Brit in Spain, Moroccan partner with expulsion, married soon

[SBT_Owner]

I will look forward to future updates

[TracyCK]

So I decided to change the title before I post any more since it does not look like we will be marrying in Gibraltar any more.

I think, at this point, we are prepared to do whatever we have to in order to secure a life where we are all together. But I have spent the past couple of days thinking, reading more EU documents and such and trying to figure out what is really the best plan for all of us. This is what I have come up with so far, I welcome any constructive comments as my brain is total spaghetti now! LOL

Tomorrow morning, I will make some phone calls, first to the UK pausing all claims for child benefit, child tax credit, help with housing etc that I made when I returned in September. I will state simply that I now have opportunity to work in Spain and therefore will continue with my Residency there. I will also speak once again with the Visa office in Rabat and relay my conversation with the nasty lady in Gibraltar. We have nothing in writing of his visa refusal and I believe that there is an avenue of formal complaint available to us there if only based on her comments to me regarding my fiance's Nationality. I have every reason to believe that Rabat will be most sympathetic to our case as is within their abilities.

Another path that I will try to follow is for the Visa refusal to be overturned and for us to be married in Gibraltar next week, but I am not counting on this. Based on Visa issuance guidelines, I believe the Visa should have been issued, as does Rabat, I believe. But I am not so naive to think that something this serious can be resolved in just a few days.

On Tuesday, I will travel to Malaga and Empadron at my father's address; visit the British Consulate to give notice of my upcoming marriage and request a Certificate of No Impediment (which I must do for marriage in Morocco and takes 21 days to be issued); and find either Gestoria that will re-instate me as Autonomo (a self employed person). I don't think it particularly matters what activity this relates to, so long as I pay my Social Security contribution; or I find somewhere local to give me a bonafide job irrespective of what it is or how much it pays or not, but this might be difficult in the time I will have so am thinking the Autonomo route is best, I just have to think of an activity. (House cleaning service springs to mind).

My fiance will arrange for us to marry here in Morocco as soon as I recieve the Certificate from the British Consulate in 3 weeks time and will also visit the Spanish Consulate here in Morocco to request that his expulsion is revoked, if not now, then as soon as we marry. He will also request a copy of his CRB equivalent in Spain since I believe we really need to have documented evidence of this in order to go forward. He will also inform them that as soon as we are married, we intend to enter Spain and request the appropriate application form for this.

On 28th October, my son and I will go to the on our already booked flights, or recycle the 3 flights into 2 more convenient ones so that he can go back to his new school there after the half term. When we have the date that we can marry, I will return to do this, (after pleading patience on the part of my son's school to bear with us, and promising to keep his time out of school to an absolute minimum!)

Once we marry, we will immediately enter Spain and concurrently apply to Rabat for the EEA Family Permit to visit the UK. I believe that this will not encounter any problems (but I could be wrong... lol)

From this point, I feel that we should have obtained the freedom of movement that we are searching for and can subsequently take our time deciding where we 'settle'?

I have to cut this post short (thank goodness, I hear you cry!) as it is time to eat! Back with more thoughts later.

[meats]

I just don't see how you're exercising treaty rights after such a short period of time Tracy, that's the problem that i see. I also can't see the Spanish revoking the expulsion on your partner.

[TracyCK]

Surely if I left the UK in 2006 to live and work in Spain, where I did so for more than 3 years, upon my return, I have to be treated as an EEA National regardless of a few months period of unemployment during which I was self sufficient? I guess I don't see how I cannot be for if I wasn't resident in Spain, where was I resident? My passport is now almost full of stamps entering and exiting Morocco from and into Spain, and circumstances of the past few months have forced me to be somewhat nomadic in order to maintain my relationship with my fiance.

If I cannot return to the UK under EU Community Law, with my Spouse, then I am prepared to remain in Spain rather than face an arduous, uphil battle with UK National Immigration Law, but surely this in itself is a hinderance to my rights of Free Movement and protection of Family Life?

At this point, we are not sure of where we will end up settling, or wanting to settle, but until we decide, I feel that my son deserves the least disruption and ambiguity as possible which is why I will probably return him to the UK school in 2 weeks and try to deal with things from there at least until I do finally marry a couple of weeks later.

I actually don't consider entrance into Spain for my fiance as a big obstacle once we are married and he requests entrys as a Non EEA National Family Member of an EEA National with permanent residency in Spain. Obviously I will be with him when we do this, armed with all the knowledge and documentation I can gather. From what I have learned, the only way he can be refused entry is if it can be proven and documented that his personal behaviour would deem him to be a current and serious threat to Public Security or Policy. Now, I don't claim that my fiance has been an angel in the past, but neither has he done anything that would constitute him being that.

The expulsion order from Spain is one that is extremely common for North Moroccan Nationals who are so close in proximity to Spain (and used to be able to enter without a Visa). It is purely based on presence in Spain without correct documentation and it is well over 3 years old. The National Police Officer who handles Foreigners in Estepona and escorted my fiance to the boat to Morocco in January himself told us that we will be able to return easily once we marry.

In addition, the best link for information that I have found in this regard is the Practical Handbook for Schengen Border Guards (Link below) where it specifically states that neither prior convictions, nor current expulsion orders should be sufficient to refuse entry to a Non EEA National Family Member and that they must grant entry and issue a Visa if applicable at the border unless they can prove and document otherwise.

http://ec.europa.eu/justice_home/doc_ce ... 6_F_en.pdf

I am often accused of interpreting things so that they are favorable to me, and perhaps this is true, but I surely if I didn't, I may not have the strength and conviction to even try and therefore fail without even attempting anything?

[meats]

But you haven't been working for pretty much a year now (correct me if i'm wrong) which is why i said i don't think you've been working long enough to claim that you are exercising treaty rights. It's like me going to work in say Barcelona, go travelling for 9 months and claim that i was exercising treaty rights at the time.

[TracyCK]

But the emphasis is on the fact that you have already exercised your rights and are therefore considered an EEA National covered by Community Law upon your return.

I began my relationship with my fiance while I was working in Spain, and we lived together there. Circumstances led to me being unemployed and going back and forth to Morocco for the best part of a year but I haven't stopped being an EEA Citizen?

I am concerned about this though, in light of the comments that I read here, but if we are applying for the EEA Family Permit in order to visit the UK, not necessarily to settle there, this should be subject to Community Law, no?

[meats]

But the emphasis is on the fact that you have already exercised your rights and are therefore considered an EEA National covered by Community Law upon your return.

I began my relationship with my fiance while I was working in Spain, and we lived together there. Circumstances led to me being unemployed and going back and forth to Morocco for the best part of a year but I haven't stopped being an EEA Citizen?

I am concerned about this though, in light of the comments that I read here, but if we are applying for the EEA Family Permit in order to visit the UK, not necessarily to settle there, this should be subject to Community Law, no?

Like i said in my example, i did exercise treaty rights but i'm not anymore. Just like you were exercising treaty rights but right now you're not.

Don't get me wrong, i hope that it all works out well for you but i can't see how you are currently exercising treaty rights, which is the important thing if you intend returning back to the UK.

[Wanderer]

I think as you will be returning to UK under 'Surinder Singh' ruling you'd have to fulfil the following;

1. The UK national must have genuinely exercised EC Treaty rights in another Member State (at the time the application from the non-EEA spouse/family member was lodged) as an employed or self-employed person, as managing a business, or as a work seeker.

2. The UK national must have exercised such rights for a period sufficient to have established him/herself there. Normally this should be taken to mean at least 6 months but discretion may be exercised, for example, where the UK national has genuinely worked abroad but had good cause to return to the United Kingdom after a shorter period.

3. The non-EEA spouse should have lived with the UK national for a period in another Member State.

4. The UK national should be returning to the UK in an economic capacity or managing a business in the UK or else have sufficient resources to avoid him/herself and his/her non-EEA spouse or family member becoming a burden on public funds.

[TracyCK]

For any that are interested, here is a copy of the complaint that I have lodged this morning with the UK Visas Worldbridge Service. Am not sure that it will amount to anything, but I feel a little better having done it.



I am writing on behalf of my Fiance who submitted a complete and accurate application for a short stay visitor's Visa to enter Gibraltar on 18/10/09 in order that we could marry on 20/10/09 for which we had a booking at the Registrar's Office at 11:30am.

I would like to primarily state that the Visa Section Staff at the UK Embassy in Rabat were nothing but helpful, professional and sympathetic, particularly in speaking with us when the Visa was ultimately refused from Gibraltar, seemingly without valid reason, and assumedly after they had deemed it to be appropriate for issue.

The application submitted by my Fiance was completed in full and with complete honesty regarding a previous conviction in Spain in 2003 and an Expulsion Order from 2006 for failing to have correct documentation. My Fiance has never been to or applied to be on UK Territory and the 2006 Expulsion Order does not exclude him the UK or its Territories.

My Fiance had a very specific reason for entering Gibraltar, and that was to marry myself, a British Citizen who is Resident in Spain (since 2006). He provided all documentation requested including proof of funds to show he could support himself for the short time there, proof of accomodation booking, and proof of the marriage appointment on October 20th. He planned to enter Gibraltar via the FRS ferry direct from Tangier on Sunday 18th October and if it was necessary, would have left via the FRS ferry back to Tangier on Friday 23rd October. However, this was irrelevent as of course, once we had married and legalised our 1.5 year long cohabitating relationship, by virtue of his relationship to me as a Non-EEA Family Member of an EEA Citizen, we would have solicited entry into Spain as we would have been within our rights to acquire.

When the notice of refusal was received by the Staff in Rabat, they informed my Fiance, and subsequently answered my telephone call to them. They were unaware of any valid reason for the refusal and suggested that I call the Gibraltar Registration Office which I did.

When I got through to the Gibraltar Registration Office, I was extremely upset and did not get the name of the lady that I spoke to. I asked several times why the Visa had been refused and her response to me each time was that the Visa had been refused, they had informed Rabat, and that my Fiance and I would not be marrying in Gibraltar this coming Tuesday. I insisted to her that Rabat did not know the reason for the refusal and asked her to please tell me. Finally, seemingly exasperated with me, the lady said very scathingly: "Your fiance is a Moroccan National; he has been expulsed from Spain..." I did not clearly hear the rest of what she said as I was very emotional and had realised that I was not getting anywhere. I ended the call and waited several hours for my Fiance to return from Rabat.

I believe that the comments made to me regarding my Fiance's Nationality by the Gibraltar Registration Office, and the manner in which they were imparted were extremely inappropriate. I also believe that these reasons are not valid in refusal of a Visit Visa to Gibraltar, particularly when that visit was to facilitate the marriage to a British National of which we had documented evidence. I would like to request an inquiry into the procedures used in refusing my Fiance's Visit Visa and in regards to the comments made to me regarding his Nationality.

I would like to point out that these events have gained nothing for Gibraltar but have only served to cause myself and my Fiance much distress at great cost both personally and financially. It is important to note that it was my preference as a British Citizen to marry my Fiance under British Law as opposed to Islam Law in Morocco, hence the choice of Gibraltar which could facilitate this. My Fiance and I will now marry in Morocco just as soon as we are able, but this will now of course entail renewed preparation, additional time, financial cost and the complete waste of all costs incurred to date.

I do realise that until we are legally married, my Fiance does not yet have the rights afforded him by his relationship to me and must request permission in his own right to enter any country where he is considered a Third Country Visa National. However, since it was clear and documented that we were to marry 4 days after the Visa was refused, I fail to see what has been achieved, or what good reason there is for refusing the Visa.

Regards

[meats]

Can you get married on a visitor's visa in Gibraltar? Wouldn't you need a fiance visa?

[TracyCK]

Can you get married on a visitor's visa in Gibraltar? Wouldn't you need a fiance visa?

Yes as there are no residency requirements to marry in Gibraltar. But only if you can get there first...

All of our documentation required for marriage had been scanned and sent via email and verified that everything was in order. This includes English translations of my Fiance's documents.

[Directive/2004/38/EC]

I think complaining to WorldBridge will gain you nothing. They are just a low cost service organization.

An complaining to the Gibralter people? Doubt that will bring much since they are not governed by the EU free movement rules.

[SBT_Owner]

I would not send that letter to be honest , just incase it gets held .

If he was turned down because looking at his past they felt he would not leave then that is kind of correct because in the letter you say ... "However, this was irrelevent as of course, once we had married and legalised our 1.5 year long cohabitating relationship, by virtue of his relationship to me as a Non-EEA Family Member of an EEA Citizen, we would have solicited entry into Spain as we would have been within our rights to acquire. " .

I think it is better to concentrate of the wedding , then looking to build a future for you and your family rather than sending letters .

If you dont mind me asking ... was a knife or weapon used in the fight that led to 3 years in prison ? 3 years for a fight is a crazy amount of time .

Like every person on this planet , he is only human and we all have made mistakes , the bad thing is his mistakes are now causing a problem .

Once married , if you wish to live here is it not easier to apply for a spousal visa for him ? . If you choose that route then i would suggest starting a new thread in the correct section for that so you can get as much help and guidance as possible , this site has many experts that offer great advice .

I am no expert but i beleive once married , aslong as you provide documents and info showing that it is genuine relationship that can support itself then you should get that visa ?

Good luck with everything and thanks for the updates

[TracyCK]

I think complaining to WorldBridge will gain you nothing. They are just a low cost service organization.

An complaining to the Gibralter people? Doubt that will bring much since they are not governed by the EU free movement rules.

You are probably right but I have sent the complaint direct to Gibraltar also.

I thought that Gibraltar was governed by the rules and a part of the EEA? I saw something on this yesterday but not entirely sure.

[SBT_Owner]

I googled spousal visa for more info and found this link .... http://www.lawfirmuk.net/spouse_e.html .

It shows what is needed to apply for this visa

It may be another option that is open to you .

[Directive/2004/38/EC]

I thought that Gibraltar was governed by the rules and a part of the EEA? I saw something on this yesterday but not entirely sure.

I believe they are not part of the EU or EEA. EU case law does not apply to them, as far as I know, just as it does not in Switzerland.

[86ti]

I thought that Gibraltar was governed by the rules and a part of the EEA? I saw something on this yesterday but not entirely sure.

I believe they are not part of the EU or EEA. EU case law does not apply to them, as far as I know, just as it does not in Switzerland.

http://en.wikipedia.org/wiki/Special_Me ... #Gibraltar

[Ben]

- My Fiance and I met early in 2008 as he was a customer in the bar that I ran. We became friends and began our actual relationship in August 2008.

2. Without prejudice to any right to free movement and residence the persons concerned may have
in their own right, the host Member State shall, in accordance with its national legislation, facilitate
entry and residence for the following persons:
..
(b) the partner with whom the Union citizen has a durable relationship, duly attested.

It would appear that your partner may be considered a person described in Article 3(2)(b) of Directive 2004/38/EC, if your relationship is considered durable and duly attested.

In which case, in his present capacity, has the right to accompany or join you in Spain.

In short, marriage would not convey any rights not already held by your partner.

[Directive/2004/38/EC]

In which case, in his present capacity, has the right to accompany or join you in Spain.

In short, marriage would not convey any rights not already held by your partner.

Marriage would just make the relationship easier to prove when crossing borders.

[Ben]

Marriage would just make the relationship easier to prove when crossing borders.

That's true.

Out of interest though OP, would it be preferable to marry in Spain, after your partner having obtained a visa as the family member of an EU national, from the Spanish authorities in Morocco?

[Wanderer]

- My Fiance and I met early in 2008 as he was a customer in the bar that I ran. We became friends and began our actual relationship in August 2008.

2. Without prejudice to any right to free movement and residence the persons concerned may have
in their own right, the host Member State shall, in accordance with its national legislation, facilitate
entry and residence for the following persons:
..
(b) the partner with whom the Union citizen has a durable relationship, duly attested.

It would appear that your partner may be considered a person described in Article 3(2)(b) of Directive 2004/38/EC, if your relationship is considered durable and duly attested.

In which case, in his present capacity, has the right to accompany or join you in Spain.

In short, marriage would not convey any rights not already held by your partner.

But Spain doesn't recognise unmarried partners in it's National Law and hasn't incorporated this into it's interpretation of the directive, like the Germans!

[Ben]

But Spain doesn't recognise unmarried partners in it's National Law and hasn't incorporated this into it's interpretation of the directive, like the Germans!

To be honest, that's Spain's (and Germany's) problem, not that of the EU national's.

Spain may not recognise unmarried partners of their own citizens, but they cannot refuse to recognise those of EU nationals.

[Wanderer]

But Spain doesn't recognise unmarried partners in it's National Law and hasn't incorporated this into it's interpretation of the directive, like the Germans!

To be honest, that's Spain's (and Germany's) problem, not that of the EU national's.

Spain may not recognise unmarried partners of their own citizens, but they cannot refuse to recognise those of EU nationals.

I think they can, the directive is to be incorporated into their own national law, if no local law exists then it is not inccorporated.

This is definately the case in Germany (tried) and as Spain has a similar absence of unmarried partner provisions in it's local immigration law I'd imagine the Spaniards being their normal arsey selves over it.

Art. 3

2. Without prejudice to any right to free movement and residence the persons concerned may have in their own right, the host Member State shall, in accordance with its national legislation, facilitate entry and residence for the following persons

[Ben]

Article 3(2) states, "..the host Member State shall, in accordance with its national legislation, facilitate
entry and residence for the following persons:.."

The national legislation referred to is that which is implemented following transposition of the Directive.

[Wanderer]

Article 3(2) states, "..the host Member State shall, in accordance with its national legislation, facilitate
entry and residence for the following persons:.."

The national legislation referred to is that which is implemented following transposition of the Directive.

Which means if no local immigration route for unmarried partners, no route after the directive is incorporated. That's how I read it, and that's how the German's read it, and proabably the Spaniards.

All the member state has to do is not place an EEA citizen and their family members in worse position than it's own citizens, that's it.

Anyway the proof will be in the pudding if the OP tries it...!