Common Travel Area

[Rolfus]

The holder of a Residence Card issued by another EEA state as a family member of an EEA National can now enter the Republic of Ireland. From there the RC holder can travel to the UK within the Common Travel Area without any controls.

Has anyone got any idea of what the legal/immigration status of someone who did that would then be in the UK?

[alekos]

I think they'd be outside the Immigration Rules for at least the first three months. I might be out of depth, so please be gentle if you're going to shoot me down.

[Kitty]

IMmigration Rules:

Common Travel Area
15. The United Kingdom, the Channel Islands, the Isle of Man and the Republic of Ireland collectively form a common travel area. A person who has been examined for the purpose of immigration control at the point at which he entered the area does not normally require leave to enter any other part of it. However certain persons subject to the Immigration (Control of Entry through the Republic of Ireland) Order 1972 (as amended) who enter the United Kingdom through the Republic of Ireland do require leave to enter. This includes:

(i) those who merely passed through the Republic of Ireland;

(ii) persons requiring visas;

(iii) persons who entered the Republic of Ireland unlawfully;

(iv) persons who are subject to directions given by the Secretary of State for their exclusion from the United Kingdom on the ground that their exclusion is conducive to the public good;

(v) persons who entered the Republic from the United Kingdom and Islands after entering there unlawfully or overstaying their leave.

If the non-EEA national is a "family member" then this overrides the Rules, but is the problem here that the non-EEA national is as yet unrecognised as a family member (being an OFM)?

I would say that a person entering the UK in these circumstances would be considered an illegal entrant (and at risk of removal).

Others may have another view, but I think it's risky to undermine entry provisions if you want the UKBA to exercise discretion in your favour at a later date.

[Punjab]

The holder of a Residence Card issued by another EEA state as a family member of an EEA National can now enter the Republic of Ireland.

where did you read this?

[Directive/2004/38/EC]

The holder of a Residence Card issued by another EEA state as a family member of an EEA National can now enter the Republic of Ireland.

where did you read this?

http://www.immigrationboards.com/viewtopic.php?t=78980

[Punjab]

Thanks Mate but i found one confusing topic again

http://www.dfa.ie/uploads/documents/Con ... 20note.pdf

as far as i understood some country nationals will still need a visa...

confusing

[Directive/2004/38/EC]

Thanks Mate but i found one confusing topic again

http://www.dfa.ie/uploads/documents/Con ... 20note.pdf

as far as i understood some country nationals will still need a visa...

Read your link very carefully. Does it specifically refer to non-EU family members of an EU citizen? Or to a Residence Card?

[Punjab]

Thanks Mate but i found one confusing topic again

http://www.dfa.ie/uploads/documents/Con ... 20note.pdf

as far as i understood some country nationals will still need a visa...

Read your link very carefully. Does it specifically refer to non-EU family members of an EU citizen? Or to a Residence Card?

no. why?

[Rolfus]

Thank you all for these interesting comments.

Appendix 1 - Visa requirements for the United Kingdom
Immigration Rules

1. Subject to paragraph 2 below, the following persons need a visa for the United Kingdom:

(a) Nationals or citizens of the following countries or territorial entities:

And yet we know from elsewhere on this forum that spouses of EU citizens do not need any stamp in their passports to enter.

And we know that you can enter with an EEA Family permit which is not a visa.

And we should also look at CO (EEA Regulations: family permit) Nigeria [2007] UKAIT 00070

Regulation 12 of the Immigration (European Economic Area) Regulations 2006 is purely a creation of UK law. A person who is unable to obtain an “EEA family permitâ€

[Kitty]

I'd forgotten you might be dealing with a Zambrano/Chen parent as well!

If we were dealing with the issue of a durable partner alone, then the technical problem still applies, IMO. Although the "family permit" may be a construct under national law, the "extensive examination" required of a durable partnership is not.

I can't see how a visa national can enter lawfully through the CTA when there is no IO to even conduct that examination.

You would still need to await the "extensive examination" that would flow from a RC application once in the UK.

[Rolfus]

In my particular case, the first tier tribunal has conducted an extensive examination and remade the decision in an appeal hearing. But the UKBA will not issue a FP because the Home Secretary has appealed that decision to the Upper Tribunal. So the facts are established, but the FP is absent.

In the general case, an OFM might wish to enter the UK after a FP has expired.

[Directive/2004/38/EC]

Rolfus,

Have you actually done a EEA FP application where the EU citizen is your EU child rather than yourself?

[Kitty]

Rolfus has set out his situation in this thread:

http://www.immigrationboards.com/viewto ... sc&start=0

AIUI his partner did apply for a FP as a Chen/Zambrano parent. The application was rejected on the basis that it was "for her benefit" and not her son's

[Directive/2004/38/EC]

The quote from CO (EEA Regulations: family permit) Nigeria [2007] UKAIT 00070 is interesting. Certainly for direct family members, I would not hesitate entering through the CTO. I would tend to them report myself to UKBA, either directly or via an immediate Residence Card application.

But, again, I am not sure that applies for OFMs. The language of the Directive is very unclear to me, and it is not clear they are covered automatically by the European rules. And also not clear how Zambrano rights fit into this.

I think there are many opportunities for persons who have a valid claim, but are being frustrated by the UKBA administration, to enter the UK by this route legally, and then make a request for regularisation from within the UK. It is however perhaps a 'sudden death' option, because if the eventual claim is lost, one's immigration record would no longer be unblemished.

I personally tend to think that an unblemished record is an indication of somebody who fits into the simple straight forward options. My wife was turned down for a visa because the in-country address we gave was the new apartment of my friends and they had not yet told the registration office of their move. Does she have an unblemished record? I guess not, though it has not had any impact on our lives...

[fysicus]

I can't see how a visa national can enter lawfully through the CTA when there is no IO to even conduct that examination.

The examination has already been carried out by the state that issued the RC, and for a short visit (up to three months) there is no reason why the UK should need to repeat this.

You would still need to await the "extensive examination" that would flow from a RC application once in the UK.

That is the general process when you want to settle in any other member state, and in fact such applications are independent of how you entered the country. Even illegal entrants can successfully apply for a RC, if they meet the requirements.

[Kitty]

I certainly think you're onto something with the CTA/Chen route, Rolfus. Leave to enter is not required for people exercising an "enforceable community right" (Immigration Act 1988 s.7): so as long as a person actually has a Chen right, then I think entering via the CTA would not constitute illegal entry.

ETA: fysicus, I know that illegal entrants can apply for an RC once they're actually in the UK. I thought Rolfus's question was more academic: "would a person entering through the CTA (in certain specified circumstances) be an illegal entrant?"

The validity of an "extensive examination" is an interesting one: the Regulations only state that family member status based on it lasts for the duration of the FP's validity. But they then go on to allow its extension via an RC if the applicant is in the UK: odd that they won't accept it if the applicant leaves.

[Rolfus]

Kitty: you are right that at this point I am trying to flush out the general academic points. I think there are two steps, firstly to determine when a hypothetical person has a community right, secondly to think about why a person with such a right might not have an EEA FP or equivalent.

I would very much like other opinions on what is meant by the passage I quoted from M. I think it makes clear that not only direct family members, but also other family members can have an enforcable community right irrespective of whether they hold a valid EEA FP, whatever the immigration rules may say.

There is more supportive obiter:
[quote]37. The ECJ in Chen says in terms at [46] that Art 18 and the then applicable Directive 890/364) allow a parent who is that minor’s primary career to reside with the child in the host Member State. If it those provisions that allow the parent’s residence it is not a discretion to permit residence to be found in national law or the Immigration Rules. The reference to “allowâ€

[Obie]

I believe you have a strong case for the recognition of the Czech residence card issued to your partner. The second sentence of Article 5(2) does not create any distinction between Residence Card issued to Article 2(2) family members and Article 3(2) family members. Article 10 makes provision for the issue of Residence Card to other family members in 2e and 2f, and gives a broader meaning to family members than other provisions of the directive. Therefore a member state cannot say the visa exemption for residence card holder does not apply to these people.
Reading Article 5(2), together with Recital 8 of the Citizens directive, in conjunction with the comments by the courts in Metock on the value of the residence card, as well as the first sentence of Article 3(2), which says, without prejudice to any right of free movement the person may have in there own rights, for which there are two valid interpretation for ,one of which could be OFM who have been issued with residence card in another member state, and OFM who are UNION CITIZEN. There is a strong argument that discretion is not applicable to these cases, as it will severely undermine the policy under Recital 8.

The UK does not seem to recognise any rights for returning British children and their non-EEA parents, who have lived in another member state, where that child was exercising rights as a Self-Sufficient person. Regulation 9 does not apply to them on the face of it. So you may have a bit of difficulty in that area. I strongly believe that such child is in the same position as a chen child, and makes a Zambrano case pretty strong.

To conclude, i believe going to Ireland, and entering UK with you partner, is perfectly lawful under community law, by virtue of the residence card she holds.

[Directive/2004/38/EC]

To conclude, i believe going to Ireland, and entering UK with you partner, is perfectly lawful under community law, by virtue of the residence card she holds.

But the (not UK issued) Residence Card she holds is not noticed or referred to in current British law.

[Obie]

Community Law takes precedence over national law, especially when a portion of national law fails to transpose a directive properly, who seek to deprive rights which an individual has. A UK court will be obliged to apply the provision of the Directive than the EEA regulations, if the UK fail to transpose a provision.

[Directive/2004/38/EC]

Community Law takes precedence over national law, especially when a portion of national law fails to transpose a directive properly, who seek to deprive rights which an individual has. A UK court will be obliged to apply the provision of the Directive than the EEA regulations, if the UK fail to transpose a provision.

Agreed in general, but if it was that 100% clearcut, then I'd guess the UK would have allowed travel with a non-UK issued Residence Card for most of the last 4 years...

[Rolfus]

I think that relying on the (foreign issued) Residence Card alone would result in being treated as an illegal immigrant. Certainly this could be fought through the courts, and ultimately it might well be won at ECJ level. But that would be a life-destroying experience that no sensible person would voluntarily initiate. While being illegally present in the UK does not defeat EU based residence applications, it can have other desperate consequences.

The Chen/Zambrano route is much more promising. I am writing to the UKBA today to seek clarification.

Obie, I think you are right in saying that a child returning from exercising a treaty right is not recognised under the EEA Regulations as having treaty rights. It is the same poor implementation of the Surinder Singh judgment (Reg 8 vs Reg 9) that catches unmarried partners of Brits. When the Upper Tribunal rules on my unmarried partner case it may help (or hinder) Chen cases. [There is some new help on this in Aladeselu & Ors (2006 Regs reg 8 ) Nigeria [2011] UKUT 253 (IAC) (01 July 2011) 19. when interpreting national law transposing a Directive we must apply a teleological approach to interpretation - not the normal rules of statutory interpretation in English/UK law, which allow recourse to a linguistic “simple matter of languageâ€

[Punjab]

Hi Guys this is what I found but I am not sure if every airline follow the same rule as I did have some trouble with one of the UK airlines before travelling with my EU/EEA partner. They were not aware of these thinigs that i don't need a visa so they rung their head office and it wasted my 25 minutes


http://www.delta.com/planning_reservati ... /index.jsp


Also i didn;t find anything mention in IRISH EMBASSY UK that eea rc can travel free of visa. like other embassies do mention this thing,.

[Punjab]

http://www.inis.gov.ie/en/INIS/S.I.%20N ... 202011.pdf

[pads]

Hi we are in the same position.

My daughter in law is an american citizen living in america with my british grand daughter who is 11 month old.

Seen as my grand daughter cannot travel on her own.
I have been trying to establish from the UKBA whether zambrano applies to entry clearance or not, currently I have had no success in this matter.

They have however confirmed that she is likely to qualify if she was in the United kingdom.

So I am very intrigued by this thread does anyone think it would be legal for her to entry the country through Ireland and then apply for zambrano whilst here.

Love pads x