EEA Family Permit / EEA2 Residence Card after leaving the UK

[Sweetowski]

Dear all,

sorry for entering the forum with a question right away, but I searched and did not find a satisfying answer.

The situation is the following:
My wife is Brazilian and I am German. (Married since 08/2010 if that matters) We are living in the UK. I applied for a residence card under EEA1, which we used as supporting document for her application for a residence card under EEA2. Then she urgently had to go back to Brazil and asked back for her passport. As the processing times were to long, she cancelled her passport and left the UK with a preliminary travel document. Now she received her new passport with a new passport number. I just found out about the difference between an EEA family permit and an EEA2 residence card today.

My questions are now, which route do we have to go as she is still in Brazil.
1. Can she just send the new plus the old passport and a cover letter linking these to here original application to me in the UK. I will send it to the UK border agency then and (hopefully) will receive it back with the EEA2 residence card. This will then be couriered back to Brazil and allow here to enter the UK. Will that work? I also see here the problem of the processing time of up to six months, right?

2. She cancels the original application for the EEA2 residency card and applies for the EEA family permit in Brazil, which allows her to enter the UK, and then reapplies for the EEA residence card in the UK. Problem here: She has to go one of the visa centers for bio metric information, right? Also the the supporting documents needed states "These should include:
a copy of the EEA national's passport, endorsed by the EEA national's embassy in the country of application);". Does this mean I have to go to Brazil first to get my passport endorsed there? Second, all the genuine documents are with the border agency at the moment, can she already apply for the EEA family permit with copies of the relevant documents, or do we have to wait for the originals coming back from Liverpool and then send them over to Brazil?

Sorry for this long question, but I am really unsure how to proceed best, so any help is highly appreciated.

Cheers

[nonspecifics]

I believe nationals of Brazil do not need a visa for visits to the UK, so the airlines would fly her to the UK - as long as she tells them it is for a visit less than six months.

If she said to the airlines it's for family reunion and settlement then they will ask for a visa / family permit.

Once she got to immigration control in the UK she could apply for entry as the family member of an EEA national at entry clearance.

http://eumovement.wordpress.com/2010/08 ... to-travel/

The above link gives advice about entry at port without a family permit.

It would probably be a good idea if you sent her a certified copy of your passport ( certified in the UK by the embassy or qualified officials of the embassy. So, make a good photocopy of your passport. Take both for the official to compare. Then he puts his seal and signature to verify he checked and confirms the copy is a true likeness of your original passport.

I would also suggest the marriage certificate and proof you are exercising treaty rights such as pay slips.

Then she can present them when attempting to enter the UK as proof that she is normally resident in the UK as your wife and that you are exercising treaty rights.

She could also email UKBA explaining the circumstances and see what they advise and print out a copy of their reply to show the immigration officer that UKBA in the UK already have her on their system as living in the UK.

If outside the UK for more than six months the original residence card application would not be valid - as the residence would have been broken.

[euftw]

"as long as she tells them it is for a visit less than six months"

i guess she will still have to write on the landing card before landing that the length of her stay is intended to be longer than 6 months right?

[nonspecifics]

Not necessarily.

Maybe she is intending to return to Brazil again within six months.

People can change their minds. As long as they are not breaking the law, then there is nothing wrong with that.

If UKBA question her at entry clearance then she would have all the evidence to show she would be legally entering the UK and that her stay would be legal if she did decide to stay longer than six months.

If her husband receives her certificate of application, he could also send that out to her and she could also use that as evidence at entry clearance when entering the UK, if questioned to prove she is 100% legal.

UKBA are the experts on immigration law, airlines aren't.

Airlines just follow their rules and if no visa or FP is shown, when their checklist say one is required, because the person declared they intend to stay longer than six months, then they will not allow that person to board their aircraft.

For further information on entry procedures:


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

[euftw]

ok, thanks for clearing that up.

i thought maybe to get a code 1A stamp on arrival it's needed to declare on the landingcard that the eu-spouse intends to stay longer than six months...(as opposed to getting a visa-free 6-months tourist stamp when she writes less than 6 months on the card).

but from the info i can find on the ukba site the 1A stamp seems to be issued as long as she declares to be a spouse of an eu-citizen (who is in the uk or travelling with her) and can show documents to prove it on arrival.

[Lucapooka]

The airline will not be a problem as Brazilians don't need to pre-apply for visit entry clearance. The problem with entering as a visitor under UK rules is that is will be a challenge to prove, with convincing evidence, that it's only to visit given that she was previously residing in the UK with husband who is based in the UK (and previously submitted an application for a residence card). I feel that the UK Border force would have no option other than to refuse her entry (they go by the rules and are not given to discretion) unless there were compelling evidence to the contrary showing her intention to return to Brazil. Work or study program etc

It's really your decision but I would suggest that, for safety and the avoidance of doubt, she applies for an EEA permit in Brazil. She will need to go to RJ, SP, or DF to submit biometrics and need a certified or notorized copy of your passport but this can be sent over by you in a matter of days. Ignore the part about this being endorsed by German consulate in Brazil; that's not required under EU law and will not be demanded by the visa section in Rio.

[Sweetowski]

Thanks for all your answers.

Lucapooka, I assume we have to go this way then. The only annoying part then is that she is for the time she waits for the EEA2 residence card stuck in the UK again, as she will have to send in her passport again.

[nonspecifics]

I believe there are legal grounds for your wife to be admitted without a FP as long as she can prove her case by other means.

However, we don't know how well your wife would be able to explain her case or argue her case if she needed to.

I agree the safest option is a FP.

But this is what the Border Force manual advises:

5.5 Procedures when no EEA family permit or residence card is held

5.5.1 Admission of family members who are unable to produce a valid
passport, family permit or residence card

Border Force officers will need to assess whether or not a person qualifies for
admission under the EEA Regulations in the above situations.

Ports should take particular note of the guidance on those who seek admission under the
extended family member provisions as dependents relatives and as family
members of an EEA national with whom they have a “durable relationship”
(unmarried partner); the relevant criteria in Part 8 of the Rules (excluding
entry clearance) should be used to make a decision on whether or not to
admit under EEA Regulations.

Unlike immediate family members the EEA
Regulations allow for an “extensive examination of the personal
circumstances” of extended family members.

5.5.2 Seeking admission at port

Applicants at port should be treated as persons seeking admission unless
reference is made to applying for a residence card. Admission will fall into one
of the following:

• produces satisfactory evidence on arrival

The person should be admitted for 6 months on a Code 1A. Complete landing
card.

• Is unable to produce satisfactory evidence on arrival

The person should be given “every reasonable opportunity” to prove by other
means that he is the family member of an EEA national; a person should not
automatically be refused admission as a result of not being able to produce
adequate evidence. As a guide within a week of arriving at port should be
adequate; ports can consider refusing admission at this point, unless the
situation suggests more time is needed.

• submits an application for admission post arrival

The person has arrived seeking entry in another capacity and whilst on
temporary admission (TA) seeks admission under the EEA Regulations. In
such circumstances the same guidance as in the point above should be
followed. If a person has been on TA for more than 3 months any decision will
attract an in country right of appeal.

--------------------

6.3

Family members of EEA nationals can remain in the UK without holding a
residence card as long as the EEA national continues to reside in the UK.


However, a family member of an EEA national will need to prove his right of admission by other means when re-entering the UK.

[Jambo]

The airline will not be a problem as Brazilians don't need to pre-apply for visit entry clearance. The problem with entering as a visitor under UK rules is that is will be a challenge to prove, with convincing evidence, that it's only to visit given that she was previously residing in the UK with husband who is based in the UK (and previously submitted an application for a residence card). I feel that the UK Border force would have no option other than to refuse her entry (they go by the rules and are not given to discretion) unless there were compelling evidence to the contrary showing her intention to return to Brazil. Work or study program etc

My understanding is that the OP wife intends to join him in the UK and not to enter as a tourist. The advice given to her was to tell the airline she is only going for less than 6 months so she would get on the flight but once infront of the immigration officer, seek entry as a spouse of a EEA national exercising treaty rights in the UK (regardless of the duration of stay).

[nonspecifics]

Correct Jambo. So what do you think of this advice?


Tell airline: visa free visitor staying under 6 months.

Explain to UK Immigration: non-EEA spouse of EEA national who is exercising treaty rights in the UK. Resident in UK. Have already applied for residence card but had to travel before received it, so proving right of entry / residence by other means as explained in the border force manual.

[Jambo]

Can't comment if the airline part would work. Might be tricky if she only holds a return leg to the UK but no visa. I guess she would know the airlines routines.

Entering the UK might take longer if the IO needs to consult with someone or look for the code 1A stamp but she should be able to enter the country.

[nonspecifics]

Good point.

If the Brazilian wife used a return ticket and it is already half-used, then in effect it would be a one-way ticket to the UK.

Personally, if it were me travelling under those circumstances I would want written confirmation from the airline that I could travel visa free to the UK BEFORE I went to the airport.

If I couldn't get written approval, then I would apply for a family permit.

Or buy a new return ticket: Brazil to UK.

[EUsmileWEallsmile]

As others have pointed out Brazilians are not visa nationals so boarding a plane should not be a problem. One might want to check with the airline that using the return part of a ticket back to the UK would be acceptable to them.

Getting to the border would be the first step...

How confident would the person be when presenting themselves at immigration that they were entitled to enter under 2006 regs? Some people would balk at that. An EEA family permit would still require one to demonstrate that one would be joining the EEA national would still involve conversations.

I don't see why the original application for EEA2 could not stand.