EEA Family Permit for a Stepson (via marriage, not adoption)

[Petem]

I am hoping that those knowledged can confirm / fill in the missing point for me.

I am presently in the UK having lived in Germany for over ten years, for the last two and a bit years I was married and my wife joined me in Germany (she was registered and had the usual EEA Residency card etc). At that time due to a number of circumstances my wife’s son did not join us, and he attended boarding school where he has done really well. I am duel British / Irish and wife now has a UK residency card under Surinder Singh when we returned in September 2014

My understanding is that even though he never joined us (in Germany) he is eligible for a family permit either to visit or stay as the son of the wife of an EEA national. Am I correct?

My wife’s ex has custody although she has been looking after him close on 100% of the time when he is not at boarding school. The ex has implied that he would be happy for the boy to come to the UK for a visit and potentially to study. He was 14 last May. I understand for cases like this a statement from the ex /father would be needed before any visa’s would be issued. Is there a standard format for the letter that is used, can someone point me to one?

On a similar note what additional documentation do you suggest apart from the usual:
My Passport or copy
Wifes residency card UK + Passport
Sons Passport and Birth Cert (with translation)
Letter from father

Do I need to give a letter of invitation?
Do we need anything from Germany, i.e. her residency card, proof of registration etc? I.e. do I still need to show compliance to working abroad even though the UK residency card is issued?
Do I need to provide payslips etc for the UK and if so for how long?

We plan that he will visit in January / February for the Chinese new year, should we have anything from the school saying he is on holidays during this period?

I appreciate any help, suggestions or directions

Regards
Peter

[noajthan]

Stepchildren may apply for a FP.

See UK BF Ops Manual, s. 5.8:
https://www.whatdotheyknow.com/request/ ... ndents.pdf

See also:
https://www.gov.uk/government/publicati ... ingh-cases

Letter of invitation not necessary but can't hurt.

There's no template for father's consent, a brief signed/dated statement will do.

As you are British you don't have to exercise treaty rights now you are back in UK (case law of Eind);
its not clear but you probably have to submit evidence to show you took Surinder Singh route. Otherwise your status won't be clear to caseworker.

[Petem]

Noajthan many thanks for the quick response and apologies for the delay in responding, I presently cannot access forum from my mobile (O2 related) and am working away from home.

Thanks for the confirmation I had a general sense that this was the case but seemed to remember some discussion a long time ago that the UK had tried to stop applications where the person was not in the EU country along with the EEA / Partner.

I planned to include some proof of living in Germany (but not 10 years) along with copy of the DE residency card and not just rely on the UK one already issued.

The application will be made in the coming weeks and will advise if any thing strange comes about.

Regards
Pete

[secret.simon]

I am not entirely convinced that you can apply for an FP for your stepchild.

Family members with whom you created on strengthened family life while exercising treaty rights in another EEA country are the sole beneficiaries of the Surinder Singh route. When you return to the UK, with the exception of those family members, you lose the right to the EEA route. That is to say that you do not remain an EEA citizen because of an SS route in the past.

If your stepchild was not a part of the SS route, I believe that he can not apply for an FP.

In my opinion, you will either need to apply for the relevant visa under the UK Immigration route or move the center of your life back to another EEA country (i.e. undertake another SS route).

If I am wrong, I will most assuredly be corrected by a strike of lightening across my bows, so stand by for others to guide you further.

[noajthan]

The difficulty is Regulation 9 of EEA Regulations only specifically mentions spouses although references in various case law talk about the strengthening of family ties & etc etc.
Ref http://www.eearegulations.co.uk/Latest/ByPage/part1_9

I suspect OP may face an initial refusal (after all even married couples are regularly refused) and then face a battle on these points.

At least it costs nothing (in monetary terms) to find out.

[Obie]

There is no where in regulation 9 that mentions it application is only confine to spouse. If you are correct, that will be absurd. As a non EEA child will essentially be refused, and Eind will be meaningless.

There is also nothing in the regulations that state family life must have been created between children in the other memberstate.

[noajthan]

There is no where in regulation 9 that mentions it application is only confine to spouse. If you are correct, that will be absurd. As a non EEA child will essentially be refused, and Eind will be meaningless.

There is also nothing in the regulations that state family life must have been created between children in the other memberstate.

I mean in the context of moving to another country - only spouses are mentioned specifically in Regulation 9.
Other family members are not mentioned specifically.
(I didn't mean the Regulation is confined to only spouses).

Yes, nothing in UK's Regulation 9 about family life; that aspect has come up in various cases.

[Obie]

I don't agree with you on that.

Only regulation 9 (2)(b) said if the family member is the spouse or civil partner then they must have lived in another member state. The use of the word "if" , indicates quite clearly that Regulation 9 envisages family member within regulation 7, beyond spouse or civil partner.

In regards to regulation 8, well that has been settled by the Upper Tribunal anyway, and Home Office has been unsuccessful in getting permission at the court of appeal.

[secret.simon]

Obie, so just to clarify your posts, can the OP bring his step-son (who was not a part of the SS route) on an FP? Or must he apply for the step-son via the Immigration Rules or do another SS round with the step-son?

Do the nuances of Regulation 9(2)(b) mean that if a person has done an SS route once, he retains his EEA citizenship status lifelong and can sponsor both children and dependent parents without another SS route?

[Obie]

My response has no relationship to case law.

I merely confine my views to the wording of regulation 9, which appears to be absent from the opinion you expressed .

[secret.simon]

My response has no relationship to case law.

I merely confine my views to the wording of regulation 9, which appears to be absent from the opinion you expressed .

I appreciate that. Can I request you to spell it out as a Yes/No answer to the first question in my post.

[Obie]

Simon you should know me by now, that I derive no pleasures in repeating myself.

I have set out my views that, I see nothing in regulation 9 that precludes a stepson from qualifying, even if they did not reside in a memberstate.
It is not my position to tell people whether to apply under the immigration rules or Regulations, and I don't propose or aspire to that position.

OP is free to do what he or she deems appropriate.

I am merely correcting some legal inaccuracies that I observed on this thread.

[Petem]

Thanks for all your comments.

I had a feeling this was not as straight forward as it seemed. I appreciate this is an undocumented case.

If we did proceed with the application and it comes back as a “I don’t believe this is a valid application and suggest a “voluntary” withdrawal” This I believe would then not give any right of appeal. I am not sure we would have time to appeal and would use another route, would it be felt that this refusal (if we forced it by not withdrawing) be very detrimental to either a visitor's visa or long term Settlement?

Would Solvit be able to give advice on this?

Regards

Pete

[Petem]

Hello Members

With everything that has been said, does it make any difference that I hold dual nationality?

As I presently only have one passport I normally refer to myself as British unless formal documentation asks and never thought it might affect this question.

I was born in Dublin and have Irish nationality. I moved in 1976 and when 18 took British Citizenship as a work requisite.

Not really wanting to give it up at present

Regards

Pete

[MrSlyFox]

As a British Citizen, you can only use the SS route as the EEA regulations would not otherwise apply to you. You can not use Irish citizenship (EEA citizenship) while still being a British Citizen.

Suggest you read this: https://www.gov.uk/government/uploads/s ... s_v3_0.pdf

-Page 38 - SS route
-Page 45 - Dual British and EEA Nationals


I believe the SS regulation only applies if the concerned family member (any direct-family member i.e. Spouse, children, grandparents )of the British Citizen HAD resided with you in another EEA state.