Family Permit under Chen rejected - appealing now

[Pablito]

Dear Members,

If any of you could enlighten me a bit about my situation, and where i go wrong with it or perhaps I am even right to some extent?

The mother of my child non-EEA applied for a Family Permit to the UK. She was refused the visa under Chen regulations that she does not meet the criteria such as , she isn't in the UK and no comprehensive health insurance.

I had made a second application arguing that we didn't apply for residence card, but only for Family permit and that initial 3 months would not need to be a subject to any preconditions, but only after 3 months she would be required to provide evidence of health insurance and sufficient resources. The ECO did not bother to address these objections and refused the second time around.

My plan is to appeal this decision and argue the case on the basis that the requirements in Chen apply to a situation where the mother makes an application for residence permit those requirements would apply and also that Human rights considerations should be taken into account, such as son being able to live with primary carer mother and to see his father.

I mean regarding health insurance, it seems to me ridiculous to buy a health insurance in a country in which they are both not even present and that this health insurance would not apply in their country of origin(Philippines).

I would much appreciate some comments, whether I am getting anywhere with this or am I heading for disaster?

thank you,

Pawel

[secret.simon]

In order for Chen to apply, the EEA citizen child must already be in the UK.

Assessing if the Chen criteria are met
14.In order to assess whether a primary carer of an EEA national has a right of residence in the UK caseworkers should firstly consider whether the EEA national child is exercising Treaty rights in the UK as a self-sufficient person.

18. Furthermore, the EEA national child, by virtue of new regulation 4(5), must comply with the conditions of regulation 4(2) so requiring that they have adequate funding and comprehensive sickness insurance for their family members as well as themselves.

No human rights involved. The child does not have a human right to reside in the UK.

Also be aware that Derivative rights such as Chen
a) Do not lead to permanent residence
b) Are not protected or covered under the UK-EU Withdrawal Agreement.

[Pablito]

Thank you Simon, but that doesn't really answer my problem regarding mothers right to obtain family permit to accompany him there as a minor for the first 3 months of stay.

[secret.simon]

My point was that there is no Chen right for the mother unless the EEA citizen child is already in the UK. Can the father (presumably already residing in the UK and an EEA citizen) not bring the child to the UK?

[Pablito]

Yes I could, then after my son is here,would she need to prove that she has enough resources to come here or only the child? Thank you

[secret.simon]

The child, mother and all non-British (and possibly non-Irish) family members must be self-sufficient and have comprehensive sickness insurance (aka private health insurance)..

Essentially, the child needs to meet all the requirements of a self-sufficient EEA citizen sponsoring their family members, with the exception of dependency.

[Maria33]

How old is the child? If school age, is it possible to apply under Ibrahim and Teixeira case?

[Pablito]

Never heard about this case. He is 8 years old. Interesting to find out about this case.

[secret.simon]

Derivative rights of residence – Ibrahim/Teixeira cases revised

An Ibrahim/Teixeira case only arises if (a) the child is already in the UK; (b) in education in the UK and (c) the EEA parent of the child has worked in the UK at some point in time (not necessarily contiguous with the child's education, but the EEA citizen parent must have worked at some point of time during the child's residence in the UK).

Again, a derivative right that does not lead to permanent residence and that is not protected by the UK-EU Withdrawal Agreement.

[Obie]

In order for Chen to apply, the EEA citizen child must already be in the UK.

For the avoidance of doubt i do not accept that analysis. There clearly is no basis in EU law to justify that. EU law does not only provide for the right of a person to reside it also provide for a person entry. The treaty does not permit the UK to simply facilitate right of residence only. The UK is fully bound by the treaty to permit these people to enter.

Also see MA and SM (Zambrano: EU children outside EU) Iran [2013] UKUT 00380 (IAC)

Also See Regulation 11(5)(d) as you will note, it is not only people who meet the requirement of 11(5)(a) that are permitted to enter the UK, by virtue of 11(5)(d), a person who accompanies a parent will have a right of entry even if they had not resided in the UK previously.

[Pablito]

Thank you Obie for your input. I do intend to appeal because I feel that based on all the previous Case laws it was made clear how generous are these right for EU citizens and their family members. I will try to argue that in my appeal by stating the right of initial residence and right of entry.

Based on my reading of current legislation it would seem as if though legislation defines non-eea as family member if she in this case is applying for the right of residence.

So I see my chances to win this case depending I guess if I got the judge who will be more idealistic in his her approach towards the law, rather than just applying the UK's implementation.

[Obie]

Well that position us unsustainable and a judge will fall into error if they conclude that you are a family member within the directive.

The Court in Chen made a clear finding that the parents cannot be classified as family member with the meaning of the then regulations 1612/68.

So arguing that they are family member will not work.

[Pablito]

Thanks,

I've just finished my appeal, I did not write about being family member but that she has the right to accompany and that would need comprehensive insurance when here in the UK and that we applied for right of entry and not residence.

[Pablito]

And also some stuff about evidence of sponsorship that was provided by me th father like my letter of support and income of her and mine.