EEA-route Applications

[weareawesome]

I(a non eea national) have recently applied for my right to permanent residence here in the U.K. on the bases that I have been living at the same address with my eea wife and eea daughter for the last 5 years and for 6 years with my EEA wife. i have only been formally married to my eea wife for 3 years and we have been in full time employment for the last 6 years here in the uk. our daughter was born here 5 years ago.
I received a call from the border agency informing me that I do not qualify for permanent residence because I was not in the UK legally for the first two years of the five year period and that i have been working here illegally. i have now also go the letter here in front of me saying that i overstayed and worked here illegally during the first two years of the qualifying period. they say i can apply through the u.k route and pay a fee or wait until 2014 and apply then for permanent residence.
i currently have a residence card until 2013 in my passport but i would like to see if anyone thinks it's worth trying to appeal on the bases of being in a durable relationship? will they have to use their discretion because i did not have an automatic right for the first two years when we were not married? advise would be greatly appreciated. can i take this matter to tribunal?

[John]

You clearly only started to exercise Treaty Rights in the UK as from the date of your marriage. As that marriage was less than 5 years ago, there was no way that your EEA4 application would succeed at this time.

Durable relationship? I think it is far too late to claim that. In any case, how would it help? After all you could not make such a claim for a Residence Card until the two of you had lived together for 2 years.

[weareawesome]

hi john
sorry, i was under the impression that a right is something you don't need to apply for. according ec law and ukba website one does not need to apply for a right but you can if you want to.
we have been married for two years and lived together in this country in full time employment for 6 years.
are you suggesting that i did not have a right to live and work or live with my daughter during the first three years of of my daughter's life. are you suggesting that the law has double standards?
i my mind someone either has a right or they don't. you don't need to apply for your right to free speech for instance. or if you don't apply for your right to free speech then you're not allowed to say what you want for example.
sounds like you're suggesting that the law has double standards??
with eea applications you don't need to apply for you right of residence or permanent residence. you automatically qualify for this under certain conditions.
that fact that we have been in a durable relationship for living and working at the same address in the u.k. for the last 6 years should be enough of a reason to assume that we had a right of residence during this period. any person in their right mind would make that assessment. don't you think?
i an just busy completing the tribunal forms and will keep this board up to date about new developments and outcomes.

[Monifé]

When did you receive your EEA2 residence card?

If it expires in 2013, I can only assume it was issued to you in 2008, therefore, you should be allowed to apply for permanent residence 6 months before the expiry of your residence card. If your wife has been working the whole time between 2008 - 2013 then it should be pretty straight forward.

As regards to using durable relationship, did you receive your residence card on the basis of your relationship or your marriage? If it is based on your marriage, then I do not think you can use the fact that you had a durable relationship previous to that. UKBA only recognise durable relationships as "legal" residence, if they were given the chance to investigate your relationship at the time and would then have given you a residence card based on your true relationship.

[weareawesome]

got my RC in 2008 after we go married based on marriage.
lived in uk since 2005 assuming that i have a right based on durable relationship and right to see my daughter. have proved in countless of ways that we where living and working together everyday for the 6 years. does anyone when ukba started offering the options to apply on the bases of a durable relationship?? cause i remember calling then before we got married to ask them if i can apply and they they said i could not apply . were the 2006 regulations the ones suppose to give legal residence rights on bases of durable relationship.
do you mean that because it was a durable relationship i did not have a right, but only legal residence?
sounds like they're basing true and durable relationships on the ability to obtain a piece a paper in a registry office. if we walked into a registry office and obtained the piece of paper then that makes it all ok.
what a logical system we use. next time someone applies for a job here, i won't check their qualifications or their ability, i'll just accept that all pieces of paper.

[Kitty]

weareawesome, what kind of permission did you get in 2005 to enter the UK?

The problem with a "durable relationship" is that you do not acquire the rights of a family member until the UKBA has examined your relationship (for example, you have applied for a family permit or a residence card based on a durable partnership).

When you married in 2008, however, you automatically acquired the status and rights of a "family member".

In addition to this, when you first came to the UK in 2005, there was no separate recognition of unmarried partnerships by the UK: you would have had to have shown that you had been dependant on your partner in another EU country before coming to the UK.

[weareawesome]

in 2005 i was given 6 months on the border and told that you should go to croyden and apply there. i tried and found that there is not such option. i think
you are quite right to say that this option to apply under durable relationship did not exist 2005
but,
when did the EC pass the law(2006?) relating to durable relationship and when did ukba make this option available??
i think that they are responsible because they did not accept the law or try to offer me the option to regularise my stay. .now they are saying that i do not qualify for permanent residence because i made not attempts to regularise my stay. i also think that they should be able to use discretion and access my relationship based on the evidence i can provide of our relationship during the last 6 years and not make decisions based on weather i applied for these rights at the time or not.
after all, please correct me if i am wrong..but.
the applicable EC law does discriminate between family members and extended family member, only requires durableness of relationship to be accessed. also don't think it requires an application under durable relationship does it?

[John]

weareawesome, you need to take on board the different legislation relating to a "family member" and an "extended family member".

As soon as you married you became a "family member", and thus had automatic rights. Before that you might have had the right to apply as an "extended family member", but such rights are not in place until agreed, and as you did not even apply on that basis, those rights were never in place.

Accordingly I am still of the opinion that you commenced exercising Treaty Rights on the day of your marriage, and thus your 5 years are up on your 5th wedding anniversary.

[Nimitta]

with eea applications you don't need to apply for you right of residence or permanent residence. you automatically qualify for this under certain conditions.

Family members do, but extended family members don't.

[weareawesome]

yes john
i know..but that is the reason why i'm taking this to tribunal...
because
ukba did not offer the option to apply under durable relationship in 2006 after the ec passed the law, ukba did not offer this as a option.during numerous telephone conversations with them at the time, i was also advised by ukba in 2006,2007 and 2008 that i could not apply if i am not married even if my daughter was born here.

[John]

ukba did not offer the option to apply under durable relationship in 2006 after the ec passed the law

"Did not offer the option"? Really? It is just a question of completing a form EEA2, to make the application.

But you raise a good point, in the sense that, are UKBA justified in maintaining that a couple need to be living together for at least two years in order to prove a "durable relationship". I am totally amazed that, to my knowledge, no one has taken that point to the Tribunal. After all the EU Directive does not define "durable relationship" but leaves it to Member States to come up with their own definitions.

[Obie]

I understand the nature of the debate and why people might think that Extended family member of an EEA National don't accrue rights.

I believe the UKBA'S views and interpretation of the legislation is deeply flawed, for reasons i have explained in previous thread, which i wish not to elaborate on this. Hopefully the ECJ will clarify things in MR JUDGEMENT.

Article 10 Use family member in a general terms, without differentiaing between family member and other family member, in regards to the list of document to be submitted for the residence card to be issued.
The same interpretation has to be given to article 16. I can see no discretion being conferred on the memberstates at all on when to start counting the lawful residence of OFM.

I agreed with all the sound opinions from contributors to this thread. You will not qualify, as you did not apply in 2006. Had you applied and it was rejected, you would have had a stronger case not. The rights under Article 3(2) and its surbordinate provision only kicks in once the applicant has made an application for the task under that provision to be done.

With regards to your child, under Chen principle, i believe you have a mandatory substantive rights, added to zabrano principle as well. You could make a strong case, that on these basis you have lived in the Uk lawfully, according to community law during these periods, and hence you should qualify for a permanent residence

[weareawesome]

thanks to everyone for the advise given.
just a couple more things to clarify..
firstly, john- i don't think anyone could apply for a residence card in u.k. as an extended family using eea2 in 2006,2007 or 2008. i was advised to go back to my country and apply from there when my 6 month stamp i received on the border expired. at this point i was being classed as and overstay by ukba even subject to removal. they told me that i should go back to my country and apply from there. If i was just from, let's say switzerland then it would not have been a problem to just quickly fly over but, i am national of a coutry that is a 12 hour flight from the u.k. i just simply don't understand why ukba cannot use the evidence of the relationship of the last 6 years and apply that to the years i have spend here qualifying under durable relationship to make the decision weather i was here legally all that time or not?
my second question is to obie. can you please tell me how, under the Chen principle and zabrano principle i had mandatory substantive rights? my eea daughter was born here in the u.k. in june 2005. would that mean that i qualify for permanent residence in june this year? i have lived here in full time employment bringing her up and living here since 2005 but obviously only from 2006 with my daughter.

[John]

i don't think anyone could apply for a residence card in u.k. as an extended family using eea2 in 2006,2007 or 2008

Why? The EU Directive came into force on 30.04.06. As from that date such an application could be made.

However until the ECJ handed down the Metock judgement Member States were liable to argue that illegals could not apply in-country. However, amongst other things, Metock ruled that how a person got into the country, or their immigration status, was irrelevant to the success of an application under the terms of the EU Directive.

[weareawesome]

##my residence status in my passport expired in 2005 and when i tried to make attempts to apply here after that ukba to me that i need to back and apply from my country of origin. my now wife then fiancée was heavily pregnant and after that we had young infant child to take care and i simply could fly for 12 hours just to get a little piece of paper in my passport i already had a right to..this was also too expensive for us and very environmentally unfriendly.according to the metock judgement i do not need to go back so assumed my right of residence under the zambrano judgement. a right is not something you need to apply for..you either have or you don't. the earlier chen judgement also allows you to assume your right of residence under ec law as the parent of a dependant child of a member state. i think the ukba does not accept this this law because it is not in line with national immigration laws. they illegally act against ec law..we're either part of the eu or we're not...
anyway i've completed my tribunal papers and we see what the court decides...either way at least it will be documented and you never know which way the ruling will go , but i'll fight it due to a deeply rooted believe that a parent of a dependant child to have the right of residence in country of the child's nationality. one cannot deprive a parent or child form that right. ##if someone wants settle in the eu illegally there easier ways to do than to bring a child into the world dishonestly## a right does not start from the moment you apply for it it start from the moment you can prove that you HAD that right..