in 2005 i entered the u.k. on a 6 month visa issued at the border as a non-eu national to visit my british mother.
during my visit i met a girl, fell in love and then we had a baby
in 2006.my now wife, a polish national, registered on the accession state work scheme in 2005, got a N.I. and has been in full time employment since.
we both then started working full time with n.i. numbers and we have lived at the same address and worked in the same place since 2005(durable relationship?).
after my wife became pregnant in 2005 before my 6 month visa ran out, i called the home office on numerous occasions to try and legalise myself from the uk. they informed me that the only way to get a visa was from my country of origin. now, under normal circumstances this would not be a problem, but my non eu country of origin is a 11 hour flight from the uk and the round trip would have cost me £2000.
i then discovered new eu laws which allows the spouse/partner of an eu national to apply via the eu route and that you do not need to apply from your country of origin, but the home office would still not allow me to apply from here.
in the end we decided after our daughter turned 3 that because the home office does not want to help me make myself legal that we only have the one choice they make available and that is to fly all the way back to my non eu country of origin to get married. bearing in mind that it was also not legal to marry in the uk. being here ‘illegally’ at the time.
after the honeymoon we flew back to the uk and and they allowed us through on a 6 month visa issued at the border and they said that i will be able to get a residency stamp in croydon.
i then tried to contact croyden HO and they told me that i cannot apply there and gave me liverpool’s number. liverpool HO then told me that i cannot apply for a residency certificate from the u.k. and that i had to apply for the residency from my wife’s country of origin.
i then had to applied for a visa from the polish embassy which was extremely difficult and costly, because i only had the 6 month stamp that was issued on border. i then flew to poland and applied at the uk embassy in warsaw for my residency permit. this took a long time to issue and it cost us a lot of time and money since i could not work and my wife had to stay at home in the uk and take care of our 3 year daughter on her own for an extended period of time.
they then issued me with a temp residency permit in warsaw and i then flew back and applied for the 5 year permit which was granted.
last year i applied for permanent residency based on durable relationship and marriage and living together and working in the uk for more than 7 years now and they rejected the application based on the fact that i was not here legally during the entire residency period. i then applied for the case to be reviewed through the tribunal service and they also rejected (please see response letters from tribunal service attached).
during the period when they refused to issue me with the permit, we were detained as a family in poland trying to visit family there and we were unable to attend family funerals and weddings together in poland.
i have noticed that the home office has recently made some changes and i am in the second year my law degree(EU law). We have just covered free movement and
as i understand it, the home office should have interpreted our durable relationship in accordance with national law and allowed me to apply and at the very least should have granted the permanent residence (ie. the case law that was in place at the time which now allows unmarried UK partners to apply and legalise themselves) please see the following link to new changes:
http://www.ukba.homeoffice.gov.uk/sitec ... a-regs.pdf
i would like to see if you help can help me bring a case for damages on the principles of state liability(francovich & factortame) and also maybe on grounds of failure to implement a directive(von colson)- restricting freedom of movement on a no win no fee basis? our freedom to compete fairly in business has also be limited by the restriction of our freedom to move freely which resulted in direct discrimination, because the this rule did not apply in the same way to uk nationals and their unmarried partners.
based on the following which i thought was relevant. it looks like the tribunal also refused to rule, because they said this is not a immigration matter. does that not look like they are delaying, because in the letter from the home office it says that they cannot make a decision, after i provided the required documents on two occasions? please note the letter from the home office does not give a valid reason for rejecting and that the tribunal
says that it is not an immigration matter.
we included all supporting documents and provided durable relationship evidence from before we were married in form of bank statements, utility etc. living at same address together and working full time for the last 7 ½ years since april 2005. we have not left for uk for longer than 6 months in total during the last 7 ½ years(also, not more than 2 months in one go).
research
Franz is covered by Article 3(1) if Franz and Karl have contracted a registered partnership
in accordance with Article 2(2)(b).
(Note, however, that in practice, there is an EU extra-statutory concession relating to the
immigration of EU nationals accompanied by same-sex partners.)
Note also that both Sabine and Franz would have their own rights as German nationals
under Article 45 TFEU if they were seeking work or taking up jobs in Italy (see the
comment on Uli in the second paragraph of point 1 above).
You will have noticed that Article 10 of Regulation 1612/68 uses the word ‘spouse’ (this is
now covered in Article 2 of Directive 2004/38); note that there is no mention in the Article
of persons who are in a spousal relationship with a worker, but are not actually married to
the worker, such as a ‘common law’ husband or wife, or a same-sex partner. The ECJ held
in the case of Netherlands v. Reed (case 59/85) [1985] ECR 1283 that the word ‘spouse’ in
Article 10 cannot be interpreted to cover unmarried relationships. However, it was
prepared to hold that the unmarried partner may have rights as a ‘social advantage’ to the
worker under Article 7(2). The end result of this case was, in effect, to make the unmarried
partner’s rights dependent on the national law of the host State; for example, if Dutch law
gives rights to unmarried partners of Dutch citizens, the unmarried partners of migrant EU
workers must get the same rights.
Note, however, that in practice, unmarried partners may also be able to enter a Member
State in reliance on other rights: for example, a number of Member States have national
laws which specifically permit unmarried partners of migrant workers to enter and reside.
Article 3(2)(b) of Directive 2004/38 provides that Member States should facilitate the entry
of partners who have ‘a durable relationship, duly attested’. This would cover a female
cohabitee. It is not necessary to argue that a cohabitee is ‘social advantage’ as in Reed.
However, the Reed definition of ‘spouse’ does apply to Article 2 of Directive 2004/38.
There is no guidance from the EU as to what constitutes a ‘durable relationship’. However,
the Home Office (Border & Immigration Agency) has published some guidance in para.
295A, Pt 8 of the Immigration Rules updated in 2007. The requirement for unmarried
partners and same-sex partners entering the UK is that the relationship is akin to marriage or
civil partnership, has subsisted outside the UK for at least four years, that the parties will be
able to maintain themselves and any dependants adequately, and that the parties intend to
live together permanently. As all Member States are preparing domestic rules on how to
apply Article 3(2)(b), we can expect to see different views on what constitutes a ‘durable
relationship, duly attested’.
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As a Danish national who had been offered a job in London, F has rights under Article 45
TFEU. He is an EU national and a worker. He will be exercising his rights under Article 45(3)
TFEU to take up an offer of employment.
His partner H, is not an EU national and will therefore not have any EU rights of his own to
travel to the UK. He is not a member of F’s family under Directive 2004/38 Article 2 unless he
has entered into a registered partnership with F. UK law must also treat registered
partnerships as equivalent to marriage. It may be possible to argue that the UK must facilitate
H’s entry and residence into the UK under Article 3(2)(b), if it can be shown that he has a
durable relationship with F which has been duly attested. This may be possible to show as
they seem to have a long-standing relationship.
If Directive 2004/38 is not helpful then F and H may be able to rely on Regulation 1612/68
and the argument in Netherlands v. Reed. F would have to establish that if, under UK law, a
British national would be able to have a same sex non-EU partner living with him in the UK. If
so, F could claim the right to have the same social advantages as British nationals.
