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Thomas
Thomas, Solicitor
Category: UK Immigration Law
Satisfied Customers: 7478
Experience:  BA (Hons), PgDip, Practising Solicitor
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Hi Thomas I have been working in an EEA Country

This answer was rated:

Hi Thomas





I have been working in an EEA Country for the past 2 years.


So far I have been flying in and out and staying in hotels Monday to Thursday. This is because my wife and son live in UK and they do not wish to move abroad.


I have been thinking of applying for a family permit for my mother who lives in India via the European route. This seems to be the safest option when compared to applying an ILR for my mother. I understand this will take 6 months start to finish. Then return to the UK.


Is this feasable as I am a UK National?


If so what is the process?





Regards


Dan
Hi Dan,

Thank you.

I will be able to answer in about half an hour..

Kind regards,


Tom
Hi Dan,

Before I answer can you please tell me the extent to which your mother is dependent upon you? Ie. financially and emotionally..

Tom
Customer: replied 3 years ago.

Dear XXXXX


Here are some of the details I mentioned in my previous question.


 


I am the only child of my widowed mother.


I am a British National for the past 8 years with my wife and child(5) who live in the UK.


My mother is 63 years old and has chronic mental health issues. She is also not physically healthy as she met with a car-accident with a steel plate inserted in her leg. She also has a dislocated shoulder. She is also diagnosed with brain damage due to a stroke. She cannot do her daily activities like take a shower, cook, clean, eat food etc.


I have admitted her to a 'rehabilitation centre' in May 2012.


I pay for her stay and treatment. This I can prove with bank statements that I fully pay for her treatment.


She has never left India. She only received her passport for the first time a couple of months ago.


 


Regards


Dan


 


 


 

Hi Dan,

Thanks.

So, is it correct to say that your are wholly or mainly responsible for her financially?

Tom
Customer: replied 3 years ago.


Dear XXXXX


 


My mother is wholly dependent on me for her needs.


However, I do not send money to her, but directly to the facility where she has been staying for over 18 months. They take care of her food, accomodation and treatment.


 


Regards


Dan

Hi Dan,

Thanks. Drafting your answer now.

Kind regards


Tom
Hi

Thanks for your patience.

The basic position is that a UK citizen, under Article 3, is that an EEA national cannot be considered as exercising their treaty right to fee movement in their own country. This is because their right to be in the country and work derives from their citizenship of that country, not from EEA rights.

The consequence of this is that UK citizens are generally not entitled to apply for family permits for family members. So, for example this is why non-eea spouses of eea national have a much easier time in coming to the UK – because they do not have to comply with the salary threshold that applies to non-EEA spouses of UK national (who do have to meet a salary threshold.

However, there is a loophole. It is called the Surinder Singh ruling. This is a case in which means that in certain circumstances a UK citizen returning to the UK can/should be regarded as an EEA national exercising free movement in to the UK and therefore subject to EEA immigration rules, rather than the more restrictive UK immigration rules applicable to UK citizens.

In order to be eligible the UK citizen must have exercised their treaty rights in another EEA country by working there for a period of time. Usually, this is a minimum of 4 months.

If their family member then applies for a family permit on the basis that they are all to return to the UK then it will be judged under the EEA rules and so therefore simply subject to the normal eligibility for a family permit:-
http://www.ukba.homeoffice.gov.uk/eucitizens/eea-family-permit/

Therefore, if you have been residing in and working in an EEA country then this might – in theory – be an option for you.

As you will see from the drop down link at the bottom of the above link titled “What is a family member” then you will see that parents are only regarded as family members for the purpose of applying for a family permit if they are dependent on you. If you pay her bills for the treatment facility where she is located then you probably meet this criteria.

Confirmation of the surinder singh ruling is here:-
http://www.ukba.homeoffice.gov.uk/policyandlaw/guidance/ecg/eun/eun2/

The main difficulty is that you would have to show that you intended to return to the UK to treat it as your permanent home, so you would not be able to reside outside of the UK. There may be issues here as to what is to be treated as residing. My view is that if you were able to demonstrate that you would spend half or more of the year in the UK then you would be eligible.

The further potential difficult is that I am unsure whether or not your mother would have to be living with you. Usually, this is used for spouses and so the spouse is living with the applicant so it’s not a problem. With your mother, because it’s a slightly unusual situation I am frankly not too sure.

The best advice I can give you in this regard if you are considering this as a way forward is to instruct a solicitor from the start. They will be able to carry out the detailed research necessary in terms of whether your plans for residence/work at the time are eligible and also whether or not your mother would have to be living with you (ie. in the EEA country) prior to your return.

Provided you are able to show that you will be returning to the UK and that your mother is dependent upon you then it’s certainly worth investigating..


I am sorry that I cannot be more definitive, but it’s rather unusual circumstances.

Please remember to RATE my answer OK SERVICE, GOOD SERVICE OR EXCELLENT SERVICE or above if you are satisfied that you have received the correct legal advice (even if it is not the answer you wanted to hear), otherwise I do not receive any credit for answering your question.

If you are not willing to rate my answer as OK SERVICE, GOOD SERVICE OR EXCELLENT SERVICE then allow me to assist further by replying asking what clarification you require rather than rating my answer at levels below.

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Kind regards,


Tom
Customer: replied 3 years ago.

Dear XXXXX


 


In my case, I never 'technically' left the UK. I am self-employed and only work in the EEA during the week and fly back for the weekend. I continue to pay my taxes, rent my flat, pay bills etc. in the UK. I only live in hotels 4 nights/week in the EEA. So I do not strictly 'reside' outside the UK.


Can you please let me know what documents will be required from me/mother?


Can I apply in the nearest British consulate?


 


Regards


Dan

Hi Dan,

It might be a bit of a problem if you are not residing outside of the UK and simply derive your income from it. It really is something that requires more in depth research than I am able to provide without specific instrcutions from you and investigation.

A solicitor that you instruct would confrim the precise documents, but it would be documentary evidence of the time you have spent outside of the uk (ie. where you have stayed, where you have worked), evidence of your identity, your mother's identity, evidence of her dependency upon you in the form of the records of payment for the facility and the sevice they provide.

Where you would apply depends on where otuside the UK you are based at the time of the application.

This really is early stages speculation, Dan. I cannot stress enough the importance of first having a face to face consultation with a UK based immigration solicitor after giving them your detailed instructions.

It's going to be very difficult, I have to be honest.

It may very well be that an application for an Adult Dependent Relatives visa is the better option because of the number of difficult/contentious issues with a Surinder Singh application as outlined above.

Please remember to rate my answer.

Kind regards,

Tom

Kidn regarsd
Thomas and 2 other UK Immigration Law Specialists are ready to help you
Customer: replied 3 years ago.

Dear Thomas


How do I request for you to investigate the matter further regarding EEA family permit?


Do I raise a new question?


Does my mother have to join me on a visit visa or family permit in the EEA for a few months before I can apply for the EEA family permit at the nearest British Consulate?


Ideally I would like to apply for the same in India where she is presently living because of her poor mental and physical health.


 


Regards


Dan

Hi Dan,

I afraid that we've probably taken it as far as we can go in this form of contact. At this point, you really need to be thinking about instructing a solicitor in the normal way.

The solicitor will be able to take your detailed instructions and advise whether it is more appropraite to apply for an Adult Dependent Relative visa, or under the Surinder Singh ruling.

I expect that they will advise Adult Dependent Relative, but you really need specific advice on this at this point.

Thank you for kindly rating my answer.

Kind regards,


Tom

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