EEA/Surindher Singh situation question

[biblapmcdantope]

Hello,

Can anyone help me with my situation?

I am a UK national living in Spain with my non-EU wife (Japanese). I have lived here for a year and a half and have resident card here (and bills, tenancy agreement and medical registration and so on). Haven’t worked in Spain, or been paid since I’ve been here (living off savings) but am author and have signed a contract for a book (royalties next year).

Questions:

1. Do I have enough for SS route?
2. Do we both need to move back to UK to get EEA1, or can we apply here?
3. How long does it take to get EEA1 and EEA2?

Many thanks for your help everyone!

[member]

Hello,

Can anyone help me with my situation?

I am a UK national living in Spain with my non-EU wife (Japanese). I have lived here for a year and a half and have resident card here (and bills, tenancy agreement and medical registration and so on). Haven’t worked in Spain, or been paid since I’ve been here (living off savings) but am author and have signed a contract for a book (royalties next year).

Questions:

1. Do I have enough for SS route?
2. Do we both need to move back to UK to get EEA1, or can we apply here?
3. How long does it take to get EEA1 and EEA2?

Many thanks for your help everyone!

What is your wife's immigration status in Spain?

[noajthan]

Hello,

Can anyone help me with my situation?

I am a UK national living in Spain with my non-EU wife (Japanese). I have lived here for a year and a half and have resident card here (and bills, tenancy agreement and medical registration and so on). Haven’t worked in Spain, or been paid since I’ve been here (living off savings) but am author and have signed a contract for a book (royalties next year).

Questions:

1. Do I have enough for SS route?
2. Do we both need to move back to UK to get EEA1, or can we apply here?
3. How long does it take to get EEA1 and EEA2?

Many thanks for your help everyone!

1) Not as UK recognises SS.
You would have had to have been working/self-employed in Spain.

Might be good basis for a test case.

2) Apply for UK RC in UK. Spain can't help with that.
But see #1

3) See forum timeline thread.

[biblapmcdantope]

Thanks for the replies.

MEMBER: My wife has a five year working visa as spouse of EU resident.

NOAJTHAN: Don’t you think being under contract for work might be enough?

[noajthan]

Thanks for the replies.

MEMBER: My wife has a five year working visa as spouse of EU resident.

NOAJTHAN: Don’t you think being under contract for work might be enough?

For future work? Unlikely.

To be considered a worker/self-employed the work has to be genuine & effective rather than marginal & supplementary.

Adequate documentary supporting evidence of this work will be required.

[biblapmcdantope]

Thanks for the help NOAJTHAN,

For future work? Unlikely.

It’s not actually for future work, rather for future pay. I have been doing the work all the time I’ve been here, and at least since I’ve been under contract, I just won’t get paid until next Jan. Do you think I could get through on that?

[noajthan]

Thanks for the help NOAJTHAN,

For future work? Unlikely.

It’s not actually for future work, rather for future pay. I have been doing the work all the time I’ve been here, and at least since I’ve been under contract, I just won’t get paid until next Jan. Do you think I could get through on that?

In that case, adequate (if not unimpeachable) documentary supporting evidence of this 'genuine and effective' work will be required.

For example you would probably fail on this basis:

Haven’t worked in Spain, or been paid

Don't give HO any 'wriggle room' to dispute this - or chances are that they will.

At least your length of time in Spain should help in meeting the UK's centre of life test.

[biblapmcdantope]

Thank you again.

In that case, adequate (if not unimpeachable) documentary supporting evidence of this 'genuine and effective' work will be required.

Well I have that.

For example you would probably fail on this basis:
Haven’t worked in Spain, or been paid

No, I haven’t my employers are in the UK.

Don't give HO any 'wriggle room' to dispute this - or chances are that they will.

I’ll have to. I have no evidence of having worked or been paid here, as I haven’t. But my ‘circle of life’ has demonstrably been here.

At least your length of time in Spain should help in meeting the UK's centre of life test.

So I can hope?

[noajthan]

Thank you again.

In that case, adequate (if not unimpeachable) documentary supporting evidence of this 'genuine and effective' work will be required.

Well I have that.

For example you would probably fail on this basis:
Haven’t worked in Spain, or been paid

No, I haven’t my employers are in the UK.

Don't give HO any 'wriggle room' to dispute this - or chances are that they will.

I’ll have to. I have no evidence of having worked or been paid here, as I haven’t. But my ‘circle of life’ has demonstrably been here.

At least your length of time in Spain should help in meeting the UK's centre of life test.

So I can hope?

Its not an open and shut case.

You have moved physically but in terms of employment it appears you have a UK employer. HO may question why you needed to be in Spain.

You don't seem to have much supporting evidence of worker status in Spain.
Living in Spain is not enough.

The problem you have is even though you may have a case under the cleaner, purer EU law the way its been transposed into UK regulations means you likely fail under the UK regulations that a caseworker will apply.
Ofcourse you could challenge any refusal but that might come down to you initiating legal action and a test case.

[biblapmcdantope]

I see. You’ve been really, really helpful. Thank you so much.

[noajthan]

I see. You’ve been really, really helpful. Thank you so much.

You could strengthen your case by taking up some work or self-employment in Spain for a few months.

[Richard W]

Thanks for the replies.

MEMBER: My wife has a five year working visa as spouse of EU resident.

Which treaty right does Spain believe you're exercising? Or have they not categorised you?

[biblapmcdantope]

Which treaty right does Spain believe you're exercising? Or have they not categorised you?

I’m not sure I understand this question! It was a right bloody hassle getting her res card though.

[Richard W]

To get your wife her residence card, you need to have been exercising one of your treaty rights:

• As a worker;
• As a self-sufficient person; or
• As a student

Do you know which right Spain deemed you to have been exercising?

[biblapmcdantope]

Do you know which right Spain deemed you to have been exercising?

Oh I see. B. Self-sufficient. Had to show bank records etc. Might this be relevant?

[Richard W]

The bad news is that Spain's decision that you qualified as "self-sufficient" would justify refusing to accept your wife as an EEA family-member under the UK regulations. You'd have to show that the UK regulations were inconsistent with the EU treaties.

[biblapmcdantope]

Does this mean game over? Presumably if I got a job here I wouldn’t have to tell them about the self-sufficiency thing?

[Richard W]

It means "Study Sean Ambrose McCarthy's legal bill" (technically, I suppose, Patricia McCarthy's). You'll have to take your case as far as the European Court of Justice.

Your wife may also fall foul of the proposed change to the citizens' directive, excluding "spouses who had no prior lawful residence in a Union state before marrying a Union citizen". There are no details on the change; your wife's exclusion would be collateral damage, and would depend on the precise wording of the change. I don't know what happens if the European law on which you depend is removed during your appeal.

If you're planning on raising a family, you should also consider (perhaps you already have) using the 10-year settlement route because of irregular earnings. Possibly you're disqualified because you two don't intend to live in the UK until death do you part.

[noajthan]

I see. You’ve been really, really helpful. Thank you so much.

You could strengthen your case by taking up some work or self-employment in Spain for a few months.

[biblapmcdantope]

Hello again Richard. This is too fascinating…

You'll have to take your case as far as the European Court of Justice.

No chance! We won’t be taking it to the european court or appealing. Sod that

Your wife may also fall foul of the proposed change to the citizens' directive, excluding "spouses who had no prior lawful residence in a Union state before marrying a Union citizen".

Well she was once a student in the UK, with a legal student visa.

There are no details on the change; your wife's exclusion would be collateral damage, and would depend on the precise wording of the change. I don't know what happens if the European law on which you depend is removed during your appeal.

Is it not possible, you think, just for me to get a job here and do the standard SS route?

If you're planning on raising a family, you should also consider (perhaps you already have) using the 10-year settlement route because of irregular earnings. Possibly you're disqualified because you two don't intend to live in the UK until death do you part.

Eh? I’ve never heard of this. Any details? We could intend to live in the UK until death us do part… I mean how do you measure intention?

[Richard W]

Is it not possible, you think, just for me to get a job here and do the standard SS route?

That would work with no rule changes - though presumably it will slow your writing down. From what you've said, you may escape the collateral damage of the rule changes. Moreover, the rule change might not get through the European Parliament, or the UK may vote to leave and the changes not happen - though with Dutch (probable) and Danish (certain) support, they may happen regardless.

Possibly you're disqualified because you two don't intend to live in the UK until death do you part.

Eh? I’ve never heard of this. Any details? We could intend to live in the UK until death us do part… I mean how do you measure intention?

It's in Rules E-ECP.2.10 and E-LTRP.1.10 in Appendix FM of the Immigration Rules, which I presume you have anticipated problems with. I haven't heard of any actual problem over long-term intentions; I presume it's part of a policy of discouraging the honest and responsible.

[biblapmcdantope]

Forgive my thickness Richard, but…

That would work with no rule changes - though presumably it will slow your writing down. From what you've said, you may escape the collateral damage of the rule changes.

Which rule changes are these?

It's in Rules E-ECP.2.10 and E-LTRP.1.10 in Appendix FM of the Immigration Rules, which I presume you have anticipated problems with.

Well I’m not sure what this is, so haven’t investigated it. What is the ‘long-term settlement’ route?

[Richard W]

That would work with no rule changes - though presumably it will slow your writing down. From what you've said, you may escape the collateral damage of the rule changes.

Which rule changes are these?

As part of the negotiations with Britain over EU membership terms prior to the forthcoming leave/remain referendum, the Commission has proposed that, if Britain votes to remain, changes will be made to the Citizens' Directive, which is often a key part of the Surinder Singh route. The key idea is that one will not be able to use it to enter the EU, but the scope of the changes as announced is wider. See the link I posted in this thread yesterday for a discussion and for references to the key documents and public statements. As I warned, we don't know what the precise changes will be, but a lot of people are worried.

It's in Rules E-ECP.2.10 and E-LTRP.1.10 in Appendix FM of the Immigration Rules, which I presume you have anticipated problems with.

Well I’m not sure what this is, so haven’t investigated it. What is the ‘long-term settlement’ route?

It's the normal 'family route'. It assumes that spouses are immigrating to the UK, rather than moving around the world with their spouses. It's expensive, because it assumes the immigrant family members will benefit financially by being allowed to work in the UK. Naturalisation is available at the end of the process, but I suspect that does not appeal to your wife. Not only is the 'family route' more expensive than the 'EEA route', but it also has greater restrictions on which family members are allowed in.

[biblapmcdantope]

So, to conclude, my best chance is to take a job here and go Surinder Singh, and try and get that through before the rules change? Which might be some time after the summer?

[noajthan]

So, to conclude, my best chance is to take a job here and go Surinder Singh, and try and get that through before the rules change? Which might be some time after the summer?

To have any chance of complying with the UK's non-'EU law compliant' wrapper around Surinder Singh you will need to return to UK having been a worker or self-employed.
Noone can really second-guess what the government's next move may be so all you can reasonably do is continue on your current trajectory, just tweaking things so you at least comply with current UK requirements.