Non EEA husband and 6 yr old son called for interview.

[dochelp]

I found this case, might be relevant for us to argue using this

http://www.bailii.org/uk/cases/UKUT/IAC ... ganda.html

[Obie]

Directive i believe paragraph 53 of Mrax sort of answers your question.

The main reason for providing these rights is to eliminate obstacle to the Union Citizen exercising of their treaty right. But in the case of the OP, there was no treaty right for a period of time.

I accept he may now be exercising treaty rights, but UKBA dont seem to know that. Provided he provides proof to that regards he will be fine.

Even though not explicitly stated in the directive, the UKBA takes the view that if the EEA national is not exercising treaty rights, then their family membets derive no right from them whatsoever, therefore they are not residing in the UK in accordance with the EEA regulations and could be removed under the UK section 10 administrative removal scheme.

[dochelp]

Hello guys, just returned from the interview, lasted 20 mins. All 5 of us got into the interview room when the immigration officer (IO) called my husband. The IO told my husband that he was called in to find out what his current status was and told he was called in because the HO had notified them that his and my sons Visa was refused 3 months ago and asked to check my current status. He said when he looked through my husbands immigration history, there were no issues previously and he has been residing in the country for 9 years on various visa's and he doesn't think there should be any problem !!(whatever that means).

When my husband told the IO the letter we received 3 months ago did not mention any refusal and it stated to provide additional proof how was were exercising treaty rights for the previous 5years, he agreed to that and said it was not a refusal but more like 'declined'. ( It will be interesting to find out the wordings of the letter from HO to the enforcement agency). He asked when are we going to re-apply for the visa and asked how we are exercising treaty rights. My husband told him that we were gathering evidence and trying to find a suitable immigration lawyer and was planning to re-apply in 2-3weeks. My husband also told him that I am is currently exercising treaty rights as a self sufficient person but was previously a worker.

Was satisfied by this and then went to speak to his chief immigration officer - returned and then asked to apply within the 2weeks and they will be monitoring the situation. He then asked for documents that I could provide in addition to which I had send earlier to the HO, so that he could keep copies of them. He did not ask for any document in particular.

Now have to find an immigration lawyer to contest that I was exercising treaty rights through out the whole 5 years and was temporarily not working due to the fact that I has 3 C sections and needed time for recovery and taking care of the children.

Any recommendations of a good lawyer will be much appreciated.

[thsths]

Now have to find an immigration lawyer to contest that I was exercising treaty rights through out the whole 5 years and was temporarily not working due to the fact that I has 3 C sections and needed time for recovery and taking care of the children.

Any recommendations of a good lawyer will be much appreciated.

It is good to hear that the meeting went well. I think you have two separate issues: a) making residence card applications (EEA1, EEA2), and b) getting permanent residence (EEA3, EEA4). I would separate them, that means send both applications, just to make sure that you get your residence cards even if your permanent residence is not granted. There should be no need for a lawyer at this stage, as long as you have sufficient income and CSI. You can still get a lawyer involved if permanent residence is refused.

[dochelp]

Now have to find an immigration lawyer to contest that I was exercising treaty rights through out the whole 5 years and was temporarily not working due to the fact that I has 3 C sections and needed time for recovery and taking care of the children.

Any recommendations of a good lawyer will be much appreciated.

It is good to hear that the meeting went well. I think you have two separate issues: a) making residence card applications (EEA1, EEA2), and b) getting permanent residence (EEA3, EEA4). I would separate them, that means send both applications, just to make sure that you get your residence cards even if your permanent residence is not granted. There should be no need for a lawyer at this stage, as long as you have sufficient income and CSI. You can still get a lawyer involved if permanent residence is refused.

Good advice but will they disregard the PR forms because of applying EEA1, EEA2. Is there any examples of people doing this before?

[EUsmileWEallsmile]

Hello guys, just returned from the interview, lasted 20 mins. All 5 of us got into the interview room when the immigration officer (IO) called my husband. The IO told my husband that he was called in to find out what his current status was and told he was called in because the HO had notified them that his and my sons Visa was refused 3 months ago and asked to check my current status. He said when he looked through my husbands immigration history, there were no issues previously and he has been residing in the country for 9 years on various visa's and he doesn't think there should be any problem !!(whatever that means).

When my husband told the IO the letter we received 3 months ago did not mention any refusal and it stated to provide additional proof how was were exercising treaty rights for the previous 5years, he agreed to that and said it was not a refusal but more like 'declined'. ( It will be interesting to find out the wordings of the letter from HO to the enforcement agency). He asked when are we going to re-apply for the visa and asked how we are exercising treaty rights. My husband told him that we were gathering evidence and trying to find a suitable immigration lawyer and was planning to re-apply in 2-3weeks. My husband also told him that I am is currently exercising treaty rights as a self sufficient person but was previously a worker.

Was satisfied by this and then went to speak to his chief immigration officer - returned and then asked to apply within the 2weeks and they will be monitoring the situation. He then asked for documents that I could provide in addition to which I had send earlier to the HO, so that he could keep copies of them. He did not ask for any document in particular.

Now have to find an immigration lawyer to contest that I was exercising treaty rights through out the whole 5 years and was temporarily not working due to the fact that I has 3 C sections and needed time for recovery and taking care of the children.

Any recommendations of a good lawyer will be much appreciated.

This is a very interesting post. Have they retained any of your passports?

May I suggest that you first reapply for EEA1 on the basis of you being self-sufficient and EEA2 for all your family members. For the EEA1 you need to demonstrate that you have sufficient funds (husband's work) and sickness insurance. That would take away any immediate worries.

Sort this out first, you can always worry about PR later.

[dochelp]

This is a very interesting post. Have they retained any of your passports?

May I suggest that you first reapply for EEA1 on the basis of you being self-sufficient and EEA2 for all your family members. For the EEA1 you need to demonstrate that you have sufficient funds (husband's work) and sickness insurance. That would take away any immediate worries.

Sort this out first, you can always worry about PR later.

No they have not retained any passports.
I have to use the BR forms. I still have the blue card which was issued 5 years ago. Do I have to reapply? When you say about PR - do you mean we should wait for another 5 years prior to applying for it.

[EUsmileWEallsmile]

No they have not retained any passports. That's good.

I have to use the BR forms. I still have the blue card which was issued 5 years ago. Do I have to reapply? No, just evidence that you are self-sufficient.

When you say about PR - do you mean we should wait for another 5 years prior to applying for it. Not necessarily.

Ok, some comments above. I imagine getting a new RC will be quicker that insisting on a PR card given that there is less to prove. With a RC, your husband could come and go to the UK as he pleases and will have no problems at work.

PR while nice to have, isn't essential at the end of day, I imagine you just want to live in peace. You could take up that battle once you have the new residence cards.

Hope this makes sense.

[Directive/2004/38/EC]

Directive i believe paragraph 53 of Mrax sort of answers your question.

The main reason for providing these rights is to eliminate obstacle to the Union Citizen exercising of their treaty right. But in the case of the OP, there was no treaty right for a period of time.

I accept he may now be exercising treaty rights, but UKBA dont seem to know that. Provided he provides proof to that regards he will be fine.

Even though not explicitly stated in the directive, the UKBA takes the view that if the EEA national is not exercising treaty rights, then their family membets derive no right from them whatsoever, therefore they are not residing in the UK in accordance with the EEA regulations and could be removed under the UK section 10 administrative removal scheme.

If this is UKBA's view, then I do not think it is legally sustainable.

The preamble of Directive 2004/38/EC (specifically paragraph 5, but also others) gives support to a family argument.

And I can not imagine that if an EU citizen is laid off tomorrow morning (and most likely does not have CSI!), then their family can be swept up and deported by UKBA in the afternoon. It would not cut it to say "The EEA sponsor is not a qualified person, so they have no rights at all and we put them all on a plane". Don't think so!

[Directive/2004/38/EC]

( It will be interesting to find out the wordings of the letter from HO to the enforcement agency).

Please do request it. Your husband can request his and also your son's.
http://www.ukba.homeoffice.gov.uk/navig ... onal-data/
It takes a while to get the results. (I personally think everyone should request their file)

[Obie]

And I can not imagine that if an EU citizen is laid off tomorrow morning (and most likely does not have CSI!), then their family can be swept up and deported by UKBA in the afternoon. It would not cut it to say "The EEA sponsor is not a qualified person, so they have no rights at all and we put them all on a plane". Don't think so!

Well i was not suggesting that for a minute. If a Union Citizen is laid of work then they continue to be a worker during the period they are seeking work, and CSI is not required as they are a worker.

This is not the situation here. The OP left work to look after children. That is quite different from being laid off or being a jobseeker seeking work, or someone temporarily unable to work due to illness.

I have to say, i mistook the fact of this thread for another thread i was replying to, but on the fact of the information on this thread and without clarification from the OP on whether she was on maternity leave and receiving maternity pay, the duration of her leave, her means of sustainance, i am unable to conclude that she retained her worker status on commencement of her maternity leave.

If she was unable to retain her worker status then surely a CSI will be required.

I do have my misgiving about CSI in the context of the UK, but on the basis of national legislation, she will certainly need it.

[Directive/2004/38/EC]

And I can not imagine that if an EU citizen is laid off tomorrow morning (and most likely does not have CSI!), then their family can be swept up and deported by UKBA in the afternoon. It would not cut it to say "The EEA sponsor is not a qualified person, so they have no rights at all and we put them all on a plane". Don't think so!

Well i was not suggesting that for a minute. If a Union Citizen is laid of work then they continue to be a worker during the period they are seeking work, and CSI is not required as they are a worker.

This is not the situation here. The OP left work to look after children. That is quite different from being laid off or being a jobseeker seeking work, or someone temporarily unable to work due to illness.

I have to say, i mistook the fact of this thread for another thread i was replying to, but on the fact of the information on this thread and without clarification from the OP on whether she was on maternity leave and receiving maternity pay, the duration of her leave, her means of sustainance, i am unable to conclude that she retained her worker status on commencement of her maternity leave.

If she was unable to retain her worker status then surely a CSI will be required.

I do have my misgiving about CSI in the context of the UK, but on the basis of national legislation, she will certainly need it.

[Discussion note: We are bouncing ideas around here. I am going to suggest all sorts of things. You may agree with them, and you may not. If I am trying to characterize your position, I will do so explicitly]

The UK takes the position that if you are not on "official" maternity leave from your employer, then you need to be self sufficient and have private CSI. If you do not have "self sufficient" status for all periods when you are not working, then UKBA seems to say (I have not seen it written) that you do not qualify for PR over that period.

I should note that learning UK immigration law and arranging private CSI is (unfortunately?) the last thing on most people's minds in the months leading up to the birth of a baby.

In this case UKBA is saying that we will deny PR to anyone who voluntarily leaves their job, who is not actively looking for a new job, and who did not arrange CSI in advance. And we might even try to take immigration action against their family.

But UKBA has not publicized this. Nobody knows in advance. They only know when they are refused. The UK has an obligation to publicize the transposition of the Directive (Article 34)

[Obie]

I shall respectfully refer you to JS v Secretary of State for works and pension to deal with your point.

The OP situation was further complicated by the ECJ judgement in Dias in which it was held that Mrs Dias lose her status as worker during the time she was looking after her child and not on official maternity leave.

The unfortunate consequence of this is that she was not considered as someone exercising treaty rights. This means she would be expected to hold CSI. Although this was purely academic to Mrs Dias as it was held that she was someone with a right of permanent residence due to her previous activities, it does have effect on situation like the one on this thread

[Directive/2004/38/EC]

Interesting. Those judges seem to think it quite straight forward.

Would you agree however that it has not been very well communicated by UKBA?

[Obie]

UKBA never "Well Communicate " things.

They take years, in some cases decade to implement CJEU/ ECJ judgement that are binding on the UK.

They show complete disregard for EU laws in many cases, like Article 5(2) of the citizens directives, which clearly states a Residence Card issued by other member states should be recognised in the UK.

They impose habitual or Right of residence test for some benefit, which they have been warned is illegal, but still haven't changed course.

They impose CSI for self Sufficient EEA national, when such policies are not applicable to UK national, or other lawful residents in the UK.

The list go on.

Furthermore i believe an argument can be constructed in Regards to the maternity leave issue.

An EEA national can leave the UK for 12 months after giving birth, and returning without this affecting her ability to secure PR. However if they stay in the UK and look after their Children, even if they are self-sufficient, they will not qualify, because they are not in possession of a CSI. Does this not deter them from continuining to exercise their treaty rights under Article 21 of the Treaty of Functioning of the EU.

One only need to read paragraph 93 of Baumbast, to realise that CSI is not really an end to itself. http://www.bailii.org/cgi-bin/markup.cg ... od=boolean

[gerlof]

This might be a solution for the kids if they were born in britain?


Children born in the United Kingdom from this to EEA/Swiss parents are normally British citizens automatically, if at least one parent has been exercising Treaty rights for five years. If the parents have lived in the United Kingdom for less than five years when the child is born, the child may be registered as British under s1(3) of the British Nationality Act once the parents complete five years residence in the United Kingdom.
Children born between 2 October 2000 and 29 April 2006 may be registered as British citizens as soon as one parent has completed 5 years residence exercising Treaty rights in the United Kingdom.

Source: http://en.wikipedia.org/wiki/British_na ... witzerland

[Directive/2004/38/EC]

I have thought a similar thing about the 12 months away. An argument against that is that in the 12 months, the person is definitely not a burden on the social system of the UK.

The Bombast paragraph is interesting though.