Waiting for DoJ decision under Zambrano, can I

[ImmigrationLawyer]

yea I agree but it is not the work which creates the habitual residence it is being the primary carer of the kids.

[Brigid from Ireland]

I am familiar with people who are the primary carers of Irish citizen children, and who live in Ireland, and who have been told they are not habitually resident. They usually win on appeal to the Ombudsman, but this takes about 18 months, and they find it difficult to survive for that length of time.

One such example is on the Irish Times April 13 2012. The lady was an Irish citizen, with two citizen children, who returned from abroad and was refused welfare on habitual residence grounds. The case disappeared from the media very fast, so I think the officials got sense and granted her the money.

[ImmigrationLawyer]

Yes the Dept Social Protection and the SW Appeals Office often make appalling decisions without properly assessing the facts of the case. Judicial Reviews are settled very quickly

[wiggsy]

It is quite usual for Eastern European fathers working in Ireland to claim child benefit for children living in Poland, so fathers can claim child benefit, even if the child does not live with them.

this looks interesting...

Could I potentially claim 130 euro a month for:
2 children that live with me and my current wife *in ireland
1 child that lives with my ex girlfriend in UK

therefore have £390/euro a month income.

are there conditions as to whether i can claim the CB for the third child (in uk)?

[wiggsy]

I would agree with you. Non-legal work does not help with the habitual residence condition. The OP was non-legal until the twins were born.

The question is did it become legal for her to work the moment the citizen twins were born - she can argue it became legal for her to work the day they were born, as she has a right to work in order to support her citizen twins.

It is also possible to argue that legal work can only commence after getting permission under Zambrano. This arguement would possibly fail in court - the twins must be provided for, and how else can they be provided for, other than by a parent who works?

DOES THIS APPLY IN THE UK ALSO?

My wife has been told by ukba that "we cannot confirm your right to work within the uk at this time" on her zambrano application.

solicitor told us that the chances of succeding are relatively low, as ukba would deem removing my non-eu wife would not remove our british childrens rights, as i can care for them... (which i have contridicted before ukba raising, as i state that i am of ill health taking numerous meds etc) - and even have my wife provide personal care for my own needs (help showing etc)

is it EU law for all countries to follow? - how would one approach this with a letter of complaint etc ?
(i have written two letters to ukba - one from myself and one from my wife - in argument to the fact that ukba wont allow my wife to support the children (also raising that our income will decrease our need to financial support next year - CTC/WTC ETC)

[ImmigrationLawyer]

As I understand it the UK has a more restrictive interpretation/ policy on Zambrano that Ireland. The Zambrano/ TFEU/ Free Movement rights are separate from family life rights under Article 8, it seems like your case might be more favourably assessed with reference to these family and personal life rights.

[Brigid from Ireland]

If you are employed or self employed in Ireland you can claim child benefit for the two children who live with you and your wife in Ireland. No one else can be claiming child benefit for these two children, as they live with both parents, so you get the full amount. It is important that you be employed or self employed. Registering as self employed is easy - you just ring Revenue and complete the relevant form. I'm assuming you are an EU citizen, with the right to work in Ireland. (The nationality of the mother is not important, dad can claim, so long as he works in Ireland).

With regard to the child that lives with the ex in England, you can claim a 'top up' - this is based on the assumption that the mother in England claims the English form of child benefit, you can get the difference between the English amount and the Irish amount.Ireland pays more, so you get the extra. (You are supposed to be supporting the child to get this). The Polish dads claim the difference between the Polish child benefit, which their wife living in Poland gets, and the Irish rate. If the child is in Ireland living with him, the dad (or mum) can claim the full Irish amount.

If you are employed (not self employed) for 20 hours a week or more in Ireland you can also get Family Income Supplement, if your income is low. In practice, this might be better than your wife working. There is a LONG backlog for this payment.

Do you have Irish citizenship? If yes, did you get Irish passports for the children? If yes, your wife should do a zambrano in Ireland also. (Note: Do not get an Irish passport for yourself, just for the children. Your wife's rights in Ireland are as the spouse of an non-Irish EU migrant worker - you don't want to become Irish yourself just now, but it would be useful if your children got Irish passports.)

[Brigid from Ireland]

The OP is a single parent, with sole care and custody of her children. I do not think she gets child support. Her position is not the same as that of your wife, as your children can rely on you to work. The children of the OP can rely on no one except mum.

[Brigid from Ireland]

The phrasing 'we cannot confirm your right to work' is interesting. It reads as civil service speak for 'we have not processed your application and have made no decision yet'.

I would suggest you tell them that your wife has been offered a job and she intends to commence employment if they have do not object within 21 days. This puts them in an awkward position - if they think she has the right to work they will be reluctant to object.

[wiggsy]

The phrasing 'we cannot confirm your right to work' is interesting. It reads as civil service speak for 'we have not processed your application and have made no decision yet'.

I would suggest you tell them that your wife has been offered a job and she intends to commence employment if they have do not object within 21 days. This puts them in an awkward position - if they think she has the right to work they will be reluctant to object.

Well I have written numerous emails to UKBA, also to Solvit now, and my mp etc...

ive told ukba i want my passport, my wifes, our childrens etc back.

ive stated to them that by failing to confirm my wifes right to work within the uk they are breaching the zambrano desision... etc... they also prevented my wife from getting a nino stating she has no right to work in the uk to DWP when we applied for a nino... i am going to process a new claim for a nino and write a letter to ukba stating if the nino fails to go through it will go to Judicial Review based on the facts of the case whereby:

On those grounds, the Court (Grand Chamber) hereby rules:

Article 20 TFEU is to be interpreted as meaning that it precludes a Member State from refusing a third country national upon whom his minor children, who are European Union citizens, are dependent, a right of residence in the Member State of residence and nationality of those children, and from refusing to grant a work permit to that third country national, in so far as such decisions deprive those children of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen.

as it doesnt state SOLELY dependant, it states dependant (note it doesnt even state financially - so could mean, emotionally, physically, etc too)

Subject:
Complaint as to UKBA Staff, EEA2 Application, COA, ETC.

From:
zzzz

To:
liverpooleuro.passportreturns@homeoffice.gsi.gov.uk; Nadhim.zahawi.mp@parliament.uk; solvit@bis.gsi.gov.uk; UKBACustomerComplaints@homeoffice.gsi.gov.uk;

Date:
Wednesday, 13 February 2013, 2:05

my name and address

Dear Sirs,



I am writing to you AGAIN in regards to the application of my wife: Mrs xxxxxx xxxxxxxx

Royal Mail Package: xxxxx (Delivered on 15th Jan 2013) HO Ref: xxxx and Case ID: xxxxx



(In case you are going to request further reference numbers, the return barcodes of provided are: xxxx and xxxxxx)



This is not the first time I have contacted yourself in regards to this matter... Please see below for previous messages.



On 8 March 2011 the European Court of Justice (ECJ) ruled in the Zambrano case C 34/09 http://curia.europa.eu/jurisp/cgi-bin/f ... ff=C-34/09, that an EU member state may not refuse the non-EU parents of a dependent child who is a citizen of, and resident in, an EU member state the right to live and work in that member state. As you can see from the documentation provided for my wifes EEA2 application, she has two dependant British Citizen children.



I am therefore requesting that further to previous emails to yourself, and additional postal letters this situation be resolved.



My wifes Certificate of Application failed to confirm her right to work within the UK. This is not the case. As evidenced in the case above, my wife already has the right to work in the UK, and UKBA must confirm this right.



EU Legislation states that a Certificate of Application must be processed IMMEDIATELY. I am therefore expecting a fresh COA to be sent to my wife, XXXXX XXXXXXX (Again, you have proof of her name - our marriage certificate). Your COA gave a couple of examples of when you cannot verify a persons right to work within the UK, however, none of the examples provided apply to my wife.



I note that as EU law states that my wife has a Derivative Right of Residence within the UK, she cannot therefore be deported from the UK. Failure to grant my wife permission to work effectively leaves our children in a state of destitution. We have limited funds to survive, by failing to verify my wifes right to work within the UK this situation is worsened, and could effectively mean our children are foced to leave the UK so as to be able to survive.



I have also sent this email to my local MP, and am hoping that something is done in relation to this. In addition to this, I will be filing a formal complaint with SOLVIT in relation to the manner in which her case is being handled.


In addition to this, I have previously requested the return of the passports included in the application... Under EU Law, upon request, documents should be returned ASAP (and within your own guidelines within 20 working days). My passport is required for employment and identification purposes (however - I do not legally have to provide a reason as to my need for my passport to be returned!)



I also direct your attention to the message below, in relation to "Richard" at the UKBA reporting centre on Homer Road, Solihull. The attitude of this member of staff (in addition to that of "Reena" - I am unsure as to whether this is the correct spelling of her name). This member of staff outright told my wife that she would not be permitted entry into Ireland (Republic of). He is not in a position as to 1) Give immigration advice, 2) Dictate as to Irish imigration proceedures. In fact, I provide the attached emails from the Irish Embassy here in London - neither email even hints at the fact that my wife could be refused entry into Ireland - the reason being Directive 2004/38/EC does not allow for her refusal of entry bar: Article 22 - Public Policy, Public Security and Public Health (none of which apply).



http://eur-lex.europa.eu/LexUriServ/Lex ... 123:en:PDF



Again, Perhaps it is wise for UKBA to read the actual legislation which it is required to follow as per EU LAW also covering the UK. Particularly Article 23. Also, dating back previously to this: The United Nations Convention on the Rights of the Child, of 20 November 1989 - which particularly protects the links of a child to their family members.

(This case has the following children: XXX XXX, and XXX XXXX).

Now, Please respond in relation to all of the points raised within this email. I note that neither myself nore my wife have recieved any response to our written communication to yourselves (letters delivered by Royal Mail).

Yours,



Mr xxxxx

i am of the understanding that it doesnt refuse the right to work, they simply dont say "you are allowed to work" and im sure if an employer enquired, they would also provide this same response "we cannot confirm that she has the right to work" - which the employer would read :"we have not given this person the right to work within the uk"

given that UKBA have issued my wife with an IS96 stating "you must not work without written permission from us" i dont think its wise for her to actually begin working... - i would hate the UKBA to actually fine anybody on the basis of my wifes working etc...

we have written to ukba insisting that they amend the conditions of her Temp Admission, as my daughter attends nursery (i work) and when my wife reports my daughter has to miss education. (they could ask her to report to local police station - so...)

ahh well, going Off Topic now lol. but Its interesting that Zambrano hasnt been implemented by UK as it should have been...



--- on the Child Benefit point: I would be paying my ex a child maintenance payment (i dont believe that i shouldnt pay to support my children) but if im entitled to claim funds... why not

also, as i am british, I have the CTA right to live in ireland, and also the EEA route (which gives my wife full leave to remain).

based on CTA, could my wife file for Zambrano in Ireland? or only in UK? - Zambrano or EEA worker, which is better route to apply for? - my wife is not a lone parent, although she is the MAIN CARER for our children. (typical old household where the man works n wife cares for kids ATM - although wife wishes to work and we share responsibility).

[iwonderwhy]

I applied for CB, it was declined. Reasons given are:

1. Your status in Ireland remains undecided.
2. You have no access to the Irish labour market
3. Your centre of interest is not Ireland
4. As you do not have permission to remain in Ireland your future intentions are uncertain
5. From the evidence to date there is nothing to substantiate that you are habitually resident in the state.

Ok not surprised now what do I do.
Do I appeal the decision? Or wait for DoJ to grant my stay?

[Brigid from Ireland]

Hi Iwonderwhy,

You have basically been told that you are not habitually resident in Ireland, so you have been told you are not entitled to social welfare. You should appeal - you will lose the appeal, and you then appeal to the Ombudsman. You have about a 50% chance of winning with the Ombudsman, and if you do all payments are backdated to when you first applied.

If you decide to appeal the child benefit, you might as well apply for lone parents, jobseekers allowance and supplementary welfare allowance also. (You can only get one of these three payments, but you should apply for all as the rules for each are slighty different). If you win the appeal this payment will be backdated also.

Note that the reason used to disqualify you from receiving child benefit cannot be used against the father of the twins, assuming he is working in Ireland. The fastest route is for him to apply for the child benefit, but I understand that this may not be possible.

Hi Wiggsy,

If you come to Ireland, as a British rather than Irish citizen, your wife can apply for EU4FAM if you get a job. Do not get an Irish passport yourself.

In addition, if your children are entitled to Irish passports (via an Irish grandparent) she could apply under Zambrano also, but one child would need to join the Foreign Birth Register first.

When you get to Ireland the first thing you should do (after finding accommodation) is get a PPS number for you, the wife and all three kids. Take the children who live with you to the social welfare office to get their pps numbers with their birth certs/passports, take the birth cert of the child who lives with your ex. Each child will need a pps number in order for you to claim child benefit. Your wife will need a pps in order for you to claim her tax credits, and for other stuff also. The pps does not confer the right to work, it is needed for access to many state services.

[falicbeauty]

Hi I wonder why. I tried to contact you by PM but the link won't go through. Cld u pls PM me as I have certain private questions I want to ask. Thanks

[rachellynn1972]

I am an illegal alien, have been in Ireland for 6 years. I stay with a relative. Came to Ireland with my son and daughter (non-Irish). Last year gave birth to twins (father is Irish) we do not leave together though, thereafter I applied under Zambrano.

My application has been with DoJ for the last 8 months and still waiting for a decision.

The problem my kids have lived basically out of handouts from my relative, I would get money here and there. Never claimed social (no gnib) now things are getting hard for my relative and is now often suggesting i go to my Local Office to ask for financial help.

i feel uncomfortable with this as i feel it will affect my application. Never claimed Child Benefit for all my children so its really a struggle.

by eu law the acknowledgement letter giving to you when you made the application is your legal resident document give it to the benefit people as a prove and the children passports. They cant refused the children their rightnss an irish or better go to your lawyer and tell him what I sa7d andntell him to apply for benefit for you for tge children. By eu law on zambrano they must grant the benefits, you dont need theie dad because its useless mentioning him and with him you nay lost your zambrano case. The acknowledgement letter from doj under eu law is a proof of your residency right. I am wrtting from experience and this is the only piece of advice I can give.

Is it better to wait for a decision under Zambrano, or should I go to SWA/SWO.

Please advice a sister out.

[falicbeauty]

Hi iwonderwhy. I tried to contact you by PM but the link won't go through. Cld u pls PM me as I have certain private questions I want to ask. Thanks

[daclean2003]

hello! im from ireland, dublin. pls i need a help, I applied for zambrano application last yr ma. Bt, i dnt submit the colour copy of my child's passport. Because the mother of my child refused to apply for it, saying my child doesnt need it. Bt my name is on birth cert and i have gardianship over my child issued by court. Pls Ma will my application going to be consider? Because i have been waiting for long and never hear anything frm them.
Thanks

[iluvireland]

Did you mean last year may ? Have you got your ref number ? Yes you need child passport clr copy with original birth cert.

[daclean2003]

I got a reference number from my asylum. Yes. Last yr november i applied. I submited the original birth cert. Bt the mother denail to apply for the child passport. Pls what can i do to this situation?

[iluvireland]

Have you got any ref number from zambrano or rept dept ?
without irish passport you can not apply zambrano.



Asylem its tottaly deferent story .

[daclean2003]

Bt the mother doesnt want me to get her irish passport. Yes i have ref number.
So what can i do

[iluvireland]

Sorry to hear that i think you need to get lawyer.