EEA Family Member Permit for American Spouse (British)

[leoromynfabbri]

Hi there,

Sorry if this question has been answered before, but I think we may have a particularly intricate case. We wanted to clarify our options.

My fiancee and I have been living and working in the Czech Republic for over a year now. She is American, and I am British.

We want to go back to the UK, so that I can begin a university course. Therefore we are not applicable for a British Spousal Visa. We want to go through the Surinder Singh pathway.

We have time constraints. Massive time constraints. We tried to get married as soon as we can, but the earliest possible date is the 24th of July of this year. We've booked that now.

We have a ride out of Prague with all our stuff and our dog on the 5th August. My dad, who is giving us the ride, needs to be back in the UK with the car by the 14th of August (till then we'll be able to stay with him at his house in Berlin). We are considering the following options:

1) Apply for an EEA Family Member Permit. This option has some risks. For one, we are not 100% sure we will receive the decision in time for the 14th of August. Also, because of the privitisation of British visa services, we are only able to hand in our supporting documents once every fortnight (!), and so we have no real way of planning / scheduling this time frame. We also have to receive our marriage certificate (some days after our weddings, as well as have it translated). We understand that this is the officially recommended route, we're just wondering if it entirely necessary given our time constraints. Our other option is:

2) Turn up at the Calais boarder with our marriage certificate, work slip etc. I understand that this may be risky, as it is possible that the boarder staff will not let us in. We have read mixed stories about this approach, and would like to avoid it if possible.

If we chose 1), there is a possibility my fiancee could stay in Berlin for a few days / a week or so and wait for the decision on the EEA family permit from Prague, while I go to London with our belongings and dog. This, too, has some issues; as, for instance, can we be sure that my wife will be accepted? As far as we can tell, we are totally eligible. We have changed our "centre of life", worked legally and for over a year, and are in a genuine committed relationship. What could go wrong?

Any advice would be very welcome. We are feeling overwhelmed by a lot of things, particularly how much information there is, and how many contradictory accounts exist throughout the relevant literatures.

Thanks, and hopefully speak soon.

Leo & Jodi.

[el patron]

If it were me, I'd get Dad to leave us off at say Charles De Galle or perhaps Beauvais airport and fly in with my new wife. I suggest this because she is not a visa national and perhaps better to see how she gets on at the airport for starters. My concern would be that you will have such a short period of time where she will have been a direct family member, I'm not too sure if that would satisfy the surinder singh requirements. You will be arguing that she was a durable partner for the period prior to the marraige, however no rights flow from that until an entry clreance officer has made a decision to issue an EEA family permit to the durable partner, the issue of a Family Permit to a spouse will not retrospectively make the period prior to marriage relevant for the surinder singh route, I do see some possible trouble ahead for you when you come to apply in-country for a residence card.

As far as entry to the UK, you can rely on treaty rights once married and enter via Dublin on that basis, then transit to the UK via the Irish land-border or by ferry.

[vinny]

The UKVI does not yet recognise extended family members as being eligible under the Surinder Singh route.

[el patron]

If it were me, I'd get Dad to leave us off at say Charles De Galle or perhaps Beauvais airport and fly in with my new wife. I suggest this because she is not a visa national and perhaps better to see how she gets on at the airport for starters. My concern would be that you will have such a short period of time where she will have been a direct family member, I'm not too sure if that would satisfy the surinder singh requirements. You will be arguing that she was a durable partner for the period prior to the marraige, however no rights flow from that until an entry clreance officer has made a decision to issue an EEA family permit to the durable partner, the issue of a Family Permit to a spouse will not retrospectively make the period prior to marriage relevant for the surinder singh route, I do see some possible trouble ahead for you when you come to apply in-country for a residence card.

As far as entry to the UK, you can rely on treaty rights once married and enter via Dublin on that basis, then transit to the UK via the Irish land-border or by ferry.

I notice on re-reading that I must have just thrown this response together, some if it may be contradictory (such is immigration law!) however the thrust of it is I see trouble ahead and the phrase 'haste makes waste' in respect of your circumstances in in my head...

[el patron]

The UKVI does not yet recognise extended family members as being eligible under the Surinder Singh route.

Yes Vinny thanks for that, that is in my mind too, though I remember one success from last year on appeal, so the OP could similarly have to go down that route in the UK.

[vinny]

There was also an appeal failure.

[el patron]

http://www.ibarristerschambers.com/clie ... dence-card

[el patron]

Here is a link for the full decision -

https://ukvisaandimmigrationforum.files ... o-cain.pdf

[vinny]

Thanks.

[el patron]

Thanks.

You're very welcome!

[leoromynfabbri]

Thanks for the advice guys,

I think I may have not been clear, but we will definitely be married by then. I have sought advice, telling me that it doesn't really matter how long you have been married, as long as you are married by the time we apply. From the Europa advice line:

"On the other hand, your post raises the matter of the Surinder Singh Caselaw under Case C370/90.

We must note that the UK interprets the Surinder Singh caselaw restrictively; specifically, limiting the scope of the caselaw by reference to married partners. Advice is therefore for you and your partner to marry before your move to the UK, given that if you marry after your move to the UK, your partner will find it difficult to claim that his period of residence in the Czech Republic could be relied upon in the context of a Surinder Singh claim."

We have decided to extend our stay by one month; thereby allowing the processing time for our EEA family member permit. Dos anyone have experience applying for this permit as a newly wed? We have been together for over two years, lived together for over one year and have documents to prove it.

[el patron]

Thanks for the advice guys,

I think I may have not been clear, but we will definitely be married by then. I have sought advice, telling me that it doesn't really matter how long you have been married, as long as you are married by the time we apply. From the Europa advice line:

"On the other hand, your post raises the matter of the Surinder Singh Caselaw under Case C370/90.

We must note that the UK interprets the Surinder Singh caselaw restrictively; specifically, limiting the scope of the caselaw by reference to married partners. Advice is therefore for you and your partner to marry before your move to the UK, given that if you marry after your move to the UK, your partner will find it difficult to claim that his period of residence in the Czech Republic could be relied upon in the context of a Surinder Singh claim."

We have decided to extend our stay by one month; thereby allowing the processing time for our EEA family member permit. Dos anyone have experience applying for this permit as a newly wed? We have been together for over two years, lived together for over one year and have documents to prove it.

Good luck with that. I take a different view to Europa advice as to how the Home Office UK Visas may respond I'm afraid, I suspect that the time before marriage may not be taken into account for surinder singh purposes, you might do well to refer to the Santos case in your applications though.

[leoromynfabbri]

Hi again. I'm not trying to be funny by answering back or anything - I am just amazed that there is no information about this at all. In fact, on the HO page it says the following:

"Applications for EEA family permits must meet the following criteria:

The British citizen must be residing in an EEA Member State as a worker or self-employed person or have been doing so before returning to the UK.
If the family member of the British citizen is their spouse or civil partner, they are living together in the EEA country or must have entered into the marriage or civil partnership and have been living together in the relevant EEA country before the British citizen returned to the UK."

There is no reference to the duration of the marriage. Surely what is important is our living status, the length of our relationship, the fact that our marriage will be genuine. How can the HO enforce a rule it doesn't cite, anywhere.

Could you please show me where this is stated? It would be a great help, because it will tell us whether or not we should hire a lawyer.

Thanks again!

[leoromynfabbri]

Again, from Freedom of movement:

The UK Government’s official interpretation of the effect of Surinder Singh is set out in the Immigration (European Economic Area) Regulations 2006 at regulation 9 (as amended):

(1) If the conditions in paragraph (2) are satisfied, these Regulations apply to a person who is the family member of a British citizen as if the British citizen (“P”) were an EEA national.
(2) The conditions are that–
(a) P is residing in an EEA State as a worker or self-employed person or was so residing before returning to the United Kingdom;
(b) if the family member of P is P’s spouse or civil partner, the parties are living together in the EEA State or had entered into the marriage or civil partnership and were living together in the EEA State before the British citizen returned to the United Kingdom; and
(c) the centre of P’s life has transferred to the EEA State where P resided as a worker or self-employed person.
(3) Factors relevant to whether the centre of P’s life has transferred to another EEA State include–
(a) the period of residence in the EEA State as a worker or self-employed person;
(b) the location of P’s principal residence;
(c) the degree of integration of P in the EEA State.
(4) Where these Regulations apply to the family member of P, P is to be treated as holding a valid passport issued by an EEA State for the purpose of the application of regulation 13 to that family member.

[el patron]

Yes but 'P's EEA national status only becomes relevant upon marriage to the non-eea family member, so the argument can be made that the surinder singh period only exists from then, unless the durable partnership is accepted pre-entry to the UK in the form of a family permit, or perhaps an EEA residence card issued by another state. I do wish you well, just giving you my thoughts as a result of experience