Eea Family Permit For Child Declined - Custody Issue?

[flip2000b]

Hi,

I have applied for an EEA Family Permit for my step-daughter to join me and my wife in England through my Irish passport.

We made the application but had it declined. The reason for the decision was becuase:

"...you have not provided evidence to suggest that your mother has legal custody of you."

Now is this an issue with my step-daughter having lived with her grand-parents for the last 6 years (she is 8) whilst my wife worked away or is this an issue with my step-daughters biological father?

Any help is greatly appreciated before I appeal to the home office.

Many Thanks.

Phil

[Maestro]

Now is this an issue with my step-daughter having lived with her grand-parents for the last 6 years (she is 8) whilst my wife worked away or is this an issue with my step-daughters biological father?

It is neither of the two, but exactly what your step-daughter was told. In a divorce, there should be a written agreement, sanctioned by a government agency, as to who has custody of the child, ie the father, the mother, or both parents jointly. Apparently, your step-daughter failed to supply a copy of this agreement with her visa application, if such agreement was ever made, or if it was submitted it does not show that her mother has custody.

--

Maestro

[the scouser]

There is no requirement for your wife to show that she has custody; only that the child who is applying is hers.

Refer to the current legislation at http://www.opsi.gov.uk/si/si2006/20061003.htm#1 and apply again.

Scouse.

[flip2000b]

Thanks for the answers guys. Much appreciated as always.

Scouse, just a quick one, do you think I can persue a legal case for compensation etc if they have declined an application illegally based on the current immigration legislation? I know it may be a long shot but it is pretty sickening to go through this rubbish when they have declined an application like this!

Thanks again for the information again.

[7by7]

There is no requirement for your wife to show that she has custody; only that the child who is applying is hers.

Scouse, could you kindly explain the meaning of Para EUN2.21 of the ECG?

EUN2.21 Applications from direct descendants under 18

In order to protect the interests of minors, ECOs should ensure that they have established parental responsibility for children applying for EEA family permits as direct descendants of EEA nationals, particularly where one or both parents will not be accompanying the child to the UK. In these cases it is reasonable to ask for the written consent of the child’s parent(s) or legal guardian(s) for the child to travel before issuing the EEA family permit.

As it says "direct descendants of EEA nationals" does it not apply in this case as the child in question is the direct descendant of the spouse of an EEA national? Seems rather inconsistent if so.

[ThaiVisaExpress]

You should fax them and bring their attention to this fact and ask for a review.

[the scouser]

...does it not apply in this case as the child in question is the direct descendant of the spouse of an EEA national? Seems rather inconsistent if so.

I'd be wary of taking the ECGs as sacrosanct. They represent the UKBA's policy and it is a well established legal principle that policy is secondary to law.

The legislation itself states at regulation 7 that family members are, inter alia:-

"direct descendants of his, his spouse or his civil partner"

Consequently, the child of a Thai woman married to an EEA national is classed as a family member. You'll also note that for those direct descendants aged under 21, r.7 does not require dependancy to be established. If the individual is demonstrably a direct descendant aged under 21, then he is a family member. R.12 then states that upon application an ECO must issue a family permit to a family member. NB the law says "must", not "can if he sees fit" or "feels like it"; i.e. there is a positive legal compulsion for the family permit to be issued.

Scouse.

[7by7]

Thanks for that.

Another question, if I may.

So although the policy is to establish parental responsibility and policy also says that it is reasonable to obtain written consent from the child's parents/guardian (presumably if the child is not accompanying/joining the parent with custody); doing so would actually be in breach of the legislation?

It seems to me that this means a parent who is the spouse/partner of an EEA national and does not have legal custody of their child can take that child away from the parent who does and bring that child to Europe with an EEA family permit.

To quote Mr Bumble in Oliver Twist; "If the law supposes that, the law is a ass!"

[the scouser]

Essentially, it is not for the UK authorities to enforce another country's custody orders. Even the ECGs don't suggest that the parent with custody must consent to the family permit application; just simply that one of the parents' written consent might be obtained.

If the situation you describe were to arise, it would be for the offended parent with custody to prevent the child travelling to the UK by recourse to the courts that issued the original custody order.

Scouse.

[7by7]

Thanks, again.

[flip2000b]

Thanks for that Scouse, that has at least made it clear in my mind. When I was looking through things previously I was fairly sure that it should be a simple process to get the EEA Family Permit for my wife's daughter, clearly the incompetent British embassy have not made it that case!

As we have been declined I know I can now either appeal to the home office or simply reapply, probably just attaching a copy of the immigration regulations and highlighting the points you make above! In your opinion what would be the best option?

Also I would love to have your thoughts in making a claim against the British embassy, as they also incorrectly delayed my wife's second family permit when she had to return to Bangkok whilst awaiting the 5 year extension. So all in all they have made a pretty bad hash of sorting out two pretty simple visa applications!

[the scouser]

Whilst I am of the belief that the UKBA has infringed your family's EEA rights, I am no expert on litigation. You're best seeing a solicitor who deals with such matters to advise on your chances of success.

With regard to the child's application, I'd both appeal and re-apply, after all the applications are free and you can make as many of them as you want.

Scouse.

[7by7]

I'd like to ask another question, if you don't mind, Scouse.

Regulation 12, para 5 of the The Immigration (European Economic Area) Regulations 2006 says

But an EEA family permit shall not be issued under this regulation if the applicant or the EEA national concerned falls to be excluded from the United Kingdom on grounds of public policy, public security or public health in accordance with regulation 21.

and regulation 21, para 4 says

A relevant decision may not be taken except on imperative grounds of public security in respect of an EEA national who:-

(b ) is under the age of 18, unless the relevant decision is necessary in his best interests, as provided for in the Convention on the Rights of the Child adopted by the General Assembly of the United Nations on 20th November 1989.

So, my question is; would the "reasonable" request for the parent of a child applying for an EEA family permit to provide some evidence of parental responsibility/custody be covered by this?

Whether it is or isn't, it seems that the simplest course for flip2000b to take in order to have his step-child join him in the UK is to re-apply with the missing document(s). It wont cost anything, and will be quicker than going through the appeal process.

[the scouser]

Public policy and security relate to a fundamental, present and on going threat to the very stability of the host EEA state, e.g. the Dutch MP who was excluded for wanting to show "Fitna" at the House of Lords, which was held to be inciteful (although he won his appeal). The provisions are there to protect the state rather than the individual applicant

I would suggest that the presence in the UK of a child without a custody document is not a fundamental threat to the socio-economic stability of the UK as we know it.

Scouse.

[7by7]

Obviously not, but it is regulation 21, para 4(b ) that I am asking about, which does not talk about security, but what is in the best interests of the child.

Sorry if I am appearing obtuse on this point, but it seems to me that this paragraph does allow a member state to take what steps it considers reasonable and appropriate to protect the child's best interests when dealing with child applications; including, as the UK appears to do, requiring evidence of parental responsibility/custody/consent.

You are the professional, not I, so perhaps you would be kind enough to explain what regulation 21, para 4(b ) means if it does not mean this?

[paully]

It seems to me that this means a parent who is the spouse/partner of an EEA national and does not have legal custody of their child can take that child away from the parent who does and bring that child to Europe with an EEA family permit.

would the "reasonable" request for the parent of a child applying for an EEA family permit to provide some evidence of parental responsibility/custody be covered by this?

The parent (natural or adoptive) of a child, who is a spouse/partner of an EEA national, has a perfect right to bring that child into the UK (or another EEA country). A parent - and a mother in particular - cannot 'abduct' her own child unless there is an existing order in place in the father's country or the country where the child normally lives regarding custody which had been broken or the child was the subject of an existing care order (or its equivalent). It would be a matter for the father or the authority in possession of the care order to enforce that foreign court order in the UK (if we use the UK as an example) regarding the child, not a question for the UK authorities to refuse access.

As Scouse said, it's hardly a matter of grave national security for the UK, effectively it's a family law issue. It would not therefore be a 'reasonable request' by the UKBA to ask for evidence of custody.

Of course, if the UKBA were to be in possession of advance information that that particular child had been 'abducted' in clear breach of a foreign court order it would be a very different matter.

Edited May 5, 2010 by paully

[7by7]

The parent (natural or adoptive) of a child, who is a spouse/partner of an EEA national, has a perfect right to bring that child into the UK (or another EEA country).

Yes, I know.

A parent - and a mother in particular - cannot 'abduct' her own child unless there is an existing order in place in the father's country or the country where the child normally lives regarding custody which had been broken.......

Which is the purpose, I surmise, of asking to see the custody papers; to ensure that any custody order etc. isn't being broken.

As Scouse said, it's hardly a matter of grave national security for the UK, effectively it's a family law issue. It would not therefore be a 'reasonable request' by the UKBA to ask for evidence of custody.

But the regulations allow exclusion not just on the grounds of security, but also on policy and health grounds. It appears to me that Regulation 21, Para 4(b ) is not about national security; it's about the best interests of the child and so would come under policy.

Therefore it seems to me, for the reasons stated, that the request for a custody document, or similar, is reasonable and is covered by the regulations.

However, I am not a legal professional, and could be completely wrong. Which is why, for the benefit of future members in this situation, it would be greatly appreciated if Scouse, or some other professional, could explain exactly what Regulation 21 Para 4(b ) does mean.

[paully]

It appears to me that Regulation 21, Para 4(b ) is not about national security; it's about the best interests of the child and so would come under policy.

Therefore it seems to me, for the reasons stated, that the request for a custody document, or similar, is reasonable and is covered by the regulations.

It's not IMHO - and I used to be a practising solicitor, for what it's worth - for the UKBA to decide what is in 'the best interests of the child', they are not a court. As I indicated, issues of custody are essentially family law matters for individuals, not states, to concern themselves with. So I don't agree that it would be reasonable to request a custody document where the child is clearly the child of that parent.

[the scouser]

I think it's another instance of the UKBA presenting their policy as they would like the law to be rather than as it is.

Interestingly, for child settlement applications made under the Immigration Rules, it has been established by the Tribunal that custody orders and, in realtion to Thailand, Por Kor 14 statements are largely irrelevant to the outcome. In the oft-cited TD 2006, the Tribunal finds at para 52ii:-

"Questions of “sole responsibility” under the immigration rules should be approached as follows:

ii. The term “responsibility” in the immigration rules should not to be understood as a theoretical or legal obligation but rather as a practical one which, in each case, looks to who in fact is exercising responsibility for the child..."

In other words, responsibility is not a question of whether you have a court order or other (quasi-)legal paper, but in reality who actually cares for the child. Indeed, I'm aware of appeal proceedings where the UKBA has successfully argued that Thai custody orders are not recognised in the UK.

Scouse.

[paully]

I think it's another instance of the UKBA presenting their policy as they would like the law to be rather than as it is.

Agreed, Scouse.

Another practical point to make is that, of course, it is only a minority of parents who actually have formal custody orders (made by court order, or by consent and rubber-stamped by a court) in their favour regarding their children. So, for the UKBA to request to see such documentation from parents, in relation to children accompanying them, as a matter of routine would be unreasonable.

[7by7]

Although we have been using the word "custody" the ECG paragraph I linked to earlier does not

In order to protect the interests of minors, ECOs should ensure that they have established parental responsibility for children applying for EEA family permits as direct descendants of EEA nationals........

(My emphasis)

As Scouse pointed out, the ECGs are not law, they are policy guidance, but Regulation 12 Para 5 appears to allow for this

But an EEA family permit shall not be issued under this regulation if the applicant or the EEA national concerned falls to be excluded from the United Kingdom on grounds of public policy, public security or public health in accordance with regulation 21

(My emphasis)

I still feel that Regulation 21 Para 4(b ) covers this issue,

A relevant decision may not be taken except on imperative grounds of public security in respect of an EEA national who:-

(b ) is under the age of 18, unless the relevant decision is necessary in his best interests, as provided for in the Convention on the Rights of the Child adopted by the General Assembly of the United Nations on 20th November 1989.

(My emphasis)

With respect, whilst you both have opined what this regulation doesn't mean, neither of you have expressed an opinion what it does mean.

It would help enormously were you to do so.

[paully]

Although we have been using the word "custody" the ECG paragraph I linked to earlier does not

In order to protect the interests of minors, ECOs should ensure that they have established parental responsibility for children applying for EEA family permits as direct descendants of EEA nationals........

(My emphasis)

I still feel that Regulation 21 Para 4(b ) covers this issue,

A relevant decision may not be taken except on imperative grounds of public security in respect of an EEA national who:-

(b ) is under the age of 18, unless the relevant decision is necessary in his best interests, as provided for in the Convention on the Rights of the Child adopted by the General Assembly of the United Nations on 20th November 1989.

(My emphasis)

With respect, whilst you both have opined what this regulation doesn't mean, neither of you have expressed an opinion what it does mean.

It would help enormously were you to do so.

You're right about custody, of course, it's the layman's term.

As to Regulation 21 4 b, I personally feel it is principally there to show that the UN Convention on the Rights of the Child (see the link below) has been specifically referred to in the Regulations and the UKBA as the relevant agency for the UK, one of what the Convention refers to as "States Parties", is therefore abiding by its general provisions, such as:

"Article 3

1. In all actions concerning children, whether undertaken by public or private social welfare

institutions, courts of law, administrative authorities or legislative bodies, the best interests of

the child shall be a primary consideration.

Article 10

2. A child whose parents reside in different States shall have the right to maintain on a regular

basis, save in exceptional circumstances personal relations and direct contacts with both

parents. Towards that end and in accordance with the obligation of States Parties under article

9, paragraph 1, States Parties shall respect the right of the child and his or her parents to leave

any country, including their own, and to enter their own country. The right to leave any country

shall be subject only to such restrictions as are prescribed by law and which are necessary to

protect the national security, public order (ordre public), public health or morals or the rights

and freedoms of others and are consistent with the other rights recognized in the present

Convention.

Article 11

1. States Parties shall take measures to combat the illicit transfer and non-return of children

abroad."

All very worthy and necessary basic rights for and regarding dealing with children, but very generalised, as is the nature of all such international conventions.

But, that's just my opinion. What do you think, Scouse?

http://www.unesco.org/education/pdf/CHILD_E.PDF

Edited May 8, 2010 by paully

[the scouser]

I agree wholeheartedly. The British government has previously been the source of some ridicule for not having signed up to the convention in its entirety, hence its efforts to now appear to be taking the matter seriously. Ultimately, however, it is simply lip service and a way of avoiding responsibility when things go awry.

With regard to "public policy", as well as "public security", the posed threat has to constitute a circumstance that fundamentally threatens the sanctity of the state, and the intended presence of a child in the UK with one of his/her parents, without some acknowledgement of parental responsibility, does not register on the threat-ometer.

The child would be with a parent. Whether that parent has recognised responsibility/custody is neither here nor there. If in disagreement, it is for the other parent to take steps to prevent the child from leaving the indigenous country, not for the UKBA to fulfil the role of the court that has jurisdiction. As Paully commented, the UKBA is not a court.

Scouse.

[the scouser]

To put it another way. It is a core precept of the EU that its citizens and their family members (irrespective of nationality) will have free movement to and within the area. To deny this right is to deny the raison d'etre of the EU. Consequently, and although the facility exists to deny the right, it must be exceptionally firmly founded and represent a tangible, present and on going threat.

I've represented a person in an EEA context who has previous for fraud, but that wasn't enough to justify his refusal of a family permit (although the ECO tried). It is therefore inconceivable that a child could be denied a family permit simply because the sponsoring parent is unable to substantiate responsibility despite being able to substantiate being a parent.

Scouse.

[Ernesto]

For all of the sound reasoning and advice above, I would add that obtaining a PK 14 wouldnt harm matters. The scouser as always offers sound advice, particularly on this often misunderstood issue of "custody." Ultimately the legislation is the place to get the info. The UKBA are, as the scouser has oft repeated, not a Court.

We got our EEA permit for my stepson without any problems back in November and he is sat here now playing games on his laptop and getting told off for being up too late on a school night. The bride did, however, get the PK 14 which we submitted with the permit app. When I looked at the translation it was clear that if a Court here looked at it in terms of "custody" then its worthless. However, in the country of origin, its a significant document. The UKBA isnt a Court and cant hold each application, from every country, to the same standards of "custody" that UK Courts would if asked. I would get a review and at the same time, if possible, get a PK14 and resubmit.

Edited May 9, 2010 by Ernesto

[7by7]

It is therefore inconceivable that a child could be denied a family permit simply because the sponsoring parent is unable to substantiate responsibility despite being able to substantiate being a parent.

So what, then, does regulation 21 para 4(b ) mean?

[flip2000b]

Hi guys,

Just wanted to say thanks for all the info above and I have really enjoyed reading the reasoning behind the decisions and the laws that govern these things.

Thanks for all the help and carry on debating!

Phil

[the scouser]

So what, then, does regulation 21 para 4(b ) mean?

A minor can't be denied EEA freedom of movement rights on public policy or public health grounds until his best interests have been considered; i.e. it is the child's best interests that are paramount and these could outweigh the perceived public policy or public health threat he poses. For example, a 14-year-old Romanian who has previous as long as your arm for shoplifting (not that I'm stereotyping) cannot be required to leave the UK on grounds of public policy (criminal record) until it has been considered whether it is in his best interests to be allowed to stay.

But discussion of 21(4)(b ) is otiose because, as already stated, the circumstance we're talking about doesn't begin to impinge upon questions of public policy.

Scouse.

[7by7]

I disagree that discussion of the paragraph is futile; the paragraph says that a child applicant may not be refused unless the refusal is in his best interests (or on imperative public security grounds; unlikely for a child as you have already said). Which means, of course, that a child can be refused if the refusal is in his best interests.

The statement in the ECGs that it is reasonable, in the interest of the child, to establish that the sponsoring parent has parental responsibility does seem to be covered by this.

I'm not the professional, so please explain to me why this is not so; preferably in simple, plain English.

Phil, have you followed Scouse's advice in post 3? If so, can you tell us the response?

[paully]

The statement in the ECGs that it is reasonable, in the interest of the child, to establish that the sponsoring parent has parental responsibility does seem to be covered by this.

I'm not the professional, so please explain to me why this is not so; preferably in simple, plain English.

With respect, you're not giving the whole Regulation above: Scouse and I believe that it is a reference to the UN Convention (as argued earlier).

Therefore, it would be more accurate to say: 'in the interest of the child as provided for in the Convention on the Rights of the Child (my emphasis)'.

You've already noted that the UN Convention is, of necessity, a very general document. It does not therefore provide carte blanche for the UKBA to decide what the interest of the child was. A parent simply does not have to have a document proving he or she has parental responsibility - under law a parent automatically has parental responsibility simply by being a parent, unless this has been specifically taken away by a court.

So if the child genuinely appears to be the child of that parent, no further documentation concerning parental responsibility can reasonably be required, unless the UKBA is in receipt of specific information that a court order about the child has been broken (ie the child has been abducted).