Post
by Obie » Fri Jan 07, 2011 10:43 pm
I see two clear hurdle you will have to overcome in your case. The first is, the EEA regulations makes provisions in Regulation 9 for family members of UK national. It fails to make provision for OFM (article 3(2b) ) of the directive, who are describe in Regulations 8(5) as extended family members. This is clearly wrong, as there is no two tiers of community rights for Union Citizen. You either have a community rights under the treaty or you don't. You can't have a French National coming to UK to exercise treaty rights, having more rights under the treaty or secondary legislation than a British National who return to the UK, after exercising treaty rights. Both are in Exactly the same situation. Any form of reverse discrimination against these people as opposed to their immobile compatriots, is strictly forbidden.
Secondly, she did not reside with you in France, she spent only a month, and it does not seem she applied for a residence card whiles she was living with you. I know all of these are strictly speaking not required under the directive, but the UK imposes more conditions than required.
Your child is a British national, but is not currently leaving with you in the UK, he lives in South Africa, so i am not sure you can invoke rule 246, as she is not applying to come and see your child you have access to in the UK.
I believe you best chance is to appeal on the basis, that you have been deprived of the family life you enjoyed in France, which is not very much in the one year, depending on how much you can show. Any reasons, why it will be unrealistic to expect you to relocate to South Africa.
I wish you all the best.
Smooth seas do not make skilful sailors