wife is96 temporary admission-no work, live at X and report.

[wiggsy]

went to the solicitor today.

He said we have three options to us:

1) Zambrano, however our case is "borderline"
2) another article 8 immigration FLR(M) application
3) Move to another EU country and work/seek work for six months. Then we can legally return together under the freedom of movement.

unforetunately, the guy who i saw today has an extensive caseload - so is going to see what others are doing if they would be able to take on our case.

He said the refusal letters were not correct either. that their reasoning breached article 8
- refusal letters mentioned modern communication: internet/phone ETC - which is not the same as a family living together - by all intent and purposes a family live together - simple contact is not enough.
- also mentioned "not excessively disrupting the family life" - he said that the guidance is "will it disrupt family life?" "yes, because i would be parted from my family, or my wife would..."
amongst other things...
- he said my arguments about not being able to care for children and work etc were good arguments on the ECHR etc.

on the bonus he has said that whilst EEA2 is the correct form to use. he has had two or three of the same applications back in december / jan where they have requested the other form too. - so to complete both forms, and send them together. - they are deciding cases now = and any application MUST result in an immigration decision... IF they say its not a valid application, it can go to JR still.

- on the other note: my wifes passport expires mid march (the one that expires in jan is the one that is full) - so he said, whilst we cannot "falsely represent" - he would suggest we apply for a new passport at her embassy on the grounds of her old one expiring... then if we chose to use the freedom of movement for work ETC it would apply. - and after six months, she should be allowed to return to this country without hinderance.

i forgot to ask him how we would stand if she returned home... but we will see. - hopefully one of the other solicitors in the firm will be able to help.

BTW: I have lived in Finland whilst i was in my teens., working as an IT support technician (apprentice post) in 2004. - this means that I am considered an EEA national - and not just a British Citizen - correct?


- also, he said if we couldnt afford the fees for FLR(M) application (human rights) we can get "discretionary funding / fee waiver" (forget what he said exactly)

but he said exactly what you said - legal aid has no bearing what so ever. the only thing is legal aid requires the solicitor to think "what precentage of success does this case hold..." if its less than 50% chance then no funding will be allowed.

plus in april no funding will be allowed - except for cases started prior to april under an existing funding certificate - so he advised us to progress via another solicitor if his collegues didnt contact us ...
and actually said he would recommend attempting to start the case ASAP BEFORE funding was removed (as its £1500 fee for a JR application - but he said whilst nothing is guarenteed - he would say we stood a VERY HIGH chance of coming out successful at JR. - so if needed we would put this fee on Credit Card or something

he then went onto say... whilst he couldnt recommend - and never would advise anybody to breach conditions of admission... he could see that my wifes reporrting conditions could be reduced to once every six months easily... - so to write into the UKBA stating our circumstances... that with my work commitments, and my childs education that reporting results in undue hardship for childcare ETC or it would result in my daughter (a british citizen) loosing out on valuable education time.
- however, he said whilst on Temp Admission IS 96 the reporting would be required at some point... (at least 6 months or so)

(tryed to sum up everything as much as possible, but the meeting was free - although it went over an hour... which was really good of the guy etc...)

but he did say whilst applying for option 1 (zambrano) would not hinder us... (as many free/paid etc visa applications can be made as you wish) the human rights approach would yeild the best possible outcome - esp if it goes to JR.

edit:
ahh, Also.
he said the 5 year rule for PR would apply from date of application under zambrano/ECHR ETC. so would be 5 years from around today (when we apply).

[Obie]

Well he seem to be spot on, on all the advice he gave you, save for the last paragraph. I am a bit unfortable with that. As things stand, a Zambrano application does not lead to Permanent Residence at Present. Cases are coming from the CJEU which might change this, beneficiaries of that category cannot acquire PR.

[wiggsy]

zambrano doesnt include the 5 year living in a country and get PR card?

[not sure if you were refering to the "zambrano wont hinder us" section.]
= he means whether it is sucessful is to be seen, but even if it fails, it wont put us in any worse a position than we are in currently. - it could infact put us in a better position because they HAVE to make an immigration decision to which JR will apply.

- ive just spoken to a friend, about this, and he told me that he is actually on the option 3 (work in different eu country with british wife, and return).

he was pretty much in the same position as us - he put a FLR application in, it was refused, so he stayed anyway - without a guarentee to be able to return.

he wrote a letter to UKBA to get his passport back, they met him at ferry for ireland and gave him the passport there. (they essentially did a volentery deportation to ireland with his wife)

he and she worked in ireland in friends restaurant for 9 months and then returned to the uk applied for EEA2 card and was given to them no problems.

We are about to post our EEA2 application for basis of our son, if it fails, we will go to ireland (his friend said they can always find jobs for us, and are happy for us to share their house until we find somewhere) [might be tight, but might make things easier in the long run]

plus ireland has the CTA agreement with UK, so it will still give us "access to benefits" should we need any - not sure how Tax credits work etc, but thats the next step we need to look at.

Im also writing a letter to my MP with wifes HO ref, and hoping he can help the SOS show a little extra discretion to allow the application.

[wiggsy]

I missed the post yesterday to post application by registered mail.

so ive been thinking... I have a Dr Apt on wednesday, would it be worth while asking my doctor to write a letter to "support" my wifes application... (Whilst i consider myself "fit to care" if required, i really would struggle to care for my kids on my own...)

I work, full time, but the work is "easy" compared to caring for children (as any full time parent will tell you (the main carer)).

I take a large amount of (prescription) drugs, and often at night need to take sleeping tablets to get a "decent" nights sleep (due to pain Etc).

would this information be wise to include in the application (and therefore postpone posting the application)

I didnt think about asking this when we went to the solicitor.

- i notice that my wife could be considered my "main carer" too - and EEA2 resident card could be issued on that basis too.

would it be wise for me to get dr to write a letter to the effect of it would be detrimental to my health to be sole carer for a child... (i would have to pay for this letter, but if it helps our case thats not an issue)

[Obie]

Yes i believe a supporting doctors letter will be a plus to a Zambrano application.

I like your plan B. Going to Ireland to work will be a good step in the right direction.

[wiggsy]

I like your plan B. Going to Ireland to work will be a good step in the right direction.

i think ireland would be the best place, because just like the schengen(sP) of europe, there is essentially no internal border control between ireland and uk...? so if we decide to return to uk (england) we wont have any problems.

also, zambrano application:
i read that deritive residence doesnt count towards 5 years PR on the ukba website.

http://www.ukba.homeoffice.gov.uk/eucit ... erivative/

Permanent residence

Time spent in the UK with a derivative right of residence does not count as residence for the purpose of acquiring permanent residence in the UK. If you have a derivative right of residence you cannot acquire permanent residence on this basis. You will only continue to have that right of residence for as long as you qualify for that right.

if my wife gets granted this deritive residence card, what could she do to get proper leave to remain... is it a case of just applying for a FLR once or IF card is granted, or?

I also read somewhere that she might not be allowed to work even if Detitive residence is granted... is this true?

I am a non-EEA parent or primary carer of an EEA national self-sufficient child - can I apply to remain in the UK? Following the ruling by the European Court of Justice (ECJ) in the case of Chen (ECJ C-200/02) the parent(s) or primary carer of an EEA national child is entitled to reside in a Member State with a self-sufficient EEA national child solely to facilitate the child in exercising their Treaty rights. The child must have comprehensive sickness insurance and be self-sufficient. This means that they must not rely on funds earned by a non-EEA national parent(s) or primary carer in the UK, unless this comes from legal employment or self-employment (if the parent(s) or primary carer is in the UK on a work permit).

In cases where the non-EEA national parents or primary carer wishes to reside in the UK on the basis of their relationship with an EEA national self-sufficient child, then they can apply for leave to remain under paragraph 257C of the Immigration Rules. The leave granted does not allow the parents or primary carer, the right to work in the UK and does not lead to permanent residence or indefinite leave to remain. Applications made on this basis are free of charge and should be submitted on an EEA2 form.

would this apply to the parent of a british child?

[wiggsy]

So, last week i emailed UKBA with regards to my wifes EEA application.

I asked them how long they expect to hold mine and my daughters british passports for, and that holding our passport actually hindered our rights under directive 2004/38/EC (free movement within the EU).

i also stated that them holding the passport of a non-eea family member of an EEA national was the same effect...

(amazingly today she got her COA for the EEA application.)

it states: they cannot confirm her right to work...

then includes THREE (yes thats a big number i know, but 3) question / answer faqs regarding being unable to confirm her right to work.

1) applying as the primary carer of an EU citizen excersising free movement within the uk as a SELF SUFFICIENT. - doesnt apply
2) unmarried partner / extended family member (EG: brother/sister) of eu citizen excersising free movement rights within the uk - doesnt apply
3)not provided satisfactory evidence of her id - doesnt apply

also the COA is addressed to Mrs (maiden name). dispite letter and application stating her name as MRS (married name) and proof of name change (marriage cert) being sent along with application.

I am going to emaiil liverpool rearding this... but does anybody have any input on what to include in the email...

i believed that if she is supporting a british child as the primary carer they must give her the right to work?

as i said, their three reasonings to why no right to work do not apply... our child are british citizens, she is married to me a british citizen since birth, and they know very well her identity.


HOWEVER: the COA does not state that it is being treated under the DRF application. and it states that the application

"We will make a decision on the application as soon as we can and, in any event, within the next 6 months".

DRF applications do not have the six month time limit as far as im aware, so i believe that, despite ukba "misleading info" my letter to them with proof of working within the EEA must show them that I have excersised my right as an EEA national, and must be treated as such... (at least i hope so - as an EEA family permit permits more "priviledges" than a DRF redidence card - IE: PR after five years... unlike DRF)

if its useful, i will scan and upload the COA (which is a scanned paper, and therefore i doubt any employer would accept it as proof of employment in any event anyway... at least not without confirmation from ukba...

- edit
also, noticed that my passport may be at royal mail office for collection - failed delivery with the same delivery code as the one i attached on the recorded deliver for my passport - no sign of the daughters though....

[wiggsy]

OK,

when i went to RM office, turns out that the delivery code (signature barcode) was slightly different (a six instead of a 9). My passport is still with UKBA.

However, Ive been complaining hard and loud since the issuing of my wifes COA, which didnt confirm her right to work but didnt deny it either (cards close to their chest and all).

I booked an apt with NINO office to get my wife a nino this morning, and once that was sorted was intent on the "My wife is going to commence employment based on..., if there is a problem with this, please response within 21 calander days with the reasoning for this refusal." - thereby enabling us to open up JR on this decision, as Zambrano has settled that if a child is british, the british gov have to allow their parent, even if non eea the right to work within the uk.

So, i emailed this last night to UKBA complaints, Euro Liverpool, and Solvit in england, along with my MP.

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

got this response first this this morning - from uk solvit...

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

From:
Korcz Christine (ETID) (Chris.Korcz@bis.gsi.gov.uk);

To:
xxxx

Date:
Wednesday, 13 February 2013, 9:39

Dear Mr xxx

If it is your intention to take a matter before the courts, then SOLVIT is not able to intervene, as we are unable to consider a complaint where there is also a legal action.



If the application is being made because you have previously resided and worked in Finland, in line with the Singh ECJ ruling, then you would need to make a complaint about the outstanding UK COA to SOLVIT Finland, email: solvit@tem.fi It is the COA that will confirm to DWP that your wife is recognised as having the right to reside while the residency application is being considered.



Christine Korcz

UK SOLVIT Centre

Direct line: 020 7215 xxxx

I set a couple of other messages but he said basically UK Solvit cannot process it, and for the purposes of EU law, i am effectively a finnish citizen, so need to use their centre... so i sent this to finnish solvit...

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

From:
xxxx


To:
solvit@tem.fi;

Date:
Wednesday, 13 February 2013, 13:11

Dear Sir/Madam,

I am writing to you today in reference to my Wifes EEA2 application lodged with UKBA. I am a UK British Citizen, who has excersised my right to work in Finland, in 2004. I worked at the Espoo Institute of Business during the summer of 2004. I am therefore for the purposes of Directive 2004/38/EC essentially to be treated as the national of an EEA member state (In this case Finland) for the purposes of my return to the UK.

Since return to the UK, I have been an Employed Worker - and "Excersised treaty rights" within the UK. I have made this position clear to UKBA.

My wife (xxxx) is a third country national (NON-EEA) from Indonesia. We have two British children together: xxxx , born 11-09-09 and xxx born 21-7-12. XXX is the Primary Carer for our children. The children being physically and emotionally dependant upon their mother.


As I outline in my post to the UKBA, my local MP and Solvit based in England, 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. The ruling:

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.



By UKBA failing to to verify my wifes right to reside and work within the UK they are depriving my children the rights attached to the status of being EU citizens. I had a response from UK Solvit who informed me that my complaint needs to be raised via the Finnish Solvit department, and that they could not raise complaints against the UK themselves. I would therefore appriciate that you could deal with this matter on behalf of myself and my wife.



My wifes name is: Mrs x (Maiden name, before marriage, Miss x)
My name is: xxx
Our address is xxxxxxxx

Thanks,

xxx xxxx


----- Forwarded Message -----

...
cont...

[wiggsy]

i got this response from finnish SOLVIT.

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

From:
solvit-fi@tem.fi (solvit-fi@tem.fi)

To:
w_pearsall@yahoo.co.uk;

Date:

Wednesday, 13 February 2013, 13:44

Dear Mr x,



Thank you for contacting the Finnish SOLVIT centre. We will look at your case and come back to you on this.



Kind regards,

Leila Vilhunen

SOLVIT Finland

Ministry of Employment and the Economy

and just a few minutes later this came to my inbox:

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

From:
EREC (EREC@homeoffice.gsi.gov.uk)

To:
xxxx;

Date:
Wednesday, 13 February 2013, 13:44

Dear Mr xxx,

Thank you for your email which has been passed to me for a response. I can advise that a full Certificate of Application confirming your wife’s right to take employment has now been issued and sent out from our offices.

Please accept my apologies for this administration oversight.

I have also sent your request below for the passports which were submitted in support of your wife’s application to be returned to you. The submitted documents should be returned to you in the near future.

Thank you for your patience in this matter

Kind Regards,

Paula Scott
Senior Caseworker

now whether or not it is linked to the email to solvit, after six or seven previous emails/letters since jan, the only difference this time is bringing it to the attention of: Solvit, and my MP.

I highly recommend anybody using this approach if it applies to them. (I am lucky to have been employed in Finland, even though UK do not consider me an EEA national for this application, I have not left the UK since return, so I am essentially still an EEA national - although my wife did not live with me in the EU! - I am relying mostly on the DRF section, but draw attention to other possible forms - i doubt the uk wants my case to go to JR / EU Courts, as it could open a floodgate where a person marries AFTER return to the uk, having excersised eu movement

Im hoping that this is a step in the right direction...


Step 1: Right to work - Confirmed... (although COA not arrived)

Next step: remove reporting conditions of IS96...

Today appears to be a good day


- "the louder you shout the more chance you have of being heard!" -

[Obie]

Great stuff, lets see how the next few week shape up.

[wiggsy]

definately...

its all in legislation of EU already... my wife clearly has the right to reside in the uk...

UK are twisting EU RULINGS... (it doesnt state in zambrano ruling that must be sole carer etc)...

applying for wifes driving license, got job application going in, and so on today...

driving license application is hindered by lack of passport, however, without a passport / home office RC, she can supply the following:

driving license
---------------

list a

one document

imigration status document, ISD - UKBA.
home office issued travel document
home office certificate of identification


list b

four docs

expired european or none european passport
expired eu id card
national insurance card
photocopy of benefits letter
marriage or devorce cert
pay slips
p45/p60
Home office / DWP / HMRC letters

IS96 and COA are both considered as an ISD? and the list b docs are no problem: Tax credits letter, Marriage Cert, lots of HO letters, and she has expired passport (old one) = hopefully soon a pay slip.

going to contact UKBA and request a clear Immigration Status Document though, and then pop to DVLA in birmingham to put application in (I can teach wife the basics, and to add her to my car insurance actually LOWERS my premium - age? - disgusting eh? )

obviously, we will be happy with right to reside etc (DRF card) but we might well still go to ireland (looking into living there, it actually does look promising ETC - some nice areas ETC - and contacted a few Irish employers outlining my experience etc - they are eagar for me to "pop over and see them" (as if its only a stroll down the road lol)

Im actually quite impressed with this, and solicitors have been unable to get us to this point... but info gained here - on this forum mostly - and searching the web (following this forum) has helped beyond belief!.

Obviously, the Self employed "approach";) wont be needed if DRF comes through fine... but the proper EEA route looks good.

my wife cant drive a manual (most cars are auto in indo) but im sure i can teach her... then a few lessons to brush up the skills... (remove any bad habits I pass on). - £23 an hr for lessons

So many more things to approach, and like i say, right to work being confirmed is only one step, but at least were on the right path now

[wiggsy]

so, i sent this email to UKBA (aimed at the senior case worker, Paula - who confirmed wifes right to work in the UK)

Paula,

Thank you for replying to this matter.

My wife has also been in contact with the DVLA in regards to gaining her Driving License. She has been told that she would need to provide the following in order to apply for her driving license in the UK (as she currently holds no RC / Valid Passport - passport is with yourselves at Euro Liverpool).

driving license applications without sufficient photo ID must provide at least one document from list a and four documents from list b:
---------------

list a (one document)

imigration status document, ISD - UKBA.
home office issued travel document
home office certificate of identification

list b (four docs)

expired european or none european passport
expired eu id card
national insurance card
photocopy of benefits letter
marriage or devorce cert
pay slips
p45/p60
Home office / dept WP letters

As we currently have sufficient documents from list b, the only problem my wife has with gaining her driving license is one document from list a. DVLA havee said that an Imigration Status Document (refered to as an ISD) , Cert of ID or Home office issued travel document is needed. Can you confirm as to how my wife would gain one of these documents... Obviously, the COA provides proof of entitlement to live and work in the uk for 12 months (to get a driving license you need to be resident for six months) but DVLA are unsure as to whether a COA would constitute to the meaning of a ISD. Can you clarify please?

Also, I note that my wife would need a copy of her passport so as to be able to apply for work positions in the UK (satisfactory proof of ID - and proof of ID for her National Insurance Number) - She has an appointment with DWP on 20th Feb to gain her NINo. can you please advise as to whether the COA will be suffienent ID to gain her NINo for the purposes of ISD?.

Thanks,

Mr x

and got this reply today...

Dear Mr WRONG NAME SPELLING (TOTALLY),

Thanks for your email. An Immigration Status Document is usually an immigration vignette which is not endorsed in a passport. So in effect, it is a decision on an application.

I’m afraid I can’t advise as to whether DVLA or DWP would accept a COA as appropriate for their purposes as UKBA do not govern these bodies.

I hope this helps,

Kind Regards,

Paula

So, basically, the COA doesnt technically allow my wife to work, as she may not be able to get a NINO without her passport (will do my best though, as we have a hell of a lot of documents etc)

Also, I think she may of been a little "upset" by my email - it was kind of a "dig", i know... but, whilst the Iron is hot and all, Ive sent this following email (as Obie said, they cant remove her, and an IS96 is an administrative removal document... either they will remove her and breach EU law, or they have to end her restrictions...

if they fail to end her restriction... I guess that this means that Judicial Review is open? am I right or wrong on this? - JR is available for 3 months from the date you are aware a government body has "wronged" you?

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

From:
xx

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

Date:
Thursday, 14 February 2013, 16:52

name and address

Dear Sirs,

I am writing to you in regards to the application of my wife: Mrs XXXX

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

Further to my previous emails and correspondence, I am also writing to confirm the current IS96 restrictions upon my wife.

As stated in previous communications, Case C34/09 clearly states that a parent of a EU Citizen cannot be removed from the member state. This includes the home country of the citizen. I see that the UK reads this ruling differently to the wau it was intended but, the ruling was VERY CLEAR and SPECIFIC:

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 an IS96 reporting document is actually an Administrative Removal document, and it means that my wife is under removal instructions, I would state that this document breaches the EU regilations... I also note that the Border Operations Manual provides advice as to the issuing of a Temporary Admission.

As such, I would also expect confirmation in writing removing all restrictions which have been placed upon my wife. This includes reporting restrictions, work, and the right of my wife to reside at any address she so chooses to. - As EU law does not permit you to remove my wife, the fact that an IS96 document has been issued, despite a clear Derivative right of residence, and a CLEAR EEA2 application being valid: As stated, I worked in the EEA (Finland), therefore - following directive 2004/38/EC my family members are entitled to JOIN me upon my return to the UK. This JOIN does not state that my family member must travel with me at the time I return to the EEA home state (Surinder Singh case).

You have proof of my employment at the Espoo Institute of Business (confirmation letter attached to my wifes EEA2 application).

Please come back to me ASAP with a response to this... Here is a list of some interesting cases for you to look over:

Eind (C-291/05)

HB (EEA right to reside - Metock) Algeria [2008] UKAIT 00069

Important Judgement : EEA Family Permits
M (Chen parents: source of rights) Ivory Coast [2010] UKUT 277 (IAC)
Lassal, New ECJ ruling on Permanent Residence.

Zambrano case
Zambrano considered
Omotunde (best interests - Zambrano applied - Razgar) Nigeria [2011]
Sanade and others (British children - Zambrano – Dereci) [2012]
UKUT 00048 (IAC) AB & Anor v Home Office [2012] EWHC 226 (QB) (16
Court of Appeal grapples with Zambrano > Harrison (Jamaica) v Secretary of State for the Home Department [2012] EWCA Civ 1736 (21 December 2012) (scope of the Zambrano principle)


In addition to this, please confirm that you have filed the complaint raised against Richard for his discrimination against my wife on her reporting event on 7-2-13. The fact that Richard stated my wife would be refused entry into Ireland was clearly discrimination. The fact that my wife is "encouraged" to "Go Home" (She is at home - with her family - two dependant children, and her husband) is clearly discrimination. The basis of this discrimination: Her lack of "official documentation to prove she has a right of residence".


EU Law is her proof of residence: We attempted to regulise her stay within the UK and the process failed. with the response "There is no reason Mr x and x could not return to Indonesia with you" - thereby accepting that if my wife leaves the country so would her dependant. - and clearly this Immigration Decision (which gave no right of appeal?) was contrary to EU Law (as evidenced by case C-34/09.

Yours,

Mr xx

i hate to be a dick, but, clearly they are wrong... ( and even though i FELT it was soooo wrong before - I actually KNOW its wrong now... ) ... it gives that little bit extra "fight"...

I have made it clear in a written letter that we will take this matter as far as it is needed. Ive began building up a nice list of documents etc.

(in fact, when i went to solicitors last time... I think he was a little shocked at how "prepared" I was with info ETC...

- sadly nobody called us from their firm, and most other firms are busy ( Guess everybody is getting in before legal aid runs out )

[east579]

Wiggsy i too am in a similar situation i am British born and my partner is an over stayer we have a child together a British citizen and we have just put in an application FLR(O) i understand that this will almost certainly be refused so tell me in your experience what is the likely hood of my partner being deported?.
Should i now be waiting for the ukba to come knocking at my door will they take her away?.
Can i also add at this point we are not married but we are hoping to very soon.

[wiggsy]

Wiggsy i too am in a similar situation i am British born and my partner is an over stayer we have a child together a British citizen and we have just put in an application FLR(O) i understand that this will almost certainly be refused so tell me in your experience what is the likely hood of my partner being deported?.
Should i now be waiting for the ukba to come knocking at my door will they take her away?.
Can i also add at this point we are not married but we are hoping to very soon.

simular situation?
do you have kids? - how long been together, etc...
from my understanding UKBA wont do anything whilst an application is in process..

i cant say what UKBA would do... Im no expert... (nore do I claim to be)... just certain factors of a situation can change it from simular to totally different: IE:
UK & Girlfriend and UK/wife
are simular to each other, but totally different to:
UK and GF & kids
UK/Wife/Kids


Laws protect family units from being broken up... but they dont protect them from being kept apart - IE: if your living together with kids, its harder to deport etc than just a BF/GF situation... - the rights of the child come into it etc which totally changes the situation...

http://www.bia.homeoffice.gov.uk/siteco ... /flr/flro1
FLR(O)

http://www.ukba.homeoffice.gov.uk/sitec ... 020091.pdf
FLR(M)

You used the wrong application though, you should of used FLR(M) as this is for partners of BC's.

however:

14 YOUR STATUS WHILE YOUR
APPLICATION IS BEING CONSIDERED
If you and any children under 18 apply before
the end of your permitted stay in the UK, your/
their existing immigration status, including any
permission to work, will continue until your/their
application(s) is/are decided.

As your partner currently has not status, UKBA could still come knocking,,, serve her as a section 10 overstayer, and issue her with an IS96 OR detain her... (if no kids, then she could be detained? - when UKBA came to my home, we had our daughter, so they "couldn't" detain my wife(GF at the time) in that respect etc...

EDIT:

SORRY DUDE, just reread your post, i missed the "WE have a child together"

Are you on the childs birth certificate? - if so then the child is a BC, so your situation is pretty much the same as mine/my wifes...

Get these two forms printed:
http://www.ukba.homeoffice.gov.uk/sitec ... /eea21.pdf

http://www.ukba.homeoffice.gov.uk/eucit ... erivative/
>>> FORM >>> http://www.ukba.homeoffice.gov.uk/sitec ... ea/drf.pdf

Complete them IMMEDIATELY!

write a letter stating that your g/fs? passport is in with her FLR(O) application. (along with any other documentation which are required.)

You need to send in:
Wifes passport, plus proof of ID: Tax credits letters ETC
Your Passport - to prove childs BC
Childs birth certificate (with both parents name on)
send some photos of the family unit etc to add some support etc...

SEND IT RECORDED/SPECIAL DELIVERY - MAKE A NOTE OF THE RoyalMail Tracking no
(If passports are in with it, special, if they already have those docs, recorded will do )

SEND BOTH FORMS.. - you are applying under the ZAMBRANO ruling

how old is the child?

You also want to send letters from healthcare professionals, ETC (mid wife, district nurse, doctor ETC) stating that the child is "Emotionally, phyically and ?financially?" dependant on the mother... In their opinion the mother is the primary carer.

letters from dentist, doctor, nursery etc will all help...
(they can "omit" facts, but DO NOT LIE - (false representations can be really bad!!!))

IE: Wife brings child to all doctor appointments, when i have seen the child she clearly has a stong emotional attachment to her mother - as would any child.

Wife brings child to nursery. Whilst in nursery it is clear that child misses mother. Child is always talking about what she has been doing with mother over the week. and how she goes on a seaside holiday with her mother

etc.. - they will know the kind of things to write, if you explain to them what you need it for ETC...

(less talk about the father, more about the mother if you get my drift... - zambrano says removing a parent would remove the childs rights,,, if there is another parent in the country, UKBA dont see it as removing the childs rights of EU movement etc..)

Its best to do this BEFORE an IS96 / other stuff is began...!! = so pretty much today, and send other evidence later on if required!

also make a note of the info above about derivative residence of a BC parent giving them the right to work/etc. - they will confuse the situation at first... and not give permission to work... = so outline in your letter, draw attention to the zambrano ruling in your letter - Case c-34/09 and copy the ruling of the court (above).

Best of luck.

[east579]

Wiggsy thanks for the reply i will try and answer a few questions to give you a clearer picture and we will take it from there.

1.I am on the birth certificate and my son is a British citizen and nearly 5 months old.

2.i have been dealing with a clac (community legal advice center) and the case worker assured me this was the right form to use (there opinion of course) .

3.My partner is from Brazil and she has been in the UK since 2007 as a student and the visa ran out 2010

3.We have been together since February 2011.

4.I am currently unemployed was made redundant.

5.I asked the case worker about Zambrano but she said FLR(O) would be the better option for now.

6.I am currently trying to find work (easier said than done in todays climate) my jsa, ctc and cb are the only income we have if we are separated my child and partner will have nothing if she gets sent to Brazil she has nowhere to go.

7.UKBA already have biometrics from when she was a student.

[wiggsy]

Dude,

Seriously, put the Zambrano application in too...

FLR(O) is the wrong application... She has overstayed, and therefore it will be refused... She also has no valid leave to remain.

Whilst zambrano - Derivative right of residence wont give her perm residency... it gets her in a position with valid leave ETC.

Like i say... whilst the UK claim that you have to be a SOLE carer for the child... the Zambrano ruling didnt state this... it stated you cannot remove a third country national who is the parent of a eu citizen child.

she has overstayed by 2 or 3 years...
my wifes application was made a few months after her leave expired (although this leave was a tourist visa).

did she say why FLR(O) and not FLR(M)?

also, the zambrano application is FREE... you have nothing to loose... put it in... at least you wont have to be afraid of them knocking the door for the next six months or so...

The JSA your claiming might also go against her... one of the things that were listed in my wifes application refusal that i could use my skills that i have learnt via various employment to take it to her country despite not knowing the language etc (they claimed we spoke a common language so my wife could interpretate for me lol??) [i do speak a little indonesian, but not fantastically] - despite having a child from previous relationship, my parents and siblings ETC all in this country, they also claimed that I had no real connections to the UK.

mind you... looking at the FLR(O) guidance again, perhaps it was my solicitor who was wrong...

1 FOR WHICH APPLICATIONS MUST YOU USE FORM FLR(O)?
Form FLR(O) must be used if you are applying for an extension of stay in one of the following categories:
• General visitor
• Long residence in the UK
• Dependants of exempt members of HM Forces
• Domestic worker in a private household
• UK ancestry
• Visitor for private medical treatment
• Family life as a parent of a child in the UK
• Private life in the UK
• other purposes/reasons not covered by other application forms

i guess the application is based on parent of child and private life (your partner being a student prior must have a lot of friends/etc here now?)

but you can have more than one application in at the same time bear that in mind...

[Greenie]

FLR(O) is not the wrong application. Please, stop giving people advice on matters you are not clear on.
FLR(M) is for those that meet the requirements of the immigration rules ah a spouse.

FLR(O) in this context is used when an applicant does not meet all the requirements of the immigration rules (eg the financial requirements, or the applicant is an overstayer) but the applicant wishes to argue that they meet the requirements of para EX.1 eg she has a British child and it would not be reasonable for the child to have to leave the UK.

[east579]

Many thanks for everybody's help it eases my mind a little so i can put the Zambrano application in as well? alongside the FLR(O) or should i really just await the outcome of the FLR(O) application first? then send the other application.

Also when i see my caseworker again is there any specific things i should point her towards regarding Zambrano she doesn't seem very sure about it, you mention the UK say one thing but the ruling says another.

[wiggsy]

FLR(O) is not the wrong application. Please, stop giving people advice on matters you are not clear on.
FLR(M) is for those that meet the requirements of the immigration rules ah a spouse.

Partner! - not only spouse - includes unmarried partners....

FLR(O) in this context is used when an applicant does not meet all the requirements of the immigration rules (eg the financial requirements, or the applicant is an overstayer) but the applicant wishes to argue that they meet the requirements of para EX.1 eg she has a British child and it would not be reasonable for the child to have to leave the UK.

And did you read my response... I actually corrected myself... ^ I accepted I was wrong before you raised this one, mate...

I was advised by solicitor (Tyndalwoods in Birmingham) that the correct application was an FLR(M) and that FLR(O) was the wrong application for us... - As I said, it appears that my solicitor was the wrong one on there... and that FLR(O) *DOES* appear to be the correct application.

So

- The actual ruling on zambrano was:

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.

It states nothing about being a sole carer etc... - and the UN rights of a child states that a child is entitled to a life with both parents etc...


UKBA states:
http://www.ukba.homeoffice.gov.uk/eucit ... erivative/

as the primary carer of a British citizen child or dependent adult, where requiring the primary carer to leave the UK would force that British citizen to leave the EEA;

I cant find the actual post now, but another news post stated basically that "if there is another person who could assume the role of primary carer, then this would be seen as removing the third country national would not effectively force the BC to leave the country."

[east579]

"I cant find the actual post now, but another news post stated basically that "if there is another person who could assume the role of primary carer, then this would be seen as removing the third country national would not effectively force the BC to leave the country."

So how could this help me? as all ukba will say is my partner has to leave and the child stays with me(making me the primary carer) that way mine or my child's rights as eu citizens haven't been affected all that happens is my child just ends up losing his mother.

[east579]

Come on wiggsy you've gone quiet.

[east579]

Come on wiggsy you've gone quiet.

Wiggsy any update on your Zambrano application?

[wiggsy]

sorry, been really busy last few weeks.

So how could this help me? as all ukba will say is my partner has to leave and the child stays with me(making me the primary carer) that way mine or my child's rights as eu citizens haven't been affected all that happens is my child just ends up losing his mother.

well thats the problem...

but there are ways and means around it... for instance, I have sent a copy of my drs details off to show my ill health, and welcomed / given written authorisation to them to contact my doctor. - who will state that caring for a child would not be in my interests or the childs best interests ( i take lots of pain killers so can be drowsy etc... )

this is a FOI response... at the very least until a decision is made, for the 6 months or so, your overstaying partner/wife is legal in the country.
http://www.whatdotheyknow.com/request/1 ... 026321.pdf
should they refuse, then you can put an appeal in...

Obviously, the final decision is yours to make...

but i reitterate: the case C34/09 didnt state SOLE PRIMARY CARER... it states PARENT WHO THE CHILD IS DEPENDANT UPON

Dependancy can be: Financial, Physical, OR Emotional.

[east579]

sorry, been really busy last few weeks.

So how could this help me? as all ukba will say is my partner has to leave and the child stays with me(making me the primary carer) that way mine or my child's rights as eu citizens haven't been affected all that happens is my child just ends up losing his mother.

well thats the problem...

but there are ways and means around it... for instance, I have sent a copy of my drs details off to show my ill health, and welcomed / given written authorisation to them to contact my doctor. - who will state that caring for a child would not be in my interests or the childs best interests ( i take lots of pain killers so can be drowsy etc... )

this is a FOI response... at the very least until a decision is made, for the 6 months or so, your overstaying partner/wife is legal in the country.
http://www.whatdotheyknow.com/request/1 ... 026321.pdf
should they refuse, then you can put an appeal in...

Obviously, the final decision is yours to make...

but i reitterate: the case C34/09 didnt state SOLE PRIMARY CARER... it states PARENT WHO THE CHILD IS DEPENDANT UPON

Dependancy can be: Financial, Physical, OR Emotional.

We have just submitted the FLR(O) Application and are awaiting a response i will wait until a decision has been made on this then put in the zambrano application.
Im very scared for my partner and our child.

[Greenie]

Try not to worry.even if ukba refuse you will succeed on appeal. They won't remove the mother of a British child.