EEA Residence Card - right to work

[Mkap]

Hi all - this is my first post here so apologies if this is in the wrong board.

My parents are German nationals (originally Indian). My mother has obtained her residence card in May 2006 based thereby excercising her treaty rights.

I am in the Uk on a residence card as a family member of an EEA national (which I got in June 2007 - I was 26 at the time - I applied in November 2006). At the time I applied for the permit, I was a dependent - my mother was supporting me financially as I had just finished my post graduate studies and did not have a permit to work.

Obviously I applied with a view to becoming independent and finding a job. My residence permit says under 'Remarks' - "employment and business activities allowed".

I was advised yesterday by an immigration lawyer that as soon as i got my job (at the end of December 2006 based on the home office letter which said I could take up employment and their letter of 10 November 2006 would be sufficient to evidence my right to work) i should have notified the home office about any job I take up upon which notice they will say that I am no longer a dependent and therefore my residence card should be revoked?

My EEA family residence card says "employment and business activities allowed". This has made me anxious about my current status and my future ability to apply under the 5 yr rule. Basically what he implied was that I should remain a dependent for the duration of the EEA family permit and that as I was not financially dependent for the last 4 years or so I basically should not have been working!

If the UKBA were to revoke the EEA resi card I would again become financially dependent on my parents and I assume I would be entitled to apply for another residence card! I can not see the logic in what the immigration adviser said to me.

Thanks in advance for any help!

[nonspecifics]

I totally agree with you.

Even the EU guidance about this is a lot of waffle about dependent family members.

Are you living in the same house as your parents as part of their family unit?

I got this response from the EU Your Advice Europe legal advisers:

You are seeking some information – case law – regarding the situation of dependents.

According to the case-law of the Court (Cases 316/85 Lebon (para 22) and C-1/05 Jia (paras 36-37), the status of ‘dependent’ family member is the result of a factual situation characterised by the fact that material support (emotional dependence is not taken into account, see Advocate General Tizzano in case C-200/02 Zhu and Chen, para 84) for that family member is provided by the EU citizen or by his spouse/partner.

The status of dependent family members does not presuppose a right to maintenance. There is no need to examine whether the family members concerned would in theory be able to support themselves, for example by taking up paid employment.

In order to determine whether family members are dependent, it must be assessed in the individual case whether, having regard to their financial and social conditions, they need material support to meet their essential needs in their country of origin or the country from which they came at the time when they applied to join the EU citizen (i.e. not in the host Member State where the EU citizen resides). In its judgments on the concept of dependency, the Court did not refer to any level of standard of living for determining the need for financial support by the EU citizen (the test of dependency should primarily be whether, in the light of their personal circumstances, the financial means of the family members permit them to live at the minimum level of subsistence in the country of their normal residence (AG Geelhoed in case C-1/05 Jia, para 96).

The Directive does not lay down any requirement as to the minimum duration of the dependency or the amount of material support provided, as long as the dependency is genuine and structural in character. Dependent family members are required to present documentary evidence that they are dependent. Evidence may be adduced by any appropriate means, as confirmed by the Court (Cases C-215/03 Oulane (para 53) and C-1/05 Jia (para 41). Where the family members concerned are able to provide evidence of their dependency by means other than a certifying document issued by the relevant authority of the country of origin or the country from which the family members are arriving, the host Member State may not refuse to recognise their rights. However, a mere undertaking from the EU citizen to support the family member concerned is not sufficient in itself to establish the existence of dependence."

[nonspecifics]

See this thread in particular the post by OBIE.

http://www.immigrationboards.com/viewto ... ht=#522812

In the EEA regulations, different provisions apply to both Extended family members under Regulation 8 and Core family members under regulation 7.

Under regulation 17(1), the issue of a Residence card to Family members within the meaning of Regulation 7(1) is mandatory, whiles for extended family member under regulation 8, it is discretionary under regulation 17(4) (5), safe for if they are holders of an EEA family permit, then they are considered as family member under regulatins 7(3) and the issue of their residence card is mandatory under regulation 17(1).

There is an anomaly in the EEA regulations, in my view, which the courts have sort clarification on in the case of MR, which is at the CJEU at present for preliminary ruling.

With regards to dependant family members in the descending line, it is only the social and emotional ties that needs to carry on over the 5 years period, in order for them to qualify for Permanent residence card. This is different for extended family members , who have to demonstrate that they were either dependant or members of the Household over a 5 years period.

I hope this clarify things

Directive asks a similar sort of question here:

http://www.immigrationboards.com/viewtopic.php?t=85710

.....When they were 20, they were clearly a "family member". At 21, they no longer strictly meet that definition, because they are not under 21 and are not dependent.

And then at age 25 they apply for a Permanent Residence Card.

They clearly need to present evidence that the EU citizen was legally resident in the UK for the duration. Do they have to show any evidence of what they were doing? Is it enough that for most of the period that they were a former "family member?"

[Mkap]

See this thread in particular the post by OBIE.

http://www.immigrationboards.com/viewto ... ht=#522812

In the EEA regulations, different provisions apply to both Extended family members under Regulation 8 and Core family members under regulation 7.

Under regulation 17(1), the issue of a Residence card to Family members within the meaning of Regulation 7(1) is mandatory, whiles for extended family member under regulation 8, it is discretionary under regulation 17(4) (5), safe for if they are holders of an EEA family permit, then they are considered as family member under regulatins 7(3) and the issue of their residence card is mandatory under regulation 17(1).

There is an anomaly in the EEA regulations, in my view, which the courts have sort clarification on in the case of MR, which is at the CJEU at present for preliminary ruling.

With regards to dependant family members in the descending line, it is only the social and emotional ties that needs to carry on over the 5 years period, in order for them to qualify for Permanent residence card. This is different for extended family members , who have to demonstrate that they were either dependant or members of the Household over a 5 years period.

I hope this clarify things

Directive asks a similar sort of question here:

http://www.immigrationboards.com/viewtopic.php?t=85710

.....When they were 20, they were clearly a "family member". At 21, they no longer strictly meet that definition, because they are not under 21 and are not dependent.

And then at age 25 they apply for a Permanent Residence Card.

They clearly need to present evidence that the EU citizen was legally resident in the UK for the duration. Do they have to show any evidence of what they were doing? Is it enough that for most of the period that they were a former "family member?"

Thanks a lot - immigration law is so obscure.
Directive 2004/58 - suggest otherwise:
Article 10 - a RC "shall" be issued to the family member - there is no discretion
Article 16 (2) - family members "shall" have the right to lawful residence for "5 years legal residence"
Article 20 - PR "shall" be issued to the family member entitled to PR
Article 23 - family members "shall" be entitled to take up employment
Again, the use of the word "shall" implies no discretion.

I have also called the home office and they say (2 separate caseworkers on 2 separate occasions) that:
1. They encourage RC holders to work and I dont need to remain dependent (of course so long as the parent is exercising treaty rights).
2. My having worked will not jeopardise an application for PR.
3. The lawyer was wrong.

What do you think? The directive I refer must have been implemented by now - not sure in which act though.

Thanks for your help so far!