Family members of a family member?

[Ben]

Here's the situation,

Dave is a UK citizen who used to live in Ireland with his Australian wife Julie, and Julie's brother, Steve. Dave was exercising EU Treaty rights in Ireland, and so Julie and Steve, as his family members, were issued a Residence Card each, by the Irish authorities, in accordance with Directive 2004/38/EC. (Steve previously lived under one roof with Dave and Julie in Australia, before the trio moved to Ireland).

Dave, Julie and Steve now live in Dave's native UK. In accordance with the Surinder Singh ruling, Julie and Steve have been issued with UK Residence Cards.

Now working in the UK and earning a steady income, Steve would like to joined by his wife and child, who, until now, have remained in Australia (they are both Australian citizens).

Question is, what right does Steve have, to be joined in the UK by his wife and child?

[thsths]

Now working in the UK and earning a steady income, Steve would like to joined by his wife and child, who, until now, have remained in Australia (they are both Australian citizens).

I think that is going to be tough. Steve is only in Europe based on the argument that he is a household member, depending on Julie. If he is no longer a dependent, he has no right to stay in the UK. The situation would be different once he has Permanent Residence.

If he has a good job, I think a work based visa should be possible. In theory he should be able to apply in country, because this is his habitual (legal) residence. On the other hand, it is quite possible that he will have to go back to Australia to do that.

[Ben]

Thanks for your comments, thsths. I really appreciate it. I do disagree with you on one point though..

Steve is only in Europe based on the argument that he is a household member, depending on Julie. If he is no longer a dependent, he has no right to stay in the UK.

Steve is resident based on his status as family member of an EU citizen, who is a member of the EU citizen's household. Dependency is not a condition for this category. Steve's right of residence is withdrawn only if he ceases to be a member of Dave's household.

The situation would be different once he has Permanent Residence.

Yes, this is my thinking, too. After 5 years continuous residence in the UK (in accordance with Directive 2004/38/EC), Steve will automatically acquire Permanent Residence. Once at this stage, I believe Steve will be eligible to apply to bring his wife and child to the UK, in accordance with UK law (since he would be present and settled in the UK).

Of course, it is clearly unfavourable to separated from one's spouse and child for 5 years. I am wondering if a person who is legally resident in the UK, in accordance with Directive 2004/38/EC, and in possession of a Residence Card, would also be considered present and settled, in terms of eligibility to sponsor dependants?

If he has a good job, I think a work based visa should be possible. In theory he should be able to apply in country, because this is his habitual (legal) residence. On the other hand, it is quite possible that he will have to go back to Australia to do that.

Good thinking. Unfortunately, Steve is not skilled in a specific trade or profession, so a work permit (of any description) is not an option.