State).

We reiterate that the above Judgment calls into question the compatibility of the EEA 2006 Regulations vis-à-vis EU law.

Note that if your parents are able to prove the conditions imposed by the UK as described above, under the terms of the 2006 EEA regulations, the UK entry visa (the so-called EEA family permit) must be issued on an accelerated basis and free of charge on production of the evidence satisfying the conditions listed above;

[noajthan]

The Your europe advice has given me the following reply, they also say that I may qualify as a fronter worker just like @noajthan has said, however they don't appear to be sure too if the UK law for frontier workers would apply in my case

Your plan to return to the UK will in fact be a partial return, given that you will continue to be working in France. Accordingly, you will only be coming back to the UK every week-end and staying in France during the week.

As such, you would be a Frontier worker, working in France and coming back to the UK every single week-end.

The fact that you would be maintaining residence in both France and the UK may not be a bar to your parents deriving a right of residence in the UK, by reference to the Surinder Singh caselaw.

However, we must draw your attention to the way in which the UK authorities have interpreted the Surinder Singh caselaw.

...

In essence, your query relates to how you may be able to rely on EU law in order to bring your parents to the UK, by means of bringing them from another member state of the EU first, as a preliminary step to take them back to the UK at some point in the future. We believe we have answered your query in the way described above.

Your parents are eligible to return with you to the UK, as your family members, subject to the following conditions:

...

In your case, it appears that you may be able to prove that you have shifted your centre of life from the UK to France, owing to the duration of your stay in France, the fact that both your children and wife have been living with you there and that you have been working for 2 years in France.

The above arises out of the recent changes to the EEA 2006 Regulations, which entered into force on the 1st January 2014;
http://www.legislation.gov.uk/uksi/2013 ... 032_en.pdf;

The amended UK Regulations appear to be in breach of the caselaw, as most recently clarified by the Court of Justice in the joined cases C456/12 and C457/12.

Quite helpful.
Agree that under cleaner, purer EU law (and case law) that your case is more clear cut.
(If you were, say Belgian, and working in the Netherlands it would seem much more clear cut and possible).
Its the UK wrapper and the UK's incompatibility with EU law around this that adds the complications.

Evidently not many frontier workers frequent this forum.

The remaining questions are:
1) how do you show UK authorities you are returning and have returned from a life in France, with parents? (in order for SS to kick in in UK).
2) how long do you have to wait before turning into a frontier worker and going off to France again?
3) if the duration between steps 1 & 2 is zero do you then fail as a returning SS-er? (because you haven't really 'returned' to UK and ended activity in France).

Looking again at Regulation 5(4) ...

(4) A person satisfies the conditions in this paragraph if

(a)he is active as a worker or self-employed person in an EEA State but retains his place of residence in the United Kingdom, to which he returns as a rule at least once a week; and

(b)prior to becoming so active in that EEA State, he had been continuously resident and continuously active as a worker or self-employed person in the United Kingdom for at least three years.

(5) A person who satisfies the condition in paragraph (4)(a) but not the condition in paragraph (4)(b) shall, for the purposes of paragraphs (2) and (3), be treated as being active and resident in the United Kingdom during any period in which he is working or self-employed in the EEA State.

(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 British citizen

The question is does clause 4b apply to you?
It seems it can be dropped in some circumstances (as described in para 5).
So does 4b help you (at all)? as paras 2 & 3 are all about ceasing activity (which doesn't apply to you).

If 4b is mandatory it seems you will have to wait 3 years (after returning from France) before turning into a frontier worker(?)!

If your wife finally naturalises (assuming she still has ILR) does para 6 then help by easing certain time constraints on you?
(Again not sure, as paras 2 & 3 are about ceasing activity whereas you wish to maintain economic activity).

[heyitsme]

Thanks. Just to update we went to the UK for a visit and thankfully everything was fine. They didn't ask my wife anything and let her through the check points for EU citizens. Unfortunately, due to nature of my job any of us can not permanently move to UK to reside for sometime.