UK Family permit for Mother-In-law - Returned under Surinder

[andyjohnst]

Hi there,

I worked in Ireland and my non-eu spouse lived with me. She got 5 year RC in Ireland. We returned to the UK in Jan this year and she has got the 5 year RC in UK, based on the Surinder Singh ruling. We have a 10 month child, born in Ireland but has a UK passport.

Wife is currently 7 months pregnant. We would like to invite my mother-in-law over to the UK for the birth of the next child and help our with child care etc at the start. Mother-In-Law came and visited us in Ireland and stayed for the good part of 5-6 weeks.

Would my mother-in-law be able to apply for the Family permit and be classed as a "Family Member" as defined in point 2 of Article 2 of Directive 2004/38/EC. She would be living with me and my non-eu spouse at our address during her visit. My mother-In-Law came to visit us when we lived in Ireland and lived at my house. I acted as sponsor. The relationship between my non-eu spouse and her mother can be proved by birth certificates and our wedding certificate can prove my relationship with my spouse.

If my Mother-In-law cannot be classed as a "Family Member" can she still benefit from the Directive based on Article 3 Beneficiaries "2 (a) any other family members [...] who, in the country from which they have come, are [either] dependants or members of the household of the Union citizen"?

If she would be able to, would I submit the proof of me working the EU with her FP application?

Has anyone any experience in this matter or been able to successfully bring a mother-in-law over using the family permit after returning to the UK from exercising EU treaty rights as a worker?

Let me know if I have not been clear in anything or you need any further information.

Really appreciate any help or advice.

[andyjohnst]

By the way, this is only an application for a UK Family Permit. She would not be applying for the Residence Card.

[dalebutt]

The UKBA transposition is a little different, to my knowledge, your mother in-law must have lived with you in the Republic of Ireland as a member of your household or else the application is unlikely to succeed.

As you do not have the intention for her to apply for RC in in the UKBA, your best shot will be for her to apply for a visitor's visa.

[andyjohnst]

Yeah - that is what I thought to be honest. Got a reply back from the European advice people:

Dear Mr Johnston,

Thank you for your enquiry.

I have read the details of your enquiry.

I wish to inform you that the European Court of Justice ruled in the case of Surinder Sibgh that where a national of a Member State goes with his/her non-EEA national spouse to another Member State to exercise an economic Treaty right, on return to his/her own Member State the non-EEA national spouse is entitled to join the EEA national under EC law.

Under regulation 9 of the 2006 UK Regulations, the family members of a British national returning to the UK will be treated as if they were the family members of an EEA national under the following conditions:

After leaving the United Kingdom, the British national resided in an EEA state and –

- Was employed there (other than on a transient or casual basis); or
- Established him/herself there as a self-employed person; and If the family member is his/her spouse, the marriage took place, and the parties lived together in an EEA state, before the British national returned to the United Kingdom.

For the Directive to apply to your mother in law would have to have been living with you in Ireland and formally resident there before you returned to the United Kingdom. Essentially the case of Surinder Singh states that nationals of a Member State who live with their non- EEA family members in another Member State (this is a key part) and where the Member State national exercises a Treaty right in an economic capacity (i.e. as a worker or self-employed person) will, on return to their home state, be entitled to bring their non-EEA family members to join them under EC law.

Therefore, normal UK domestic immigration rules will govern the application.

I hope the above information is of assistance, and if you wish to have further information you may wish to consult the following link of the UK Border Agency:

http://www.ukba.homeoffice.gov.uk/visas ... dependent/

Your Europe Advice

[EUsmileWEallsmile]

Thanks for taking the trouble of posting back that response.