Derivative right refusal under Zambrano

[bos.80]

I came home today to a refusal letter from HO but what I don't understand is the basis of refusal. I applied as the primary carer of an EEA child in education in the UK. On the DRF form there are four categories in which you chose the category for which you are applying.

I chose category D but the refusal was based on category A even though I did not fill or answer questions in that category. Thank God i have a scanned copy of the application form to prove this. Category A is for primary carers of a child who is exercising treaty rights as self sufficient person. Is this an oversight or my application was not even attended to?

I was given the right to appeal though but I don't think this is right in the first place.

Should I consider this as a mistake and write to the caseworker pointing this mistake out? reapply or appeal?

Also I am divorced from their dad due to DV and stated that I was a victim of DV and I submitted police reports, social services assessment reports and assessment from the education officer , and my kids education records. Aside my Dv case my ex also has another DV and assault charge in another case which I have crime no for and stated those as well therefore making him unfit to cater for the kid. He's got medical problems as well.

But no attention or reference was made to any of these, instead they just said my son had insufficient funds for me to apply as a dependent on. im a bit perplexed!!!! Dependant on my son??? Where did that come from. I felt like I was reading someone else's decision. What do you think guys.

I have finally gained admission to medical school after a long wait and need to submit my passport by end of this month and was hoping a favourable decision was on its way to me, now I feel like my future is crumbling right in front of me.
Good gracious God! Im really under a time restriction here. Pls help me guys, any idea is welcome on what to do next. I simply don't know what to do. And I realise they have moved their office to Durham for Derivative rights applications. Will my MP be of any help???

I'm so confused and restless now.

Thanks n God bless

[Obie]

Was you ex husband a worker?

How long had your marriage lasted?

Why did you not apply for Retention of Residence?

To qualify as primary carer of an EEA child, you will need to show that the migrant workingwho is the father of the child, was exercising ttreaty righrs as worker, in accordance with Reg 1612/68 or under the directive.

[bos.80]

Yes he was a worker and i believe still is and I did send proof of that. I sent his contract of employment to them and a payslip. Even though we are not in contact cos of the DV i had these from my inbox. This is all buffling to me.

The marriage did my lay for long due to his lies and the DV.

[Imshzd]

As per your situation explained above,

you fall in A catagory not D.


This is not a mistake.


If you feel that your application meet the requirement of A catagory then you can request for re consideration and appeal as well.

[bos.80]

Sorry I meant to say in the last paragraph " did not last due to his lies and the DV.

[Obie]

You could qualify for Retwntion of residence, which confer PR in DV situation, notwithstanding the fact that a marriage had not lasted for 3 years..

You could go to Uni without a Residence Card. The card only confirms rights, it does not confer it.

[bos.80]

As per your situation explained above,

you fall in A catagory not D.


This is not a mistake.


If you feel that your application meet the requirement of A catagory then you can request for re consideration and appeal as well.

Ok so thes are the categories:

A. Primary carer of an EEA national child who is exercising Treaty rights as a self-sufficient person.
B. Primary carer of a British citizen.
C. Child of an EEA national where that child is in education in the UK
D. Primary carer of a child in category C
E. Dependant of a primary carer in category A, B or D above.

My son is 5 and not self sufficient, he's still in education and this was done by a lawyer friend. Why can't category D apply to me?? Can u shed some light.

Thanks

[Obie]

Category does apply indeed.

In my view, you qualify under regulation 10 (5).

It makes no sense making a complex application under regulatio 15 (A)

[bos.80]

You could qualify for Retwntion of residence, which confer PR in DV situation, notwithstanding the fact that a marriage had not lasted for 3 years..

You could go to Uni without a Residence Card. The card only confirms rights, it does not confer it.

I need to send my passport to the Uni for fee status determination and gor the the reg process but its been retained by HO. When we submitted the application for marriage, the divorce cert was not attached and HO never requested for it so they said I have been refused on the grounds that I had not shown proof that he was divorced from ex wife.... The marriage started showing cracks then and the DV happened so I fled... So I was never given residence under marriage hence this application based on my sons status.

[bos.80]

Category does apply indeed.

In my view, you qualify under regulation 10 (5).

It makes no sense making a complex application under regulatio 15 (A)

Exactly my point Obie! Why 15a( chen) was even used as the basis of my decision I have no clue since I did not select or apply under that category..
I submitted every single document required under category D plus the DV incident with social services backing and the education officer as well as police report.
I am really baffled!!!!!

[Obie]

So long as you are married and you subsequently divorced, and at any time during your marriage, you both lived in the UK, and your marriage got dissolved in the UK, you will qualify under D violence provision.

The problem with the above, as well as what I think went wrong with that application, is proof that there was an EEA national, that he was a qualified person, and your son was the direct descendant of that person, and on divorce to that person, you son retained rights under 1612/68.

In the absence of his ID or passport, that may be difficult to prove.

[bos.80]

So long as you are married and you subsequently divorced, and at any time during your marriage, you both lived in the UK, and your marriage got dissolved in the UK, you will qualify under D violence provision.

The problem with the above, as well as what I think went wrong with that application, is proof that there was an EEA national, that he was a qualified person, and your son was the direct descendant of that person, and on divorce to that person, you son retained rights under 1612/68.

In the absence of his ID or passport, that may be difficult to prove.

Obie the HO has copies of his Passport from the previous marriage application that was refused because I submitted his passport and still have copies of it. My passport was retained under that application so I had to use that reference no to link to this new apication.
I submitted the childs birth certicate which has his name on
Submitted his payslip and contract of employment
I submitted the childs EU passport as well.

The have set out the required documents that you need to submit with each category and none of the required docs was left not submitted to them.
Everything they asked me to provide to support the application I did.

[Imshzd]

As per your situation explained above,

you fall in A catagory not D.


This is not a mistake.


If you feel that your application meet the requirement of A catagory then you can request for re consideration and appeal as well.

Ok so thes are the categories:

A. Primary carer of an EEA national child who is exercising Treaty rights as a self-sufficient person.
B. Primary carer of a British citizen.
C. Child of an EEA national where that child is in education in the UK
D. Primary carer of a child in category C
E. Dependant of a primary carer in category A, B or D above.

My son is 5 and not self sufficient, he's still in education and this was done by a lawyer friend. Why can't category D apply to me?? Can u shed some light.

Thanks

As you wrote in your first post that *** EEA child*** so it falls in A.


Let's explain you simple way.

A. Primary carer of an EEA national child who is exercising Treaty rights as a self-sufficient person.

EEA national child(child how holds EEA nationality). That's what you said in your post **eea child**

C. Child of an EEA national where that child is in education in the UK.
D. Primary carer of a child in category C

Read C carefully.it say child of an EEA national.Not EEA national child as EEA national child falls in the A catagory.
For example.my father holds franch passport but I am not.so my father is an EEA national while I am not EEA national child.
So C and D catagory covers those child's who are not EEA national child but child of an EEA national.

If you read B catagory then it clears on us that this regulations also cover British child as well.

Your lawyer did mistake and you are paying for this mistake.

[Obie]

Well C does not preclude the fact that the child could be an EEA national aswell.

It is envisage that the child could be an EEA national or a non-EEA national.

All that section is concerned about is that the child is the child of an EEA national, who was or is exercising treaty rights in the UK.

[bos.80]

As per your situation explained above,

you fall in A catagory not D.


This is not a mistake.


If you feel that your application meet the requirement of A catagory then you can request for re consideration and appeal as well.

Ok so thes are the categories:

A. Primary carer of an EEA national child who is exercising Treaty rights as a self-sufficient person.
B. Primary carer of a British citizen.
C. Child of an EEA national where that child is in education in the UK
D. Primary carer of a child in category C
E. Dependant of a primary carer in category A, B or D above.

My son is 5 and not self sufficient, he's still in education and this was done by a lawyer friend. Why can't category D apply to me?? Can u shed some light.

Thanks

As you wrote in your first post that *** EEA child*** so it falls in A.


Let's explain you simple way.

A. Primary carer of an EEA national child who is exercising Treaty rights as a self-sufficient person.

EEA national child(child how holds EEA nationality). That's what you said in your post **eea child**

C. Child of an EEA national where that child is in education in the UK.
D. Primary carer of a child in category C

Read C carefully.it say child of an EEA national.Not EEA national child as EEA national child falls in the A catagory.
For example.my father holds franch passport but I am not.so my father is an EEA national while I am not EEA national child.
So C and D catagory covers those child's who are not EEA national child but child of an EEA national.

If you read B catagory then it clears on us that this regulations also cover British child as well.

Your lawyer did mistake and you are paying for this mistake.

There's a lot of ambiguity here but however you look at it any child of an EEA national is definitely going to take that nationality. How about all the parents applying because their kids are british and they are not, they are british because their Dads gave them that nationality. So it doesn't add up, Moreover you cannot apply if the child's passport is not added as you are applying as the child's primary carer. As Obie said C does not preclude children having EEA nationality.
My main point aside all these is I applied under D but HO used category A to refuse me. How about HO stating why I was refused under D?? Because theres none. How about HO telling me I did not fall under D hence the refusal but they avoided that because they know they have no reason under D to refuse me cos if there was that obvious reason would have been stated.
Instead they used Chen to refuse me, I did not make Chen application.

[wiggsy]

however you look at it any child of an EEA national is definitely going to take that nationality.

Not necessarily. I know Indonesian nationality law means that a child takes the fathers nationality. and Indonesian law only allows one nationality (with a sort of "Excemption" until the child is 18 when they can pick if they want to be Indonesian or another nationality if one was aquired due to birth...)

Different nationalities have different rules regarding nationality... Even Britain can be a problem if the child is born abroad (need to apply to "aquire/Register" the nationality ETC...)



Is your child settled now. Have they aquired PR? (Five years old).

[Imshzd]

Let's explain you in more detail about these categories.



A catagory.

For all childs who holds any EU country passports fall in this catagory even if applicant tick B or C or D by mistake or intensionally.

B catagory,

For all childs who holds British citizenships.does not matter which catagory applicant ticked.

C and D catagory.

For all child's who do not hold the EU or British citizenship but they are the child's of an EEA national.Does not matter which catagory applicant ticked in the application form.

[wiggsy]

Let's explain you in more detail about these categories.



A catagory.

For all childs who holds any EU country passports fall in this catagory even if applicant tick B or C or D by mistake or intensionally.

B catagory,

For all childs who holds British citizenships.does not matter which catagory applicant ticked.

C and D catagory.

For all child's who do not hold the EU or British citizenship but they are the child's of an EEA national.Does not matter which catagory applicant ticked in the application form.

I thought A was CHEN and C was Ibrahim/Teixeira’ cases. That is what the HO response states at least in response to my Derivative Right of Residence request...

So it appears that it IS NOT A but infact D as the applicant / OP stated... and that the HO is INCORRECT.

[Obie]

Let's explain you in more detail about these categories.

C and D catagory.

For all child's who do not hold the EU or British citizenship but they are the child's of an EEA national.Does not matter which catagory applicant ticked in the application form.

The above is clearly wrong.

Also see

Paragraphs 4 and 9 of Schedule 1 to these Regulations amend the 2006 Regulations so as give effect to the judgment of the ECJ in the case of C-200/02 Kunqian Catherine Zhu and Man Lavette Chen v Secretary of State for the Home Department. They do so by providing rights of entry and residence for the primary carer of an EEA national, who is (a) under the age of 18 and (b) residing in the United Kingdom as a self sufficient person, where the denial of such a right would prevent the EEA national child from exercising his or her own right of residence.
Paragraphs 4 and 9 of Schedule 1 to these Regulations amend the 2006 Regulations so as to give effect to the judgments of the ECJ in the cases of C-310/08 Nimco Hassan Ibrahim v London Borough of Harrow and Secretary of State for the Home Department and C-480/08 Maria Teixeira v London Borough of Lambeth and Secretary of State for the Home Department. They do so by conferring rights of entry and residence—

[bos.80]

Let's explain you in more detail about these categories.



A catagory.

For all childs who holds any EU country passports fall in this catagory even if applicant tick B or C or D by mistake or intensionally.

B catagory,

For all childs who holds British citizenships.does not matter which catagory applicant ticked..

C and D catagory.

For all child's who do not hold the EU or British citizenship but they are the child's of an EEA national.Does not matter which catagory applicant ticked in the application form.

I thought A was CHEN and C was Ibrahim/Teixeira’ cases. That is what the HO response states at least in response to my Derivative Right of Residence request...

So it appears that it IS NOT A but infact D as the applicant / OP stated... and that the HO is INCORRECT.

Thanks Wigssy for that link! Read it and its really helpful... it elaborates more on the various categories and which case laws applies..... The categories C and D are indeed Ibrahim/ Taxeiea cases which I believe I ticked and supplied all the docs requested with it. Was I refused because I did not categorically quote this case law? If HO had given me any explanation as to why they refused me under cat D, it would have been helpful. I am going to quote exactly what they said which to me is really out off tune to the application I put in. They could ve told me they are refusing me on the on the basis of me not falling under cat D but that wasn'tt he case. I quote

"You have applied for DRF as the primary carer / dependant of a primary carer of an EEA national child who is exercising free movement rights in the Uk as a self sufficient person". WRONG
I stated the category on the accompanying letter that I was applying as the primary Carer of EEA national child who is in a education in the Uk.

They then went on to define and emphasise on what Chen is all about...... totally ignoring or addressing any shortfalls I might have presented in the category I submitted this application under.
iSight have fallen into the hands of an amateur caseworker......

[wiggsy]

well, you can appeal. But your likely to be waiting a long time. Alternatively, you can apply again... or write to them outlining that your application was not treated correctly. and it is clear that they didnt treat your application as legislation requires ETC.

Write a letter of complaint to the EC / UKBA about it too.

I wouldn't be worried about your residence in the country so much as the HO only Confirm and not GIVE the right you have.

I don't believe you need to quote the caselaw, but I'd say to quote the caselaw and highlight relevant parts in your letter of complaint.


Also, if your going to appeal, your appeal is on the basis that you have rights under EU law ETC/ the decision is not in accordance with the law. From what people are saying your going to have months of waiting on the appeal...

[bos.80]

well, you can appeal. But your likely to be waiting a long time. Alternatively, you can apply again... or write to them outlining that your application was not treated correctly. and it is clear that they didnt treat your application as legislation requires ETC.

Write a letter of complaint to the EC / UKBA about it too.

I wouldn't be worried about your residence in the country so much as the HO only Confirm and not GIVE the right you have.

I don't believe you need to quote the caselaw, but I'd say to quote the caselaw and highlight relevant parts in your letter of complaint.


Also, if your going to appeal, your appeal is on the basis that you have rights under EU law ETC/ the decision is not in accordance with the law. From what people are saying your going to have months of waiting on the appeal...

Thanks wiggsy,

I will gladly do so, will that be me asking them to reconsider my application again in the complaint or just to express my application being treated unfairly?
What's the EC please and do you know the address to send this complaints to?
Or should I solicit the services of a lawyer to do this for me?
Many thanks I really do appreciate.

[wiggsy]

European Commission Complaints - its the EU citizen child that is making the complaint (your acting on their behalf as their legal guardian)

Ask them to reconsider the application on the basis that they appear to have judged the application in the wrong category... But i wouldnt hold your breath on that happening.

List of email addresses for the UKBA
- send to to the complaints email, and perhaps the Euro departmental ones too..

You don't need a lawyer to do this for you, but obviously the choice to get legal advice is entirely yours. Also be mindful of your time limits for appealing the decision.