Eea Family Permit For Child Declined - Custody Issue?

[the scouser]

It seems that your contention is that a child who is undisputably defined as a family member by the regulations can still be refused a family permit on the basis of public policy, security and health. You further add that the lack of evidence of parental responsibility is sufficient cause for the ECO to have public policy concerns. However, the legislation itself makes it clear that the latter is not a public policy consideration, and therefore cannot lead to refusal of a family permit application on public policy grounds.

Regulation 21(5) sets out the definition of public policy. It states inter alia:-

( the decision must be based exclusively on the personal conduct of the person concerned;

© the personal conduct of the person concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society;

(d) matters isolated from the particulars of the case or which relate to considerations of general prevention do not justify the decision;

A lack of evidence of parental responsibility does not conceivably relate to the personal conduct of the child. Even if it did, it could not be considered a serious threat to a fundamental interest of society. Indeed, possibly it is a consideration of general prevention which the law states does not justify such a decision. Quite clearly the refusal of the OP's step-son's family permit cannot possibly have been a public policy consideration, and I can't see any provisions in the regulations to justify the decision.

As was my opening stance, it is quite clearly a case of the UKBA policy not being reflected in law. One might not like the provisions of a particular piece of legislation (personally, I'd shoot those responsible for the anti-smoking legislation), but until changed, it must be accepted. You may choose to accept what I have written or not, but remember: I did not write the legislation.

Scouse.

[the scouser]

Very succinctly put, Paully, and a very valid point that acceptance by the UKBA of an individual being a child's parent is, in the absence of any indication to the contrary, prima facie evidence of parental responsibility.

It seems that the ECO in this case has sought to apply the sole responsibility requirements of the immigration rules to a European-type application, which is, of course, specifically prohibited as established by Metock.

Scouse.

[ThaiVisaExpress]

As I found in a recent refusal I had to clarify the rules the ECO refused an EU family permit on the grounds they questioned whether they have entered into a marriage on the basis of a genuine relationship.

I took further advice ( Thanks Tony ) to clarify my thoughts as per the Metock case the applicant and the sponsor have little to prove other than they have met and the visa was issued some 10 days later.

[7by7]

It seems that your contention is that a child who is undisputably defined as a family member by the regulations can still be refused a family permit on the basis of public policy, security and health. You further add that the lack of evidence of parental responsibility is sufficient cause for the ECO to have public policy concerns. However, the legislation itself makes it clear that the latter is not a public policy consideration, and therefore cannot lead to refusal of a family permit application on public policy grounds.

I accept that this is not a public policy, health or security concern. What is confusing me is the word 'unless' in the regulation.

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.

You have gone into great detail about what it doesn't mean, but can you please explain what it does mean?

Paully, you say

under law a parent automatically has parental responsibility simply by being a parent, unless this has been specifically taken away by a court.

and, Scouse, you seem to be agreeing with this. Which seems to suggest that it is reasonable for the ECO to check that the sponsoring parent does have responsibility and/or permission from the other parent and/or even legal custody before issuing a permit to a minor. Yet earlier you said that it was no business of the UK who had custody!

Can you clarify this, please?

Sorry to be a pain, but I am sure you understand why it is important to get this cleared up.

[flip2000b]

As I am not currently in Thailand but back in the UK I am in the process of appealing the decision whilst waiting on my wifes sister to get all the paperwork together again to apply again in country.

Once I have all the details and get an outcome I will let you guys know straight away.

[the scouser]

It seems that your contention is that a child who is undisputably defined as a family member by the regulations can still be refused a family permit on the basis of public policy, security and health. You further add that the lack of evidence of parental responsibility is sufficient cause for the ECO to have public policy concerns. However, the legislation itself makes it clear that the latter is not a public policy consideration, and therefore cannot lead to refusal of a family permit application on public policy grounds.

I accept that this is not a public policy, health or security concern. What is confusing me is the word 'unless' in the regulation.

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.

You have gone into great detail about what it doesn't mean, but can you please explain what it does mean?

Paully, you say

under law a parent automatically has parental responsibility simply by being a parent, unless this has been specifically taken away by a court.

and, Scouse, you seem to be agreeing with this. Which seems to suggest that it is reasonable for the ECO to check that the sponsoring parent does have responsibility and/or permission from the other parent and/or even legal custody before issuing a permit to a minor. Yet earlier you said that it was no business of the UK who had custody!

Can you clarify this, please?

Sorry to be a pain, but I am sure you understand why it is important to get this cleared up.

The regulation you cite, and as Paully stated previously, simply gives lip service to the convention to which the UK has now signed up. It essentially says that the UK won't exclude a minor on public policy or public health grounds unless such a decision can be dressed up as being in the child's best interests, which they are bound to consider before making an exclusion order.

I would suggest that where it is established that the sponsoring individual is the parent of a child as claimed, the ECO simply doesn't need to check that s/he has responsibility, as it is a legal given. Custody does not enter in to the equation as, going back to the original point, there is no requirement in law (either the immigrations rules or the European regs) to demonstrate such. Even if one were to think it reasonable for an ECO to make such an enquiry, he has no lawful power to actually do so, and that is where the ECGs diverge from legislation.

Going back to the European regs, it is clear that there is no requirement for a sponsoring parent to demonstrate either responsibility or custody beyond that s/he is actually a parent of the child. Furthermore, you now accept that a perceived lack of evidence of such responsibility is not a public policy issue. I'm therefore at a loss to understand how you think the ECO was intra vires in refusing the OP's step-child's family permit on the grounds that he did. Indeed, again as previously stated, even the more-stringent immigration rules do not require that custody is established in relation to a child, but that sole responsibility is. However, legal minds finer than ours have established that what constitutes "sole responsibility" is not a matter of having a signed letter or court document, but a consideration of the real and actual circumstances of the child's upbringing. To think that obtaining a visa is a simply a matter of providing the "right" documents manifests a certain naivety as it is the circumstances that speak and not how many bits of paper one may have, to which ultimately no weight may be attributed.

Scouse.

[7by7]

I know, and have always said, that a custody document is not as important as parental responsibility; even for applications under the UK immigration rules. I asked for your clarification on this point because of Paully's comment "under law a parent automatically has parental responsibility simply by being a parent, unless this has been specifically taken away by a court." (my emphasis) which you seemed to be agreeing with. Thank you for clarifying that.

what constitutes "sole responsibility" is not a matter of having a signed letter or court document, but a consideration of the real and actual circumstances of the child's upbringing.

I know, and have always said as much. Check the archives of this forum if you do not believe me.

To think that obtaining a visa is a simply a matter of providing the "right" documents manifests a certain naivety as it is the circumstances that speak and not how many bits of paper one may have, to which ultimately no weight may be attributed.

I have always said that each application is treated on it's own merits, taking all relevant circumstances into account. No naivety on that point here. Again, you can check the archives if you don't believe me.

The UK ratified the UN convention in 1991; with certain reservations, none of which are relevant to this discussion. Whether the regulation in question is merely the UK paying lip service to the convention or not is moot. The regulation is there and Para EUN2.21 of the ECGs appears to be guidance to ECOs on interpreting and applying it when dealing with EEA applications from children.

Whether this does actually have any legal basis is not for us to decide; it is for the courts. I am assuming that no judgment by any court or tribunal, up to and including the European Court of Justice, has been made on this point; otherwise I am sure that you would have cited it before now.

[paully]

where it is established that the sponsoring individual is the parent of a child as claimed, the ECO simply doesn't need to check that s/he has responsibility, as it is a legal given. Custody does not enter in to the equation as, going back to the original point, there is no requirement in law (either the immigrations rules or the European regs) to demonstrate such.

Excellently put, Scouse.

A parent's parental responsibility could only be taken away in practice by a full care order (or its overseas equivalent) being made concerning the child or the child being formally (legally) adopted by another adult. Clearly, this would not apply to 99% of parents and it would be no business of the ECO to demand documentation to 'prove' parental responsibility.

[the scouser]

The UK ratified the UN convention in 1991; with certain reservations, none of which are relevant to this discussion. Whether the regulation in question is merely the UK paying lip service to the convention or not is moot. The regulation is there and Para EUN2.21 of the ECGs appears to be guidance to ECOs on interpreting and applying it when dealing with EEA applications from children.

I beg to differ. The UK ratified the convention in 1991, but with certain reservations that are very relevant to this discussion. Until 2008 the UK did not accept that the convention applies to migrant children, and it is only since then that the government has amended immigration-related legislation to ensure it is compatible with the convention in its entirety, hence the addition of the phrase in the European regs to which you refer.

http://www.bbc.co.uk/blogs/thereporters/ma...rights_opt.html

Indeed, the revised wording of the regulation is interesting in itself in so far as it phrases the reference to the convention in the negative; i.e. it's in the best interests of the child to be kicked out, rather than in the best interests to be allowed to stay. It is therefore lip service.

Furthermore, you continue to rely upon regulation 21(4)(b ) to justify your assertion that the ECO is able to seek redundant evidence of parental responsibility. However, that section is headed:-

Decisions taken on public policy, public security and public health grounds

You accept that public policy, security and health is not relevant to the decision under discussion, but then seek to substantiate your view by reliance upon exactly such a regulation. Such a stance does appear rather perverse. If you continue to maintain that the ECO was intra vires in refusing the OP's step-child for the stated reasons, please can you direct us to a relevant regulation that permits him to do this?

Scouse.

[7by7]

I have stated many times why I think regulation 21 para 4(b ) seems to cover this. It seems to me to be saying that a minor cannot be refused on public policy, public security and public health grounds. Which is why it's in that section; it's saying that the section doesn't apply to minors, except on imperative security grounds, unless it is in his best interests. That is, a child can be refused if the refusal is in the interests of that child.

It also seems that this is the view taken by the UKBA, otherwise why have Para EUN2.12 in the ECGs?

You say it does not mean this. Fair enough; you are the professional, not I. Yet I cannot understand why it does not.

To give me this understanding, I have repeatedly asked you for an opinion of what this regulation actually does mean. You have yet again merely stated what, in your opinion, it does not mean.

As you are unwilling to answer the question, I can only repeat what I said in my previous.

The regulation is there and Para EUN2.21 of the ECGs appears to be guidance to ECOs on interpreting and applying it when dealing with EEA applications from children.

Whether this does actually have any legal basis is not for us to decide; it is for the courts. I am assuming that no judgment by any court or tribunal, up to and including the European Court of Justice, has been made on this point; otherwise I am sure that you would have cited it before now.

[the scouser]

I have stated many times why I think regulation 21 para 4(b ) seems to cover this. It seems to me to be saying that a minor cannot be refused on public policy, public security and public health grounds, except on imperative security grounds, unless it is in his best interests. That is, a child can be refused if the refusal is in the interests of that child.

So, what it means is that where it is in the child's best interests, he can be refused on public policy grounds, yet you accept that public policy is not relevant in this instance. Such a stance does not add up.

Whether this does actually have any legal basis is not for us to decide; it is for the courts. I am assuming that no judgment by any court or tribunal, up to and including the European Court of Justice, has been made on this point; otherwise I am sure that you would have cited it before now.

Interpretation of the law should be at face value; i.e. words are given their usual meaning. It is you who are trying to infer a meaning that doesn't exist. There is nothing in the regulation you cite for a court to rule upon: its meaning is clear to all except those who are clutching at straws.

I don't intend to pursue this discussion any further, and indeed, my involvement in this thread has reminded me of why I generally stay away from this forum, but for the benefit of those who are interested, we have heard in this thread from, inter alia, an OISC-registered adviser, a solicitor and another individual whom I know to be a legal professional. They have all presented the same argument; i.e. the ECO has no power in law to refuse the OP's step-child's family permit application on the basis that it is claimed he did. The one dissenting voice is an ex-driving instructor (and I don't mean that pejoratively). Res ipsa loquitur!

It can be unsettling to have deeply seated opinions debunked, but there's no point trying to defend the indefensible.

Scouse.

[ThaiVisaExpress]

As I am not currently in Thailand but back in the UK I am in the process of appealing the decision whilst waiting on my wifes sister to get all the paperwork together again to apply again in country.

Once I have all the details and get an outcome I will let you guys know straight away.

I would advise you re apply which is alot quicker add in the extra information section for the attention of the ECO.

They may take up to 16 weeks to reach a decision on an appeal or fax the ECM and draw his attention to the ruling.

Good luck

[7by7]

It is precisely because I am not a professional that I have been trying to get a simple, plain English explanation. One that you, Scouse, have been unwilling to provide; although finally you do come close in your last post.

I admit to having difficulty understanding what you have said. The language you have used is, to a mere ex-driving instructor, confusing. I can't believe that you answer questions from your clients in such technical legal jargon and Latin, so I wonder why you do so here.

Perhaps if you had used plain English previously you would not have been so frustrated by TV's members failure to understand you that you would not feel the need for comments like

I don't intend to pursue this discussion any further, and indeed, my involvement in this thread has reminded me of why I generally stay away from this forum

and instead of staying away you would still feel able to be involved in this forum; offering members the advice of a well qualified professional instead of them having to rely on a mere ex driving instructor and a few other unqualified amateurs (TVE excepted, of course).

However, as I was not around when you decided to effectively retire from this forum, I am just speculating.

Paully TVE and yourself have indeed opined that the refusal is wrong. I have attempted to understand why this is so by asking questions. I am sorry that my doing so has offended you; but I was always taught that asking questions aids understanding and learning.

My, possibly ignorant, belief is that until instructed otherwise ECOs will continue to follow the guidance given them and refuse EEA permits from children unless the sponsoring parent supplies some evidence of responsibility, as happened to the OP. That is why I say that it will be up to the courts to decide if this is legal or not; should someone decide to appeal such a refusal.

[paully]

Paully TVE and yourself have indeed opined that the refusal is wrong. I have attempted to understand why this is so by asking questions. I am sorry that my doing so has offended you; but I was always taught that asking questions aids understanding and learning.

My, possibly ignorant, belief is that until instructed otherwise ECOs will continue to follow the guidance given them and refuse EEA permits from children unless the sponsoring parent supplies some evidence of responsibility, as happened to the OP. That is why I say that it will be up to the courts to decide if this is legal or not; should someone decide to appeal such a refusal.

The ECOs don't have the power to refuse 'unless the sponsoring parent supplies some evidence of responsibility' despite what the Regulation may appear to you to say, 7by7. It would legally be beyond their power to do so, and therefore unreasonable. Guidance is guidance and does not override the law. Parental responsibility is generally a state of being; you have parental responsibility if you are a natural parent when the child is born and keep it until the child reaches adulthood (the exceptions are: if you adopt a child and you are then specifically granted it by a court or if a government agency - social services or children's welfare - acquire it because a full care order is made by a court in relation to that child) it isn't a matter of documentation to prove it. I just don't know how else to explain it, I'm sorry.

[7by7]

Para EUN2.21 of EUN02 - EEA Family Permits says

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.

(My emphasis)

I do understand that guidance is not the law. However, the ECOs, who are not lawyers, use this guidance to aid them in their decision making. Not being lawyers, they probably believe that this guidance issued by their employer is legal and correct.

Whether it is or not; whether or not Regulation 21 para 4(b ) gives them the legal power to refuse in cases like the OP's where parental responsibility has not been established is moot. They are refusing in such cases, as Flip2000b found out, and in my opinion will continue to do so until instructed otherwise.

I believe that no such instruction will appear until and unless such a refusal is appealed and that appeal is successful. As this would almost certainly mean the case being appealed by one side or the other all the way to the European Court, such an appeal would take a long time to be determined, years maybe.

With respect to yourself, Scouse and TVE, statements by you on an internet forum that ECOs do not have the legal power to act in the way the guidance instructs them to do is not, in my opinion, going to change that.

So it appears to me that Flip2000b, and anyone else in the same position, has a choice. Supply the information and obtain an EEA family permit within days, weeks at most; or insist that you do not have to do so and go through a lengthy appeal process which, even if successful, means it could be several years before the child can join you.

I know what I would do.

[paully]

So it appears to me that Flip2000b, and anyone else in the same position, has a choice. Supply the information and obtain an EEA family permit within days, weeks at most; or insist that you do not have to do so and go through a lengthy appeal process which, even if successful, means it could be several years before the child can join you.

I know what I would do.

He may not be able to 'supply the information' - this is part of the point!! The vast majority of parents will not be in possession of a document which grants them parental responsibility, for the simple reason that there is absolutely no need and no requirement to have one, they have parental responsibility anyway because they are the parents of the child. Parental responsibility therefore comes before and is independent from the child's birth certificate, the purpose of which is not to prove parental responsibility. You cannot produce what you do not have. Now do you start to see why any request for additional information by the ECO would be unreasonable?

Edited May 16, 2010 by paully

[7by7]

If applying under the immigration rules, which most children coming to the UK are, to join one parent and the other parent is alive then Para 297(e) of those rules says

one parent is present and settled in the United Kingdom or being admitted on the same occasion for settlement and has had sole responsibility for the child's upbringing

Ways of assessing this being given in Para SET7.8 What is sole responsibility? of the ECGs.

Parents applying for an EEA permit for their children appear to have an easier time of it; they only have to show parental responsibility, which may be shared with the other parent, not sole responsibility.

So, no, I do not see why any request for additional information by the ECO would be unreasonable.

Whether it is legal or not I can't say; see my previous comments.

[paully]

So, no, I do not see why any request for additional information by the ECO would be unreasonable.

This is my last post on this issue - then we'll have to agree to disagree.

The request for additional information in a case such as the OP's would be unreasonable:

1. As a matter of law, because the ECO has no power in law to make such a request - despite what you think the Regulation says - in my view, the ECO in the OP's case should be robustly informed that this is the position;

2. As a matter of practicality, because 99% of parents would not have a document 'proving' parental responsibility on the basis that there is no need for one; parental responsibility arises through birth, not through a document (except in the case of adoption or care proceedings).

[7by7]

we'll have to agree to disagree.

Indeed, but one point, if I may.

2. As a matter of practicality, because 99% of parents would not have a document 'proving' parental responsibility on the basis that there is no need for one; parental responsibility arises through birth, not through a document

Agreed, there is no one document that 'proves' parental responsibility, I've never said that there is. Yet 100% of parents who are applying under the immigration rules for their child to join them in the UK when the other parent is still alive do 'prove' this; in fact more, as they have to 'prove' sole responsibility! (The level of proof being on the balance of probabilities.)

There are many ways of doing so, as the link provided earlier shows.

You say that it is not legal to request this in EEA cases. With respect to you, and the others, you are offering an opinion; granted an opinion based upon your legal qualifications and experience. The UKBA seem to have a different opinion.

As said, whether you or the UKBA are correct will only be shown if a refusal on these grounds is appealed and goes to court.

(Ok, that's two points!)

[Ernesto]

Its really quite a simple legal device which seems to be easily misunderstood. Quoting the Immigration rules only makes the mud murkier on this point.

There is a presumption in the European legislation that being proven to be the parent is sufficient. Its just like proving your spouse is your spouse. Your marriage cerificate/civil partnership document, is all you need to prove you are related as claimed. It is for the ECO to have evidence to the contrary, beyond any reasonable doubt. It isnt for the ECO to go looking for further documentation that may prove otherwise. If they do that its beyond their powers.

In default of information being provided that the parent seeking the permit doesnt have the requisite parental responsibility, then they cannot refuse on that ground.

Proving a negative is pretty difficult.

[flip2000b]

Hi all,

Just to let you all know we appealed via the home office using the following letter:

"To who it may concern

RE: Appeal letter for XXX for EEA Family Permit Visa

I write to you with regard to my step daughter XXX application for an EEA Family Permit visa to join myself and her mother which was recently declined

I, XXX and my wife XXX would like to explain the reason that I need my stepdaughter to come live with my wife and me. Now that my wife and myself are settled in the UK we are now financially secure, with a long-term career for myself and a settled family home in which I can raise my daughter. XXX is now at the age when these decisions need to be taken with regards to her education and settled family life.

Since officially settling in the UK after our marriage we always planned to bring my wife’s daughter to with us to the UK but knew that it would not be a sensible and fair option to do so until we were both financially secure and with a home for her to move in to and a school place confirmed. We now have all of these details confirmed, with a job for which I am rewarded for my hard work along with a home to stay and a school place for my daughter at our local primary school.

Regardless of the above I would like to point out that the visa was declined on the wrong grounds and as well as the visa being granted I would like a response regarding this point given the heartache and financial impact placed upon my family.

1. You have declined the visa for my step-daughter on the grounds that we have “…not provided evidence that your (referring to my step-daughter) mother has legal custody of you.” There is no requirement for my wife to show that she has custody; only that the child who is applying is hers. Please feel free to refer to current legislation should you require the full document. I will however highlight the following:

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.

As such 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.

Yours faithfully

"

This was sent in May and we have just had a response from the home office confirming that my step-daughter has been granted a visa. No additional documents were provided other than the letter above.

Hopefully that clears up any of the questions.

A big thank you for scouse and paully for the information in this thread, hopefully that clears everything up!

Phil

[ThaiVisaExpress]

Well done.

[paully]

^^ Good letter, Phil, and good result too. Well done!

[the scouser]

Well done, Phil.

I do detect an element of others' words in your wonderfully constructed letter, for which Paully and I will be submitting our invoices.

Scouse.

[7by7]

Well done.

Did the Home Office confirm that the guidance to ECOs is wrong or did they give some other reason for overturning the refusal?

[ExpatArchie]

An absolutely fascinating thread with a positive ending. I throroughly enjoyed the pointless and irrelevant discussion about Para 21.4b. It has positively, absolutely, nothing whatsover to do with Family Permit. It refers to a exclusion of a child who is an EEA national.

I agree that the legislation does not allow ECO to consider the best interests of, in this case, the Thai child. It should do.

Edited: Smiley which I hadn't invited removed

Edited again: Smiley which insists on reappearing

Edited June 13, 2010 by ExpatArchie