Another nail...

[Richard66]

...in the coffin of the UK's interpretation of Directive 38/2004:

http://eur-lex.europa.eu/LexUriServ/Lex ... 27:EN:HTML


These say in so many words that the right for non-EU family members to live with their EU family is not conditioned to the fact the non-EU citizen was previously resident legally in another EU state. If you remember, the UK says that for family members to apply for an EEA they must be legally resident in the EU.

When the ECJ decides that the EEA is bunk if the non-EU family member is in possession of a residence card, the burial can proceed!

[Eclair]

So they were rejecting EEA applications based on residency in another state? Or are you talking about the EEA Family Permit in that regard?

[John]

If you remember, the UK says that for family members to apply for an EEA they must be legally resident in the EU.

The UK says no such thing. Quite a number of EEA Family Permits are issued each year, at British Missions outside the EU or EEA.

[ribena]

If you remember, the UK says that for family members to apply for an EEA they must be legally resident in the EU.

The UK says no such thing. Quite a number of EEA Family Permits are issued each year, at British Missions outside the EU or EEA.

im confused.. is that means that i , for instance applied for Dutch MVV back in 2005 are not allowed to apply for the residence card??

[sakura]

If you remember, the UK says that for family members to apply for an EEA they must be legally resident in the EU.

The UK says no such thing. Quite a number of EEA Family Permits are issued each year, at British Missions outside the EU or EEA.

im confused.. is that means that i , for instance applied for Dutch MVV back in 2005 are not allowed to apply for the residence card??

No, it doesn't mean that. John is arguing that the UK accepts applications from all countries, including those outside the EU/EEA.

I am confused about Richard66's post, though. I have not seen anything about the UK requiring prior residence in another EU/EEA country. Even on this board, there are quite a number of people who have succesfully applied for an EEA family permit from outside the EU/EEA.

I thought it was only Ireland that requested this?

However, the judgement allows the UK/other respective governments to impose some sort of penalty on those who entered the UK illegally or overstay a visa, and then subsequently apply to 'adjust' their status using the EU directive, without leaving the UK (article 97):

However, even if the personal conduct of the person concerned does not justify the adoption of measures of public policy or public security within the meaning of Article 27 of Directive 2004/38, the Member State remains entitled to impose other penalties on him which do not interfere with freedom of movement and residence, such as a fine, provided that they are proportionate (see, to that effect, MRAX, paragraph 77 and the case-law cited).

[Rozen]

If you remember, the UK says that for family members to apply for an EEA they must be legally resident in the EU.

The UK says no such thing. Quite a number of EEA Family Permits are issued each year, at British Missions outside the EU or EEA.

im confused.. is that means that i , for instance applied for Dutch MVV back in 2005 are not allowed to apply for the residence card??

I am confused about Richard66's post, though. I have not seen anything about the UK requiring prior residence in another EU/EEA country. Even on this board, there are quite a number of people who have succesfully applied for an EEA family permit from outside the EU/EEA.

Could it be that Richard66 is referring to the Residence Card, rather than the EEA Family Permit? They are two different documents after all..... Just thinking.

[John]

However, the judgement allows the UK/other respective governments to impose some sort of penalty on those who entered the UK illegally or overstay a visa, and then subsequently apply to 'adjust' their status using the EU directive, without leaving the UK (article 97):

I am not sure that the judgement does say exactly that. The judgement, as regards this point, was merely pointing out that the Directive allows member Governments to impose a penalty if action is not taken within three months. The Court was not giving new rights to Governments ... it was merely confirming that they have such rights.

A look at the Directive will show that for visits of up to three months they is no need for the person to register. But for more than three months there is an obligation to do so. How to register? I must admit that is not totally clear to me, in the UK context, given it is clear that since 30.04.06 there is no obligation to apply for a Residence Card. If applied for the Residence Card merely confirms the rights that were already held. However I think that if a Residence Card is applied for, on form EEA2, the Government clearly knows about the person. But they would also know if a NI number was applied for.

What we don't have in the UK is the need to register at the local Town Hall or similar. But I think that a number of other EU countries do have such an obligation.

[John]

No, it doesn't mean that. John is arguing that the UK accepts applications from all countries, including those outside the EU/EEA.

Exactly right. Clearly an EEA Family Permit can be applied for at a British Mission anywhere in the world that the person is resident.

Could it be that Richard66 is referring to the Residence Card, rather than the EEA Family Permit? They are two different documents after all..... Just thinking.

You might be right. Richard can you clarify? If that was indeed what you are saying, then yes, clearly following the judgement counters any query about how the person got into the UK.

[Ben]

However, the judgement allows the UK/other respective governments to impose some sort of penalty on those who entered the UK illegally or overstay a visa, and then subsequently apply to 'adjust' their status using the EU directive, without leaving the UK (article 97):

I am not sure that the judgement does say exactly that..

You might find the discussion over in the Ireland section of interest..
http://www.immigrationboards.com/viewto ... 952#184952

[irishkin]

If you remember, the UK says that for family members to apply for an EEA they must be legally resident in the EU.

The UK says no such thing. Quite a number of EEA Family Permits are issued each year, at British Missions outside the EU or EEA.

Uk will issue a family permit if you apply from outside the EU, but it will require you to satisfy normal immigration rules if you do so. e.g. If your parents apply for EEA family permit from non-EU country, they ma still get that particular stamp in the passport, but to get it they will need to demonstrate that they meet the normal immigration rules such as over 65, etc. Whereas under EU regulations, they will only need to demonstrate relationship and dependency. Current UK regulations are very similar to Ireland in that respect, so this is a great win for all concerned, bravo ECJ.

[Ben]

If you remember, the UK says that for family members to apply for an EEA they must be legally resident in the EU.

The UK says no such thing. Quite a number of EEA Family Permits are issued each year, at British Missions outside the EU or EEA.

Uk will issue a family permit if you apply from outside the EU, but it will require you to satisfy normal immigration rules if you do so. e.g. If your parents apply for EEA family permit from non-EU country, they ma still get that particular stamp in the passport, but to get it they will need to demonstrate that they meet the normal immigration rules such as over 65, etc. Whereas under EU regulations, they will only need to demonstrate relationship and dependency. Current UK regulations are very similar to Ireland in that respect, so this is a great win for all concerned, bravo ECJ.

No! An EEA Family Permit is only issued to family members in accordance with EU regulations, never in accordance with UK national law. EU law applies at all times to the holders of an EEA Family Permit, not UK law.

[John]

benifa, the unfortunate thing is that the EU regulations leave a lot to be desired. Quite simply they are not specific enough, and thus member Governments have ability to interpret the regulations in whatever way they see fit.

For example, an unmarried couple, the EU regulations talk about a "durable relationship", but give no clue as to how those words are to be interpreted. So the UK has decided to impose the same requirement as for an application for an unmarried partner visa under UK immigration law .... a requirement to live together for at least two years.

However there are many that think it is possible to demonstrate a "durable relationship" before two years. The outcome could well be that someone somewhere in the EU will end up getting a judgement from the ECJ, but until they do member states will be free to impose their own definitions.

[Ben]

benifa, the unfortunate thing is that the EU regulations leave a lot to be desired..

Oh I completely agree with you. The scope for interpretation of EU directives (especially 2004/38/EC), by Member States, is dangerously vast. The recent Irish case is a perfect example. And you're right, in time there's likely to be a precedent set for many unfair interpretations.

What I'm saying is, that the UK (or anywhere) cannot issue an EEA Family Permit visa, in accordance with European legislation, then ignore EU legislation once the family member has arrived in the UK, and start imposing their own national legislation.

[irishkin]

benifa, the unfortunate thing is that the EU regulations leave a lot to be desired..

Oh I completely agree with you. The scope for interpretation of EU directives (especially 2004/38/EC), by Member States, is dangerously vast. The recent Irish case is a perfect example. And you're right, in time there's likely to be a precedent set for many unfair interpretations.

What I'm saying is, that the UK (or anywhere) cannot issue an EEA Family Permit visa, in accordance with European legislation, then ignore EU legislation once the family member has arrived in the UK, and start imposing their own national legislation.

It's not about imposing own national regulations after a person will arrive into UK. It is about satisfying normal UK immigration rules to get EEA Family Permit when applying outside of the EU. It's more onerous that if you apply from within the EU. You'll get the same stamp in both cases, and requirements for residence cards once in the UK are the same. But under existing regulations, you will simply not get EEA Family Permit if applying from oustide of EU and not meeting normal UK immigration rules. Obviously, this seems in contrast with EU directive, but one had to challenge this, until the Metock case came before ECJ UK was free to do this (as was Ireland).
You can say it was not in the spirit of the EU directive, but that was the way it was, read the EU Casework instructions. Mind you, the good thing was that they explicitly said that one could be within the EU on a tourist visa, not necessarily residence card, but it was still a huge issue, as often family members needed to apply from outside of EU

[Ben]

It's not about imposing own national regulations after a person will arrive into UK. It is about satisfying normal UK immigration rules to get EEA Family Permit when applying outside of the EU. It's more onerous that if you apply from within the EU. You'll get the same stamp in both cases, and requirements for residence cards once in the UK are the same. But under existing regulations, you will simply not get EEA Family Permit if applying from oustide of EU and not meeting normal UK immigration rules. Obviously, this seems in contrast with EU directive, but one had to challenge this, until the Metock case came before ECJ UK was free to do this (as was Ireland).
You can say it was not in the spirit of the EU directive, but that was the way it was, read the EU Casework instructions. Mind you, the good thing was that they explicitly said that one could be within the EU on a tourist visa, not necessarily residence card, but it was still a huge issue, as often family members needed to apply from outside of EU

Now I understand.

[Richard66]

I was absent for a day or two and look at the result! At least a discussion got under way!

You see, I meant just what I said, because I remember (and have copies) of the EEA FP procedure from Italy and that both the Embassy and then the VAC stated in BIG BOLD CAPITALS that "applicants must be legally resident in Italy."

[sakura]

I was absent for a day or two and look at the result! At least a discussion got under way!

You see, I meant just what I said, because I remember (and have copies) of the EEA FP procedure from Italy and that both the Embassy and then the VAC stated in BIG BOLD CAPITALS that "applicants must be legally resident in Italy."

I still don't think the ruling has much to do with the UK's interpretation. I think what you have relates more to the Akrich ruling than this one. Paragraph 58 of this ruling reads (my bolding):

It is true that the Court held in paragraphs 50 and 51 of Akrich that, in order to benefit from the rights provided for in Article 10 of Regulation No 1612/68, the national of a non-member country who is the spouse of a Union citizen must be lawfully resident in a Member State when he moves to another Member State to which the citizen of the Union is migrating or has migrated. However, that conclusion must be reconsidered. The benefit of such rights cannot depend on the prior lawful residence of such a spouse in another Member State (see, to that effect, MRAX, paragraph 59, and Case C‑157/03 Commission v Spain, paragraph 2 .

Which means that, if you are applying from another EU/EEA member state, you should have legal status in that member state. Paragraph 16 of the ruling reads (my bolding):

(2) These Regulations shall not apply to a family member unless the family member is lawfully resident in another Member State and is –
(a) seeking to enter the State in the company of a Union citizen in respect of whom he or she is a family member, or

(b) seeking to join a Union citizen, in respect of whom he or she is a family member, who is lawfully present in the State.’

My argument is the distinction between "lawful residence when applying" and "prior lawful residence"....the former does not mean you have to be resident in the EU/EEA - it simply means that, if you are resident in the Union, you should have legal status. The latter is Ireland's approach, which has been ruled illegal.

Does that make sense?