EU Settlement for Nephew

Hi all,

First off apologies for any duplicate post and/or asking questions that may have been answered already, but here's the situation.

I have been resident in Belfast, NI for 13 years and have Settled Status under the EUSS that I received two years ago.

Due to family issues in the States I ended up having to get legal custody of my nephew (US citizen).

I petitioned the court for custody in October and it was granted on a temporary basis, but the Alabama court indicated that my nephew would need to relocate to Belfast in the court order.

Subsequently I went to Alabama to fetch him and received all his legal documents and secured a passport with a copy of the court order. Not one problem at all on the US side.

Once we arrived in Belfast (via London then on to Dublin to ensure we were in the UK system) I immediately began the EUSS application on the basis that he is my dependent family member. It asked if I had a previous application casework number and I provided that so it would be linked to my own EUSS application.

We travelled to Glasgow for his biometrics and it was sent off and we received a CoA very shortly after (maybe within 2 weeks). So I was hopeful it would be finalised in the upcoming months.

On 12 January we had a final court appearance via Zoom in which I was given full custody and on the order itself it says that it is a FINAL order. I submitted this updated court order to the EUSS system the moment I received it.

On Wednesday 30 March, I received a phone call from a caseworker asking for updated proof of my address because it had been a couple of years since my EUSS decision. They also needed a Special Guardianship Order and I told them all I had was the court order provided by the Alabama court and that should be recognised here. He said he would check with his supervisor once I submitted the other documents.

I submitted my proof of address immediately as well as documents indicating why the Court Order would serve as akin to a Special Guardianship Order (the UK recognises foreign court orders from the US).

Today, Friday 1 April (in a horrible not April Fool's day joke) I received a denial of the EUSS application on the basis that they did not deem my nephew my family member as according to the guidance and rules.

The letter states

"You have provided a Special Guardianship Order which confirms that you are the nephew of the relevant sponsor. You are not therefore a family member in one of the categories above and so you do not meet the definition of a ‘joining family member of a relevant sponsor’ in Annex 1 to Appendix EU to the Immigration Rules.
Therefore, you do not meet the requirements for pre-settled status or settled status as a joining family member of a relevant sponsor."

(emphasis mine)

It goes on to state

"
However, for the reasons already explained above, you have not provided sufficient evidence to confirm that you are a dependent relative of a relevant EEA citizen’s spouse or civil partner. Therefore, you do not meet the requirements for pre-settled status on this basis."

If the letter states that the SGO confirms that he is my nephew, then why does the letter later say, you have not provided sufficient evidence to confirm that you are a dependent relative? How is a court order not sufficient?

Now, I have been over the guidance with a fine tooth comb and find no reason why they could come to that conclusion.

For instance

"If you’re the child, grandchild or great-grandchild of a person of Northern Ireland, you’re unlikely to have a relevant document.

If you do not have a relevant document, you’ll need to show evidence of your relationship.

Accepted forms of evidence include the following:

full birth certificate
a court order, such as a special guardianship order"

I submitted both.

Also they define a dependent relative as

the person:
(a)(i)(aa) is a relative (other than a spouse, civil partner, durable partner, child or dependent parent) of their sponsoring person; and
(bb) is, or (as the case may be) for the relevant period was, a dependant of the sponsoring person, a member of their household or in strict need of their personal care on serious health grounds; or
(ii) is a person who is subject to a non-adoptive legal guardianship order in favour (solely or jointly with another party) of their sponsoring person;

(emphasis in the original).

I feel like I must be missing some very obvious point or that someone has made a huge f*ck up.

For reference here is the entire text of the letter

Dear Nephew's Name,
Thank you for your application under the EU Settlement Scheme. Your application has been carefully considered but unfortunately from the information available you do not meet the requirements of the scheme. I am sorry to inform you that your application has therefore been refused.

The rest of this letter details the reasons you have been refused,

We have considered whether you meet the requirements for settled status (also known as indefinite leave to enter or remain) or pre-settled status (also known as limited leave to enter or remain) under the EU Settlement Scheme. Unfortunately, based on the information and evidence available and for the reasons set out in this letter, you do not meet the requirements.

To qualify under the scheme, you need to meet the requirements set out in Appendix EU to the Immigration Rules. You can find out more about the requirements here www.gov.uk/settled-status-eu-citizens-families/eligibility.

Careful consideration has been given as to whether you meet the eligibility requirements for settled status under the EU Settlement Scheme. The relevant requirements are set out in rule EU11 and rule EU11A of Appendix EU to the Immigration Rules.

You state that you are a dependent relative of a relevant EEA citizen’s spouse or civil partner. However, you have not provided sufficient evidence to confirm this. The reasons for this are explained below.

In line with the Citizens’ Rights Agreements, the definition of ‘joining family member of a relevant sponsor’ in Annex 1 to Appendix EU requires that, in light of the required evidence of family relationship which has been provided, a person applying as a joining family of a relevant sponsor is in one of the following categories:

• specified spouse or civil partner of a Swiss citizen
• durable partner (unmarried partnership akin to marriage or civil partnership)
• child, grandchild or great-grandchild (including of the spouse or civil partner) dependent parent, grandparent or great-grandparent (including of the spouse or civil partner)

You have provided a Special Guardianship Order which confirms that you are the nephew of the relevant sponsor. You are not therefore a family member in one of the categories above and so you do not meet the definition of a ‘joining family member of a relevant sponsor’ in Annex 1 to Appendix EU to the Immigration Rules.

Therefore, you do not meet the requirements for pre-settled status or settled status as a joining family member of a relevant sponsor.

Careful consideration has also been given to whether you meet the eligibility requirements for pre-settled status under the EU Settlement Scheme. The relevant requirements are set out in rule EU14 and rule EU14A of Appendix EU to the Immigration Rules.

However, for the reasons already explained above, you have not provided sufficient evidence to confirm that you are a dependent relative of a relevant EEA citizen’s spouse or civil partner. Therefore, you do not meet the requirements for pre-settled status on this basis.

It is considered that the information available does not show that you meet the eligibility requirements for settled status set out in rule EU11 or rule EU11A or for pre-settled status set out in rule EU14 or rule EU14A of Appendix EU to the Immigration Rules. This is for the reasons explained above.

We have also considered whether you meet any of the other eligibility requirements under Appendix EU. However, from the information and evidence provided, or otherwise available, you do not meet any of the other these other eligibility requirements.

Therefore, your application has been refused under rule EU6.

To qualify under the scheme, you need to meet the requirements that are set out in Appendix EU to the Immigration Rules. You can find out more about the requirements here: www.gov.uk/settled-status-eu-citizens-families/eligibility.

Yours sincerely,
UKVI European Casework

Trying to digest all of this.

First of all, AMAZING!  Your nephew is HERE!  And that would have been the biggest hurdle.  You’ll get there.  You might need to get the media involved, but let’s be honest - that works and that works fast.  I’m really proud that you and your nephew have done this and are together!

So….  It may be that they are saying that your nephew isn’t a “close enough relation” and that they will only consider a child, grand child, or great grandchild.   

Three paths that I can see.  Well, four.

1.  Contact an attorney (I will still stick with Medivisas)
2.  Contact your MP
3.  Go to the media

4.  Which you need to do regardless if you choose 1, 2, or 3, you need to lodge a formal appeal.

You can do this!

Oh trust me, I fired off tweets and an email to my MP and have already had a response along the lines of "This is an unreasonable and illogical decision which I can only imagine has been deeply stressful at an already challenging time"!

I tried to lodge a formal administrative review on the same day as we received the decision, but computer said no because it required a date that was in the past 

So yes I will be fighting this. When I moved to Paris 10 years ago we had a similar situation in that the "computer said no" and the rules said yes, so I had to go to the Immigration Ombudsman agains the prefecture of police. They ended up phoning with their tail between their legs and said they had made a code just for me (imagine the Parisians having to eat humble pie!). So the Home Office is just another notch in my lipstick case lol.

https://europa.eu/youreurope/citizens/index_en.htm  for general info

https://ec.europa.eu/eu-rights/enquiry-complaint-form/nextpage?redirectTo=yea&uuid=8e4af17658b1f2a2829cdbca22f5c940&languageCode=en&origin=yec_pq   for assistance.

Good luck.

You definitely need  If you decide it's appropriate, you might want to think about instructing an immigration lawyer. Not one of the agents but a top tier specialist.

I recommend Fraz Wahlah at 1st Citizen, he is an immigration barrister and considered one of the best in the UK.  Google his history,  you will see immigration and human rights litigation are in his blood.
I have used him extensively for immigration work for my own family and friends (I was an expat for 20 years and lots of my friends have non-UK spouses),  he is pragmatic and excellent.

Please note this is a personal recommendation, not a commercial ad in any way - Fraz and I solely have a client/attorney relationship.

You definitely need an immigration lawyer. Not one of the agents but a top tier specialist.

I recommend Fraz Wahlah at 1st Citizen, he is an immigration barrister and considered one of the best in the UK.  Google his history,  you will see immigration and human rights litigation are in his blood.
I have used him extensively for immigration work for my own family and friends (I was an expat for 20 years and lots of my friends are married to non UK spouses),  he is pragmatic and excellent.

Please note this is a personal recommendation, not a commercial ad in any way - Fraz and I solely have a client/attorney relationship.

Honestly I think media and MP are the easiest way forward.  I have no doubt you’ve recommended an excellent solicitor, but I don’t think there needs to be a cash outlay here.  This is a child who has legally been placed with their sole family member.  The courts have all approved it.  It’s UKVI being dumbasses saying he’s not a child or grandchild and that they can’t approve a visa.  Proper bonkers.  No doubt this was handled by a junior member of staff and not someone with experience.  It should be quite easy for the refusal decision to be overturned.  Thy just need to be seen as actual people and not a piece of paper.

 
KFDancer knows a lot more than me about this entire topic, and makes a lot of sense...    edited my wording to reflect that.

KFDancer knows a lot more than me about this entire topic, and makes a lot of sense...    edited my wording to reflect that.

Everyone’s opinion is valid!  If you look at Daniel’s past posts, I said there was no way this could be done with an excellent immigration lawyer and he navigated everything perfectly through the courts. I think it’s just a big UKVI f*up. If an attorney had submitted the application, would the application have been approved?  Probably.  It probably would have been approved if simply a different case worker. This application literally went to someone who couldn’t tick the box “child, grandchild, or great grandchild”. They couldn’t see the WHOLE case.  It will get approved and I suspect quite quickly. Just need the right people involved.

It probably would have been approved if simply a different case worker. This application literally went to someone who couldn’t tick the box “child, grandchild, or great grandchild”. They couldn’t see the WHOLE case.  It will get approved and I suspect quite quickly. Just need the right people involved.

This exactly. I mean I've been poring over the caseworker guidance and there is sub-paragraph after sub-paragraph about how a minor can become a qualifying "child" including and I quote:

A ‘person who is subject to a non-adoptive legal guardianship order’ is defined in Annex 1 to Appendix EU as a person who has satisfied the Secretary of State that, before the specified date, they:

• are under the age of 18 years
• are subject to a non-adoptive legal guardianship order in favour (solely or jointly with another party) of a relevant EEA citizen or of a qualifying British citizen (who is their ‘sponsoring person’ as described above) that: is recognised under the national law of the state in which it was contracted o places parental responsibility on a permanent basis on the relevant EEA citizen or on the qualifying British citizen (in either case, solely or jointly with another party)

•

I plan to get on the phone no matter how long I'm on hold today and specifically ask all sorts of pointed questions about "child", "legal guardianship order", and "dependent relative" and you better be sure I'm going to request that the whole conversation be recorded!

Today the Home Office will wish it was still Sunday....

This exactly. I mean I've been poring over the caseworker guidance and there is sub-paragraph after sub-paragraph about how a minor can become a qualifying "child" including and I quote:

I plan to get on the phone no matter how long I'm on hold today and specifically ask all sorts of pointed questions about "child", "legal guardianship order", and "dependent relative" and you better be sure I'm going to request that the whole conversation be recorded!

Today the Home Office will wish it was still Sunday....

Did they give you the option for an administrative review? I think you'll be wasting your time calling the home office, the call handlers there provide misinformation for even the most basic questions, although I understand why you would want to.

Did they give you the option for an administrative review? I think you'll be wasting your time calling the home office, the call handlers there provide misinformation for even the most basic questions, although I understand why you would want to.

Yes they did and I lodged that the day after I got the decision. I wouldn’t say my time on the phone was totally wasted. I was able to have the representative take notes and gave him page numbers that they would find useful in their review. He also logged that I wanted a senior caseworker to ring me, it might take a few days but I’m happy to wait as long and I can speak with someone.

I want to prevent this happening to someone else who may not be as persistent and attentive to detail as myself. Not everyone knows the guidance is there or that they don’t have to spend loads of money on expensive solicitors.

Once we arrived in Belfast (via London then on to Dublin to ensure we were in the UK system) I immediately began the EUSS application on the basis that he is my dependent family member. It asked if I had a previous application casework number and I provided that so it would be linked to my own EUSS application.

Did he enter the UK as a visitor?

Today, Friday 1 April (in a horrible not April Fool's day joke) I received a denial of the EUSS application on the basis that they did not deem my nephew my family member as according to the guidance and rules.

...

I feel like I must be missing some very obvious point or that someone has made a huge f*ck up.

From what I recall of the EU Regs (that the UK followed before the end of the transition period on 23:00 on 31 December 2020, on the exit from the EU) a nephew is an Extended Family Member). EFMs meant that the there was no right for these to live in a member state and the EU merely asked that member state if they would facilitate these, but the member state did not have to take non-EEA citizen EFMs.

From what you have put, they seem to be pointing out to you that a nephew is not a family member and have listed who are (these were what the EU would call the Direct Family Members for their Free Movement of Person under the EU's 2004 Directive). Under the  UK's withdrawal agreement from the EU, the UK will still allow Direct Family Members (now called family members) under certain circumstances. From what I recall of the withdrawal agreement, the EU's Extended Family members had to be in the UK before the end of the transition period, which as said was 31 December 2020.

UK-cen will know all the withdrawal agreement laws for using the EUSS to live in the UK and they have lawyers that they call on to post on there too if they are not sure. Ask them, but be quick before that forum is closed at the end of the month. https://www.forum.ukcen.com/

From one of the links they gave you-

You can also apply if you’re related to someone from the EU, Switzerland, Norway, Iceland or Liechtenstein - or you’re related to their spouse or civil partner - if you’re their:

child, grandchild or great-grandchild under 21 years old
dependent child, grandchild or great-grandchild over the age of 21
You can also apply as a dependent parent, grandparent or great-grandparent if you have a relevant document to prove your relationship.

You can apply as another type of dependent relative if both of the following apply:

you were living in the UK by 31 December 2020
you have a relevant document to prove your relationship
https://www.gov.uk/settled-status-eu-citizens-families/join-EU-EEA-Swiss-family-member

I'm not sure about the EUSS Northern Ireland rules, but those on the funded UK-CEN should know, or one of their lawyers will.

From one of the links they gave you-

You can also apply if you’re related to someone from the EU, Switzerland, Norway, Iceland or Liechtenstein - or you’re related to their spouse or civil partner - if you’re their:

child, grandchild or great-grandchild under 21 years old
dependent child, grandchild or great-grandchild over the age of 21
You can also apply as a dependent parent, grandparent or great-grandparent if you have a relevant document to prove your relationship.

You can apply as another type of dependent relative if both of the following apply:

you were living in the UK by 31 December 2020
you have a relevant document to prove your relationship
https://www.gov.uk/settled-status-eu-citizens-families/join-EU-EEA-Swiss-family-member

I'm not sure about the EUSS Northern Ireland rules, but those on the funded UK-CEN should know, or one of their lawyers will.

Thanks but it looks like they extended the deadline for applying whilst in the UK as a visitor according to this recent post:https://www.forum.ukcen.com/resources/settlement-scheme/family-members/1121-settlement-scheme-family-permit

To quote it says:

The restriction for people who are here as visitors to apply for pre-settled status was removed on the 6th of October. That means close family members who entered the UK on a visit visa are, once more, able to switch over to pre-settled status inside the UK and will not need to apply for an EUSS family permit in order to be eligible.

I mean this is really a simple matter of looking at whether I have "sole responsibility" of my nephew, which I do. My parents are both passed and my sister is in court ordered, residential drug rehab as an alternative to prison. The judge in Alabama gave me full and final custody with no further reviews to be made. So the matter in the eyes of the court and Alabama social services is that the matter is closed. Otherwise my nephew would have remained in foster care indefinitely and because the judge wanted this to be finalised so quickly she indicated in the first court order that:

the child shall immediately be relocated to Ireland (sic) to live with [me]

(she named me specifically although she technically got the country wrong).

In any case, the caseworker at the Home Office got it right when they stated that I had a special guardianship order.

That extension was for those the UK will still allow to stay: that list you were given in the reply letter.. Nephew is not a close family member under the withdrawal agreement (or under EU Regs, as explained before). That route closed on 31 December 2020 as my link above states and I don’t recall that being extended.

I asked about entering as a visitor as visitors have a limit to what they will be given for free.

You really should be asking UK CEN about if your nephew can use the EUSS route still or whether it is too late, or whether there is anything under the EUSS for NI. Perhaps also ask them what your nephew’s immigration status is inthe UK too?