Child was u21, now over 21 in employment- what happens now?

[greatscott]

A non eu family member used the Singh route when still u21 to join BC parent and received a Residence Card. Now however over 21 and employed, and even though still living with parents could be considered no longer dependant when the time comes to apply for PRCertificate after 5 years.

So the question is what route does this person now have to take?
1. Extended family? Chances of getting PRC ?
2. If refused extended family member?
3. What happens when RC expires, having lived in UK for over 5 years? Deported?...deported to where? the country of his non-EU passport? He can no longer live with his family?

[greatscott]

anyone?

[greatscott]

wow, this site has really changed, used to be really helpful, or maybe the rules have changed so much that no-one knows whats going on anymore...Obie used to be very helpful....you there Obie?

If anyone has any experience with a child going over the age of 21 after arriving in the UK, please help out.

Thanks

[Richard W]

wow, this site has really changed, used to be really helpful, or maybe the rules have changed so much that no-one knows whats going on anymore...Obie used to be very helpful....you there Obie?

We've lost Noajthan, who worked very hard answering questions - too hard, I feared. Obie seems to be working as hard as ever on this board.

I don't know what the correct answer used to be. Under the 2006 regulations, my surmise was that such young adults became EFMs under Article 8(2)(c):

A person satisfies the condition in this paragraph if the person is a relative of an
EEA national, his spouse or his civil partner and–

(a) the person is residing in a country other than the United Kingdom and is dependent upon the EEA national or is a member of his household;

(b) the person satisfied the condition in paragraph (a) and is accompanying the EEA national to the United Kingdom or wishes to join him there; or

(c) the person satisfied the condition in paragraph (a), has joined the EEA national in the United Kingdom and continues to be dependent upon him or to be a member of his household.

So long as a residence card was held from before the age of 21, then the EFM became a family member under

Subject to paragraph (4), a person who is an extended family member and has
been issued with an EEA family permit, a registration certificate or a residence card
shall be treated as the family member of the relevant EEA national for as long as he
continues to satisfy the conditions in regulation 8(2), (3), (4) or (5) in relation to that
EEA national and the permit, certificate or card has not ceased to be valid or been
revoked.

This article does not appear to be significantly different in the 2016 regulations.

However, there is a subtle change of tense in the 2016 regulations:

The condition in this paragraph is that the person is—

(a)a relative of an EEA national; and

(b)residing in a country other than the United Kingdom and is dependent upon the EEA national or is a member of the EEA national’s household; and either—

(i)is accompanying the EEA national to the United Kingdom or wants to join the EEA national in the United Kingdom; or

(ii)has joined the EEA national in the United Kingdom and continues to be dependent upon the EEA national, or to be a member of the EEA national’s household.

This seems to prevent someone who is already in the UK from becoming an EFM under Section 8(2); now, the main body of 8(2)(b) and 8(2)(ii) are not compatible! One must hope the tribunals will allow the main body of 8(2)(b) to be satisfied by a past state of affairs despite the use of the word 'is'.

This is not the only internal contradiction in the 2016 regulations. The retention of a right of residence on divorce used to apply to the children of the non-EEA spouse under Regulation 10(6)(b). The trigger was that the child cease to be a family member of the EEA sponsor when the divorced. However, the wording in Regulation 10(5) is now that the potential child retainer of rights must have ceased to be a family member because (s)he divorced. Regulation 10(6)(b) would only apply when both parent and child had been divorced from EU sponsors! (Perhaps necessarily the same sponsor?!?)

[greatscott]

Great response, thanks.

So our direct descendant when going over 21 then becomes an EFM.

Can I ask what happens to an EFM who is not/ no longer considered dependant. What does HO require of them.

And what happens when their RC expires after living in the UK with us for 5 years? Are they still allowed to exit/enter the UK as residents (RC card holders)?

As I said before this person (direct descendant) still lives with us but is employed full time now (as one would expect of a person now well over 21). So now we're expecting to be told that they no longer consider him dependant when he submits for PRC after 5 years. So that then is a problem right?

Thanks.

[Obie]

Thanks Richard for the acknowledgement of our work load.
Unfortunately it is near impossible to reply to everyone.

Regulation 7 by virtue of Regulation 9 will continue to apply for Direct descendant over 21 who are dependent. However if dependency cease to exist, so will right under the regulations.

Unfortunately it is the position of the Home Office that Regulation 8 has no applicability to Extended family members.

[greatscott]

Thanks Richard for the acknowledgement of our work load.
Unfortunately it is near impossible to reply to everyone.

Regulation 7 by virtue of Regulation 9 will continue to apply for Direct descendant over 21 who are dependent. However if dependency cease to exist, so will right under the regulations.

Unfortunately it is the position of the Home Office that Regulation 8 has no applicability to Extended family members.

Thanks Obie for your contribution, without trying to add to the workload, a final question...

what in practical terms does that mean (no longer being dependent, therefore rights under the regulations are lost)... they have still been here over 5 years....do they now get booted out? or can they perhaps apply for permanent residence by some other means. Does the 5 years residence count for nought?

Sorry, I just cannot see how these individuals stand to lose everything just because they decided to start working (which they were entitled to do through the conditions of their RC).

[Richard W]

Unfortunately it is the position of the Home Office that Regulation 8 has no applicability to Extended family members.

@Obie: Is that statement an error? I think you mean 'to Surinder Singhers'. On the other hand, you could just mean that British law on EFMs (primarily Regulation does not apply because the HO is successfully contending that there is no right of appeal on such matters.

@greatscott: My understanding was that the relevant part would be the italicised part of Regulation 8(2)(b)(ii): "has joined the EEA national in the United Kingdom and continues to be dependent upon the EEA national, or to be a member of the EEA national’s household".

[Richard W]

what in practical terms does that mean (no longer being dependent, therefore rights under the regulations are lost)... they have still been here over 5 years....do they now get booted out? or can they perhaps apply for permanent residence by some other means. Does the 5 years residence count for nought?

If they don't acquire EFM status, a Home Office response might be that they should have been booted out as soon as they reached 21. A residence card is not a visa, except in so far as it allows an EFM to be treated as a family member.

Sorry, I just cannot see how these individuals stand to lose everything just because they decided to start working (which they were entitled to do through the conditions of their RC).

The EUCJ has applied that logic to the situation of EFMs; the immigration benefits of financial dependency are not lost just because the dependent starts working. It seems that their view is that most laws explicitly rewarding idleness are contrary to the public interest and therefore invalid. I'm not sure how sound the argument is - those on visitor visas are generally not allowed to work, and even study is iffy.

I'm missing something on the conditions of an RC - where is permission to work explicitly granted? (Note that for most people, working an hour a week would not remove dependency.)

[Obie]

The Statement was in error as you rightly pointed out.

I meant to say that the regulations don't provide for returning family member of British citizen to qualify under Regulation 8.

[greatscott]

@greatscott: My understanding was that the relevant part would be the italicised part of Regulation 8(2)(b)(ii): "has joined the EEA national in the United Kingdom and continues to be dependent upon the EEA national, or to be a member of the EEA national’s household".

Ah, that nugget is what I've been looking for...for us we look to be saved by the fact that we have all lived together and still do.

So even if employed over 21 now, with dependency therefore becoming a grey area, we are covered for their PRC by the fact that we have lived together continuously.

Brilliant. Look forward to a good night's sleep. Thanks.

[JS1969]

Greatscott,

I finally managed to find your threat.

Have you got an update on your case? Is it all goood news now, hopefully?

Best
JS