UK's Definition of EEA Family Member?

[Delaine]

Good morning,

A friend of mine has an issue I hope can be answered here. Ive had good advice re. my own situation, so thought this a good place to start.

He has been in the UK since 2004. Came here on a work permit as an Artiste, under the 'old system' not the Tier system, so had to renew every year, which he duly did. How it worked was that, employer would have to do work permit renewal and then once granted, he would have to apply for Temporary Leave to Remain on the basis of the work permit.

On expiry of the 5 years (just before UKBA changed to Tier System) he applied for ILR. This was refused - UKBA claimed all his renewal applications had been late (even though, theyd actually granted all his renewals and only mentioned lateness after 5 years, when they refused his ILR).

I had a quick look at their letter (I am no expert tho!) and it seems the issue is, employer would apply for renewal of Work Permit say 1 month before it expired - which is fine, as it was 'in time' in terms of having to apply before expiry of work permit. But - by the time the next work permit renewal was granted, his previous Temporary Leave had already expired. He hadnt realised this was a problem as it doesnt seem to be mentioned anywhere and employers responsibility was to apply for the work permit only; Temporary Leave applications are made by the applicant themself. It seems the lateness aspect didnt dawn on the employer either as he only dealt with the work permit aspect and as work permit renewals were always granted, neither of them foresaw their would be any problem when it came to eventually applying for ILR. UKBA never ever pointed out anything in terms of lateness, so it didnt come to mind.

I think for the first few years UKBA didnt have this Temporary Leave system, you just applied for the work permit and that was it - it was introduced further along the line. I hope this makes sense in terms of how Ive explained it.

So the situation now is, UKBA wish to remove him. He has a fiancee here she isnt a British Citizen, however and doesnt have a UK/EU passport; she is originally from Ghana (as is my friend), and is the adoptive daughter of an EU citizen. On this basis she has a 5 year Dependent stamp in her passport. That stamp expires in 2012, when she will apply for permanent EU residency.

She lived with her adoptive father in Holland previously, they moved here in 2006 and thats when she met my friend. Theyve been a couple since then and they now have 2 children together. Eldest is aged almost 3 years, and the youngest was born last month.

So I guess my question is, would he have a chance of remaining in UK based on his family life with his fiancee and 2 children here? Does her status have any bearing on the matter ie as the adopted daughter of an EU citizen, is my friend the family member of an EU citizen? I am thinking 'NO' as she only has the 5 year dependency stamp? I wanted to check here just to be sure. She is 23, and hasnt lived in Ghana for years, she's been in Europe for 8 years so doesnt have a home in Ghana, no contact with family members there. My friend has lived in the UK for almost 7 years as an artiste now, there would be no stability for them as a family in Ghana ie, he doesnt have his own home or job there, and neither he or his fiancee have lived in Ghana for years. Also his fiancee wouldnt want to be far away from her adoptive father, who lives here.

If anyone can shed some light and advise on this, Id be grateful, as I dont have a clue whether he can make a case to stay here with his family and if so, on what would be the strongest basis.

Thanks!

[fysicus]

As I understand the fiancee still has Ghanese nationality and passport, so your friend is not a family member of an EU-citizen and therefore cannot benefit from Directive 2004/38. That is very simple.

However, he may benefit from other EU legislation on long-term residents (directive 2003/109). You may have a look at this description.

[avjones]

article 25:

"In accordance with Articles 1 and 2 of the Protocol on the position of the United Kingdom and Ireland, annexed to the Treaty on European Union and to the Treaty establishing the European Community, and without prejudice to Article 4 of the said Protocol, these Member States are not participating in the adoption of this Directive and are not bound by or subject to its application."

[Delaine]

Fysicus - thank you for this, Ive printed out Directive info and will pass on to my friend.

[fysicus]

I'm very sorry, Delaine, but as Amanda points out: directive 2003/109 does not apply in the UK (and also not in Ireland or Denmark), so it is useless for your friend.
Sorry again for giving you false hope!