Surinder Singh

[charliebrown]

Hi am wondering if anyone can help me,

Am a British citizen working and living in Spain with my non eu/eea husband.
i am aware of Surinder Singh policy and would like to use this route to return to UK, however, we have not been in Spain for 6 months.
We moved to Spain in August 01/2008, my husband came with me using a type c shengan visa, I undertook a vocational course for a month and we had enough money to live. I then accepted a job offer from a company in Italy so we moved there early Sept, i worked there for 2 weeks, however, when my husband applied for residency as a spouse of EU cit, the Italian authorities refused to even acknowledge the directive saying it doesn't even exsist! this is all under review, but we didn't want to chance him saying anywhere illegally so we moved back to Spain and i am working here. We have both registered for residency, I have my green paper, husband is waiting for his card. Now i NEED to return to UK with husband as my mum is extremely ill, i went home to visit a few weeks ago and she wasn't well but now things are worse with her. We are freaking out now and i am going to go back to UK but can my husband come with under surinder singh? (He had previously been refused a spousal settlement visa when i was in UK in April 2008 as he had been in UK illegally before 10 year ban)

If we can apply, where do we do it? UK emb in madrid or home office, and how long will it take. It will be no problem for me to get a job back in UK and we have enough money not to be a burden on public funds, i also still have a house in UK where we both lived before moving out of country?

most grateful for help!

[Casa]

In order for Surinder Singh ruling to be applicable, you need to have been 'exercising your treaty rights' in Spain (working/studying etc) for a minimum of 6 months. Can you afford to seek legal advice from an OISC registered immigration advisor? Under UK law the spouse visa shouldn't be refused due to the overstay, but the rest of the application needs to be strong. What reason was given on the original spouse refusal?

[Mr Rusty]

At the risk of betraying my ignorance, I have to ask where the "6 months minimum" requirement is stipulated. It doesn't mention it in the 2006 Regulations, or European Casework instructions, or Guidance to ECOs. If the lady is registered as a worker in Spain, she's exercising her treaty rights there and that's that.
If her husband is in Spain, he's going to have to apply for an EEA Family Permit in Madrid, and given his apparent previous history here, the ECO would probably refer it to UKBA, so he could be in for several months' delay. He could try turning up at the UK border control and demanding entry as an EEA Family member because they're not supposed to turn such applications away without giving an opportunity to provide proof, but without a visa he probably wouldn't be allowed on a plane/ferry.
Also, I question whether hubby is still in Spain legally, because if he isn't, the UK isn't obliged to issue a Permit. In Posts on other threads dated June 08, when the OP was fighting their corner in Italy, she said his EC was about to expire. If they went back to Spain and his visa expired before applying for residence, there could be a problem. An application to the Spanish authorities isn't acceptable evidence of legal residence.

[Casa]

The 6 month requirement is shown in the Directorates Instructions (INI)
Chapter 7, Section 3, Annex E.
The UK National must have exercised such rights for a period sufficient
to have established himself (sic) there. Normally this should be taken to mean 6 months but discretion may be exercised, for example where the
UK National has genuinely worked abroad but has good cause to return to
the United Kingdom after a shorter period.

Maybe the OP can apply under the 'good cause', due to the mother's illness, if they meet the other regulations regarding the husband's legal status in Spain etc.

[Mr Rusty]

"The 6 month requirement is shown in the Directorates Instructions (INI)
Chapter 7, Section 3, Annex E."

Yes, I think I saw the website from which you quote (as it erroneously states INI, not IDI), and I believe it's out of date, because I looked for an Annex E to Chapter 7 S3, and there didn't seem to be one. I've just tried looking up that chapter again, but it won't load. If you find it, please let me know.
I suspect I might be right, because cross-checking with the guidance to ECOs, there's no mention of a 6-month requirement there either, and it's certainly not mentioned in the 2006 Regulations themselves
If you look at the list of items under Chapter 7 and their annexes, E and F are missing from the sequence which strongly suggests that this specific requirement has been dropped.

[charliebrown]

Casa - settlement visa denied as was questioning our relationship (apparently pictures, marriage cert wasn't enough) and we didn't have any joint bills so question was whether we intended to live together. Money issue, didn't think £8000 in bank was enough? and that he had previously entered the UK by deception and had a removal order against him which he ignored so was mandatorily refused under 320 (7b) with a 10 year ban from UK. We was going to appeal but lawyer said to leave UK then come back under Surinder Singh, reckoned we stood a better chance. We intended to stay in Spain for a year (length of my work contract) but due to my mums illness i need to get back asap, i am going anyway but need to know if husband can come now or will i send for him later and will it still be under Surinder Singh?

When we were in Italy, i had a job contract but my husband was threatened by Italian authorities with removal. We were told they were acting illegally and to sit tight but this is peoples lives we're talking about so didn't want to wait for visa to expire. He applied in Spain before his visa ran out as the spouse of EU citizen exercising treaty rights. We have asked Spanish authorites if he is legal whilst he is waiting for residence card and he is...

Bit concerned with delay you mentioned due to previous history/ban. I do not wish to leave my husband in Spain alone as he is dependent financially on me (he can't work until gets card) and as i understand if i left, he would no longer be 'accompanying as a spouse....?)

[Mr Rusty]

As I've pointed out, there's no absolute rule against an application even though you've only spent a short time exercising your rights in Spain, but I foresee a few problems.
It is worrying that you have been registered in Spain but they didn't issue to your husband at the same time. Any idea why? As you're now leaving, the Spanish authorities could decide to refuse him, which would make for an extremely weak EEA application here. He can't stay there as a dependant if you're no longer there.
If the Spanish do issue to him as an EEA dependant, he could apply to join (as opposed to accompany) you under Surinder Singh.

But really you have to go back to that clever lawyer who told you to get round a UK refusal by using Surinder Singh and see how good he really is.

[ciaramc]

I have just been reading your posts......

And this is just ridiculous.....I know how you feel as I'm in the same situation.....I (EU Citizen Irish) live in Italy with my (non-EU) spouse and have been trying to get his RC for the last 3 years since we married.....you are right Italy does not recognise the Directive, they don't even know what it is....which drives me crazy as nobody seems to be doing anything about it....I have contacted SOLVIT and also the EU Commission to file complaints but it seems they are never willing to help!!!

I'm now awaiting the outcome from the Italian courts....an appeal I filed against the refusal of my husbands RC.....

[Casa]

The problem is, with the 10 year ban for re-entry into the UK due to deception, your husband still could face refusal under Surinder Singh.
Do you have confidence in your present solicitors ability top handle your case?

[Mr Rusty]

The problem is, with the 10 year ban for re-entry into the UK due to deception, your husband still could face refusal under Surinder Singh.

I don't think so. Firstly, the lady says he was refused under 3207(b) - in which case as a spouse 320 7(c) exempts him from the ban. Secondly, an application under EEA regulations is not subject to the Immigration Rules.

I also was wrong, out of date, in stating that hubby won't be able to apply if he is not legally resident in Spain. A recent European judgement has undermined this requirement of the UK regulations - METOCK & others (ECJ C-127/08 ) says this:
"Directive 2004/38/EC of the European Parliament .........................
precludes legislation of a Member State which requires a national
of a non-member country who is the spouse of a Union citizen
residing in that Member State but not possessing its nationality to
have previously been lawfully resident in another Member State
before arriving in the host Member State, in order to benefit from
the provisions of that directive."

The only requirements for this lady to succeed in her application are for her to show (a) she was working in Spain (b) her husband was there with her.
She still faces the practical difficulty of how they can present the application. As I previously said, if they can present themselves at a UK port or airport he can not be turned away without being given the opportunity to present evidence of his right to entry as a Surinder Singh case. This is something no IO on the desk could decide, they'd have to grant temporary admission while it's referred to UKBA. But he has to get on a plane or a ferry. My information is that turning up at Coquelles would not work.
The alternative is to apply in Madrid and wait. EEA applications are supposed to take no more than 6 months

[Casa]

Mr Rusty, I had assumed that the mandatory 10 year ban the OP mentioned had actually been applied in the refusal, due to his entry into the UK by deception. I also believed (maybe wrongly) that where someone had been given a ban for re-entry they could still be refused
under EEA regulations as the UK authorities are within their rights to
overrule in these circumstances. What do you think?
One other thought...the UK immigration officers are actually based on the French side at the Eurotunnel crossing. Do you reckon they would have to
be given leave to enter if they take this route?

[Mr Rusty]

Mr Rusty, I had assumed that the mandatory 10 year ban the OP mentioned had actually been applied in the refusal, due to his entry into the UK by deception. I also believed (maybe wrongly) that where someone had been given a ban for re-entry they could still be refused
under EEA regulations as the UK authorities are within their rights to
overrule in these circumstances. What do you think?
One other thought...the UK immigration officers are actually based on the French side at the Eurotunnel crossing. Do you reckon they would have to
be given leave to enter if they take this route?

The OP mentioned entry by deception, but said the refusal was under 320 7(B), from which spouse applications are exempted by 320 7(C). I'm only guessing, but I think this may be explained by the way in which Enforcement IOs have to apply the Rules. A non-European national may have succeeded in entering the UK using a UK or EU passport - in this case the Moldovan husband perhaps used a Romanian passport or id card. He required "Leave to Enter", but wasn't given it because the IO thought he was an EU citizen. So although documentary deception may have been used (invoking 320 7(A) ) the Enforcement Manual says that such people have to be treated as Illegal Entrants who have "entered without leave" (thus 320 7B ).
As far as I'm aware, somebody refused under the Immigration Rules is still able to put in an application under European Regs.
I think that if someone presents an application say at the Gare du Nord in Paris or at the Channel Tunnel, they're in no better position than someone applying at a British Embassy abroad. The IO might feel obliged to take in the application, but not to let the person travel to the UK while it's sorted out. An IO isn't in a position to grant a Residence Card.

[Casa]

Thanks for the info Mr Rusty.
So at least the Op's husband doesn't have the 10 year ban they believed he had been issued.

[Wanderer]

Not wanting to put the cat amounts the pigeons or owt but I wonder if the HO would consider such a scenario where the applicants had used the Surinder Singh ruling after only exercising a treaty right for a short time as 'an attempt to circumvent the UK immigration rules'?

It's an interesting point.

[Mr Rusty]

Not wanting to put the cat amounts the pigeons or owt but I wonder if the HO would consider such a scenario where the applicants had used the Surinder Singh ruling after only exercising a treaty right for a short time as 'an attempt to circumvent the UK immigration rules'?

It's an interesting point.

Indeed. That's when the OP has to bring the special compassionate circumstances of her mother's illness into play. The irony is, she's already admitted on this forum that the reason she went to live abroad was to clock up a year exercising her treaty rights there as a means of resolving her husband's precarious status under the Immigration Rules. Undoubtedly she'd have got away with it, but fate has intervened, and unless her husband can get to this country fairly quickly he could end up back in Moldova because he can't stay in Spain.

[Mr Rusty]

I was just looking at this website : www.brusselsjournal.com/node/3457 - which provides an interesting insight into the results of the METOCK judgement to which I previously referred, and includes the following comments:

Danish public radio DR summarized the situation after the Metock case ruling like this:
1. Until now, spouses or children who wanted to use family reunification had to have a permanent residence permit in another EU country prior to their arrival to Denmark. The ECJ removes this condition.
2. A Dane who comes back from abroad together with his non-EU spouse had to have been working as an employee or freelancer during his stay abroad. This condition has been reduced by the ECJ to a period of just a couple of weeks.
3. Upon his return to Denmark, the Dane had to be able to support himself and his or her spouse. This condition was already removed in December last year due to the ruling in the Eind case, also delivered by the European Court of Justice.
4. Moreover, the EU allows family reunification without having to consider the Danish rules like the minimum age of 24, the presence of stronger ties to Denmark than to the home country of the spouse, good living conditions and sufficient income, financial guarantees and the nephew-niece rule.
In practice all this means that a Danish immigrant now can rely on his European rights to circumvent the entire Danish immigration legislation. It suffices to spend one's honeymoon on the other side of the Øresund in the Swedish town of Malmö doing some simple job – cashier at a supermarket or taxi driver will do – and one may import one's bride or groom into Denmark

A matter of opinion, perhaps, but I can't see things turning out much different in the UK

[86ti]

I
In practice all this means that a Danish immigrant now can rely on his European rights to circumvent the entire Danish immigration legislation. It suffices to spend one's honeymoon on the other side of the Øresund in the Swedish town of Malmö doing some simple job – cashier at a supermarket or taxi driver will do – and one may import one's bride or groom into Denmark

Why does the Dane (as in this example) have to work at all as Directive 2004/38/EC also includes self-sufficiency?

[charliebrown]

[quote="Mr Rusty"]
It is worrying that you have been registered in Spain but they didn't issue to your husband at the same time. Any idea why?

When we applied, it turned out i had to get green paper first which husband then had to take to officina de estranjeros along with my passport in order to get his registration certificate. His card takes up to 3 months to arrive. Apparently that is the protocol around here?

Thanks for all advice guys, this has been quite simply a headache inducing time for us (and an expensive one!) The france boarder idea is good but risky. What is worrying though is that this Surinder thing can take up to 6 months! is this true? Do they expect me to have a job to go back to in UK?

thanks once again for advice
(and i will be contacting that clever lawyer if i have any cash left after this! Did not anticipate for the difference in wages in europe! lol)

[joelondon]

It is worrying that you have been registered in Spain but they didn't issue to your husband at the same time. Any idea why?

When we applied, it turned out i had to get green paper first which husband then had to take to officina de estranjeros along with my passport in order to get his registration certificate. His card takes up to 3 months to arrive. Apparently that is the protocol around here?

Thanks for all advice guys, this has been quite simply a headache inducing time for us (and an expensive one!) The france boarder idea is good but risky. What is worrying though is that this Surinder thing can take up to 6 months! is this true? Do they expect me to have a job to go back to in UK?

thanks once again for advice
(and i will be contacting that clever lawyer if i have any cash left after this! Did not anticipate for the difference in wages in europe! lol)

hi there !!

lets go back to the beginning, your husband was in the uk ..right ?and then had to leave ,so u decide to go to spain ...u said that he was granted a shengen visa ? where was that ? and how ? if he was illegal in UK ?

second point : as you are British ,u dont need to apply for la tarjeta de residencia en spain to be resident ..just if you plane to be there for more then 90days ... and your husband will get la tarjeta de regimen comunitario (tarjeta de residencia for EEA family member ) they will issue him a 5 years resident card ...then if you want to go back to italy u can thats not a problem at all ...

one more point , if you just applied for the resident card in MADRID ,i can be honest with you that it will take atleast 7 months , he need to get it approved first and then he will get his fingers print and need to pay la tasa 6,68 euros...if you have any doubt about spain just let me know as i have experiance in this (my little bro married to spaniard )


if u can just make it clear for me thanks


HOW YOUR HUSBAND DID GET THE SHENGEN VISA IN THE UK ???????? OR DID HE LEFT THE UK WITHOUT A VISA ? I DIDNT GET THIS PART SORRY

[charliebrown]

Hi Joelondon,

sorry to be so cryptic! My husband left UK and went home before applying for a spousal settlement visa to UK, this was refused and he was issued with 10 yr ban. We were told by lawyer we could use surinder singh so i left UK and went to husbands country (Moldova) stayed a bit, went to Romania on his behalf as this is were nearest spanish embassy is and it takes ages for Moldovans to get visa now to go romania, easier for me to do it. I got his visa to accomany me to spain (wanted to see our medical insurance, flights, accomadation and details of the course i was going to do in spain) i knew they shouldn´t ask for this stuff but didn´t argue as just wanted to secure visa. Visa was issued promptly and free of charge. We left Moldova and went to spain, i did my course then we went to Italy as i had a job contract there. Italy don´t recognise directive 38/EC! and told us we had to go back to Spain as they issued shengen visa?!? obviously solvit got involved and theres a case pending. meanwhile, we freaked and decided to come back to spain where i was offered a contract in Leon. Before husband could register, i needed to register as i intend to stay over a year (work contract) and it seemed´reasonable that i was required to register, also looked at some sites which confirmed this. Ok so 7 months? is this just for Madrid or are different regions..erm..different? Thanks for your help.

[joelondon]

Hi Joelondon,

sorry to be so cryptic! My husband left UK and went home before applying for a spousal settlement visa to UK, this was refused and he was issued with 10 yr ban. We were told by lawyer we could use surinder singh so i left UK and went to husbands country (Moldova) stayed a bit, went to Romania on his behalf as this is were nearest spanish embassy is and it takes ages for Moldovans to get visa now to go romania, easier for me to do it. I got his visa to accomany me to spain (wanted to see our medical insurance, flights, accomadation and details of the course i was going to do in spain) i knew they shouldn´t ask for this stuff but didn´t argue as just wanted to secure visa. Visa was issued promptly and free of charge. We left Moldova and went to spain, i did my course then we went to Italy as i had a job contract there. Italy don´t recognise directive 38/EC! and told us we had to go back to Spain as they issued shengen visa?!? obviously solvit got involved and theres a case pending. meanwhile, we freaked and decided to come back to spain where i was offered a contract in Leon. Before husband could register, i needed to register as i intend to stay over a year (work contract) and it seemed´reasonable that i was required to register, also looked at some sites which confirmed this. Ok so 7 months? is this just for Madrid or are different regions..erm..different? Thanks for your help.

hey how we doing ?
in some cuidades in spain will issue you a resident card after 2 months , in spanish its called pueblos like small regions , but u have to register there (empadronamiento ) and u need to have a flat rented or a room with contract , medical insurance ,and marriage certificate , it depence on the police station ,and what they ask ...if u need more information let me know or pm me ok ...hope everything will be fine ...good luck