Surinder Singh - EEA2 - Non EEA Family Member Father in Law

[Rasaf]

Hi all,

Thanks for any help anyone can provide.

I have previously been self employed in Ireland where I was living with my wife, we returned to the UK in June 2010 using Surinder Singh and my wife has received her RC.

My father in law was in the UK mid 2012, during this time he became dependant on me, this can be proved by bank transfers in to his account here in the UK, after about four months he returned to his home country where he was still dependant on me, again this can be proved via transfers into his account abroad.

My father in law is again currently in the UK and I would like to apply for a RC for him.

Any information on the documents required would be a great help.
I have all the documents from Ireland used for my wife's EEA2 application, plus my father in laws UK bank statements showing the transfers from me, the international transfer slips, prove of the relationship.

any other documents anyone can suggest?, or any other information or advise.


Thanks.

[Jambo]

You will find that the HO would only consider spouses to be eligible for Surinder Singh. You will also find that residing with you in Ireland was required in order to qualify for Surinder Singh.

[Rasaf]

https://www.whatdotheyknow.com/request/ ... surinder_s

The terms of the Surinder Singh judgement you refer to have been
incorporated into domestic legislation as regulation 9 of the
Immigration (European Economic Area) Regulations 2006. As you will be
aware, the provisions in this regulation are not confined to just
spouses and civil partners. The wording of the regulation confirms it
applies to 'family members of a United Kingdom national'. Family members in the European context are defined by regulation 7 of the EEA
regulations.

according to the above surinder singh also applies to family members.

I am sure I have also previously read that eea family members are not required to reside in the other eu state. if anyone can please point me in the right direction to the regulations or any case where this is stated

[Obie]

You father in law will not qualify. He has never resided with you in Ireland, and was not dependant on you there.

I accept that the whole of Regulation 7 applies in Surinder Singh case, as I have made clear in other thread, however in the circumstances of your case, he does not qualify.

[Rasaf]

http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary

5.1.2 Dependency
In determining if a family member or extended family member is dependent (i.e. financially dependent) on the relevant EEA national for the purposes of the EEA Regulations:

Financial dependency should be interpreted as meaning that the person needs financial support from the EEA national or his/ her spouse/civil partner in order to meet his/her essential needs – not in order to have a certain level of income.

Provided a person would not be able to meet his/her essential living needs without the financial support of the EEA national, s/he should be considered dependent on that national. In those circumstances, it does not matter that the applicant may in addition receive financial support / income from other sources.

There is no need to determine the reasons for recourse to the financial support provided by the EEA national or to consider whether the applicant is able to support him/herself by taking up paid employment. .

The person does not need to be living or have lived in an EEA state which the EEA national sponsor also lives or has lived.

For extended family members only the following conditions in relation to dependency must be satisfied:

The extended family member must have established his/her dependency or household relationship on the relevant EEA national in the country from which the EEA national moved to the UK. This is consistent with the wording of Article 3(2) of the Directive, which states that the person must be a dependant or member of the household of the EEA national in the country from which they have come;

The dependency/household relationship must have existed immediately before or very recently before the EEA national came to the UK. (In Bigia, the Court of Appeal confirmed that historic but lapsed dependency or household membership does not qualify); and

The extended family member must have come to the UK at the same time as the EEA national or just before or very recently thereafter.

For family members, their dependency on the EEA national sponsor does not need to have existed before they came to the UK. This follows from the Court of Appeal judgment in the case of Pedro.

doesnt the above clearly state that there is no need for my father in law to have resided in ireland or have been dependant on me before he came to the uk

[Jambo]

http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary

5.1.2 Dependency
In determining if a family member or extended family member is dependent (i.e. financially dependent) on the relevant EEA national for the purposes of the EEA Regulations:

Financial dependency should be interpreted as meaning that the person needs financial support from the EEA national or his/ her spouse/civil partner in order to meet his/her essential needs – not in order to have a certain level of income.

Provided a person would not be able to meet his/her essential living needs without the financial support of the EEA national, s/he should be considered dependent on that national. In those circumstances, it does not matter that the applicant may in addition receive financial support / income from other sources.

There is no need to determine the reasons for recourse to the financial support provided by the EEA national or to consider whether the applicant is able to support him/herself by taking up paid employment. .

The person does not need to be living or have lived in an EEA state which the EEA national sponsor also lives or has lived.

For extended family members only the following conditions in relation to dependency must be satisfied:

The extended family member must have established his/her dependency or household relationship on the relevant EEA national in the country from which the EEA national moved to the UK. This is consistent with the wording of Article 3(2) of the Directive, which states that the person must be a dependant or member of the household of the EEA national in the country from which they have come;

The dependency/household relationship must have existed immediately before or very recently before the EEA national came to the UK. (In Bigia, the Court of Appeal confirmed that historic but lapsed dependency or household membership does not qualify); and

The extended family member must have come to the UK at the same time as the EEA national or just before or very recently thereafter.

For family members, their dependency on the EEA national sponsor does not need to have existed before they came to the UK. This follows from the Court of Appeal judgment in the case of Pedro.

doesnt the above clearly state that there is no need for my father in law to have resided in ireland or have been dependant on me before he came to the uk

This is true for "standard" EEA national family member but not for Surinder Singh route.

[Obie]

Unfortunately Rasaf, Regulation 9 is not engaged, and EU law is nit engaged either. You father in law falls entirely outside the scope if the directive and the regulations.
I concur with the previous poster that the position of an EEA national who come to settle in the UK, is different from a British person who returns after exercising treaty rights.

Those provision only applies to EU citizens other than British , who enters uk to exercise treaty rights. You are not in that position.

[ruthie]

You will find that the HO would only consider spouses to be eligible for Surinder Singh. You will also find that residing with you in Ireland was required in order to qualify for Surinder Singh.

I am sorry but these two statements seem to conflict with each other. Will HO consider dependent parents eligible for Surinder Singh if they live with the EEA national in Ireland and are indeed dependent on them during that time(i.e. as direct EEA family member)?

[Jambo]

I am sorry but these two statements seem to conflict with each other. Will HO consider dependent parents eligible for Surinder Singh if they live with the EEA national in Ireland and are indeed dependent on them during that time(i.e. as direct EEA family member)?

My post wasn't accurate.

It should say

You will find that the HO would only consider direct famy member (spouse, children or depedant parents) to be eligible for Surinder Singh. You will also find that residing with you in Ireland was required in order to qualify for Surinder Singh

So dependant parents who lived with you in Ireland are covered under Singh.

[ruthie]

I am sorry but these two statements seem to conflict with each other. Will HO consider dependent parents eligible for Surinder Singh if they live with the EEA national in Ireland and are indeed dependent on them during that time(i.e. as direct EEA family member)?

My post wasn't accurate.

It should say

You will find that the HO would only consider direct famy member (spouse, children or depedant parents) to be eligible for Surinder Singh. You will also find that residing with you in Ireland was required in order to qualify for Surinder Singh

So dependant parents who lived with you in Ireland are covered under Singh.

Good to know. Thanks for clarification.

[Rasaf]

EUN2.14 Can family members of British citizens qualify for an EEA family permit? ('Surinder Singh' cases)
As a general rule, family members of British citizens do not qualify for an EEA family permit. Article 3 of the Directive essentially says that an EEA national cannot be considered as exercising freedom of movement in their own State -

This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of Article 2 who accompany or join them.

However, where an EEA national has exercised a treaty right in another Member State as a worker or self-employed and they wish to return to their own State having exercised that right, certain provisions may apply in order for their non-EEA family members to qualify under the EEA Regulations.

A British national and his / her non-EEA national family members can only benefit from free movement rights if they meet the criteria established in the ECJ case of Surinder Singh. The case stated that nationals of a Member State who are exercising an economic Treaty right (that is, as a worker or self-employed person) in another Member State will, on return to their home state, be entitled to bring their non-EEA family members to join them under EC law.

Example: A British national is exercising an economic Treaty right in Germany and living with his non-EEA national spouse and children. On the British national's return to the UK, his non-EEA national family members can apply for an EEA family permit to join him under EC law.

The Surinder Singh judgment is incorporated into the EEA Regulations in Regulation 9. Family members of British nationals who meet the requirements of Regulation 9 are treated as family members of EEA nationals for the purposes of the EEA Regulations.

Applications for EEA family permits must meet the following criteria:

The British citizen must be residing in an EEA Member State as a worker or self-employed person or have been doing so before returning to the UK.

If the family member of the British citizen is their spouse or civil partner, they are living together in the EEA country or must have entered into the marriage or civil partnership and have been living together in the relevant EEA country before the British citizen returned to the UK.

http://www.ukba.homeoffice.gov.uk/polic ... /eun/eun2/


I have just read the above on the UKBA website, in the bottom paragraph it states that spouses and civil partners are required to have lived in the relevant EEA state, but it does not mention family members.

does anyone know of any cases that have been refused in same circumstances as my own, and can someone please point me to the relevant section in regulation 9 where it states that family members have to have been living in the relevant EEA State.

[Rasaf]

I have just read section 9 of the 2006 regulations and again this states the same,

http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary

Family members of United Kingdom nationals
9.—(1) If the conditions in paragraph (2) are satisfied, these Regulations apply to a person who is the family member of a United Kingdom national as if the United Kingdom national were an EEA national.
(2) The conditions are that—
(a) the United Kingdom national is residing in an EEA State as a worker or self-employed person or was so residing before returning to the United Kingdom; and
(b) if the family member of the United Kingdom national is his spouse or civil partner, the parties are living together in the EEA State or had entered into the marriage or civil partnership and were living together in that State before the United Kingdom national returned to the United Kingdom.
(3) Where these Regulations apply to the family member of a United Kingdom national the United Kingdom national shall be treated as holding a valid passport issued by an EEA State for the purpose of the application of regulation 13 to that family member.

the above text states that spouses and civil partner need to have resided in the EEA state but it does not say that other family members have to. the regulation specifically points out spouses and civil partners from amongst other family members.

Am I just completely misunderstanding the text.

[Jambo]

The Singh judgement involved a spouse and a worker so when the HO incorporated it into the regulations, they did it in the narrowest way they could (i.e. only spouse and workers). One can argue that it should expand to cover direct family member as well (children, dependant parents) but that would not exempt them from meeting the other requirements as set for spouses in the regulations.

[Rasaf]

I have just seen this document

www.parliament.uk/briefing-papers/sn04900.pdf

The ECJ makes two key findings which are fatal to the UKBA position:
•
EEA family permits must be issued to third country national family members of EU citizens for the purpose of accompanying or joining the EU citizen to the host state (eg the UK) irrespective of whether the family member has been lawfully (or indeed at all) resident in another Member State before arriving;

does this not relate to my case

[Jambo]

I have just seen this document

www.parliament.uk/briefing-papers/sn04900.pdf

The ECJ makes two key findings which are fatal to the UKBA position:
•
EEA family permits must be issued to third country national family members of EU citizens for the purpose of accompanying or joining the EU citizen to the host state (eg the UK) irrespective of whether the family member has been lawfully (or indeed at all) resident in another Member State before arriving;

does this not relate to my case

Unfortunately not. The ECJ in the case of Metock from 2008 which is referred to in the document would affect family member of EEA national (non UK).

However, your case is different as you are a British citizen returning to the UK after exercising treaty rights ("Surinder Singh" route). You are considered EEA national for the purpose of residence rights of your family member in the UK but you don't enjoy the full provisions of the directive.

[Rasaf]

Unfortunately not. The ECJ in the case of Metock from 2008 which is referred to in the document would affect family member of EEA national (non UK).

However, your case is different as you are a British citizen returning to the UK after exercising treaty rights ("Surinder Singh" route). You are considered EEA national for the purpose of residence rights of your family member in the UK but you don't enjoy the full provisions of the directive.

Isn't that just discrimination between the two types of eea nationals.

[Jambo]

Unfortunately not. The ECJ in the case of Metock from 2008 which is referred to in the document would affect family member of EEA national (non UK).

However, your case is different as you are a British citizen returning to the UK after exercising treaty rights ("Surinder Singh" route). You are considered EEA national for the purpose of residence rights of your family member in the UK but you don't enjoy the full provisions of the directive.

Isn't that just discrimination between the two types of eea nationals.

Yes it is.

The Free Movement directive doesn't normally apply to EEA nationals in their home country (as they haven't really moved). They are subject to the national legislation. Surinder Singh is the exception (as they have moved). The same as you (as a Britisn citizen) would enjoy from the directive in France while a Frenchman (in France) would be subject to the French national rules.

[Rasaf]

would I have any chance when this goes to court.

[sk1mm0]

Dear Sir/Madam,

The following FOI response stated that Surinder Singh route is applicable to family members (as defined by Regulation 7, http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary) other than the spouses (https://www.whatdotheyknow.com/request/ ... surinder_s)

This seems to contradict the way Chapter 5 (http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary) is written - it refers to spouses/civil partners throughout, in particular Section 5.5.1, which lists "Marriage certificate / civil partnership certificate" as required document for EEA2 application, and Section 5.5.4, which lists "No evidence that the couple were living in another Member state prior to coming to the U.K." as one of the two reasons for refusal.

Can you please clarify which is correct:

1. Regulation 9 (2) (b) does not apply to dependent parents in its entirety (it only applies to spouses/civil partners), the prior living together in another Member state does not apply to dependent parents, and Chapter 5 is incomplete in so far as it only covers spouses/civil partners and does not provide information for dependent parents and other family members.

OR

2. The FOI response was incorrect, Regulation 9(2)(b) specifically restricts the family members to spouses/civil partners, and this is reflected in how Chapter 5 is written to only apply to them.