Can of worms!!! EU1

[colonel_jam]

hello wonderful people,

Hats off for introducing and successfully running an extremely helpful forum for troubled people like myself

Right heres my little story....

I lived in london for over 4 years, got my bachelors degree and was living with my girlfriend (now my wife). we lived together for a year and then we got married after when I was removed from the UK as I overstayed my visa (honest mistake). I was removed october 07, I got married to my polish wife on 14th feburary in Pakistan thats where I am from and filed for a family permit on 26th feb however just recently the application was refused and ultimately banning me for 10 years as I was removed on public expense. Im still working on the apeal bit but still wondering if its a good idea to waste another 5-6 months apart. Me and my wife are finding it extremly difficult to cope with the whole distance thing!!! So i was thinking if its a good idea to move to ireland????

Next question is am i banned from ireland too?

I would also like to know about the question where they ask u about any previous residency in an EU state? Was living in london ok? obviously i did overstay my visa however I entered the Uk via proper channel. Also I attended 2 years of college in cyprus. is that ok?

Should i consider moving to ireland, how would I go about doing that? and how long would it take us to be ''together'' because thats the whole point!!!

Im gona be coming up with more silly quetions so please bear with me!!!

Many thanks
Jay

[Directive/2004/38/EC]

Did they give you a reason for denying your application in the UK? What exactly did they say?

[colonel_jam]

your application falls to be refused under paragraph 320 (7B) of HC 395 WHERE THE APPLICANT HAS PREVIOUSLY BREACHED THE UKS IMMIGRATION LAWS : ..........

i am therefore refusing you entry clearance under paragraph 320 (7B) of the immigration rules. any future application will also be refused automatically until 2017

They apparently didnt even bother looking at the stack I submitted about my relationship and the marriage!!!!

So do u reckon its a good idea moving to ireland?

[desifighter]

Its better you move to Poland with your wife and try for citizenship in poland because your history its not good, and i dont think irish immigration will sort you out for VISA.

[colonel_jam]

Yea we have the option of moving to poland too however I am not sure if poland is ready for my polish yet!!!
Its not that we'r lookin to get started with the polish nationality we's got alot of time for that...we were thinking about ireland because for 1 english is spoken widely across the country....Dublin has great Universities and colleges where me and my wife can get professional courses. For instance I wanted to take up a Management Course (I am an operations manager) at London School of economics this summer (part-time) which im now deprived of and my wife wanted to take a course up with london school of fashion!!!!
So really theres no way I could slip into ireland (via proper channel not literally) ???

Any replies or people who have a similar case would like to share there experience??

appriciated desifighter

[desifighter]

Education is secondery thing, as you have bad history of immigration with U.K, and as you know ireland follow many immigration rules with U.K. So i dont think you will get escape of immigration history. What i can say is go to Poland and stay their for 6 months and then send you wife alone to ireland, and wait untill she gets fulltime work. If you do so then you comes Under EU Law and no one can Stop you as you are living in EU State.

[Ben]

You and your wife are entitled to move to and stay Ireland, so long as your wife exercises a Treaty Right within 3 months of your arrival in Ireland.

Where are you both currently located?

[colonel_jam]

Thank u for ur reply Benifa

I am in pakistan and my wife is in London!! So basically what ur suggesting is that she has to travel to ireland (on her own or with me?) find a job, a place to live, register with some EU treaty body (like in the Uk u have to register on the workers registration scheme) and show funds that she is capable of supporting me??

Did i miss anything???

[Ben]

Thank u for ur reply Benifa

I am in pakistan and my wife is in London!! So basically what ur suggesting is that she has to travel to ireland (on her own or with me?) find a job, a place to live, register with some EU treaty body (like in the Uk u have to register on the workers registration scheme) and show funds that she is capable of supporting me??

Did i miss anything???

Ok, this is not the only possibility, but (in my opinion), it is likely to be the easiest for your case:

Your wife should move to Ireland first and get a job and a place to live. Unlike in the UK, Polish nationals are not subject to work registration requirements, they simply need apply for a PPS number (like a UK NI number), and start working. It is very straightforward. Once she starts working, your wife is exercising a Treaty Right.

You should then apply for a Spouse visa at the Honorary Consul of Ireland in Pakistan. Upon arrival in Ireland, you should apply for residence using form EU1, to the Department of Justice.

If I were in your shoes, that's the route that I would take anyway.

[colonel_jam]

Thank u benifa

That sounds good....but do u really think that they will forsee the fact that I have already violated my UK visa??? and have been refused entry clearance??

how long do u reckon I have to wait till I get my visa to join my wife in ireand??? Obviously when my wife has settled down in like 2 months and I make the application after that so another 2-3 months??

I am so knackered and dead if my wife finds out its gona take another 3-4 months !!!

[Ben]

Thank u benifa

That sounds good....but do u really think that they will forsee the fact that I have already violated my UK visa??? and have been refused entry clearance??

Nope, your immigration history in the UK has no effect on your right of residence in another EU Member State.

how long do u reckon I have to wait till I get my visa to join my wife in ireand??? Obviously when my wife has settled down in like 2 months and I make the application after that so another 2-3 months??

I am so knackered and dead if my wife finds out its gona take another 3-4 months !!!

I can't tell you how long it will take the Honorary Consul of Ireland in Pakistan to grant a visa application for you, I'm sorry. What I do know is, that as the spouse of an EU citizen your application supposed to be fast-tracked (in theory).

If your wife gets on a plane tomorrow and has a job in Ireland by Monday, you can apply for your visa as soon as that.

In fact, since EU citizens and their family members may enter Member States and not exercise a Treaty Right for the first three months, it can be argued that you can apply for a visa as soon as she lands in the country. In fact, by the same token, it can be said that you don't actually need a visa at all, since Directive 2004/38/EC states that only your passports and marriage cert are required for Member States to facilitate entry. However, in reality, no airline will fly you from Pakistan to the EU without a valid visa. So, catch 22 there.

In summary, and in my opinion, best thing is for your wife to fly over, get a job, you apply for your visa, arrive in Ireland, apply using EU1. You may hit some hurdles along the way, such as section (3)2 of SI 656 of 2006 (discussed in brief, here), but that's really no biggy and can be worked out when you're here.

[Liberal Immigrant]

1st question to Colonel Jam: you said u ve been banned for 10 years. But wasnt there an announcement that these new rules would be delayed until 1st October 2008?

2nd question to Benifa: isnt the EC Directive 2004/38/EC only to be interpreted as allowing movement of members within EC, rather than from outside e.g. pakistan?

[colonel_jam]

Yes Indeed I am banned however my application reached the BHC well before the concession was announced even before the new rules were about to be enforced i.e april 1st 08 application submitted 26th FEB!!!

Sorry I realise the question is for Benifa however I believe u are right about the EC directive, If I had applied from my EEA spouse's country it would have been a whole different scenario. This is what I believe I dont know if im right!!! care to venture anybody???

[Ben]

2nd question to Benifa: isnt the EC Directive 2004/38/EC only to be interpreted as allowing movement of members within EC, rather than from outside e.g. pakistan?

That is a question that has been heavily debated. The problem is, it is not stipulated in Directive 2004/38/EC that the family members of the EU citizen should already be within the EU / EEA, in order for the directive to apply. The result is that the issue is open to interpretation by Member States.

Some countries, such as Ireland, require that the family member has previously been legally resident in another Member State, prior to coming to Ireland in the company of / to join the EU citizen. This been stipulated in Section 3(2) of SI 656 of 2006 (Ireland's implementation of Directive 2004/38/EC), and has been a pain in the mule for a lot of families.

In recent times, thankfully, it seems that the Irish Department of Justice have not been enforcing this "clause" (at least, not in all cases), if what people have been posting on this forum is true.

In any case, once physically in Ireland, periods of legal residence in another Member State can be very easily acquired. Remember that the Republic of Ireland shares a land boreder with the UK. A short trip up to Newry and a night in a B&B is legal residence, providing the EU/non-EU couple are in possession of their passports and marriage certificate for the duration.

With a period of legal residence acquired, the requirement of Section 3(2) of SI 656 of 2006 is therefore fulfilled (in theory).

[Liberal Immigrant]

In any case, once physically in Ireland, periods of legal residence in another Member State can be very easily acquired. Remember that the Republic of Ireland shares a land boreder with the UK. A short trip up to Newry and a night in a B&B is legal residence, providing the EU/non-EU couple are in possession of their passports and marriage certificate for the duration.

With a period of legal residence acquired, the requirement of Section 3(2) of SI 656 of 2006 is therefore fulfilled (in theory).

sorry i dont mean to hijack this thread but can you please ellaborate on your above 2 paragraphs? i am confused now bcoz if u were to read my situations http://www.immigrationboards.com/viewtopic.php?t=25992 i can easily ferry across the pond and land in newry but how does that make me legal? newry is still UK, so why would the Irish allow me EEA residence permit if i arrive at Newry and not if i am in manchester or birmingham?

[JAJ]

A short trip up to Newry and a night in a B&B is legal residence,

Visiting with no intention to remain is not residence, by any usual definition of the term.

[Directive/2004/38/EC]

A short trip up to Newry and a night in a B&B is legal residence,

Visiting with no intention to remain is not residence, by any usual definition of the term.

JAJ, EU law is clear that (for family members of an EU citizen travelling with the EU citizen) a visit you make to another member state is residence.

This is now transposed into national law. Some examples are outlined at http://eumovement.wordpress.com/2007/06 ... -question/

[Liberal Immigrant]

A short trip up to Newry and a night in a B&B is legal residence,

Visiting with no intention to remain is not residence, by any usual definition of the term.

JAJ, EU law is clear that a visit you make to another member state is residence.

This is now transposed into national law. Some examples are outlined at http://eumovement.wordpress.com/2007/06 ... -question/

but my question is: i am in UK on temporary admission, not on leave to enter/remain, so in my case, technically speaking, i am not legally present in the UK but having said that, nor am i here illegally!

Hence if i were to move to ireland from UK, ireland would refuse my residence card application bcoz my presence in UK wasnt lawful presence in the 1st place!

Am i right or wrong?

[Directive/2004/38/EC]

but my question is: i am in UK on temporary admission, not on leave to enter/remain, so in my case, technically speaking, i am not legally present in the UK but having said that, nor am i here illegally!

Hence if i were to move to ireland from UK, ireland would refuse my residence card application bcoz my presence in UK wasnt lawful presence in the 1st place!

Am i right or wrong?

Are you you a family member of an EU citizen (e.g. a spouse)?
Are they here with you in the UK?

If so, then I think you pretty clearly fall under the category of "resident in the UK for under 90 days".

The Immigration (European Economic Area) Regulations 2006

PART 2 - EEA RIGHTS

Initial right of residence

13.—(1) An EEA national is entitled to reside in the United Kingdom for a period not exceeding three months beginning on the date on which he is admitted to the United Kingdom provided that he holds a valid national identity card or passport issued by an EEA State.

(2) A family member of an EEA national residing in the United Kingdom under paragraph (1) who is not himself an EEA national is entitled to reside in the United Kingdom provided that he holds a valid passport.

Why do you say that you are not here legally? You do not have to have leave to enter or leave to remain to be here legally. Those are in any case only concepts in UK national law.

If you are actually the spouse of an EU citizen, then you have the right to work and live here as much as they do. For periods of less than 90 days, there are no preconditions, except that you must both be here together.

[Liberal Immigrant]

Directive,

thanks for your input. u can find my situation here http://www.immigrationboards.com/viewtopic.php?t=25992

i ve been in uk for 10 years, recently married a uk spouse, now we r thinking of moving to ireland but i have been in uk throughout on temporary admission and in the eyes of law, i have never entered uk for that matter. thus, ireland wldnt recognise my 10years in uk as lawful presence.

what do you think?