Dire Straits

Aimar · Post by **Aimar** » Wed Dec 07, 2011 11:15 pm

Hi folks, I would like a sampling of opinion, i'm a UK citizen presently residing in the UK my spouse is Nigerian. I had an opportunity for some contract work in Prague and my wife recently applied for a Schengen EU Family member visa from the Czech Rep embassy in Nigeria. She was denied in the first instance on the basis of being a threat to national security. We put in an appeal and requested full justification of the decision, none was forthcoming, we were eventually advised through Solvit that the appeal letter had gone ''missing' and was never forwarded to the relevant ministry in Prague, we were asked to re-apply. The second application was refused on the basis of our marriage being one of convenience, this despite six years of mariage and two kids, again we appealed the decision but the original decision to deny the visa has been upheld, clearly come hell or high water..they aren't issuing. I am absolutely disgusted with the Czechs and cannot be bothered with them any longer. We are contemplating an application to the Irish embassy for an ''accompany Spouse Visa'' and relocating to Ireland, I am however concerned about the implications of the previous refusals on any application we now make to the Irish considering the refusal grounds stated by the Czechs. Is it simpy the case the Irish would refuse saying '' one member states consider you a threat...blah blah...Or one member state considers your marriage one of convenience or will they actually look at our application on its own merits ? I can think of no known reasons why the Czechs have denied her rights on the grounds of national security...other than sheer prejudice.

dalebutt · Post by **dalebutt** » Thu Dec 08, 2011 1:30 pm

Hello Aimar, I dont know how bouyant you are financially, but it would be good if she had a new passport for the application to the irish, though the Czechs am sure did not include her name in the EU-wide immigration database of people that are threat to the EU borders and I believe that, the reason for refusal is simply discriminative, as to the Czechs this is a standard reason for refusing spouses of EU citizens. looking at the fact that, the reason in itself is not exhaustively complete as to why she is a threat which is already against the commission procedure on how member states should deal with family members visa applications.

If indeed she was a threat there should be a thorough explanation on why she is deemed a threat to the almighty (Third world ) Czechs. Adverse reasons.

If she didnt disclose to the IRISH they wouldn't know, but it would be evident given the stamps on the passport, the IRISH if they aren't interested in refusing it initially might be drawn to make silly excuse as usual seeing those stamps from another (third world) EU country

Is it simpy the case the Irish would refuse saying '' one member states consider you a threat...blah blah...Or one member state considers your marriage one of convenience or will they actually look at our application on its own merits ?

I thought you already know Aimar, the EU embassies in AFRICA are not interested in a reason why your wife should be issued a visa under the directives other than looking for reasons why they should be denied their fundamental rights. the onus is on you to stay clear of apparent reasons they might be looking for

Aimar · Post by **Aimar** » Thu Dec 08, 2011 4:22 pm

Thanks for your comments dalebutt. I'm not quite sure getting a new passport helps since UK & Ireland share information with the Schengen countries, and not disclosing previous refusals by other countries is pretty much grounds for an automatic refusal. I do take on-board your points though.

dalebutt · Post by **dalebutt** » Thu Dec 08, 2011 4:50 pm

dalebutt · Post by **dalebutt** » Thu Dec 08, 2011 4:50 pm

I do not think not disclosing previous visa refusal would mean outright refusal as it's an EEA application, even the schengen countries do not share refusal information between themselves unless the applicant was banned or some other serious issue.
Previous visa refusal has never been a yardstick for decision making on an EEA application and should never affect decision making on EEA application, but to these lots the Directive is as good as when it was signed, they are little keen on upholding it outside the EU. you might as well just play by their rules.

walrusgumble · Post by **walrusgumble** » Sat Dec 10, 2011 10:07 pm

dalebutt wrote:I do not think not disclosing previous visa refusal would mean outright refusal as it's an EEA application, even the schengen countries do not share refusal information between themselves unless the applicant was banned or some other serious issue.
Previous visa refusal has never been a yardstick for decision making on an EEA application and should never affect decision making on EEA application, but to these lots the Directive is as good as when it was signed, they are little keen on upholding it outside the EU. you might as well just play by their rules.

taking aside dodgy reasons for refusal by the czechs, it should be challenged.BUT failure to disclose ANY information when asked will lead to certain & legimate refusal.Don't know why the Irish will be interested in the previous application.i doubt they will ask. Can the op first try out the UK under their laws. Since op is British and they have kids (so children are brits) why is spouse still in Nigeria?

walrusgumble · Post by **walrusgumble** » Sat Dec 10, 2011 10:10 pm

coming directly from a third country is not relevant for eu law to kick in. see the Eind case of 2004.

dalebutt · Post by **dalebutt** » Sun Dec 11, 2011 9:54 pm

walrusgumble wrote:
dalebutt wrote:I do not think not disclosing previous visa refusal would mean outright refusal as it's an EEA application, even the schengen countries do not share refusal information between themselves unless the applicant was banned or some other serious issue.
Previous visa refusal has never been a yardstick for decision making on an EEA application and should never affect decision making on EEA application, but to these lots the Directive is as good as when it was signed, they are little keen on upholding it outside the EU. you might as well just play by their rules.
taking aside dodgy reasons for refusal by the czechs, it should be challenged.BUT failure to disclose ANY information when asked will lead to certain & legimate refusal.Don't know why the Irish will be interested in the previous application.i doubt they will ask. Can the op first try out the UK under their laws. Since op is British and they have kids (so children are brits) why is spouse still in Nigeria?

Yes it could be a ground for refusal but that's if they will know if an applicant have been refused by a schengen country, they do not share that information between or have facility to share such information.

And yes they do ask on the application form and I have seen on the INIS website people being refused visa on the grounds of previous visa refusal by another country but sure that reason would not be addressed to an EU applicant

And of course the Irish wont say they have refused the application on the grounds that the applicant have been refused visa by a EU country, but the chances are that the previous refusal would attract another insubstantial reason to refuse the applicant applicant by the IRISH, the EU embassies in AFRICA aren't just interested in the Directives some would even pretend no such thing exist.

UK spouse visa requirement is a bit tedious, well thats just my opinion.

walrusgumble · Post by **walrusgumble** » Mon Dec 12, 2011 9:50 am

dalebutt wrote:
Yes it could be a ground for refusal but that's if they will know if an applicant have been refused by a schengen country, they do not share that information between or have facility to share such information.

I only meant "IF" they had asked. THey won't. If anything, they might only ask about previous Irish Visas only. Even if they asked, I don't really see how its relevant to Ireland. However.... I note what you say below.

dalebutt wrote: And of course the Irish wont say they have refused the application on the grounds that the applicant have been refused visa by a EU country, but the chances are that the previous refusal would attract another insubstantial reason to refuse the applicant applicant by the IRISH, the EU embassies in AFRICA aren't just interested in the Directives some would even pretend no such thing exist.

UK spouse visa requirement is a bit tedious, well thats just my opinion.

You did not answer my question. Is the wife in Nigeria and why, and since when? THe background to the case is extremely odd. (What proofs of marriage etc did you / can you produce to rebut the marriage of convenience story)

What do you mean the visa requirement are a bit tedious, you are British? Do you really mean that you are not confident that your own country will also refuse?

dalebutt · Post by **dalebutt** » Mon Dec 12, 2011 11:01 am

walrusgumble wrote:
dalebutt wrote:
Yes it could be a ground for refusal but that's if they will know if an applicant have been refused by a schengen country, they do not share that information between or have facility to share such information.
I only meant "IF" they had asked. THey won't. If anything, they might only ask about previous Irish Visas only. Even if they asked, I don't really see how its relevant to Ireland. However.... I note what you say below.

dalebutt wrote: And of course the Irish wont say they have refused the application on the grounds that the applicant have been refused visa by a EU country, but the chances are that the previous refusal would attract another insubstantial reason to refuse the applicant applicant by the IRISH, the EU embassies in AFRICA aren't just interested in the Directives some would even pretend no such thing exist.

UK spouse visa requirement is a bit tedious, well thats just my opinion.
You did not answer my question. Is the wife in Nigeria and why, and since when? THe background to the case is extremely odd. (What proofs of marriage etc did you / can you produce to rebut the marriage of convenience story)

What do you mean the visa requirement are a bit tedious, you are British? Do you really mean that you are not confident that your own country will also refuse?

Some of your questions would best be answered by the OP, but you know it doesn't take a rocket physicist to work that out, a marriage with children I'd be really upset if some VO would be so dumb to have refused me on that grounds too.

And yes UKBA will refuse an applicant for spouse visa without reservation, if the British spouse cannot show they earn enough to prove that their spouse wont be a burden on the state, £800 application fee and fear of rejection if finances are not in order, thats why most british citizen prefer to exercise their treaty rights and then go back to the UK using Surrinder singh.

Is the wife in Nigeria and why, and since when? THe background to the case is extremely odd

Yes i assume the OP's wife is presently in Nigeria thus the proposition to apply at the IRISH embassy in Nigeria, and yes it's odd, but the oddness of it shouldn't be grounds for refusal though.

walrusgumble · Post by **walrusgumble** » Mon Dec 12, 2011 12:21 pm

dalebutt wrote:
Some of your questions would best be answered by the OP, but you know it doesn't take a rocket physicist to work that out, a marriage with children I'd be really upset if some VO would be so dumb to have refused me on that grounds too.

Sorry, I did not cop that you were not the OP. I did not mean to direct the questions towards you personally.

As for your response, it is a legitimate question. THere is family, it appears the wife is in Nigeria and it appears that the family have never really lived in the UK. Did the Brit once live in Nigeria? It sounds like a very strange case? I am trying to see why the Czechs had reason or suspicion. They could not possibly have such legitimate reasons to act, if the family came straight from the UK, or at the very least, the family once lived together in the UK. I only seek clarification.

dalebutt wrote: And yes UKBA will refuse an applicant for spouse visa without reservation, if the British spouse cannot show they earn enough to prove that their spouse wont be a burden on the state, £800 application fee and fear of rejection if finances are not in order, thats why most british citizen prefer to exercise their treaty rights and then go back to the UK using Surrinder singh.

Something tells me one day Member States are going to seek to get Singh overruled. It is a good thing that the family in this case have children because the case of Akrich 2003 was not entirely overruled by Metock and a State would try to use it.

The children should be entitled to British Nationality surely? Was the EU spouse, born in the UK or naturalized(that does not dilute the EU treaty rights)

dalebutt wrote: Yes i assume the OP's wife is presently in Nigeria thus the proposition to apply at the IRISH embassy in Nigeria, and yes it's odd, but the oddness of it shouldn't be grounds for refusal though.

Why is she in Nigeria? I assume she was once in the UK with UK spouse or did UK spouse live in Nigeria for a period. If she was in the UK, why did she leave? Removed?

I would rather get the full facts of the case and full reasons for the refusal before making any comment about whether or not it was/is a legitimate refusal.

dalebutt · Post by **dalebutt** » Mon Dec 12, 2011 12:57 pm

Sorry, I did not cop that you were not the OP. I did not mean to direct the questions towards you personally.

No, no hard feelings, I already suspect you thought i was the OP ,

If you ever came accross the OP initial refusal notice by the Czech embassy earlier this year on this forum, the op stated he was living in Nigeria with his family. the children are already British citizen from what the op stated in his previous posts.

I do not think member states would make any move to scrap surrinder singh and if they do, the commission would stand against it, and it would be down to the CJEU to make that decision it's not up to member states even if they do not so want it.

In Netherlands, dutch citizen married to non eea would get a schengen visa for their spouse to Belgium, exercise their rights in Belgium and then move to the netherlands it's not just British citizen that find national immigration policies a bit rigorous.

I am trying to see why the Czechs had reason or suspicion.

Decision on visa for family member should not be preconceived, or be subjected to suspicion of the visa officer, clarification should be sought in the first place, I assume if the OP's wife had applied from inside America there would have been no such thing as suspicion

You know some people do not like to share too much information on public forum, could be so in this case, well am just speculating

Aimar · Post by **Aimar** » Mon Dec 12, 2011 1:55 pm

@Dalebutt and Walrusgrumble, legitimate questions, however for reasons i'd rather not go into, my preference is to have no dealings whatsoever with UK immigration under domestic rules, my family and I have been treated in an appalling manner. As a UK citizen born and bred i do expect a somewhat higher standard from the authorities but i digress.

I can think of no earthly reason why the Czech's would be suspicious of anything, the wife and I have been married six years our kids are UK citizens, we lived together in Nigeria for four years, and I have been shuttling backwards and forwards for the last two. We provided our marriage certificate my passport as well as those of our kids. The manner of our refusal was so ridiculous as to make a mockery of the directive if you are applying from outside of the EU and in particular sub-saharan Africa.

walrusgumble · Post by **walrusgumble** » Mon Dec 12, 2011 2:51 pm

Aimar wrote:@Dalebutt and Walrusgrumble, legitimate questions, however for reasons i'd rather not go into, my preference is to have no dealings whatsoever with UK immigration under domestic rules, my family and I have been treated in an appalling manner. As a UK citizen born and bred i do expect a somewhat higher standard from the authorities but i digress.

I can think of no earthly reason why the Czech's would be suspicious of anything, the wife and I have been married six years our kids are UK citizens, we lived together in Nigeria for four years, and I have been shuttling backwards and forwards for the last two. We provided our marriage certificate my passport as well as those of our kids. The manner of our refusal was so ridiculous as to make a mockery of the directive if you are applying from outside of the EU and in particular sub-saharan Africa.

Fair enough, but I have asked because I wanted to see what you are up against and most importantly, not to make assumptions. I have an idea of the problems and the spouses status in the UK. I take it then that she did live in the UK at some time. It appears there are two sides to this story, whether the other side is right or wrong.

The advice given is on the basis of what the law says in certain (most) incidents. Your issue at the moment is to get a visa, and not get residency. residency should not be a problem, provided that you comply with EU law (ie find work or are self sufficient in Ireland) If you can say that your doing that now, in Ireland, the visa refusal is wrong. Moreover, the embassy and co need to prove whatever they have against the family. But they must give status NOW and then if they find a fault, they can revoke.

To answer your question. Here is what I believe the Czechs think.

They are looking at Akrich (which yes was overruled substantially by Metock - Metock 2008 is very important for you) and believe that ye are trying to "abuse" EU law in order to get back to Britain via Czech Rep as the UK, as we all know, like Ireland, will be very slow to give status to certain non EU national spouses of British Nationals.

However, to be fair to you, your family details suggest there is nothing dodgy going on family wise. So no argument on Akrich can be made.

Especially since you took the sacrifice to live in Nigeria. Which is, for most average born and bred Europeans a big sacrifice, no matter what anyone says. (The same if it was Australia or some other far flung place)

What exactly have the Embassy said? Have you applied for Irish Embassy? I would challenge the Czechs, simply to get rid of any blight in the wife's immigration record. Make sure you stress to the illegality of the Czech decision if the Irish ask.

You are entitled to go to Ireland without having to work etc for 3 months (article 6 Directive 2004/38EC) Then as jobseeker, that falls within the term "worker" as per Article 45 TFEU, this entitles you to some social welfare via Vatsouras case of 2010. Wifie and children (who are British) can come with you. THe faster you get work the better.
http://www.bailii.org/cgi-bin/markup.cg ... od=boolean

Although more concerned with child, Eind (It was against the Dutch) 2004 is interesting as it concerns an EU national and family coming directly from outside Europe.
http://www.bailii.org/cgi-bin/markup.cg ... od=boolean

As for the visa issues, You know what the directive says on that. There should be no excuses.
http://www.bailii.org/cgi-bin/markup.cg ... od=boolean
http://www.bailii.org/cgi-bin/markup.cg ... od=boolean

Read this (the legislation has now being consolidated into DIrective 2004/38 EC)
http://www.bailii.org/cgi-bin/markup.cg ... od=boolean

walrusgumble · Post by **walrusgumble** » Mon Dec 12, 2011 2:55 pm

dalebutt wrote:
Sorry, I did not cop that you were not the OP. I did not mean to direct the questions towards you personally.
No, no hard feelings, I already suspect you thought i was the OP ,

If you ever came accross the OP initial refusal notice by the Czech embassy earlier this year on this forum, the op stated he was living in Nigeria with his family. the children are already British citizen from what the op stated in his previous posts.

I do not think member states would make any move to scrap surrinder singh and if they do, the commission would stand against it, and it would be down to the CJEU to make that decision it's not up to member states even if they do not so want it.

In Netherlands, dutch citizen married to non eea would get a schengen visa for their spouse to Belgium, exercise their rights in Belgium and then move to the netherlands it's not just British citizen that find national immigration policies a bit rigorous.

I am trying to see why the Czechs had reason or suspicion.
Decision on visa for family member should not be preconceived, or be subjected to suspicion of the visa officer, clarification should be sought in the first place, I assume if the OP's wife had applied from inside America there would have been no such thing as suspicion

You know some people do not like to share too much information on public forum, could be so in this case, well am just speculating

THis current Commission is utterly toothless. 3 Cases involving Citizen Children prove that. Secondly, its for the Court to decide not Commission, which they themselves will probably do what you suggest. Thirdly, if member states wanted too, they could change the laws and / or Treaty and the Commission and the Courts would have very little to do to stop it. Your probably right though above the survival of Singh (ie nothing will be done)

Other than that, fair enough as to what you have said.[/u]

Aimar · Post by **Aimar** » Mon Dec 12, 2011 5:10 pm

[To answer your question. Here is what I believe the Czechs think.

They are looking at Akrich (which yes was overruled substantially by Metock - Metock 2008 is very important for you) and believe that ye are trying to "abuse" EU law in order to get back to Britain via Czech Rep as the UK, as we all know, like Ireland, will be very slow to give status to certain non EU national spouses of British Nationals. ]

You could well be right, however I do believe the directive does give EU citizens the right to ensconce oneself in another member state even if it is for the express purpose of taking advantage of community law, the judgement is in how effective the subject exercises its treaty rights. In any event the refusal by the Czech's (second time around) was on the spurrious basis that my marriage was conducted solely to take advantage of the directive.

We have not yet put in an application to Ireland but are considering it seriously. I was more concerned about the impact of previous refusals and yes, we will definitely challenge the decision of the Czech's . Many thanks for the links provided particularly C-503/03.

walrusgumble · Post by **walrusgumble** » Tue Dec 13, 2011 9:40 am

Aimar wrote:[To answer your question. Here is what I believe the Czechs think.

They are looking at Akrich (which yes was overruled substantially by Metock - Metock 2008 is very important for you) and believe that ye are trying to "abuse" EU law in order to get back to Britain via Czech Rep as the UK, as we all know, like Ireland, will be very slow to give status to certain non EU national spouses of British Nationals. ]

You could well be right, however I do believe the directive does give EU citizens the right to ensconce oneself in another member state even if it is for the express purpose of taking advantage of community law, the judgement is in how effective the subject exercises its treaty rights. In any event the refusal by the Czech's (second time around) was on the spurrious basis that my marriage was conducted solely to take advantage of the directive.

We have not yet put in an application to Ireland but are considering it seriously. I was more concerned about the impact of previous refusals and yes, we will definitely challenge the decision of the Czech's . Many thanks for the links provided particularly C-503/03.

Yes, EU law does not ask questions about WHY someone decides to choose to move to another EU State. The CJEU have consequently dismissed the notion of abuse. From your case, this is a real family.

Most countries recognize some form of civil or de facto family. Even in Ireland, where only the family based on marriage under the Constitution, recognizes that families in durable relationships can avail of the EU Treaty.

In Article 2 of Directive 2004/38 , A registered Partnership, can be allowed in provided that such a relationship is recognized in Host State. That is not the case in Ireland for its own people. However, in Article 3, it specifically refers to durable relationships. Ergo, you don't really have to marry in order to side step the immigration system. For you, you have a 6 year relationship, lived in Nigeria and have children. So, how can you be chancing your arm.

Will you get work in Ireland or start a business?

If I were you I would challenge the Czechs as well.

A State, under EU law has to be very careful in justifying State Protection etc , I refer you to Articles 27-33 of the Directive 2004/38. Actual proof is needed.

Have you actually spoken to the Irish Embassy. Make sure you get everything in writing. It would be advisable to challenge the Czechs out of principle

Although you can not rely on Metock while in the UK, in light of McCarthy (if coming Directly from Africa and not from another EU State - If you did , you would rely on Singh) you should collect all written evidence of your attempts to travel to Europe.

Why?

Although McCarthy said no, and distinguished itself from Zambrano (which McCarthy tried to rely upon) McCarthy did not some potential, if your rights were actually at risk (not in McCarthy - no evidence of her being unable to move around) As someone else said here, you right to move around is being effectively stopped due to your wife being refused the simple visa issue.

Provide every scrap of evidence to show that you are a family.

Aimar · Post by **Aimar** » Tue Dec 13, 2011 4:46 pm

@Walrusgrumble. We have tried getting information from the Irish Embassy, unfortunately we are refered to the outsourced visa application centre or their web-site. I run a small consultancy which would work just as well in ireland (fingers crossed). There's nothing for it but to give it a go and see what happens. Many thanks for your help.

Humanity · Post by **Humanity** » Thu Mar 22, 2012 12:48 am

Aimar wrote:@Walrusgrumble. We have tried getting information from the Irish Embassy, unfortunately we are refered to the outsourced visa application centre or their web-site. I run a small consultancy which would work just as well in ireland (fingers crossed). There's nothing for it but to give it a go and see what happens. Many thanks for your help.

Any luck with the Irish yet?

newbieholland · Post by **newbieholland** » Thu Mar 22, 2012 12:11 pm

Hi Aimar,

Here is my two cents for ya.

We have gone through similar series of events in the past (not with Chzech though) but lucky to get things sorted out in 4 months in total. I think what you should be looking at, is to choose a member state who is most likely to follow the EU laws in your case when it comes to an appeal. The Irish are infamous for delaying visa applications for non EU spouses who are applying from outside the EU. There are a couple of members on this forum whose spouses have been waiting for more than 3 months without any correspondence on their application. Please read through some other posts in this section. I am not sure how the appeals work in Ireland but I am sure you will be looking at 6 months minimum.

In your case, most likely the visa application will be (illegally) rejected again for another non justifying reason and my friend you can not do much about it right now. However if you choose a member state which will be at least more responsive when it comes to appeals and court cases you can hope things can get sorted out for you much quicker. Good Luck![/b]

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