Exercising your EEA rights. Child question.

[starship]

Hi

I'm seriously considering this option and taking my family to Ireland. I'm British and my partners Thai (we would marry beforehand).

My concern is my partner's son. What would be required to take him at the same time? I want us to go together. His mother has sole custody. I think she has a official government document stating that she is the sole carer. We could probably arrange another/updated one if that's what's required. Would I have to adopt him or is that not necessary for him to be admitted? They have no contact with the blood father.

I'm sure someone has probably been in the same situation or can chip in.

I'm aware of the standard U.K route. We were refused some years back and I would not meet the financial conditions required. This seems the best option for us in our situation. I would be interested to hear from anyone whose been through it already.

All advice much appreciated.

Thanks.

[7by7]

Article 2, para 2 of Directive 2004/38/EC defines qualifying family members.

Sub para c) says

the direct descendants who are under the age of 21 or are dependants and those of the
spouse or partner as defined in point ( b )

So your step son is a qualifying family member under the directive and can use the EEA regulations to enter Ireland and then the Surinder Singh route to later enter the UK; the same as your wife.

Sorry, but I don't know what, if any, evidence of sole custody/responsibility the Irish authorities may require.

[starship]

Thanks for reply.

Do you know how long it takes on average for a visa application to Ireland now that it is an online process?

Also, although I really want us to go together, if I went first, as a British citizen and thus an EU member can I stay as long as I want? (the 3 month period that you are entitled to is in reference to them as non EEA individuals, correct?)

Thanks.

[7by7]

The INIS website currently says

This office endeavours to deal with all Visa applications in the fastest possible time, however you should submit your application at least 8 weeks in advance of proposed date of travel to allow for the possible transfer of your application to Dublin. At present, visa applications referred to the Visa Office, Dublin are generally taking 8 weeks to process, from date of receipt.

However, your wife and step son would be applying under the EEA rules, not the Irish ones. Therefore the EEA regulations say that their applications must be dealt with as quickly as possible.

To enter the RoI, or any other EEA state other than that of which you are a citizen, to live using the EEA rules you, the EEA national, must be exercising an economic treaty right.

These are:

• worker, employed or self employed;
• job seeker;
• student;
• living off independent means, e.g. retired with a pension.

There is no limit on your stay or that of your family; as long as you are exercising one of the above rights. Unless you entered as a job seeker. In which case you need to have found work within three months.

Different limits on length of stay apply if entering as a visitor; for the Schengen states a non EEA national, whether the family member of an EEA national or not, can stay for up to 90 days as a visitor, for the UK it's 6 months, I don't know about the RoI.

If, as I assume, you are contemplating using the Surinder Singh route to eventually live in the UK with your family then be aware that

• the UK have tightened up their requirements for using this route, but
• a recent case in the ECJ (O v The Netherlands (Case C-456/12) has changed the law which means that aspects of the UK's new requirements are now illegal!

For details of this, including the UK's current requirements, see Surinder Singh immigration route from Free Movement.

[starship]

Thanks for your detailed reply, I'll check out the link.

You mention that if I entered as jobseeker, I would have 3 months to find work. What happens if I don't within this time? Would we have to exit the country after this time or could we extend our visa? What difference would there be in relation to this if I came alone first or we came together? e.g Would I be allowed to stay but they would have to leave? I hope you can clarify.

Many thanks.

[7by7]

If you enter as a jobseeker, whether alone or with your family, and have not found work within the three months then you, and your family if they are with you, would have to leave; unless you can show that you have reasonable prospects of finding work within a reasonable time.

There is no official definition of the word 'reasonable' and different states have different interpretations.

You, of course, could leave the RoI and return to the UK; but what is uncertain, following the case mentioned above, is whether you could use Surinder Singh to bring your family with you.

The current UK guidance says that you need to have been working, employed or self employed, to benefit from Sirinder Singh.

But the O judgement seems to say that an EEA national who has been exercising any economic right can use Surinder Singh, not just workers and the self employed, provided they and their non EEA national family members have lived together in the other member state for at least three months.

Fancy being a test case?

[starship]

That is what I had thought.

Now that the U.K has implemented a 'centre of life' component, if I went before my family, would this likely be used as ammunition against me, because we would not be living together for a period of time? Thus would my preferred option of going together be better?

Also, you mention that if I did not find work within 3 months we may be asked to exit the country. If I registered as a business and sold online, as I have experience in doing, would this satisfy the UKBA requirements regards to an application for a family permit to the U.K even if I didn't make much profit? Does it matter what you declare (do you need to) when you enter the country? e.g If I said I was a jobseeker but I ended up setting an online business or vice versa does it make any difference or would it affect me/family in any way regarding a latter U/K application?

Many thanks.

[7by7]

If you first enter the RoI as a jobseeker, that you then become self employed satisfies the 'worker' requirement.

I understand that you would need to show UKVI that you have registered as self employed with the Irish equivalent of HMRC.

To use Surinder Singh, your non EEA family members must have been living with you in the RoI for at least three months and, until the UK is legally challenged and loses, you have to show that you and your family have transferred the centre of your life to the Republic. The longer you have lived together in the Republic, the easier this will be to show.

Have a read of Caseworker guidance for applications under the Surinder Singh route from January 2014

[starship]

Many thanks, much appreciated.

[starship]

Hi, one other point which is causing some confusion.

On the Irish immigration website it states in relation to applications from non EEA citizens that they need to show evidence that the EU citizen (me) will also travel to Ireland (e.g travel itinerary, acceptance of employment). It also mentions a full travel schedule or provisional flight bookings.

If we were going together and I was entering as a jobseeker how do you prove this point? Is a hotel/hostel booking for a period of time sufficient? We would obviously just be arriving and looking for work not traveling around.

Also, is it possible to make provisional flight bookings without payment to satisfy them regarding the application? This seems confusing to me as in the U.K most agents have only been willing to hold flights for a day. How do you accomplish this when it might take months for a application to be approved?

Many thanks.

[7by7]

The INIS guidelines for visa officers does say that the applicant needs to prove that they will be travelling with or to join their EEA national family member.

Para 2.3

(iv) proof that the EU citizen is exercising free movement rights in Ireland or
will be exercising those rights at the time of the applicant family member’s
arrival in Ireland e.g. proof that the EU citizen is travelling to or already
resides in the State - this is so that the visa officer can ascertain that the
applicant family member will be residing in the State together with the EU
citizen.

No specific documents are mentioned, and para 2.5 says

In relation to 2.3 (iv) the nature of the proof will vary depending on whether:
the applicant is accompanying the EU citizen to the State, the applicant is joining the
EU citizen in the State and the EU citizen is lawfully present in the State when the
application is made; or the applicant is joining the EU citizen in the State and the EU
citizen has not moved to the State at the time of the making of the application but
intends to do so. In all cases it is a matter for the applicant to provide proof that the
EU citizen is exercising free movement rights in Ireland or will be exercising those
rights at the time of the family member’s arrival in Ireland.

Para 2.6 says

2.6 In terms of the type of documentary evidence that may be requested as proof
of an EU citizen’s lawful presence in Ireland it is important to note that under Article
6 of the Directive EU citizens have the right to reside in the State for up to 3 months
without any conditions and that the requirements in Article 7 of the Directive relating
to employment, resources etc only arise in the case of EU citizens residing in Ireland
for more than 3 months. In view of this it is not appropriate to require evidence of the
circumstances of the EU citizen’s residence in the State other than in the context of
requiring the applicant to prove that the EU citizen is exercising their free movement
rights or will be exercising them at the time of the applicant’s arrival in the State.
(My emphasis)

The guidance to applicants says

Documentary evidence requested to support your application

Evidence that you are accompanying or joining your EU citizen spouse/civil partner/parent who is exercising free movement rights in Ireland or will be exercising those rights at the time of your arrival in Ireland - proof that the EU citizen already resides in Ireland (e.g. a utility bill, hotel reservation or receipts etc.) or that the EU citizen will travel to Ireland (e.g. travel itinerary, acceptance of offer of employment etc.)

All of which leads me to believe that you don't need to book flights or hotels; simply provide an itinerary, with provisional flight bookings if possible, and an outline of your plans once in the Republic.

However, I am by no means an expert on the way the Irish do things, so, unless someone else here offers their advice, you may need to seek advice elsewhere.

Edit:

BTW, it shouldn't take months for the applications to be processed. EU law says that such applications must take priority and be processed with the minimum of delay.

Edited June 19, 2014 by 7by7