EEA Family Permit Surinder Singh Route COMPLICATED

[UKCanadaAlbania]

I am new here but I have searched and read as much as I possibly could. I have not found any cases which are identical to mine but I know there are many knowledgable people here. Here is a quick bullet list of my situation.

Myself:
UK/British Citizen (From my parents' birth in UK) with passport
Canadian Citizen with passport
Was born and lived my entire life in Canada until Aug of 2010

Wife:
Albanian Citizen
Came to Canada when she was 8 yrs old with her family who applied as refugees but were denied their claim. She continued to live there for 14 years before being asked to leave. I met her in the summer of 2009 and we almost immediately fell in love. We got married in the Spring of 2010 after immigration asked her to come in but before she was asked to buy her plane ticket and a month before she left. It was not to have a marriage of convenience whatsoever although it was not our ideal wedding we were planning. We just really wanted to be married in Canada and not in Albania.

AUG 2010- I flew from Canada to Greece and then took a bus to Albania
AUG 2010- We applied and were granted a Schengen Visa at the Greek Embassy (They dated it as valid for only 30days and not the 90days we expected).
AUG 2010- Travelled to Greece and visited her mother.
SEPT 2010- Flew to Paris together and stayed at a friend's place.
OCT 2010- Rented a room weekly in Paris
OCT 2010- Opened a joint bank account using the address of my friend in Paris.
NOV 2010- AUG 2011 We have lived in an apartment in Paris but the landlord has not given us a rental contract as the landlord is American and is afraid of paying French taxes for it.

JAN 2011 I registered as self employed via the auto-entrepreneur route.
JUL 2011 I paid French taxes on the amounts I had earned.

I do have a social security number and business number but as of yet I have not received my carte vitale health card.

My wife does not have her residence card or social security number here in France although she was given a work contract of 20 hours a week to babysit for a family.

So here are my questions:

• We are applying for an EEA Family Permit to move to the UK. I know I must prove I have been self-employed here and we have been living together. Is the auto-entrepreneur paper I printed out, along with the tax payment and joint bank account statements enough? Will it matter that the address of the joint bank account is my friend's and not my current address (the bank requires a tenancy agreement or utility bills to change it).

• Does it matter that I am a dual citizen and have never lived in the UK before in terms of applying via the Surinder Singh route?

• The VAF5 online form at one point asks whether my wife is lawfully resident in the country she is applying which in this case is France. It seems to specifically ask if she has a residence card or visa. Would we answer yes as she derives her lawful residence in this country via me or no as her schengen visa has long since expired and she holds no residence card. I believe if we answer no that they send the application to Albania which would delay the processing.

• I am not sure if the prior deportation will matter much and I hope they will realise that it was not her fault as she had no choice as a child when they brought her to Canada. We are answering the question on the form truthfully of course but I wonder what that might mean for being granted the permit.

Thanks for any and all help.

[alekos]

http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary

You have a right to move freely with your wife within the EU.

As far as I can understand VAF5 form has many questions that do not need an asnwer. Edit I just read it. Most of it doesn't need to be answered.

If it is an online form just answer Not Applicable.

Is your wife lawfully resident in France? Not Applicable as per the Directive instructions.

All that matters is that the relationship is genuine and you're exercising treaty rights after 90 days in an individual EU member state.

Also have a look here http://eumovement.wordpress.com/directive-200438ec/

These two links should give you lots of information regarding your wife's application for a Family Permit.

[UKCanadaAlbania]

As far as I can understand VAF5 form has many questions that do not need an asnwer.

If it is an online form just answer Not Applicable.

Is your wife lawfully resident in France? Not Applicable as per the Directive instructions.

Thank you. The problem is that that particular question on the online form is a checkbox and you are required to tick yes or no in order to complete the form. As well I believe they say it will not matter in terms of getting the permit but they say that if she is not lawful in France that the visa office will send it to Albania's British Embassy for processing rather than doing it here.

I've been researching pretty much every link on this forum and others for about 6 months and yet I do not have definite answers to these questions. I am hoping someone might have been in the same circumstance and will reply how they answered it.

[alekos]

As far as I can understand VAF5 form has many questions that do not need an asnwer.

If it is an online form just answer Not Applicable.

Is your wife lawfully resident in France? Not Applicable as per the Directive instructions.

Thank you. The problem is that that particular question on the online form is a checkbox and you are required to tick yes or no in order to complete the form. As well I believe they say it will not matter in terms of getting the permit but they say that if she is not lawful in France that the visa office will send it to Albania's British Embassy for processing rather than doing it here.

I've been researching pretty much every link on this forum and others for about 6 months and yet I do not have definite answers to these questions. I am hoping someone might have been in the same circumstance and will reply how they answered it.

Are you lawfully married to each other?
Are you exercising treaty rights in France?
Is your relationship genuine?

If the answer to this questions is yes, your wife is a lawful resident in France.

[UKCanadaAlbania]

Are you lawfully married to each other?
Are you exercising treaty rights in France?
Is your relationship genuine?

If the answer to this questions is yes, your wife is a lawful resident in France.

Ok, so we have completed the online form and I was able to convince my landlord to sign the rental contract as long as we didn't use it for the French government as she doesn't want to pay the taxes

On going through it again I realised that it specifically asked if my wife had a residence card or valid visa for France which she does not so we answered No on the radio button and in the additional notes section we stated that although she does not have a residence card here that she is still lawfully resident in France. Hopefully it all works out.

At the moment our joint account bank statements address is different than my tenancy agreement address so I hope they will be ok with that. As well I asked my bank about official statements and they told me just to print out the PDFs from the website online banking. Again I hope that is ok.

[Directive/2004/38/EC]

Why do you need a rental contract?

Also, are you set on moving to the UK? You should be clear that if you are working or self employed in France, and you are married, then you wife is 100% legally in France and can stay and work to her heart's content. If you do stay, she should immediately apply for a Residence Card which can be used as proof of her right to work and to travel.

[UKCanadaAlbania]

Why do you need a rental contract?

Also, are you set on moving to the UK? You should be clear that if you are working or self employed in France, and you are married, then you wife is 100% legally in France and can stay and work to her heart's content. If you do stay, she should immediately apply for a Residence Card which can be used as proof of her right to work and to travel.

I believe the rental contract is needed to prove that my wife and I were both living together in the same apartment here in Paris, France as part of what is required for applying via the Surinder Singh route for the EEA Family Permit.

We have been having trouble applying for her residence card here (carte de sejour or titre de sejour I believe it is called here) because of our lack of Francais/French and because we have now been here 10 months or so and I believe we were supposed to apply within the first 2 months we were here. But at that time we did not have all the paperwork they would have requested.

Great Directive 2004 website btw. Has helped a lot when we needed to get her Schengen visa from Albania and the embassies there were not very helpful and of course asked for much more than required which I was able to fight with the power of knowledge. Thank you.

[Directive/2004/38/EC]

I believe the rental contract is needed to prove that my wife and I were both living together in the same apartment here in Paris, France as part of what is required for applying via the Surinder Singh route for the EEA Family Permit.

I do not see that you need to prove you live together. In fact ECJ decisions have said that living arrangements of a married couple are not material.

My first reaction would be to say do not include your rental contract even if you have one.

You need to provide what is required for a normal visa: Two passports, a marriage certificate, and maybe a letter saying you will be travelling together.

You also need to prove you have been working: pay slips or something like that.

I do not think you have to provide anything else.

Same as getting a Schengen visa, plus the proof that EU is working (in order to qualify for Singh).

We have been having trouble applying for her residence card here (carte de sejour or titre de sejour I believe it is called here) because of our lack of Francais/French and because we have now been here 10 months or so and I believe we were supposed to apply within the first 2 months we were here. But at that time we did not have all the paperwork they would have requested.

You have absolutely no obligation to do anything in the first 3 months, other than possibly to register your address with the local authorities if French people are also required to do so.

After the 3 months, the French can require your wife to get a RC. But even if you miss their "deadline", the can only tell you off or possibly fine you a little amount. Something proportional and equivalent to how they would punish a citizen. You wife is still 100% legal in France as long as you are doing something like working or studying...

[Directive/2004/38/EC]

joint bank account statements

How much money your wife has or does not have is 100% irrelevant. Also details of her current work, if any.

All that maters and all that you need to provide, is evidence that YOU have been self-employed.

See http://eumovement.wordpress.com/2011/05 ... a-citizen/ for more information

[UKCanadaAlbania]

I do not see that you need to prove you live together. In fact ECJ decisions have said that living arrangements of a married couple are not material.

I would love if that was the case but when I read Regulation 9 quoted below it seems to state that it is required. What do you think?

Regulations 2, 7 and 9
9.—(1) If the conditions in paragraph (2) are satisfied, these Regulations apply to a person who
is the family member of a United Kingdom national as if the United Kingdom national were an
EEA national.
(2) The conditions are that—
(a) the United Kingdom national is residing in an EEA State as a worker or self-employed person or was so residing before returning to the United Kingdom; and
(b) if the family member of the United Kingdom national is his spouse or civil partner, the parties are living together in the EEA State or had entered into the marriage or civil partnership and were living together in that State before the United Kingdom national returned to the United Kingdom.
(3) Where these Regulations apply to the family member of a United Kingdom national the
United Kingdom national shall be treated as holding a valid passport issued by an EEA State for
the purpose of the application of regulation 13 to that family member.

After the 3 months, the French can require your wife to get a RC. But even if you miss their "deadline", the can only tell you off or possibly fine you a little amount. Something proportional and equivalent to how they would punish a citizen. You wife is still 100% legal in France as long as you are doing something like working or studying...

I understand she is 100% legal to be here but are they required to also give her the residence card or can they force us to fly back to Albania and then back to France to be able to get it?

[alekos]

I do not see that you need to prove you live together. In fact ECJ decisions have said that living arrangements of a married couple are not material.

I would love if that was the case but when I read Regulation 9 quoted below it seems to state that it is required. What do you think?

Regulations 2, 7 and 9
9.—(1) If the conditions in paragraph (2) are satisfied, these Regulations apply to a person who
is the family member of a United Kingdom national as if the United Kingdom national were an
EEA national.
(2) The conditions are that—
(a) the United Kingdom national is residing in an EEA State as a worker or self-employed person or was so residing before returning to the United Kingdom; and
(b) if the family member of the United Kingdom national is his spouse or civil partner, the parties are living together in the EEA State or had entered into the marriage or civil partnership and were living together in that State before the United Kingdom national returned to the United Kingdom.
(3) Where these Regulations apply to the family member of a United Kingdom national the
United Kingdom national shall be treated as holding a valid passport issued by an EEA State for
the purpose of the application of regulation 13 to that family member.

After the 3 months, the French can require your wife to get a RC. But even if you miss their "deadline", the can only tell you off or possibly fine you a little amount. Something proportional and equivalent to how they would punish a citizen. You wife is still 100% legal in France as long as you are doing something like working or studying...

I understand she is 100% legal to be here but are they required to also give her the residence card or can they force us to fly back to Albania and then back to France to be able to get it?

Unfortunately you'll have to get used to civil servants following "guidelines" rather than the Law. Read the law, read the judgements and quote them when you deal with civil servants, embassy official, et. al. Remember, they are not law trained and, be safe in the knowledge the law is on your side.

[Directive/2004/38/EC]

I understand she is 100% legal to be here but are they required to also give her the residence card or can they force us to fly back to Albania and then back to France to be able to get it?

The short answer is NO, they can not force you to go Albania or to Belgium. You can apply for a Residence Card.

This case, ECJ Case C-157/03, Commission v Spain [2005] speaks exactly to your situation in France.

About the UK, you will note that the language in the UK transposition is not super specific. It does not say that you have to live at the same address.

There is a non-issue here. You are married. The marriage certificate of a marriage that is real and ongoing is the end of the story. You do not need to prove you pee in the same toilet, nor do you need to provide transcripts of your telephone calls from before before you were married.

[UKCanadaAlbania]

My wife and I picked up her refusal today and the reason was given that they believe her passport has been tampered with. They say a chemical was used to try to remove her Schengen visa for reasons unknown and so based on this they sent her passport back to Albania. I was there when we received the Schengen visa from the Greek embassy in Albania last summer and I know for a fact that neither of us ever tampered with it. What do we do?!!?!

I have no idea why they think we would want to remove a Schengen visa which proved entry but that is what they said.

Now what do we do? An appeal takes too long right? And since she is without a passport now the appeal probably would not help?

[Directive/2004/38/EC]

What exactly were you applying for and from whom?

[UKCanadaAlbania]

What exactly were you applying for and from whom?

EEA Family Permit VAF5
Applied at WorldBridge which is the UK Paris embassy commercial partner.

I think most of the details are at the top of the thread but the new thing is the refusal. My wife now no longer has a passport and we would need to return to Albania for the passport. As well we are not sure if they will now give her a new passport if there is a record saying she tampered with it. But the most annoying thing is that we did not tamper with it at all. They say a chemical was on the Schengen visa to remove it but they don't know the reason. The fact is that we never tried to remove it and in this application we even photocopied the Schengen for them.

I would love to try to just go to the border now but of course without my wife's Albanian passport they won't let us in right? She has an Albanian ID card and an old Albanian passport but that's it.

[UKCanadaAlbania]

As well I wonder if they are using the National immigration act on us and not the European one. Here is what was said:

"Tampering with a passport in any way renders the passport invalid. Entry Clearance Guidance (ECB8.1)..."

and also in the Notice of Immigration Decision:

"In compliance with the Immigration (Notices) Regulations 2003 made under section 105 of the Nationality, Immigration and Asylum Act 2002.
REFUSAL OF ENTRY CLEARANCE"

[Directive/2004/38/EC]

What EXACTLY did the refusal letter say? Or did they actually refuse the visa?

[Obie]

Have you contacted Albania to get their views on the passport?

The ECO acted in an odd way. If they suspected forgery, which may be a criminal offence, then they should have got the Greek authority to investigate the matter, rather than sending the pasport to Albania.

An allegation of forgery is very serious and has to be proved by a very high standard by the ECO. Failure to do so, will result in your appeal being allowed.

It is a requirement that a valid passport be produced for a visa to be issued. So they may be right, if their allegation is correct.

However, apart from whether or not this may be constitutive of Publicy policy, there is no basis for a refusal in this cases under community law. Provided the relationship is genuine and the identification is provided showing your spouse identification details.

I believe because of the nature of the allegation, an appeal will be the best was forward, as getting a new passport and reapplying will not be wise. It is your wife's interest that her name is cleared, if she has been wrongly accused of wrongdoing.

I will suggest you sue for damages if it is established that the ECO was wrong in their initial decision.

[UKCanadaAlbania]

What EXACTLY did the refusal letter say? Or did they actually refuse the visa?

Ok this may be slightly long but here it is:

First Cover Page-

I am writing to inform you that after examination, the passport you have submitted with your application shows that tampering has occurred. This renders the passport invalid.

In view of this, the passport you have submitted will be returned to the appropriate Albanian issuing authorities.

Yours Sincerely,
REDACTED
Entry Clearance Officer

Decision Page-

Notice of Immigration Decision
In compliance with the Immigration (Notices) Regulations 2003 made under section 105 of the Nationality, Immigration and Asylum Act 2002.
REFUSAL OF ENTRY CLEARANCE

Post reference: REDACTED
To: REDACTED
Date of Birth: REDACTED Nationality: Albania

Your Application
You have applied for admission to the United Kingdom by virtue of European Community Law as the family member of a European Economic Area national who is exercising, or wishes to exercise, rights of free movement under the Treaty of Rome in the United Kingdom.

The Decision
* You declare that you wish to accompany your husband to the UK for 3 months. I acknowledge that with your supporting documents you have enclosed your marriage certificate to Mr REDACTED, the British passport of Mr REDACTED and evidence of self employment status of Mr REDACTED in France.

* On your visa application form you state that you hold Albanian nationality and that your current passport number is REDACTED. You further state that you previously held a non-biometric passport, still in your possession. I note that you have also submitted your non-biometric passport with this application.

* I note that your current passport bears a C Schengen visa, number REDACTED, issued in Tirana, from xx/08/2010 until xx/11/2010, in your name.

* This Schengen visa has been examined by our Immigration Liaison Manager, who has confirmed that the visa has been tampered with, notably that a chemical has been applied to remove the visa from the passport, for reasons unknown.

* Tampering with a passport in any way renders the passport invalid. Entry Clearance Guidance (ECB8.1) states that:
A bona fide passport or travel document should:
* contain the photograph, name and date of birth of the holder;
* state the holder's nationality (or disclaimer if the holder is stateless or of undetermined nationality);
* be valid for travel to the UK.

* The passport you have submitted is not valid for travel to the UK. As such, I am not satisfied that the document you have presented is a genuine identity document.

* As a result, I am not satisfied of your identity and not satisfied that you are genuinely married to a British citizen, who is exercising Treat Rights abroad, and wishes to travel with you to the UK.

* In view of your failure to provide satisfactory evidence, I am not satisfied that you are the family member of an EEA national in accordance with Regulation 7 of the Immigration (European Economic Area) Regulations 2006.

I therefore refuse your EEA family permit application because I am not satisfied that you meet all of the requirements of Regulation 7 of the Immigration (European Economic Area) Regulations 2006.

Your right of appeal
You are entitled to appeal against this decision under Regulation 29 of the Immigration (European Economic Area) (Amendment) Regulations 2003.

MORE HERE ON APPEAL IF REQUIRED- They have also attached the Form IAFT-2 Appeal form.

[86ti]

The decision was obviously made under EEA regulations. The only argument why the application has been refused is that it apparently has been tampered with, is thus invalid and your wife's identity could not be established. The question is if they expect or will get feedback from the Albanian authorities.

[UKCanadaAlbania]

Have you contacted Albania to get their views on the passport?

The ECO acted in an odd way. If they suspected forgery, which may be a criminal offence, then they should have got the Greek authority to investigate the matter, rather than sending the pasport to Albania.

An allegation of forgery is very serious and has to be proved by a very high standard by the ECO. Failure to do so, will result in your appeal being allowed.

It is a requirement that a valid passport be produced for a visa to be issued. So they may be right, if their allegation is correct.

However, apart from whether or not this may be constitutive of Publicy policy, there is no basis for a refusal in this cases under community law. Provided the relationship is genuine and the identification is provided showing your spouse identification details.

I believe because of the nature of the allegation, an appeal will be the best was forward, as getting a new passport and reapplying will not be wise. It is your wife's interest that her name is cleared, if she has been wrongly accused of wrongdoing.

I will suggest you sue for damages if it is established that the ECO was wrong in their initial decision.

We emailed the Albanian embassy in Paris yesterday and will be trying to go in person today if they will talk to us. (Language will be hard as my wife speaks some Albanian but does not really read or write it, hopefully they will talk to us in English) There is no website for the Albanian embassy here for info.

The allegation is untrue, if we had done any tampering then I would not be here and wanting to fight it. I know that Albanians have a bad reputation and I have heard of many cases where they have forged/tampered documents to get in to the UK so I can only assume we are the unfortunate innocent ones being punished for what others have done before.

Our first goal at this point is to get to the UK so I can see my dying Uncle and also work there but secondly you are quite right that we do not want this on my wife's history and she was in tears last night thinking that they think she tried to tamper with her passport. Our apartment lease in Paris runs out next week and as we expected to travel to the UK we are unsure of what to do.

So let me make this clear, it appears that they do not doubt the passport being real or even the Schengen visa being real but instead say that they think the visa was attempted to be removed for unknown reasons and that invalidates the entire passport. I can not think of any reason we would have ever wanted to remove an old Schengen visa and also how do we prove that we never did anything to it? It was applied to the passport in Albania via the Greek embassy. Is it possible that while it has been out of our hands in various government offices (Albania, Greece, Worldbridge etc.) that someone did something? We photocopied the Schengen and also wrote about it in our application, we were proud we had it to enter France in the first place via Greece and not having it would have been bad for us as we would then not be able to prove lawful entry to France.

Ok so we would like to appeal but can we not appeal and also re-apply at the same time? Does an appeal not take quite awhile and will her passport not be destroyed in the meantime if the UK government deemed it invalid? You say to re-apply even with a new passport is not a good idea?

As well is my wife now illegal in France since she no longer has a valid passport here?

Albanian passports are only issued in Albania so we will need to go back there to apply. Will they easily give us another if the UK think we tampered with the old one?

And finally if we are given a travel document from the Albanian embassy, my wife still has her old passport which says it doesn't expire until 2018 but of course she had gotten a new biometric passport so I assume this old one is invalid for travel, she also has the Albanian national id card. Could we use these things along with the documents we were applying for the EEA Family permit with and go to the border via car or train and use the "C-459/99 (MRAX vs Kingdom of Belgium)" to travel to the UK?

[86ti]

Old passports are typically rendered invalid through physical means. It is interesting that the Albanians didn't do that.

I would expect the UKBA to have a database, that is your failed application may show up at the border.

Generally, the non-EEA nationality family member does not become "illegal" because of certain missing documents as long as the EEA national exercises treaty rights. But she would still need to be able to proof her identity through different means. Without knowing what exactly is wrong with the passport there may be a problem.

[UKCanadaAlbania]

The decision was obviously made under EEA regulations. The only argument why the application has been refused is that it apparently has been tampered with, is thus invalid and your wife's identity could not be established. The question is if they expect or will get feedback from the Albanian authorities.

Thank you. Does this mean that if we re-apply with the same documents and a new passport or get it cleared up between Albanian and UK that they would approve it or that they can choose suddenly that the supporting documents aren't sufficient. I mean in the sense that would they have checked all supporting documents along with the application or would they have stopped processing the application at all after determining they were not happy with the passport identity? If there were other issues would they have written about all the problems or just the passport? I definitely would not like my wife to be refused a second time.

This is one of the reasons of my thinking about going to the border because if the only reason for refusal is them doubting her identity and we could speak to them in person and they could see that my wife is in fact my wife. That she matches all the photos, her picture matches the old passport, national identity card etc.

[aa123]

You can appeal and make a fresh application at the same time,but your application will risk refusal due to the nature of the current refusal.

Your wife can also apply for a travel document to return to albania.

[86ti]

One more problem I can think of is that your wife could be alleged of being the originator of or party to the tampering. Personally I would have expected that the French police would be informed at some point. I still wonder what the Albanians are expected to do: report back that the passport itself is alright? Have your tried to get this information from the UK embassy? Have you considered to seek for legal advice?