EEA Permit Changes/definitions by UK. Input??
Dec 12th 2012, 10:00 pm
#1
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EEA Permit Changes/definitions by UK. Input??
In perusing the UKBA website, I've found this set of changes regarding EEA permits. (Surinder Singh route)
Now, I'm only now just familiarizing myself with this route to reunification, so I am pretty unfamiliar, although trying to quickly get up to speed.
Did the UK make any changes/interpretations that do not coincide with the EU treaty?
Page 3 of the document linked to below, under "B: Restrictions on Free Movement Rights" it states:
[An EEA national is therefore now defined in amended regulation 2(1) as “a national of an EEA State who is not also a United Kingdom national”.]
This seems to be based on the ECJ ruling in McCarthy in 2011. Basically, the ruling is:
Now, the McCarthy ruling seems to pertain only to those who have not exercised their free movement rights by residing in another EEA country (but still somehow have dual nationalities. In the McCarthy case it was British/Irish dual nationality.
That said, should the verbage above be interpreted broadly and loosely, could it follow that all UK nationals, whether or not they exercise their treaty rights, may not bring a spouse to the UK if he/she is indeed a UK national as well as a resident of another EEA country?
Could this verbage be applied in such a way that a UK resident can exercise his/her treaty rights in any EEA country, but then could not bring his/her spouse with him/her upon return because he/she would be a dual national - with one of them being UK nationality?
Any input on this?
The regulation amendments on the UKBA website are here:
http://www.ukba.homeoffice.gov.uk/si...m-eea-regs.pdf
The summary of the ECJ ruling on McCarthy is here:
http://www.emn.ie/index.jsp?p=100&n=105&a=146
Appreciate any thoughts on the matter.
Now, I'm only now just familiarizing myself with this route to reunification, so I am pretty unfamiliar, although trying to quickly get up to speed.
Did the UK make any changes/interpretations that do not coincide with the EU treaty?
Page 3 of the document linked to below, under "B: Restrictions on Free Movement Rights" it states:
[An EEA national is therefore now defined in amended regulation 2(1) as “a national of an EEA State who is not also a United Kingdom national”.]
This seems to be based on the ECJ ruling in McCarthy in 2011. Basically, the ruling is:
EU citizens who have never exercised their right of free movement cannot invoke Union citizenship to regularise the residence of their non-EU spouse
Now, the McCarthy ruling seems to pertain only to those who have not exercised their free movement rights by residing in another EEA country (but still somehow have dual nationalities. In the McCarthy case it was British/Irish dual nationality.
That said, should the verbage above be interpreted broadly and loosely, could it follow that all UK nationals, whether or not they exercise their treaty rights, may not bring a spouse to the UK if he/she is indeed a UK national as well as a resident of another EEA country?
Could this verbage be applied in such a way that a UK resident can exercise his/her treaty rights in any EEA country, but then could not bring his/her spouse with him/her upon return because he/she would be a dual national - with one of them being UK nationality?
Any input on this?
The regulation amendments on the UKBA website are here:
http://www.ukba.homeoffice.gov.uk/si...m-eea-regs.pdf
The summary of the ECJ ruling on McCarthy is here:
http://www.emn.ie/index.jsp?p=100&n=105&a=146
Appreciate any thoughts on the matter.
Dec 13th 2012, 11:59 am
#2
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Re: EEA Permit Changes/definitions by UK. Input??
The pre-amble to that statement does repeat the McCarthy ruling, the current website also leave Surredar Singh as a valid route and the ECI (equivalent of the IDI for EU law situations) still allows SS as a valid route and gives details on how it should be implemented.
Yes, the wording is worrying but I guess one needs to find and double check what exactly regulation 2(1) relates to.
Yes, the wording is worrying but I guess one needs to find and double check what exactly regulation 2(1) relates to.
Dec 13th 2012, 4:16 pm
#3
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Re: EEA Permit Changes/definitions by UK. Input??
Does the government really think it can get away with denying, to its own citizens, basic human rights that it is compelled to extend to all (other) EU citizens?
The more I read about this law (stat instrument) the more convinced I become that the people affected need to get together and share the expenses of hiring a lawyer to bring a test case. With a view to award of money damages.
It really is horrifying that the British government has to be bullied, dragged kicking and screaming, to respect simple basic human rights of British people. More and more like a banana republic with every passing year.
Dec 16th 2012, 3:47 pm
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Re: EEA Permit Changes/definitions by UK. Input??
Well, I have been reading this case a bit more. I am not a lawyer, I have studied law, though not previously this branch of law.
The point at issue is that the putative regulation amendment "An EEA national is therefore now defined in amended regulation 2(1) as “a national of an EEA State who is not also a United Kingdom national”." of the UK Immigration (European Economic Area) Regulations 2006 is not likely to withstand challenge under R v Immigration Appeal Tribunal and Surinder Singh ex parte Secretary of State for the Home Department [1993] 1 FCR 453, [1992] Imm AR 565 if used as a basis upon which to deny a family permit..
However, an essential difference between Surinder Singh and the cases that we (and presumably HMG) have been contemplating is that Surinder Singh was initially lawfully admitted (on a different basis) and then accused of overstaying. That would presumably be different from the situation of a couple in (say) Dublin or Athens who then applied for a family permit.
The difference, of course, being whether the family is together or separated while the appeals wend their way through the system.
What I am not seeing though, at least not initially, is whether (under EC treaty rights within the EEA (European Economic Area)) the non-EU spouse needs to be living with her spouse at the time. If not then it makes sense for the non-EU spouse to be admitted lawfully to the UK (and overstay if need be) while the UK citizen obtains employment for a short time elsewhere in the EEA.
Does anyone know the answer to that question?
I can't find any reference in the law which leads me to suspect (only suspect) that there is no such requirement. In a hypothetical case then, a USC wife could enter Britain as a six month visitor staying with friends in Anglesey or Merseyside; the UKC husband following her days later and then (presumably with new car) departing for Dublin to take up employment. The husband making frequent (weekend) car ferry trips to Britain. Then applying for a family permit perhaps 3 months later; returning permanently to the UK just as soon as the permit is denied and then starting appeals processes for the family permit and, if necessary, for the incipient wife's overstaying. And of course, since the jig is up, the permit might not be denied at all.
Just my thoughts, do your own research please.
The point at issue is that the putative regulation amendment "An EEA national is therefore now defined in amended regulation 2(1) as “a national of an EEA State who is not also a United Kingdom national”." of the UK Immigration (European Economic Area) Regulations 2006 is not likely to withstand challenge under R v Immigration Appeal Tribunal and Surinder Singh ex parte Secretary of State for the Home Department [1993] 1 FCR 453, [1992] Imm AR 565 if used as a basis upon which to deny a family permit..
However, an essential difference between Surinder Singh and the cases that we (and presumably HMG) have been contemplating is that Surinder Singh was initially lawfully admitted (on a different basis) and then accused of overstaying. That would presumably be different from the situation of a couple in (say) Dublin or Athens who then applied for a family permit.
The difference, of course, being whether the family is together or separated while the appeals wend their way through the system.
What I am not seeing though, at least not initially, is whether (under EC treaty rights within the EEA (European Economic Area)) the non-EU spouse needs to be living with her spouse at the time. If not then it makes sense for the non-EU spouse to be admitted lawfully to the UK (and overstay if need be) while the UK citizen obtains employment for a short time elsewhere in the EEA.
Does anyone know the answer to that question?
I can't find any reference in the law which leads me to suspect (only suspect) that there is no such requirement. In a hypothetical case then, a USC wife could enter Britain as a six month visitor staying with friends in Anglesey or Merseyside; the UKC husband following her days later and then (presumably with new car) departing for Dublin to take up employment. The husband making frequent (weekend) car ferry trips to Britain. Then applying for a family permit perhaps 3 months later; returning permanently to the UK just as soon as the permit is denied and then starting appeals processes for the family permit and, if necessary, for the incipient wife's overstaying. And of course, since the jig is up, the permit might not be denied at all.
Just my thoughts, do your own research please.
Last edited by holly_1948; Dec 16th 2012 at 4:36 pm.
Dec 16th 2012, 6:51 pm
#5
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Re: EEA Permit Changes/definitions by UK. Input??
Seems like clarification (?) from the UKBA website, current as of today, I believe:
http://www.ukba.homeoffice.gov.uk/po.../eun2/#header2
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.
Because EEA nationals have an initial three months right of residence in the UK, there is no requirement for the British national to be a qualified person on arrival. Therefore, an EEA family permit can be issued to the non-EEA national family member of a British national even if they are only visiting the UK with the British national before returning to the Member State where they are resident.
It does not matter if the only reason the British national went to another Member State was to exercise an economic Treaty right was so that he / she could come back to the UK with his / her family members under EC law.
The ECO should seek advice from ECCCAT where unsure about the decision to be taken in applying the Surinder Singh judgment.
http://www.ukba.homeoffice.gov.uk/po.../eun2/#header2
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.
Because EEA nationals have an initial three months right of residence in the UK, there is no requirement for the British national to be a qualified person on arrival. Therefore, an EEA family permit can be issued to the non-EEA national family member of a British national even if they are only visiting the UK with the British national before returning to the Member State where they are resident.
It does not matter if the only reason the British national went to another Member State was to exercise an economic Treaty right was so that he / she could come back to the UK with his / her family members under EC law.
The ECO should seek advice from ECCCAT where unsure about the decision to be taken in applying the Surinder Singh judgment.
Well, I have been reading this case a bit more. I am not a lawyer, I have studied law, though not previously this branch of law.
The point at issue is that the putative regulation amendment "An EEA national is therefore now defined in amended regulation 2(1) as “a national of an EEA State who is not also a United Kingdom national”." of the UK Immigration (European Economic Area) Regulations 2006 is not likely to withstand challenge under R v Immigration Appeal Tribunal and Surinder Singh ex parte Secretary of State for the Home Department [1993] 1 FCR 453, [1992] Imm AR 565 if used as a basis upon which to deny a family permit..
However, an essential difference between Surinder Singh and the cases that we (and presumably HMG) have been contemplating is that Surinder Singh was initially lawfully admitted (on a different basis) and then accused of overstaying. That would presumably be different from the situation of a couple in (say) Dublin or Athens who then applied for a family permit.
The difference, of course, being whether the family is together or separated while the appeals wend their way through the system.
What I am not seeing though, at least not initially, is whether (under EC treaty rights within the EEA (European Economic Area)) the non-EU spouse needs to be living with her spouse at the time. If not then it makes sense for the non-EU spouse to be admitted lawfully to the UK (and overstay if need be) while the UK citizen obtains employment for a short time elsewhere in the EEA.
Does anyone know the answer to that question?
I can't find any reference in the law which leads me to suspect (only suspect) that there is no such requirement. In a hypothetical case then, a USC wife could enter Britain as a six month visitor staying with friends in Anglesey or Merseyside; the UKC husband following her days later and then (presumably with new car) departing for Dublin to take up employment. The husband making frequent (weekend) car ferry trips to Britain. Then applying for a family permit perhaps 3 months later; returning permanently to the UK just as soon as the permit is denied and then starting appeals processes for the family permit and, if necessary, for the incipient wife's overstaying. And of course, since the jig is up, the permit might not be denied at all.
Just my thoughts, do your own research please.
The point at issue is that the putative regulation amendment "An EEA national is therefore now defined in amended regulation 2(1) as “a national of an EEA State who is not also a United Kingdom national”." of the UK Immigration (European Economic Area) Regulations 2006 is not likely to withstand challenge under R v Immigration Appeal Tribunal and Surinder Singh ex parte Secretary of State for the Home Department [1993] 1 FCR 453, [1992] Imm AR 565 if used as a basis upon which to deny a family permit..
However, an essential difference between Surinder Singh and the cases that we (and presumably HMG) have been contemplating is that Surinder Singh was initially lawfully admitted (on a different basis) and then accused of overstaying. That would presumably be different from the situation of a couple in (say) Dublin or Athens who then applied for a family permit.
The difference, of course, being whether the family is together or separated while the appeals wend their way through the system.
What I am not seeing though, at least not initially, is whether (under EC treaty rights within the EEA (European Economic Area)) the non-EU spouse needs to be living with her spouse at the time. If not then it makes sense for the non-EU spouse to be admitted lawfully to the UK (and overstay if need be) while the UK citizen obtains employment for a short time elsewhere in the EEA.
Does anyone know the answer to that question?
I can't find any reference in the law which leads me to suspect (only suspect) that there is no such requirement. In a hypothetical case then, a USC wife could enter Britain as a six month visitor staying with friends in Anglesey or Merseyside; the UKC husband following her days later and then (presumably with new car) departing for Dublin to take up employment. The husband making frequent (weekend) car ferry trips to Britain. Then applying for a family permit perhaps 3 months later; returning permanently to the UK just as soon as the permit is denied and then starting appeals processes for the family permit and, if necessary, for the incipient wife's overstaying. And of course, since the jig is up, the permit might not be denied at all.
Just my thoughts, do your own research please.
Dec 21st 2012, 1:43 pm
#6
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Re: EEA Permit Changes/definitions by UK. Input??
That EU ruling doesn't just affect the Brits who don't want to work enough hours to provide sponsorship for their family; it also affects other dual nationals too who also think like that. Plus those who wanted to use EU law to bring their parents, siblings etc to the UK to access full welfare as soon as they arrive.
There was a correct refusal on one of the forums recently when a Polish woman had come to the UK, got UK citizenship, then tried to bring her non EEA husband and his family in on EU rules. Under these new EU rules, she couldn't do that; she had to work to sponsor them instead, under UK immigration rules now
Those EEAs who have naturalised as a Brit, can no longer bring in their parents' or their non EU spouse parents, siblings etc (who would have had instant access to full welfare under EU rules). From what I read, the elderly non Brits who were in already in the UK, never worked in the UK but were claiming full welfare through their childrens EEA permit; had a deadline to register if their children already had got British citizenship, or they lost their access to UK welfare.
I read an article on another legal type site where they said that EEAs would now have to decide if they wanted to use EU law to get UK citizenship. They had more rights in the UK under the EU if they didn't become a Brit, but if free movement stopped, then they would have no rights in the UK.
And on the subject of basic human rights for a countries citizens: your info shows you live in the US. Isn't the US the only western country who lets its citizens die or go bankrupt, if they are too poor to have health insurance?
Last edited by formula; Dec 21st 2012 at 1:50 pm.
Dec 21st 2012, 2:49 pm
#7
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Re: EEA Permit Changes/definitions by UK. Input??
I have to say that I was really surprised that they managed to get that written into EU law as it went above the McCarthy ruling. But other western EU countries are tightening up the rules on free movement too i.e. Spain, with their changed interpretation of free movement for the self sufficient. I guess this is the way forward with the EU in these dire economic times as no country wants to import poverty anymore.
That EU ruling doesn't just affect the Brits who don't want to work enough hours to provide sponsorship for their family; it also affects other dual nationals too who also think like that. Plus those who wanted to use EU law to bring their parents, siblings etc to the UK to access full welfare as soon as they arrive.
There was a correct refusal on one of the forums recently when a Polish woman had come to the UK, got UK citizenship, then tried to bring her non EEA husband and his family in on EU rules. Under these new EU rules, she couldn't do that; she had to work to sponsor them instead, under UK immigration rules now
Those EEAs who have naturalised as a Brit, can no longer bring in their parents' or their non EU spouse parents, siblings etc (who would have had instant access to full welfare under EU rules). From what I read, the elderly non Brits who were in already in the UK, never worked in the UK but were claiming full welfare through their childrens EEA permit; had a deadline to register if their children already had got British citizenship, or they lost their access to UK welfare.
I read an article on another legal type site where they said that EEAs would now have to decide if they wanted to use EU law to get UK citizenship. They had more rights in the UK under the EU if they didn't become a Brit, but if free movement stopped, then they would have no rights in the UK.
The rule is very good for the UK and the British government didn't get dragged anywhere, quite the reverse. They just got a major change to EU laws, to protect Britain and are moving to undo other EU laws that are not in the UKs best interests either. If what Britain and Spain have done, shows anything, it shows that the EU is willing to make free movement harder, not easier. It's what the western EU countries want.
And on the subject of basic human rights for a countries citizens: your info shows you live in the US. Isn't the US the only western country who lets its citizens die or go bankrupt, if they are too poor to have health insurance?
That EU ruling doesn't just affect the Brits who don't want to work enough hours to provide sponsorship for their family; it also affects other dual nationals too who also think like that. Plus those who wanted to use EU law to bring their parents, siblings etc to the UK to access full welfare as soon as they arrive.
There was a correct refusal on one of the forums recently when a Polish woman had come to the UK, got UK citizenship, then tried to bring her non EEA husband and his family in on EU rules. Under these new EU rules, she couldn't do that; she had to work to sponsor them instead, under UK immigration rules now
Those EEAs who have naturalised as a Brit, can no longer bring in their parents' or their non EU spouse parents, siblings etc (who would have had instant access to full welfare under EU rules). From what I read, the elderly non Brits who were in already in the UK, never worked in the UK but were claiming full welfare through their childrens EEA permit; had a deadline to register if their children already had got British citizenship, or they lost their access to UK welfare.
I read an article on another legal type site where they said that EEAs would now have to decide if they wanted to use EU law to get UK citizenship. They had more rights in the UK under the EU if they didn't become a Brit, but if free movement stopped, then they would have no rights in the UK.
The rule is very good for the UK and the British government didn't get dragged anywhere, quite the reverse. They just got a major change to EU laws, to protect Britain and are moving to undo other EU laws that are not in the UKs best interests either. If what Britain and Spain have done, shows anything, it shows that the EU is willing to make free movement harder, not easier. It's what the western EU countries want.
And on the subject of basic human rights for a countries citizens: your info shows you live in the US. Isn't the US the only western country who lets its citizens die or go bankrupt, if they are too poor to have health insurance?
Dec 21st 2012, 4:32 pm
#8
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Re: EEA Permit Changes/definitions by UK. Input??
The interesting thing that you just made me think about: under those new rules that the UK government just got into EU law, an EEA citizen and their family are disadvantaged in the UK if they become a UK citizen. The same doesn't seem to happen to a Brit, if we live in their EEA country and take up their countries citizenship? i.e. A Brit goes to France, complys with EEA laws and takes up French citizenship. It seems that they can still use EU law to then take elderly parents to France to live with them under an EU permit; but a French citizen who became a Brit, then couldn't use EU law to bring their parents' to the UK as they are now under UK immigration laws?
In other words; it seems a Brit can use EU laws in any EEA country, apart from our own: while other EEAs can use EU laws in any EEA country, apart from their own country and the UK (if they take up citizenship)?
Last edited by formula; Dec 21st 2012 at 4:57 pm.
Dec 22nd 2012, 3:41 pm
#9
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Re: EEA Permit Changes/definitions by UK. Input??
I'm not aware of any specific right to die in the US, or any Western country other than Switzerland. However, like breathing, it is not expressly prohibited and everyone, but everyone, does it.
Sep 18th 2013, 11:47 pm
#10
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Re: EEA Permit Changes/definitions by UK. Input??
Hi, I like this forum. I am a dual citizen (Ireland and UK). I am in the same situation as McCarthy (C-434/09) was except the I worked in Holland for 2 years in 2009 and 2010. So, I have previously used my right of freedom of movement under European law and Im not barred from an EEA Family Permit under the EU ruling. Also, I am a "Qualified Person" having recently got a UK job contract.
I want to apply for a family permit for my Colombian wife. However, we never lived together in Holland. Therefore I may not exactly fall under the Surinder Singh for a UK National?
Would anyone like to rate my chances of getting an EEA Family Permit now. I would be interested to hear.
Thanks
I want to apply for a family permit for my Colombian wife. However, we never lived together in Holland. Therefore I may not exactly fall under the Surinder Singh for a UK National?
Would anyone like to rate my chances of getting an EEA Family Permit now. I would be interested to hear.
Thanks
