The UKBA have illegally and systematically sought to deny the Szymanski family their rights under European Law
The Szymanski family consists of five members - four French/American nationals, and one American national. They have lived in the United Kingdom for two years. They entered legally and reside legally under the European regulations. Evan is a teacher at a sixth-form college. Additionally, he spends every Saturday teaching in the community of Leicester, often working with disadvantaged youths and adults. He earns well, pays his taxes, and has never taken a penny from the government. He supports his European family and nine European chickens. Despite a court ruling in Evan's favor, the UKBA continues a brutal campaign of harassment against Evan and his family. Below is a copy of his complaint to the UKBA.
“Unfair treatment” is the king of all understatements in describing the UKBA’s treatment of my European family. What has happened - and continues to happen - to us is nothing short of a systematic attempt to deny my French wife and children their fundamental rights under the Convention, using me as a proxy.
Before I brief you on the situation from my perspective, let me thank you for educating me. Two years of dealing with you has taught me more about European case law than I ever wanted to know. It taught me my family’s rights, and that is how I know that you are trampling on them.
It also taught me who you are as an agency, and that I should expect a legally incorrect response, devoid of any empathy or common sense. Here is the background to the situation:
My family entered the UK in December of 2012 on a Family Permit issued by the Home Office. At that time, the members of the family were: Evan James Szymanski (me/American), Sophie Clemence Szymanski (my wife/French), Hudson Baird Szymanski (my oldest son/French), and Easton Brooks Szymanski (then my youngest son, also French). We had significant funds – more than $20,000 - in a savings account in my wife’s name. These were our life savings. Things were not so great where we lived in the United States. Our sons’ school situation, in particular, was unacceptable. We figured we were both very good at our chosen professions, we had a financial cushion that could sustain us for awhile, and we could take a calculated risk. We would try to make it in the United Kingdom.
At that time, I had only secured temporary employment through a supply agency. When we applied for our initial EEA residence card, we were indeed reliant on the funds in my wife’s account. She was thereby, at that time, exercising a treaty right as self-sufficient. Here I use the legal definition of “self-sufficient” – not the UKBA’s opinion of “self-sufficient”, which is not a European law, and therefore invalid. We lived off of these funds without recourse to social assistance. I paid into the NHS from my temporary job, we paid our rent and bills, and we paid taxes and council taxes. Your opinion on whether what we had would have been enough is moot; it was enough. Full stop. It is a material fact that that amount of money was enough, as we lived off of it and we never went on benefits. We are still here, and still not on benefits. Since you seem to be unaware of the actual law, allow me to cite it for you:
Article 7 Directive 2004/38 confirms that EU citizens have a right of residence after the three month period where they are workers, work seekers or self-employed persons or where they are self-sufficient. If they are relying on self-sufficiency, they must have sufficient resources not to be a burden on the social assistance system of the Member State but they only need to establish that they have the resources to the authorities if the UK authorities so request. As long as they have the resources they are exercising their residence right irrespective of whether the Home Office is aware of this or not (cf Article 25 above) (C-325/09 Dias 21 July 2011).
Shortly after our arrival, my wife became pregnant with our third child. She entered on an EEA family permit as a jobseeker, and that was her genuine intention. Obviously, a coming baby threw a “spanner into the works”, as you say over here. By the time Ellis – also a French national – was born in September of 2013, I had secured permanent employment, with a salary of £29,000. That sum of money was enough for our family to live off of, which was a very good thing; the money we came over with had been used to sustain us. The $9,000 we received from my wife’s American tax return was also used to sustain us from June 2013 – September 2013, a period during which I was paid only £1200 (not enough to support the family without my wife using her savings). My wife had been self-sufficient our entire stay, and remains so to this day. The vehicle has simply switched from her savings to my income, which is now £32,000. Again, just to remind you what the actual law is, I will quote first your own application for an EEA2:
“If you are economically self-sufficient, you need to supply evidence of comprehensive sickness insurance for yourself and any family members included in your application. You also need to supply evidence of funds sufficient to maintain yourself and any family members included in your application during the time you intend to reside on this basis. These funds can come from the employment or self-employment of any of your family members legally working and residing in the UK with you. Documentary evidence of their employment or funds should be supplied.”
And, again, the actual law:
“…the Court has held that the expression ‘have’ sufficient resources in a provision similar to Article 7(1)(b) of Directive 2004/38 must be interpreted as meaning that it suffices that such resources are available to the Union citizens, and that that provision lays down no requirement whatsoever as to their origin, since they could be provided, inter alia, by a national of a non-Member State.”
This is what the First Tier Tribunal found in its decision in September 2014. The First Tier Tribunal allowed my appeal against the UKBA’s refusal to issue me a residence card. We thought that after a year-and-a-half of threats – text messages, letters telling me to make plans to leave, even two letters telling my French national sons to leave, etc. – that it was finally over. Then you appealed. You appealed to the Upper Tribunal based on case law which has no relevance to our situation.
Both cases your agency cited in your grounds for appeal applied to parents of EEA children claiming a derivative right of residence through a self-sufficient child. This is an important point. In the regulations, a “parent” does not automatically qualify as a “family member”. A “spouse” does. I believe the Presenting Officers Unit knew this. I believe your challenge of a decision in my family’s favour is an effort to drag out the process. You are using resources that vastly outweigh ours to try to get us to quit. Let me assure you that I will not quit.
You see, I realize that to you I am one more over the quota. I get that much. What you need to realize is that you are threatening a stable, solidly middle-class, tax-paying, European family with disaster. You are threatening to take a young family who have come to your country and succeeded in settling without recourse to (or any intentions to ever use) public funds, and make them penniless and homeless. That is what you have held over our heads – over the heads of a seven, four, and one-year-old with French nationality. We spent everything we had coming here. We sold everything and left jobs. There is no home or work magically waiting for us in the United States. This is home.
My French national children have also begun a course of education. Under EU law, they have a right to finish that course of education in the United Kingdom. I will be bringing them to the Upper Tribunal hearing. You may ask them yourselves if they would be able to exercise their right to an education without their father present.
I contend that your treatment has been unduly harsh, and that you have not acted in accordance with European law, or the best interests of the children involved. The fact that in October of 2013, you sent letters to my French national children telling them that they must leave the country was an obscene violation of the law and the ECHR. You chalked it up to a clerical error, but it was much more devastating than that to us. Your challenge against the legal decision of the Lower Tribunal amounts to waging a war of attrition against a family that does nothing but contribute to your country.
Do with this what you will. I assure you that, no matter what you do, I will react. I will challenge everything you do. You will not outspend me or wear me down. I will have justice.
- Evan Szymanski