EEA family permit refused

[crukleeds]

The UK authorities obviously dont wanna help...... They presume what they want without real evidence.

Not sure if u saw the post before. I just asked if they thought yours was a marriage of convenience????

[wet26]

The UK authorities obviously dont wanna help...... They presume what they want without real evidence.

Not sure if u saw the post before. I just asked if they thought yours was a marriage of convenience????

Yes, that was one of the "grey areas" in my application. I you read one of my previous posts ^^ I think I wrote about that....

[crukleeds]

It is mad especially when you have been living together before your marriage. From what i have read they need to do "exhaustive enquiries" before thinking it.

But if im right in saying your application wasnt refused because of that right? it was because they didnt class your partner as an EEA national? or should I say not exercising Treaty rights?

[Ben]

benifa - one thing I think is odd. When my passport was returned, it was endorsed with a "no work no recourse to public funds" stamp, which was struck through and handwritten endorsed in error. The second stamp is a "no recourse to public funds" stamp only. Different numbers for each stamp.

Quite simply, the IOs at the border have treated you as the spouse of a British citizen. This explains the stamps / notes in your passport and comments from the woman on the phone.

I didn't get a letter or anything, so I don't know 100% the terms of my entry...

Refer to Metock. How you entered is irrelevant.

only what the woman said on the phone, which was that I couldn't work and I need to go back to Australia.

She's treating you as the spouse of a British citizen and giving advice to you in line with the Immigration Rules (UK national laws).

Also, I've had a look at the EEA2 app form and I can't see how it applies to me, because husband was not considered an EEA national...

If your husband is a UK national who was resident in Spain, where he pursued an economic activity, Singh conditions apply on his return to the UK.

Did you apply for a Residence Card of the family member of a Union citizen, on form EEA2? Once you do, a certification of application is due immediately. In the UK, his is a document which states, quite explicitly, that you have the right to reside and to work.

[wet26]

benifa - Are you of the opinion that the IO at the port was wrong in saying that because he was still receiving a UK income (and paying UK tax and NI) that he was not exercising treaty rights in Spain?

I don't want to submit the EEA2 app then wait around for a year for it to be refused, then have to go to Australia to apply for a spouse visa anyway...

[wet26]

It is mad especially when you have been living together before your marriage. From what i have read they need to do "exhaustive enquiries" before thinking it.

But if im right in saying your application wasnt refused because of that right? it was because they didnt class your partner as an EEA national? or should I say not exercising Treaty rights?

I don't know exactly why I was refused - they didn't give me anything in writing at the port, only said there were several grey areas, marriage of convenience being one of them, and the question of whether he was exercising treaty rights. As far as I am concerned, he was exercising treaty rights because he was working and residing in Spain. I have not been shown where it states that he needed to receive a Spanish income in order to be exercising treaty rights.

I was held at the port for 5 hours and interviewed on 4 occasions, I think that counts as exhaustive enquiries. They said something along the lines that they believe my marriage is geniune, but on face value, we have been married a short period of time, the application was made shortly after marriage, and 18 months of cohabitation and one month of marriage is not classed as a subsisting relationship. They asked me a lot of questions about my marriage.

[crukleeds]

We didnt know, which route to take because we thought of just going to the UK aswell, We thought the best option for us was to apply for an EEA family permit, I have evidence of us living together since last october, which i will take with me. When we married over here in spain we was subject to similar things including questioning in seperate rooms. We had to wait 2 months for the court to issue the marriage certificate here and to say yes or no to our application. We was granted the license and married in April.
I also have certificates of "convivencia", which is where the police come and check to see if you are actually living together.

I really hope they will grant it because i just want to return home. I love spain but really want to be with my family etc

[wet26]

I had evidence we were living together too, rental agreement in our names, utility bills, correspondence, photos, we have a dog etc. Of course it helps to have those things, but the issue is that we got married so soon before making the application. They were not satisfied that we didn't marry to make it easier for me to get into the country. Despite the evidence of our relationship prior to marriage, we had not been married (or in a relationship akin to marriage prior) long enough. I think you will face this same hurdle because you married in April. I would address it in the supporting letter you write.

[crukleeds]

in the supporting letter what kind of things would you put???? sorry for asking so many questions........

[wet26]

if you want, send me your email in a private message and I'll send you a copy of the letter.

[Ben]

benifa - Are you of the opinion that the IO at the port was wrong in saying that because he was still receiving a UK income (and paying UK tax and NI) that he was not exercising treaty rights in Spain?

Absolutely!

The facts are gleemingly obvious. Let's look at the them:

• Your husband was resident in Spain.
• During this residency, your husband was engaged in economic activity.
• Your husband has returned to the UK, together with his spouse, where he will continue to engage in economic activity.

Directive 2004/38/EC, Singh, Metock. Your case is open and shut.

PS - From where your husband received his income, during his engagement of economic activity in Spain, is never in question.

[Directive/2004/38/EC]

wet26,

I have just found your thread. And would like to add a little from my perspective....

(1) It sounds like you have been let in at the border as a family member of a European citizen. Hence the crossed out stamp, replaced by the one which tellingly does not say you can not work.

(2) All lot will depend on you having documentation of your husband working in Spain. Letters and emails he has received from his boss informing him of his posting to Spain. Expenses paid for his house/hotel in spain. Even if it is not government issued. And of course, anything government issued! Also credit card bills from the whole period indicating he was in spain. You may be able to get old bills from the credit card issuer if he does not have them

(3) Keep all documentation about your relationship before (and after) getting married. Where you travelling to together, who you have visited, when exactly you lived together, who came to the wedding. Anything written that puts you together is good!

(4) You can ask for your file from UKBA. You have to do a Subject Access Request under the data protection act. I think you have to pay £5 for it. Ask for ALL contents of your files, including everything you have provided to them.

(5) I agree that if your husband is working now in the UK, you should immediately apply for a Residence Card. Explicitly mention Singh in a cover letter. Also explain how long he was working in Spain, where and for whom.

(6) Once you have applied for the Residence Card, ask for your and your husband’s passport back. They are useful if you want to go travelling, though you may want to explore Scotland and England for now – lots of nice things here!

(7) Document and photocopy EVERYTHING. Never send anything you do not have a copy of. ALWAYS use special delivery for all submissions (as it is better protected and trackable).

(8) Remember that yours is a somewhat unusual situation, so it is not surprising that IOs and others are not 100% familiar with the rules. Have patience with them, and explain and learn as much as you can. Be as slow as you need to be and write down everything they say. Have them sign your notes and be sure to get their name or ID number.

(9) Read through all the material at the link below. Learn about Directive 2004/38/EC

(10) I can not see any point in applying for a Spouse Visa under UK law. It is expensive and I suspect likely not to be issued.

(11) Once your Residence Card application is in, you should apply for a National Insurance Number and get to work to get the economy working again!

[wet26]

(10) I can not see any point in applying for a Spouse Visa under UK law. It is expensive and I suspect likely not to be issued.

Thank you for your post, very helpful. Can I ask why you think the spouse visa may be refused? The IO at the port said he was 99.9% sure I would get the visa.

When I submit the Subject Access Request, can I also ask for copies of documentation I submitted in Madrid? Will these be held on the UKBA file?

Thanks

[Directive/2004/38/EC]

(10) I can not see any point in applying for a Spouse Visa under UK law. It is expensive and I suspect likely not to be issued.

Thank you for your post, very helpful. Can I ask why you think the spouse visa may be refused? The IO at the port said he was 99.9% sure I would get the visa.

Well, if they do not think your marriage is legit for the European one, then they will also not think it is legit for the Spouse visa. Also, the UKBA’s burden of proof for a refusal is a lot higher under the European law application. I am not sure what grounds exactly they can turn down a Spouse visa, but there are very few grounds they can turn down the European application.

About the only way to turn down a Singh application under European law are that it is a fraudulent marriage (which is pretty hard to say if you are living together and husband and wife and are sleeping together), or that the UK citizen did not in fact work in Spain.

[sebhoff]

About the only way to turn down a Singh application under European law are that it is a fraudulent marriage .

I have mentioned this before but didn't receive a definite response, as far as I remember:

wet26 married one month before moving to the UK. Although this doesn't actually seem to be the case, the authorities might still assume that the couple got married at this particular time in order to profit from the more preferential treatment under European law. I still don't know whether this could be grounds for turning down an application (no matter how genuine the relationship is).

[sebhoff]

OK - just found the answer myself, I guess:

Recital 28 defines marriages of convenience for the purposes of the Directive as marriages contracted for the sole purpose of enjoying the right of free movement and residence under the Directive that someone would not have otherwise. A marriage cannot be considered as a marriage of convenience simply because it brings an immigration advantage, or indeed any other advantage. The quality of the relationship is immaterial to the application of Article 35.

This is from Section 4.2 here: http://www.minbuza.nl/binaries/ecer-en- ... -1--2-.pdf

These are only guidelines, but still...

[wet26]

Directive/2004/38/EC - Ok, that makes sense.

I can prove that he went to work in Spain, we have all of his job sheets from site visits, emails from UK employer regarding jobs, letters from UK employer confirming his placement in Spain, flights etc. He has a Spanish bank account, we have the rent agreement and utility bills which should prove residence.

The IO said the Singh judgment is open to interpretation, and he chose to interpret "working in Spain" as being employed by a Spanish company. Is this defined in the EEA rules anywhere?

[Directive/2004/38/EC]

The IO said the Singh judgment is open to interpretation, and he chose to interpret "working in Spain" as being employed by a Spanish company. Is this defined in the EEA rules anywhere?

It is nice that he chose to interpret it that way. I chose to wear red socks today. But it is not really his job to do much interpretation.

It is NOT explicitly in the directive. But I am pretty sure I read it somewhere and it is implicit ECJ case law.

Read and reread through material at http://eumovement.wordpress.com/directive-200438ec/

You should also contact http://ec.europa.eu/citizensrights/ Ask them whether your husband is considered to have been exercising his treaty rights if he worked in Spain for YY months (outline evidence you have) but remained being paid on the UK payroll.

[crukleeds]

What I find really strange here is that Europe is a free market in terms of commerce etc.... Why should it matter if the employer is british but sends you to another EU country??? I have read somewhere that working abroad even on post should be taken as exercising treaty rights... I seriously would speak to the MP in which town you are based.... also the law society of england/britain can also help, most offer free inital advice on immigration issues

[wet26]

Well what do you know. I just rang Portsmouth because I was missing some of the documents I supplied to them (they are nowhere to be found there of course). A woman got my file and I asked her about the terms of my entry with the "no recourse to public funds stamp". I asked her if I have been admitted as an EU family member and she said yes. I asked her if I can work and she said yes. I asked her if I can apply for a residence card and she said yes, if I apply within the 3 months of my entry stamp.

Madness, because the other woman I spoke to not 2 weeks said I can't work and have to go back to Australia to apply for a spouse visa. Lucky I called because I almost dropped 900 notes yesterday on a flight home.

Thank you to everyone for posting on this thread and I will now join the EEA2 queue.

[crukleeds]

Sounds really positive Wet26, pleased for you, shows things can work out in the end.... fingers crossed for you,

I will let you know my situation aswell next month, I live in tenerife so its a pain cos we have got to fly to madrid....... ill be sooo tired

[Directive/2004/38/EC]

It is still worth doing a SAR to get your full file. Don't trust any random UKBA person you talk with on the phone, even if you have their name!

Smooth sailing on the Residence Card application. Remember to keep copies of EVERYTHING and document EVERYTHING.

[crukleeds]

Plus i think ill be testing the consulate because I'm in a Same-sex marriage, which is legal here in spain, however i am aware it will become a civil partnership in the UK maybe that will really confuse them hahahaha

[Directive/2004/38/EC]

Plus i think ill be testing the consulate because I'm in a Same-gender marriage, which is legal here in spain, however i am aware it will become a civil partnership in the UK maybe that will really confuse them hahahaha

I know a British citizen who did a same sex partnership in the British embassy in Bogota to her Colombia partner. The applied for (?) spouse visa was issued two days later. I think UK embassies have very clear instructions to deal with this as they would any other marriage or partnership. There were no problems. They two of them make a lovely couple!

[wet26]

It is still worth doing a SAR to get your full file. Don't trust any random UKBA person you talk with on the phone, even if you have their name!

Smooth sailing on the Residence Card application. Remember to keep copies of EVERYTHING and document EVERYTHING.

I'm sending off that request this arvo. £10 it costs.

I won't be game to work until I have my COA

Cheers again.