EEA rules for family members

[Morpheo]

Hi All,

Could you someone please confirm if I'm right.

Under EU law, my parents are allowed to obtain a EU family permit if they are finically dependant on me and planning to join me in the UK.

However, my little sister (19 years old) lives with them and she is also a dependant.

It is a very straight forward application for my parents but I was wondering if my sister would also get her resident permit as she is a dependant on my parents and my parents are dependant on me.

Could someone please help?

Thanks in advance

[Ben]

Hi Morpheo,

What is your citizenship?
How long have you lived in the UK?
Where did you live before you moved to the UK?

[Morpheo]

Hi,

Thanks for your reply

I used to be part of the household and lived with my parents before moving to the UK.

I have been in the UK for 9 Years but under different status -- Student, Work permit, EU family member.

At the moment, I am a non EU citizen who has retain his right of residence after divorce.

I hope this helps

T

[Ben]

I am a non EU citizen who has retain his right of residence after divorce.

The right of residence or the right of permanent residence?

Either way, the Directive doesn't provide for you to bring your family over, I'm afraid.

However, if you have the right of permanent residence in the UK, since this is equal to ILR, you can use UK national law to bring them over in accordance with the Immigration Rules (if they qualify).

[Morpheo]

Thanks benifa,

But I am afraid that I need to disagree with you.

I haven't applied for PR yet but I am entitled to it.

Under regulation 10, I have retained the right of residence and I do enjoy the same right as a EU member as long as I do exercise the treaty right.

According to the directive http://www.ukvisas.gov.uk/en/howtoapply ... ionals#Q10

Can my family members join me in the UK?
Yes. If you have the right to live in the UK your family members can join you.

Under European Community law, your family members include the following:

* Your husband, wife or civil partner.
* Your children or the children of your husband, wife or civil partner (including adopted children). Children over 21 must be dependent on you or your husband, wife or civil partner.
* Your parents and grandparents or the parents and grandparents of your husband, wife or civil partner. Parents and grandparents must be dependent on you or your husband, wife or civil partner.

Your extended family members, such as brothers, sisters and cousins, do not have an automatic right to live with you in the UK. However, we will consider applications for your other relatives to join you if you are a qualified person in the UK and:

* they were dependent on you in the State in which you both lived before you came to the UK; or
* they were a member of your household in the State in which you lived before you came to the UK; or
* they require your personal care on serious health grounds; or
* they meet the requirements of the Immigration Rules for other dependent family members (see our Family members (INF 6) guidance).

I hope this clarifies things

[Ben]

Under regulation 10, I have retained the right of residence and I do enjoy the same right as a EU member as long as I do exercise the treaty right.

You retain the right to reside, to work, to open a business, to enrol in a course of study or to be economically self-sufficient.

Retention of the right of residence by family members in the event
of divorce, annulment of marriage or termination of registered partnership
1. Without prejudice to the second subparagraph, divorce, annulment of the Union citizen's
marriage or termination of his/her registered partnership, as referred to in point 2(b) of Article 2
shall not affect the right of residence of his/her family members who are nationals of a Member
State.
Before acquiring the right of permanent residence, the persons concerned must meet the conditions
laid down in points (a), (b), (c) or (d) of Article 7(1).

2. Without prejudice to the second subparagraph, divorce, annulment of marriage or termination of
the registered partnership referred to in point 2(b) of Article 2 shall not entail loss of the right of
residence of a Union citizen's family members who are not nationals of a Member State where:
(a) prior to initiation of the divorce or annulment proceedings or termination of the registered
partnership referred to in point 2(b) of Article 2, the marriage or registered partnership has
lasted at least three years, including one year in the host Member State; or
(b) by agreement between the spouses or the partners referred to in point 2(b) of Article 2 or by
court order, the spouse or partner who is not a national of a Member State has custody of the
Union citizen's children; or
(c) this is warranted by particularly difficult circumstances, such as having been a victim of
domestic violence while the marriage or registered partnership was subsisting; or
(d) by agreement between the spouses or partners referred to in point 2(b) of Article 2 or by court
order, the spouse or partner who is not a national of a Member State has the right of access to
a minor child, provided that the court has ruled that such access must be in the host Member
State, and for as long as is required.

Before acquiring the right of permanent residence, the right of residence of the persons concerned
shall remain subject to the requirement that they are able to show that they are workers or
self-employed persons or that they have sufficient resources for themselves and their family
members not to become a burden on the social assistance system of the host Member State during
their period of residence and have comprehensive sickness insurance cover in the host
Member State, or that they are members of the family, already constituted in the host Member State,
of a person satisfying these requirements. "Sufficient resources" shall be as defined in Article 8(4).
Such family members shall retain their right of residence exclusively on personal basis.

I haven't applied for PR yet but I am entitled to it.

Once you have acquired PR, your family members may make applications under the UK Immigration Rules.

[Morpheo]

Thanks for that, however, I still don't see in the quoted text that I am not entitled to enjoy the same rights?

As far as I am aware, I retained the same right as if I were a family member of a EU member and that includes bringing my parents if the rules apply (they depend finicialy on me)

Could you please provide some more evidence of this? I have read the whole directive and already consulted with the HO.

The grey area is about my sister and not my parents, but since is a dependant as well and under the age of 21 I was hoping to get some light

Please provide some clear evidence of this

[Ben]

As far as I am aware, I retained the same right as if I were a family member of a EU member and that includes bringing my parents if the rules apply (they depend finicialy on me)

Right, my mistake, didn't notice in your original post that your parents are dependant on you. I thought you were relying on the "member of the household of the Union citizen" category, where dependency is not a condition. Sorry about that.

In which case, you're quite right. Parents of the spouse of the Union citizen are described in Article 2(2)(d) of the Directive.

The sibling of the spouse of the Union citizen is not mentioned directly, however if the sibling is a member of the household of the Union citizen in the country from which they have, then she is a person described in Article 3(2).

It's arguable whether your sister can benefit from this status, being that her relationship with the Union citizen no longer exists, and that she was not present in the UK when it did exist, so able to retain that status.

The problem would be solved by your naturalising as a British citizen. Is this an option for you?

[Morpheo]

Hi,

Thanks for that, for a moment I started to doubt.

To give some background I own a house and I am in a high slary range and I do send money to my family every month ( it is the only income they have and they depend on it).

I have decided to bring my family over to live with me specially when my sister is looking to study over here and I was going to sponsor her.

I will be entiteled to naturalisation next year (which I am entending to persue). How would that help?

Could this logic apply:

My parents will apply to join me (I am certain that they will obtain their RC), since my sister is under 21 and was living with them before they move to the UK, I was hoping she will get it as well as a direct dependant on them?

Thanks for the help

[Ben]

Could this logic apply:

My parents will apply to join me (I am certain that they will obtain their RC), since my sister is under 21 and was living with them before they move to the UK, I was hoping she will get it as well as a direct dependant on them?

Thanks for the help

The problem is, there is no provision in the Directive which confers residency to the dependants of the dependants of the spouse of the Union citizen.

The UKBA may grant residency to your sister under domestic law - but I'm really not sure nor experienced in that area. Sorry can't be of any real help to you.

[Directive/2004/38/EC]

There are family members: http://eumovement.wordpress.com/2008/04 ... ly-member/

I tried to work through who was a beneficiary in this post http://eumovement.wordpress.com/2008/04 ... ficiaries/

I know of cases in Ireland where this has been used to bring the sister of the non-EU spouse of an EU citizen.

[Morpheo]

Thanks guys,

I think I got sufficient grounds to build a case specially when sister is under the age of 21.

However, I am planning to apply for my PR and I was wondering when I obtain it, Would I still be under EU law or I will be considered under the domestic UK law?

Cheers

[Directive/2004/38/EC]

However, I am planning to apply for my PR and I was wondering when I obtain it, Would I still be under EU law or I will be considered under the domestic UK law?

First off, you will likely automatically get PR under European law. You will apply only for an official confirmation of the PR you already have.

You will have PR, coming from a EU law source. It is pretty much the same as getting PR from UK law source (i.e. ILR). You can, for instance, apply for British citizenship (if you have the other requirements covered).

[Ben]

I know of cases in Ireland where this has been used to bring the sister of the non-EU spouse of an EU citizen.

Indeed. If the sister of the non-EU spouse of an EU national was a member of the household of the EU national in the country from which they have come, the sister is thus a person described in Article 3(2), and so the host Member State is obliged to facilitate entry and residence for her.

Difference with this case is, the person's relationship with the EU national is no longer in existence. I don't believe the UK is obligated to facilitate entry and residence for someone who used to be an eligible family member but no longer is so.

However, I am planning to apply for my PR and I was wondering when I obtain it, Would I still be under EU law or I will be considered under the domestic UK law?

PR is automatically acquired following 5 years residence in accordance with the Directive, you don't need to apply for it. You become a Permanent Residence under EU law, and a "present and settled" person, equal to a person with ILR, under UK law (able to naturalise one year later).

Due to the latter, you may be able to sponsor your sister to come in under UK law (if such provision exists), should your attempt to bring her in under EU law prove unsuccessful.

Morpheo - do citizens of your country require a visa to come to the UK, for visits?

[Morpheo]

Hi,

Yes, they do require a VISA to visit.

Concerning the PR, I am afraid it is not an automatic right for someone who has retained the right of residence unless he has been continuously exercised the treaty right in his own rights.

According to the Home Office I have two choices:

- I could apply for PR now but I need to provide evidence of my ex was exercising the treaty right from the date we got married till when the divorce was absolute. or

- I could apply for PR on my own right by providing evidence that I have continuously exercised the treaty right for 5 years starting from when my divorced.

This means that I could apply now or wait for an extra 3 years on my own right

I hope this helps

[Ben]

Yes, they do require a VISA to visit.

Pity. Means your sister has to apply for an EEA FP. If this gets refused, she'd be likely to have a problem subsequently applying for a visit visa.

Once you're a British citizen, would you consider moving to Ireland, to work, for a few months (at least 6 would be best)?

Reason I ask is, the possibility of bringing your sister in to the UK under EU rules is, in my opinion, very slim. I would even go as far as to suggest that even applying for an EEA FP might do more harm than good, as I mentioned above.

Consider bringing her in as a visitor, staying with you under one roof. Once you're a British citizen, you, your sister and your parents move to Ireland. Six months later you move back.

That's a valid, lawful and watertight possibility - but it may also be incredibly inconvenient and lengthy.