EEA Family Permit refused - because I work in Gibraltar?

[onlineamiga]

Because he is British and can only use EU laws to bring his partner to the UK if he was working in another EU state. Are you actually reading this thread? He was working in a territory that is not another member state.

Your response here makes it sound clear cut that I am in the wrong here, which just isn't true. As per European Commission Your advice:

First, your wife’s residence card should be accepted in lieu of a visa.
Second, the Commission has stated in a Communication in 2009 that delays of four weeks in granting a visa are not regarded as reasonable.
Third, it is contrary to EU law to insist that you provide evidence of your employment to support your wife’s application for a visa. This breach is compounded by using the employment issue as a reason for refusal.

[Lucapooka]

Do I really need to point out (again) the those rules you continue to cite are for EU nationals taking their family to another EU state. There don't apply to British nationals taking their family to the UK, unless you were working in another member state. I'll leave you alone now and wish you well. Good luck.

[keffers]

Gibraltar (an overseas territory not forming part of the UK) needs to be distinguished from say, Gaudeloupe (an overseas region of France and therfore part of France and the EU).

[rachel29]

there is no set period of time before you intend to return that your employment must of been within for when returning under the singh route it is that you have worked before returning to the uk so the work in spain should be fine for this matter.

Although may I also add that this is not the eu commisons understanding in the matter as it is not a requirement to have worked to be excercising treaty rights as is quoted in the reply back from eu commison.UK in yet another breach of eu law here but this will drag out for years and still proberly have usless conclusion.

If you enter ireland they do check the uk immigration but unless is something major on file you should be able to enter but you still need permission to enter from ireland to uk which they will mention to you on arrival. It is not just assumed you can enter UK cos you can enter or live in Ireland.

[rachellynn1972]

Take a taxi or cab from dublin to belfast you wont meet a bird on your way not to talk of immigration. Goodluck.

[Directive/2004/38/EC]

A couple of more interesting bits about Gibraltar:

First a FOI request.

Thank you for your e-mail of 2nd November, in which you ask for any documents that
discuss the status of Gibraltar with respect to European Free Movement law and
why Gibraltarians should be admitted as EU nationals. Your request has been
handled as a request for information under the Freedom of Information Act 2000.
We believe that in relation to caseworker guidance, the information you have
requested is already reasonably accessible to you. It can be found on the UKBA
website at the following links

Not directly, but they are confirming that "Gibraltarians should be admitted as EU nationals". (The links they provide are not very useful, but so it goes)

I also remembered back to the Immigration Control (Amendment) Act 2008 from Gibraltar (which I have filed http://eumovement.wordpress.com/eu-coun ... d-kingdom/). So why is it interesting? Well look at how they implement the Surinder Singh decision:

Family members of Gibraltarians.

55I.

(1) If the conditions in subsection (2) are satisfied, this Part applies to a person who is the family member of a Gibraltarian as if the Gibraltarian were an EEA national.

(2) The conditions are that–
(a) the Gibraltarian is residing in an EEA State as a worker or self-employed person before returning to Gibraltar;
(b) if the family member of the Gibraltarian is his spouse, the parties are living together in the EEA State or had entered into the marriage and were living together in that State before the Gibraltarian returned to Gibraltar.

(3) Where this Part applies to the family member of a Gibraltarian the Gibraltarian shall be treated as holding a valid passport issued by an EEA State for the purpose of the application of section 55L to that family member.

Poor old standard British people (like you) are not covered by Surinder Singh in entering Gibraltar. Why? Because it does not apply to you. Why? Because you are not entering the member state of your citizenship!

I hope after a very nice Christmas in the UK you take the time to sort things out in the little G!

[onlineamiga]

Thanks EU2004/38/EC very interesting information
My passport is a Gibraltar issued one. It does say Gibraltar on the cover of it, as I renewed it there. So quite in that case how im differenciated between a gibraltarian and a normal british, I'm not sure.


Slight update, had a response back from the appeal, saying that they have received it and will write to me again after 1st April 2013... Excellent

[Directive/2004/38/EC]

My passport is a Gibraltar issued one. It does say Gibraltar on the cover of it, as I renewed it there. So quite in that case how im differenciated between a gibraltarian and a normal british, I'm not sure.

Wow. So before working there you had no connection with Gibraltar? It wasn't that your mother was born there, or something like that?

[onlineamiga]

Nope, nothing. Gibraltarians are classed as BRITISH CITIZENS in their passports rather than British Overseas Citizens.

When I renewed my passport in Gibraltar, I got a Gibraltar one. it says Gibraltar on the front, and the first lines read "The Governer of Gibraltar requests..." (rather than the Queen). Its got the e-chip in it which works at the automatic gates in UK Airports like Gatwick.

What I dont have which a Gibraltarian would have is a Gibraltar ID card.

[Directive/2004/38/EC]

Could you get the ID card if you applied?

[Lucapooka]

Gibraltarians are classed as BRITISH CITIZENS in their passports rather than British Overseas Citizens.

They are British Overseas Territory Citizens. If it were otherwise they would not need to be afforded the concession of being admitted to the UK under EU rules; they are only considered a British for EU purposes rather than as British citizens with all the rights and entitlements therein.

The passport you received was this one

http://en.wikipedia.org/wiki/Gibraltar_passport

[onlineamiga]

I could get an ID card if I moved there. But its a different colour one to native Gibraltarians get.

Lucapooka, you are correct that is my passport Except the guy on the wikipedia photo is better looking than me

[Ben]

Gibraltarians are classed as BRITISH CITIZENS in their passports rather than British Overseas Citizens.

They are British Overseas Territory Citizens.

Only those born in Gibraltar (to qualifying parents) before 21th May 2002 and, importantly, they are BOTCs with an entitlement to register to become BCs should they wish (and registration cannot be refused).

Since that date, persons born in Gibraltar (to qualifying parents) are British citizens.

[onlineamiga]

Sorry to bump an old thread, but it still seems to be left a bit open:

Just to recap. British Citizen living in Spain but Working in Gibraltar with South African wife. Attempted a Surinder Singh to get an EEA Family Permit for my wife so that we could visit the UK. It got refused because I didnt provide any evidence of my emoloyment. (despite providing evidence of employment in Gibraltar.. which they appeared to have not accepted.)

Appealed and sent some evidence of my employment in Spain in 2008. They seem to have accepted this and issued the EEA Family Permit, which we received in April from the British Embassy in Madrid.


The other issue was that we couldnt apply for the EEA Family Permit from within Gibraltar (being a third country) and had to take the long 6 hour drive up to Madrid to apply. I complained to the ombusdsman who have upheld the complaint and said we should have been able to epply for the EEA FP in Gibraltar, and have overturned the decision. So hopefully next time we can.

As for my wife working in Gibraltar. Well I'm not exercising treaty rights being a British citizen working in Gibraltar, so that's never going to happen. She has to go down the normal route of applying for a work permit via an employer who will need to sponsor her.
Even the other guy on this forum (bloody-fox) who is German national and incidently works at the same company I do, still has had trouble with getting a work permit for his brazillian wife. So that's that.

I'm currently questioning whether the UK EEA Family Permit can be used to enter Gibraltar in leu of a visa considering it clearly states "FAMILY MEMBER TO (and then my name" when all they need is a document proving we are married for her to cross without a visa.

[fysicus]

There are plenty of examples of similar cases: Dutch people who temporarily live in Belgium or Germany, while keeping their job in Holland, and then after about six months or so return to Holland with their non-EEA spouse under Directive 2004/38. Not a problem at all!

Living in Spain and working in Gibraltar is for a UK citizen exactly the same! The UK should recognize you as having exercised treaty rights in Spain, and treat you accordingly. IMHO the EEA FP was wrongly refused!

[onlineamiga]

fysicus, You're absolutely right. But the UK also require you to exercise treaty rights by working in another EU state. Just living there isn't good enough for them. Though Your Europe advice states they are wrong with this. In this case they determine that working in Gibraltar (being a British territory) is not exercising treaty rights, so they refused it on the grounds that I didn't work in Spain.

[EUsmileWEallsmile]

fysicus, You're absolutely right. But the UK also require you to exercise treaty rights by working in another EU state. Just living there isn't good enough for them. Though Your Europe advice states they are wrong with this. In this case they determine that working in Gibraltar (being a British territory) is not exercising treaty rights, so they refused it on the grounds that I didn't work in Spain.

My twopence worth...

Working in Gibraltar for any EU national (other than Brit) is considered to be the same as working UK for all member states.
Working in Gibraltar as a Brit is considered to be the same as working the UK for all member states.

By corollary, working in either the UK or Gibraltar should be considered to be working in the UK by all member states.

[Bloody-Fox]

Even the other guy on this forum (bloody-fox) who is German national and incidently works at the same company I do, still has had trouble with getting a work permit for his brazillian wife. So that's that.

Any news from your side?

We will be leaving Spain/GIB in 3 weeks and they can stick their definitions wherever they want to...

[br74649]

Hi,

I just thought i would update this thread as it could save some very sleepless nights, trust me.....

There has been recent changes in case law from the ECJ, I am no lawyer but have almost exactly the same circumstances as the writer of this thread years ago and i found it via google after we had already applied for out family eea permit.

I live in spain and am a british national and work in gibraltar and have done so for <>9 years, I got married 6 months ago to a moldovian national, got residence for her in spain, if working in gibraltar you need to have residence certificate for yourself in spain and your wife, to get this you need to go to the police station and fill out forms (as usual) and provide a contract of employment, marriage certificate, an S1 (certificate of sickness insurance you get this from an office near water gardens in GIB), a Padron from the town hall, you can then register for healthcare in spain too. This will give permission to reside in spain for 5 years for your spouse and yourself. it takes a while for the non eea but you can get yours one the same day. You need to do all this because you need to prove you are self sufficient, i.e have enough income of funds and have proof of comprehensive sickness insurance. This is easy but does take time, on application for the eea permit we hadnt recieved the spanish residence card as once youve been through all the red tape you have to wait a further 45 days for the card to collect from the police station.

we applied for an eea permit for the uk, i filled out the form online and had to travel to madrid to do the biometrics etc) and provided the following:-

letter from employer in gibraltar
copy of my yellow etb certificate from my employer
the padron for both of us (not tranlsated)
the S1 certificates for both of us
marriage certificate with hague appostile on it
6 months payslips
6 months bank statements
we didnt have our residence card yet as mentioned, but we did have a letter from spanish immigration giving permission to reside here, also we had a stamped certificate from the police showing we had been back to the police station and applied for the card, we didnt realise what this said as it was all in spanish but it basically says you are hereby authorized to live as a family member of an eea national etc, I had this officially translated and presented both documents.
A covering letter from me saying i had lived out here for a long time, that i returned to the uk often for up to a month at a time, but couldn't now because i was married and i couldn't leave my wife in Spain on her own, and that this would interfere with my freedom of movement and that i had taken all steps necessary to become a legal resident in spain for both of us, and explaining we were waiting for her card and should have it by the time we were travelling but should it not arrive in time you can get a certificate of re entry to spain in 3 days from the police station and we would get it but couldnt now because they require flight tickets to issue it.

In the letter i didnt quote laws and regulations as i am not a lawyer and i thought that if i were to start with all that, it might offend the ECO, i believe sometimes its better to let them deal with that and get a lawyer on it if needed later to quote the law.

we also paid for the priority visa and courier service, just so we got to the front of the queue even though eea permits are supposed to be priority anyway, dont know if that helped but it worked for us.

I spoke to four separate immigration advisors in the uk, the first one said it was fine for an eea permit, the second no, the third told me i had jepordised my future applications and should have applied for a visitor visa, and the 4th (who was a level 3 oisc) told me that there is new case law and it should be fine as i am "self sufficient" but if not she would provide a letter for the border agency in the ferry port explaining how i met the regulations for surinder singh / freedom of movement.

I had convinced myself we would not get the permit and had started plans to do the singh route via the ferry ports, it caused a lot of anxiety.

A case 456/12 came from the ECJ with the following

1. A residence period of three months is required (para 54)

2. Weekend visits and holidays do not count as residence for this purpose (para 59)

3. Any citizen of the Union can potentially benefit from this right, not just workers and the self employed (references to Article 7 of Citizens Directive 2004/38 , e.g. para 56, and to Article 21 of the TFEU, e.g. para 54)

4. During the period of residence family life must have been “created or strengthened” (para 51)

5. Abuse is impermissible (para 58)


none of the home office guidlines have been changed yet, but i am advised this is binding and is law so in appeal i would win it, however we didnt need to .

it took <> 9 days to get the permit and am pleased to say that the passport arrived with the permit in it yesterday.

Im putting up this post because i just want others who might come across it and are in the same situation (there are thousands working in gib and living in spain) and i dont want them to have the same worry as i did

Good Luck!

[rawesp]

Hi , I had the same problem as yourself and mine was refused because of the comprehensive sickness insurance, i obtained it from
http://www.freedomhealthinsurance.co.uk/quote?A=162 and they understood why i needed it etc and gave me a policy that the Home Office would be happy with, i reapplied and was granted my family permit.

[br74649]

Fantastic,

I did read the S1 was a CSI and is what i used successfully in spain and for the uk permits, all you need to do is get a letter from your employer in gib and go to the office near water gardens, its a bit hard to find the office but the S1 is free and to be honest i only put it in the application because it showed i was paying taxes, very lucky i thought of it or i would have been refused too , they issue it on the spot and it took me less than 15 minutes, as long as you are paying national insurance you can get one for you and your wife and any children but need their passports with you.

but its good to see common sense in being able to get back to the uk to see your family without leaving the love of your life stuck in a foreign country on her own.

I am extremely pleased with the result, the permit for us was very easy to get apart from the 1350km round trip to madrid....

[rosebead]

Amazing, I can't believe it. So your wife got her Family Permit on the basis of self-sufficiency in Spain, is that right? I am shocked as the UK has not implemented Case C-456-12 O & B yet and is still insisting on Brits being workers and fulfilling "centre of life" criteria. I am surprised Home Office staff would be so generous because they aren't usually.

[markopolo]

Fantastic,

I did read the S1 was a CSI and is what i used successfully in spain and for the uk permits, all you need to do is get a letter from your employer in gib and go to the office near water gardens, its a bit hard to find the office but the S1 is free and to be honest i only put it in the application because it showed i was paying taxes, very lucky i thought of it or i would have been refused too , they issue it on the spot and it took me less than 15 minutes, as long as you are paying national insurance you can get one for you and your wife and any children but need their passports with you.

but its good to see common sense in being able to get back to the uk to see your family without leaving the love of your life stuck in a foreign country on her own.

I am extremely pleased with the result, the permit for us was very easy to get apart from the 1350km round trip to madrid....

Just to confirm you were able to get the S1 CSI for free for your wife on the basis of your employment in Gib despite that she lives in Spain? I am in the same situation working in Gib, living in Spain with non EEA spouse with Spanish residence. I have a policy with Sanitas for Spain but I don't think I can use it for the CSI requirement for a UK family permit. I was unaware I can get the CSI for free on the basis of my Gib employment. Please confirm, many thanks.