Will my DO affect me when I want to come back to the UK?

[freeforall1]

I have an extant DO for conspiracy to defraud (24 Months) but wasn't deported because I had cases in and out of court but I decided to leave voluntarily to move to Ireland (spent a year now in Ireland). I was moving back and forth to the courts in The UK and along the line I had my first baby who is British and he is now 4 because my wife is British. We moved to Ireland and I have the RC now. But we're planning to move back to the UK. What are the chances that we would be able to relocate without much hassles? We have a second one who has an Irish Passport.

[dalebutt]

It shouldn't affect your EEA rights eventually, but expect some fights. With an extant DO, EEA-FP is bound to fail on the grounds that the DO is extant and you will not be eligible for an FP, you may first apply to revoke the DO.

[freeforall1]

Thanks dalebutt. You are right dalebutt, I was just fed up of fighting with them as I have expended alot on court cases and that was why we decided to move. Fight again? Arrrgh! lol... Anyone with a successful application regarding similar issues, please contributions needed. Thank you.

[dalebutt]

Well, in theory, if there were no evidence that you will commit further offence, it should be a straight forward case, but be minded that, the department may adopt malice in the handling of your case and seek to prolong matters for you. You will need to make a very good representation to the department when asking for revocation.

[freeforall1]

I know all these dalebutt. I will not find excuses for what I did but trust me if you saw the whole proceedings, you will know what it means when people talk about unfairness on a wide scale re foreigners! Having a British wife and a British child didn't stop them knocking me back on several occasions so I know about their malicious practices. I guess it will help a great deal if I see a similar case (precedence) then I would obviously have a clearer idea.

[dalebutt]

There are numerous cases that deals with EEA deportation, you may find the test adopted in Nnamdi encouraging. https://tribunalsdecisions.service.gov. ... 2-ukut-269 . As far as I am aware, there is no case that has addressed someone in the specific of your situation, there are cases though that mirror your circumstance which may give you an idea of baseline.

[freeforall1]

You're wonderful dalebutt. I shall go through that now but it seems I have seen that before, not sure though. I shall get back soon.

[freeforall1]

(i) In what circumstances, if any, will a period of imprisonment constitute legal residence for the purposes of the acquisition of a permanent right of residence under Article 16 of the Citizens Directive 2004/38?

(ii) If a period of imprisonment does not qualify as legal residence, is a person who has served a period of imprisonment permitted to aggregate periods of residence before and after his imprisonment for the purposes of calculating the period of 5 years needed to establish permanent right of residence under the Directive?


dalebutt, are the questions above answered by the CJEU? Besides, what do you think about coming back in and then applying for the FP instead of applying from outside the UK? I believe it is always easy for them to reject the application and thereby creating a proper obstacle. I also read it somewhere where it's been condemned that applying for FP outside the UK means you would have to always go back to The British Consulate where you got it for renewals every 6 months.

And I also read it on this forum that some guy was arrested coming back to the UK (despite having a RC) because he had previous conviction for doing a sham marriage and he was given 21 months (I believe there's more to this though).

[freeforall1]

http://www.freemovement.org.uk/surinder ... ion-route/

I think the O v Netherlands (the link above)provides for a clearer understanding.

[dalebutt]

CJEU has answered those questions, the answer is negative, period of imprisonment does amount to legal residence, but that's not what you need at the moment, that is relevant to an application for PR, I wanted you to see the test, the tribunal adopted in Mr Nnamdi's case and compare it with your case in terms of sentence received and the number of convictions he had, which doesn't meet the requirement for refusal or deportation. You cannot apply for FP from within the UK, if you return to the UK, you may submit an application for a residence card.

FPs are like visas, a qualified family member is not obliged to apply for an family permit before visiting the UK, I know quite a few people who are in similar position as yours, they returned without applying for family permit or applying to revoke DO, the UKVI are fuming, one was detained and was only release when he applied for bail.

http://curia.europa.eu/juris/document/d ... doclang=EN

[dalebutt]

Do you have a copy of the DO? Under what act was it issued?

[freeforall1]

I don't have the DO here with me but I will try and get a copy. I guess we can exchange emails here or maybe in a private box, if you don't mind. Yer I mean a residence card when I get in but I'm sure like you said, they will be fuming! I have seen the Nnamdi's one and by all means I think I am better off in terms of the previous he's had (with all humility) but as you suggested I would try and consider the Test adopted. So it is advisable to start the fight here before coming in or better still be prepared for the same scenario as you mentioned earlier. The point in O v Netherlands that I thought you would be able to pin point is this..."Article 21(1) TFEU must be interpreted as meaning that where a Union citizen has created or strengthened a family life with a third‑country national during genuine residence, pursuant to and in conformity with the conditions set out in Article 7(1) and (2) and Article 16(1) and (2) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, in a Member State other than that of which he is a national, the provisions of that directive apply by analogy where that Union citizen returns, with the family member in question, to his Member State of origin. Therefore, the conditions for granting a derived right of residence to a third‑country national who is a family member of that Union citizen, in the latter’s Member State of origin, should not, in principle, be more strict than those provided for by that directive for the grant of a derived right of residence to a third‑country national who is a family member of a Union citizen who has exercised his right of freedom of movement by becoming established in a Member State other than the Member State of which he is a national.".. But knowing The UK, nothing is straightforward!

[dalebutt]

You do not really need OB in my view, as you have lived in Ireland for such an extended period, you will already have engaged Reg 9, pre and post amendment, Surinder Singh and Eind will be sufficient .

When do you intend to return to the UK? You may apply for a revocation, it should not take too long to get a response, I do not have the details and circumstances of your case, it is difficult to give any specific opinion.

[freeforall1]

@ dalebutt I'm looking at coming back by December but since I would be applying for the revocation, I guess that wouldn't be feasible. But you've been really great. You have an extensive knowledge about these issues. Pardon me, what is OB? And have you got an email where we can exchange private messages. I guess as we would be delving a little bit more into the issue, it would be appropriate.

[dalebutt]

OB is the case law you were referring and quoting from "O V Netherlands", If you submit the application for revocation now, chances are you will get a response by December, I sent you a PM, but you will not be able to read it until you have made a minimum of 10 posts, you are two post shy off that at the moment.

[freeforall1]

Ok thanks dalebutt. I should just run down the two posts now. This is one and probably just send you another one.

[freeforall1]

Ok @ OB too.

[freeforall1]

ok dalebutt. Got it and will do that right away. Thanks.

[dalebutt]

Sorry but the requirements are that a member must have made a minimum of 10 posts before they can access PM facilities, to encourage open posting, your 9th post may not have gone down well with the Moderating team.

[freeforall1]

Sent dalebutt. Check plz.