FOOD FOR THOUGHT EEA LAW

[montana]

SCENARIO 1;
If someone is living illegally in this country and the EEA Family want to apply for her residence card,would they deny he/she because of the illegal status especially if he/she came through a truck with no visa .(what sort of documents would they need).
SCENARIO 2 :
What would be the case if an EEA family member applied for a residence card for a non family member whose abroad(where the send their passport over and he applies for it).What sort of documents would they want in this case.

[maomao]

My friend am not sure if a right but stand to becorrect bye anyone.
From what i know about EEA Nationals to a Visa Nationals if you are able to prove your relationship with the EEA National, mainly marriage certificate or birth Cert. then you have no problem under EU Law. But now i think they are dealing with a new regulatonif apply now is called 'Derivative'.
if can show to the registrar your valid visa and proof of address for pre-marriage they would allow you to get married. But after that Homeofficeat times will refuse your application their by given you right to appeal . In Court according to the EU reg. they must gr migrant goe through marrieage registration police alart. am afraid.

[maomao]

if this is insuffient please let me know

[maomao]

You second question i think is is not working under the EU law. Simply put it, the person must be inside the UK to apply for RC.Passport without visa or showing stamp when you entered is not acceptable fow RC especially when the person is absent.

[montana]

My friend am not sure if a right but stand to becorrect bye anyone.
From what i know about EEA Nationals to a Visa Nationals if you are able to prove your relationship with the EEA National, mainly marriage certificate or birth Cert. then you have no problem under EU Law. But now i think they are dealing with a new regulatonif apply now is called 'Derivative'.
if can show to the registrar your valid visa and proof of address for pre-marriage they would allow you to get married. But after that Homeofficeat times will refuse your application their by given you right to appeal . In Court according to the EU reg. they must gr migrant goe through marrieage registration police alart. am afraid.

FAMILY MEMBERS DNT ONLY MEAN WIFES.I MEANT OTHER FAMILY MEMBERS.

[montana]

You second question i think is is not working under the EU law. Simply put it, the person must be inside the UK to apply for RC.Passport without visa or showing stamp when you entered is not acceptable fow RC especially when the person is absent.

YOU CAN APPLY AND SIMPLY STATE THEY IN THE COUNTRY EVEN WHEN THEY ARE NOT.

[Greenie]

But they will know they are not in the UK because there will not be a visa/permit/entry stamp in the passport, unless you are going to falsify that too?[/b]

[fysicus]

Scenario 1 has been answered by the Metock case, where it was determined that it did not matter how you entered the country. Of course you still need to prove the family relationship, etc.

Scenario 2 sounds more like fraud to me, and should therefore not be discussed on this forum.

[Jambo]

Scenario 1:

Depends if the person is direct family member of the EEA national or not. If direct member then, rights are derived automatically and once the EEA national exercise treaty rights, he is not illegal regardless if he holds a RC or not. The HO will not reject an application based on his previous immigration history.

If the person is extended family member, then if the HO is not convinced the person falls under this category, they most likely will keep the person passport. However, an appeal would be allowed. The immigration history is not a factor in the decision but is a factor if they decide to reject the application (in case the HO believe that the EEA requirements have not been proved).

Scenario 2:

No. RC should be applied in country and in any case I don't see the point of applying when the applicant is not in the country. What's is the purpose of that? If to facilitate travel, then EEA Family Permit is issued much quicker than RC. If this is for PR in future, then PR is based on physical residence in the UK and it doesn't matter how long the applicant held the RC (or if it was held at all).

[keffers]

In the case of extended family members they will still have to demonstrate household membership or dependency in the country from which they come.

There is caselaw that specifically addresses not applying for a family permit before travelling.

[ravii]

Scenario 2::It is illegal to sent passport to abroad in any way.i.e.by post or by carrying in person.and UKBA is not a baby,they are well trained.no chance in any way.

[Obie]

Scenerio one is more or less possible for spouses, but for dependant family members, there is a requirement to show dependancy, which has to be assessed. It is much better to apply for an EEA family permit, to save the hassle.

I can see and understand the frustration, but scenerio 2 can lead to many problems, firstly it may not be legal , secondly they will be found out when the person enters the UK, as records will show they never went out of the country, and there will not be an entry stamps when they entered the country they claim they are arriving from. If you do scenerio 2 and then the application is refused, which seems to be routine with applications relating to dependent family members, and then you have to appeal, then it will be difficult to get your family member to attend court, and show dependancy exist.

You will be required to show dependency in the UK, by means of money transfer, and also the family member are required to show proof of residence as part of the EEA 2 application. All this makes scenerio practically impossible, if not illegal, which i suspect it may be.

I will suggest you do this by the book, make the application, if it is refused, proceed to an appeal, and if the family member is trulely dependant, you can take then on neck and neck, tooth and nail, and i am confident you will knock them out of the ring if there are credible evidence of dependancy within the definition i provided previously.

[Obie]

In the case of extended family members they will still have to demonstrate household membership or dependency in the country from which they come.

There is caselaw that specifically addresses not applying for a family permit before travelling.

There is no caselaw on this, by the legislation is quite clear that for residence longer than 3 months a document called Residence Card may need to be obtained.
This is a clear indication that Residence card is only for people staying in the host memberstate for period that exceed 3 months.

[keffers]

The regulations are quite clear. To qualify as an extended family member (OFM) dependency or household membership must be shown in the country from which the person came.

To obtain a RC as an OFM you must first be an OFM which is an almost de facto state if family permit has been obtained.

Sneaking into the country as an alleged OFM does not do away with the requirement of proving dependency/household membership.

Try Moneke.

[mcovet]

1) no difference how they came to the UK, even if in a bath tub over the Channel, so long as they qualify for residence once here. In only VERY VERY limited circumstances can illegality cause a refusal and that is in cases of public health and safety matters etc. which is clearly not the case in 99.9% of cases;

2) as a matter of principle, a person trying this method, is NOT doing anything dodgy as the form does not (as far as I remember) explicitly state that you must be in the UK to apply. And, to disappoint many, this has been done by one of my acquaintances in 2006-2007 when they had parents who visited them on a tourist visa then send them passports back via a private courier company (it can also be done by passing it to someone in the airport, no problem getting passports back to the UK if needed) and they applied as dependents of an EEA national.

Back then there were no stringent rules in proving dependence as opposed to now, so that's that as they simply provided a sworn statement the parents were dependent on children (which they had been and they initially applied for a Family Permit back home, but the UKBA did not have the facility at the time and was issuing standard tourist visas to everyone).

And to further destroy the myth on the border guards being able to check stamps etc. Those parents travelled successfully on those EEA RC when coming to the UK (they waited abroad for around 6-8 months while the application was being processed) and then entered the UK without a hitch. The border guards in airports are still confused as to the application of the EU law and also never pay attention to other stamps, especially at the EEA queue, the system also never says whether a person is IN or OUT of the country, as many dual nationals travel on different passports when exiting the UK and coming back.

Therefore, before anyone slates me for stating the obvious, it is NOT openly fraud to apply from within while the person is abroad and, rather, it is for the UKBA to demand proof that the person is in the UK at the time of the application, which is not currently part of the process. Equally, at the stage of applying for PR, the person would have to prove their presence in the UK over a period of 5 years, but it is also not a big problem to open a bank account or otherwise include the person as a named driver on an insurance policy or on a credit card where the name would appear; so this is very doable and not illegal (as much as many may disagree and could say that to be a named driver or added to a credit card the person must be resident in the UK, but it is only a breach of contract and no fraud involved as there is no benefit obtained through deception- MATERIAL benefit!).

The UKBA should, if they do not accept the application, send it back and ask the applicant to apply for a family permit from abroad.

Now, this probably would apply in cases where distant relatives are involved rather than spouses/kids.

Do everything above at your own risk, this is not advice but retelling of someone's experience from many years back and some theoretical pondering.

[mcovet]

The regulations are quite clear. To qualify as an extended family member (OFM) dependency or household membership must be shown in the country from which the person came.

To obtain a RC as an OFM you must first be an OFM which is an almost de facto state if family permit has been obtained.

Sneaking into the country as an alleged OFM does not do away with the requirement of proving dependency/household membership.

Try Moneke.

this is true, sneaking into the country and then claiming to be dependent is not going to work, the same proof will be required as if the person were abroad and so the immediate application of the dependency in the UK wouldn't help...don't even know if my story above would apply nowadays in practice as dependency has to be checked where the person came from/lived prior. The good thing with the tourist visa would be that if it was issued on the basis of the EEA national being the sponsor, it'd help proving the non-EEA (OFM as keffers says) isn't self-sufficient...

[Jambo]

Equally, at the stage of applying for PR, the person would have to prove their presence in the UK over a period of 5 years, but it is also not a big problem to open a bank account or otherwise include the person as a named driver on an insurance policy or on a credit card where the name would appear; so this is very doable and not illegal (as much as many may disagree and could say that to be a named driver or added to a credit card the person must be resident in the UK, but it is only a breach of contract and no fraud involved as there is no benefit obtained through deception- MATERIAL benefit!).

So on top of all, you would advise creating the impression that a person is resident in the UK so he will qualify for PR earlier. We certainly have a different view of 'right' and 'wrong'. I wonder what you do for living. A solicitor maybe??

[mcovet]

A solicitor maybe??

hahahaha we all have the same understanding of what's right and wrong. The problem is, many people do not say the ways people deal with the UKBA out loud and rather brush everyth under a rug, while all I am saying is that IF NEED BE there are ways people do create an impression someone is present etc. It is then up to each individual to make the choice and, if caught, deal with the consequences, having knowingly chosen to take that particular step.

It's the same as stopping films showing different ways of murdering victims in movies so not to put an idea in someone's head. I am only saying what everyone else is thinking or already knows.

[Obie]

Mcovet please refrain from giving advise that is clearly illegal and could get people in many troubles and affect their credibility. Remember you are on thin ice. This means you are only one single step from being banned from the forum altogether. Try and act by the rules.

Firstly, you will be gaining something by deception if you use a bank statement as proof of address when you are not living in the UK.

If as you said the OP's family member is an OFM, then there is a discretion regarding the issuance of Residence Card. Conduct might play a role in this discretion.

From my understanding on dealing with OP previously, the family member in question is his mother, she will qualify as family member automatically, without having to resort to conduct which might get an elderly person into many trouble, which is not worth it at all.

I believe the OP should proceed in the right and legal step and i am confident he will prevail ultimately.

[montana]

The regulations are quite clear. To qualify as an extended family member (OFM) dependency or household membership must be shown in the country from which the person came.

To obtain a RC as an OFM you must first be an OFM which is an almost de facto state if family permit has been obtained.

Sneaking into the country as an alleged OFM does not do away with the requirement of proving dependency/household membership.

Try Moneke.

this is true, sneaking into the country and then claiming to be dependent is not going to work, the same proof will be required as if the person were abroad and so the immediate application of the dependency in the UK wouldn't help...don't even know if my story above would apply nowadays in practice as dependency has to be checked where the person came from/lived prior. The good thing with the tourist visa would be that if it was issued on the basis of the EEA national being the sponsor, it'd help proving the non-EEA (OFM as keffers says) isn't self-sufficient...

If they applied for a tourist visa then the Financial threshold comes in for EEA Nationals if they sponsoring a non EEA family member for a tourist visa is init???

[montana]

Mcovet please refrain from giving advise that is clearly illegal and could get people in many troubles and affect their credibility. Remember you are on thin ice. This means you are only one single step from being banned from the forum altogether. Try and act by the rules.

Firstly, you will be gaining something by deception if you use a bank statement as proof of address when you are not living in the UK.

If as you said the OP's family member is an OFM, then there is a discretion regarding the issuance of Residence Card. Conduct might play a role in this discretion.

From my understanding on dealing with OP previously, the family member in question is his mother, she will qualify as family member automatically, without having to resort to conduct which might get an elderly person into many trouble, which is not worth it at all.

I believe the OP should proceed in the right and legal step and i am confident he will prevail ultimately.

Thank you all for your advice and concerns.However,it has nothing to do wirth my mother r any of my family members but upon them being denied the PF.I have actually found myself reading about immigration law and actually instead of researching for my PHD Thesis in Enginneering.What am i say?All am saying is you immigration advicers on this forum whether solicitors,trainees etc ,i think you find dealing with you rights and movement quite an interesting topic and it keeps your brains thinking and it brings an extra kick to the Brain coz every day it brings something new hence you cant really start slating each other off cause it also good not to limit your minds creativity in thinking cause this FOOD FOR THOUGHT thing was open to banter
CIAO for now!!!

[montana]

In the case of extended family members they will still have to demonstrate household membership or dependency in the country from which they come.

There is caselaw that specifically addresses not applying for a family permit before travelling.

What is this case law which doesnot specifically address not applying for a family permit before travelling

[keffers]

http://www.bailii.org/cgi-bin/markup.cg ... od=boolean

but first read the preceeding case

http://www.bailii.org/cgi-bin/markup.cg ... od=boolean