EEA FP for child of Non EEA Spouse of EEA national

[rota919]

Good day everyone,

Its a pity I did not find this forum a couple of years ago. Could have done with the information shared here when I did my EEA applications.

Anyway here is my current situation.

My wife holds a "UK Residency document" and I am the holder of a "UK Residency Card of a Family Member of an EEA National"

Now my son with a South African passport needs to make a FP application to come and join us in the UK.

I have a couple of questions.

1. As I am still dependant on my wife exercising treaty rights, he needs to apply with her as his sponsor?
or does "Same rights as EU National" means I am his sponsor?
I assume the only rights I can claim is "freedom of movement" and the "right to work" as long as my wife is exercising treaty rights.
Having said that, my wife's details are not printer on the residency document in my passport. It was printer on the FP that expired over a year ago.
2. He is 19, turning 20 in November.
In South Africa that makes him an adult. The age of majority in South Africa is 18.
The EU legislation cut-of for "Dependant Child" is 21 so I assume he needs to complete Part 5 of the VAF5 as a "Dependant Child" and enter my details?
3. The financial information given in Part 5 (Mine) will be taken into account as part of the finances of my wife in Part 8 because as husband and wife we have a combined income.
4. His prove of relationship to my wife, the EEA National would take the following form;
First he needs to prove his and my relationship by producing birth certificates.
Secondly the relationship between my wife and myself based on our marriage certificates.
5. South Africa issue, by default, a shortened version of the birth certificate. It doesn't include my details. I did apply for an un-abridged certificate but it is going to take at least 4 months. I understand that a birth certificate is the preferred method of proving our relationship but I have found that with giving an explanation why a specific document is not available HO would still consider an application.
I was thinking of making a sworn declaration and ask his mother in South Africa to do the same. Using these as prove I am his father.
6. Is it necessary for his mother to give permission for him to travel to the UK or is that only applicable to children under the age of 18?
7. How is he going to submit my wife's passport as part of the application? We are in the UK, he is in South Africa.
Will a copy, stamped and certified by a solicitor do the job or do we need to get it certified by her embassy in Dublin?

I will probably have more questions as I prepare his document pack. In the meantime I am looking forward to some positive feedback.

Thanks for taking the time to read this.

[troubled]

Is your EEA partner the mother of your son? Do you mean you have resident permit as a family member of EEA national or what? If you hold resident permit by virtue of being a family member of EEA national you cannot transfer your rights and benefits to your son.However, if you become a permanent resident and eventually EEA national then you can extend your rights to your son who must be under 21 years at the time. As I can see your wife is not biological mother of your son ,so your son is not a family member of EEA national.

[rota919]

Thanks for the reply but I disagree with you.

English might be my second language but I think I understand it well enough to be able to interpret the following on the UKVISAS website:

If your family members are EEA nationals they will have the same rights as you to live and work in the UK. The information in this section applies to those of your family members who are not EEA nationals (non-EEA family members).

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.

and UKBA website

Your family

If you have a right to live the in the UK, your family may join you here. Your family is defined as:

* your spouse (husband or wife) or civil partner;
* any children or grandchildren of you, your spouse or your civil partner who are under 21 years of age or who are dependent on you; and
* the parents or grandparents of you, your spouse or your civil partner.

Family members who are not EEA or Swiss nationals

If your family members are not EEA or Swiss nationals and they are coming to live with you permanently or on a long-term basis, they will need to apply for an EEA family permit before coming to the UK. The EEA family permit is similar to a visa and is issued by visa services. Your family members should apply for an EEA family permit at their nearest British diplomatic post.

Or am I really missing something somewhere.

[troubled]

You are right to quote those rules.The rules there refer to EEA nationals and their family members.As it stands you are not EEA national,you are a family member of EEA national.This simple question will help you, ask yourself, what is my nationality now? If your answer is to any other country apart from EU countries, then you cannot extend those benefits to your son.Your wife can invite your son to visit by obtaining visitors visa, I do not see anywhere you can apply resident permit for your son base on YOUR resident permit.At the moment you are called third country national(not in offensive manner),meaning you are not EEA national so those rights you derive from wife cannot be passed on to your son.If your wife is the biological or adopted mother then your son can enjoy those EU rights.

[Rozen]

You are right to quote those rules.The rules there refer to EEA nationals and their family members.As it stands you are not EEA national,you are a family member of EEA national.This simple question will help you, ask yourself, what is my nationality now? If your answer is to any other country apart from EU countries, then you cannot extend those benefits to your son.Your wife can invite your son to visit by obtaining visitors visa, I do not see anywhere you can apply resident permit for your son base on YOUR resident permit.At the moment you are called third country national(not in offensive manner),meaning you are not EEA national so those rights you derive from wife cannot be passed on to your son.If your wife is the biological or adopted mother then your son can enjoy those EU rights.

Troubled, this is COMPLETELY WRONG advice! If OP is a non EU Family Member of an EU citizen residing in the UK, he CAN bring his child to the UK under EU rules ie. Family Permit!
Rota919, your understanding of the whole issue is correct.
1. Your child is under 21 which is not a problem (under EU rules) and is dependant on you.
2. You will need proof of relationship, such as his birth certificate or sworn avidaffits from both you and his mum.
3. Written permission from his biological mother in RSA, that she is happy for him to live with you in UK.
4. Marriage certificate for you and your EU wife.
5. Proof of EU wife exercising Treaty Rights
6. He can apply for an EEA FP at the nearest BHC in RSA.
I speak from experience. My EU husband and I (non EU) brought my non EU child to UK on an EEA FP in the same way. It was not a problem AT ALL! So really, you are good to go!
By the way, a copy of your wife's passport, as well as yours is fine!

[rota919]

I understand that I can't invite / assist in his application but my wife as the EEA national can.

So the answer to my first question would be, "He needs to apply with my wife as the sponsor"

I am getting confused here...

The quoted section states. (Read it from the EEA Nationals point of view)

The information in this section applies to those of your family members who are not EEA nationals (non-EEA family members).

I am a non eea family member

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

* Your husband, wife or civil partner.

Thats me

* Your children or the children of your husband, ...

Thats my son

He is not applying for a resident permit, he is applying for a family permit

When I applied for my FP to join my EEA Wife there is space for my children's names and the next question is to list the names of the children that will travel with me. (Page 3 on the new form)
The EEA Family permit application is for family members that are not EEA nationals. So if my children (children of the non eea husband) cant join us, why would there be a field asking "who is travelling with you"

[Directive/2004/38/EC]

rota919,

What is the citizenship of your wife and is she working presently?

In general Rozen is very right - You should have no problem at all. If your EU citizen family member is working (or has a number of other statuses), and your child is under 21, then it should be very easy.

Note that you do not need to "sponsor" your son. You do not need to prove you have any amount of money as long as your wife is working. You can just leave those questions blank.

If your son is outside the UK, he will need to get a EEA Family Permit to come to the UK. Once here, he (and you!) can apply for a Residence Card which simplifies working or entering the UK.

[rota919]

Thanks Directive and Rozen.

Don't ask me how, but I missed Rozen's reply.

My wife is Lithuanian and been on the WRS since May 2006, we applied for and received her "Registration Certificate" in December 2009.
She is currently working.

I already have my Residence Card, received it Sept 2009.

I was using the word "sponsor" for the lack of a better word.

So all I really need is copies of our passports and UK residency cards/ certificates, a letter from her employer confirming her employment, marriage certificates and letter from his mom that she is happy for him to come to us in the UK.

The prove that he is my son will probably be done via affidavits if the application for birth certificate takes to long. Was thinking of asking my mom (sons grandmother) for an affidavit as well.

Thanks for the info, will keep you's updated.

[Directive/2004/38/EC]

For the EEA family permit, you can submit photocopies of your passport, your wife's passport, the Residence Card and your wife's permit.

You need to be able to prove that you are the father of your son. A birth certificate per sae is not required by the rules. How is that proof-of-relationship normally done in South Africa, if not by birth certificate? (You should in any case apply for the birth certificate).

I am not 100% sure you need the letter from his mom, but it is worth getting. You might be able to get it witnessed by the British High Commission.

And remember that the application is processed at no charge and should be processed quickly. My personal attitude is to apply soon and if there is a problem they will tell you, you can fix it and then (if needed) apply again.

[rota919]

Ok so my Son's application has been declined on the grounds that...

He is not "Direct Family" of my wife and does not qualify under regulation 7 of the immigration (European Economic Area) Regulations 2006

The criteria for qualifying as a family member, as defined in Regulation 7 are:

http://www.opsi.gov.uk/si/si2006/20061003.htm#7

And Chapter 2 of
http://www.ukba.homeoffice.gov.uk/sitec ... dlaw/ecis/

And
http://eumovement.wordpress.com/2008/04 ... ly-member/

Their version of Regulation 7 that they use in South Africa does not include:
"dependants of his, his spouse or his civil partner"

They also query him because he is 20 years of age and did not prove his dependency on my wife or myself or provide prove of where his income is coming from.
He stated he is doing voluntary work.
We were forced to make the application on-line where you can not elaborate on certain points or leave out that what is not relevant.

I am going to let him re-apply with specific mention to the links provided above.

Any other suggestions?

[Directive/2004/38/EC]

Their version of Regulation 7 that they use in South Africa does not include:
"dependants of his, his spouse or his civil partner"

What do you mean? Who are "they" exactly?

[rota919]

"They" will be the Entry Clearance Officer in the UK Embassy in Pretoria, South Africa.

He quoted Regulation7 as:

i spouses / civil partners;
ii. descendants under 21;
iii. dependent descendants 21 and over; and
iV. dependent direct reletive in the ascending line.

[Directive/2004/38/EC]

The details of who is a "family member" is outlined at: http://eumovement.wordpress.com/2008/04 ... ly-member/

The UK transposition of this is at: http://www.opsi.gov.uk/si/si2006/20061003.htm#7 They also consider your son to be a family member.

7. —(1) Subject to paragraph (2), for the purposes of these Regulations the following persons shall be treated as the family members of another person—
(b) direct descendants of his, his spouse or his civil partner who are—
(i) under 21; or
(ii) dependants of his, his spouse or his civil partner;

Your son, who is either under 21 or is dependent on you, is considered a family member of the EU citizen.

You should contact Solvit to start getting their assistance. http://eumovement.wordpress.com/help-eu-solvit/

You should also contact the HC to let them know that they have made a mistake.

Did they give you information about how to appeal? How easy is it to submit a new application?

[rota919]

Your son, who is either under 21 or is dependent on you, is considered a family member of the EU citizen.

You should also contact the HC to let them know that they have made a mistake.

Did they give you information about how to appeal? How easy is it to submit a new application?

Exactly my point, he is under 21 and that's the end of the issue.

I would love to be able to contact the HC but VFS Cape Town simply refuses to give the contact detail. They are so helpful it makes you eyes water.

They did give appeal info:
1. Fax to a UK number
2. Post to First-tier Tribunal in the UK
3. Return the documents to the Visa Section, with an address in Pretoria.

I am not sure from this info if, when returning the appeal form to Pretoria, they will look at the appeal locally or still forward it to the UK.

It is easy enough to re-submit, his nearest Visa Application Centre is about 2 hours drive from where he lives. (Pretoria is about 1,5 hours flying from where he is.)

My feeling is to re-apply and instead of just referring in the cover letter to the Immigration Regulations 2006, rather refer to the specific Regulations dealing with this.

Regulation 7. —(1) Subject to paragraph (2), for the purposes of these Regulations the following persons shall be treated as the family members of another person—

(a) his spouse or his civil partner;

(b) direct descendants of his, his spouse or his civil partner who are—

(i) under 21; or

(ii) dependants of his, his spouse or his civil partner;

(c) dependent direct relatives in his ascending line or that of his spouse or his civil partner;

(d) a person who is to be treated as the family member of that other person under paragraph (3).

and

Issue of EEA family permit
Regulation 12. —(1) An entry clearance officer must issue an EEA family permit to a person who applies for one if the person is a family member of an EEA national and—

(a) the EEA national—

(i) is residing in the UK in accordance with these Regulations; or

(ii) will be travelling to the United Kingdom within six months of the date of the application and will be an EEA national residing in the United Kingdom in accordance with these Regulations on arrival in the United Kingdom; and

(b) the family member will be accompanying the EEA national to the United Kingdom or joining him there and—

(i) is lawfully resident in an EEA State; or

(ii) would meet the requirements in the immigration rules (other than those relating to entry clearance) for leave to enter the United Kingdom as the family member of the EEA national or, in the case of direct descendants or dependent direct relatives in the ascending line of his spouse or his civil partner, as the family member of his spouse or his civil partner, were the EEA national or the spouse or civil partner a person present and settled in the United Kingdom.

I am seriously considering contacting Solvit as it is not the first time I had issues with the HC in SA, my application took 4 tries and 2 months, resulting in me being stranded in SA in 2008.

Was sure I saw a good cover letter somewhere on the boards but I cant find it.

Do you think contacting Solvit, stating my issue and that he is going to re-apply would make any difference? Sort of try and get the application and response from Solvit, in the HC at the same time...

[Directive/2004/38/EC]

I would definitely contact Solvit. It does not hurt at all.

You should also reapply. Include a cover letter that explains that your son is covered by the law, that the visa section has made a serious mistake, and include a full printed copy of the law with the sections highighted.

I would even ask for an explanation as to why they did not process the previous application in compliance with the law. But then I am like that...

[rota919]

I just submitted a complaint to solvit and are preparing a new cover letter.

I was scared to not say anything in the cover letter that might hamper the application... but you know what?

VFS , the HC and HO are providing a service, and as service providers they need to take responsibility for their decisions and like everyone else they need to abide by the law. If they don't we have full right to get upset and "show" them we know what we are talking about without fear of any backlash. There are systems in place that protects both us and them.

I am not saying "be rude" I am saying "do not be afraid" to make statements based on facts and demand explanations for things you do not understand.