Non EEA partner of dual citizen entering UK without EEA2

[JulietSoul]

Hi,

You may remember me, I am the non-EEA partner of a dual British/Danish citizen, who has been badly affected by the July changes to the 2006 regulations.
Tomorrow my boyfriend and I are getting married and 3 days later arriving to the UK via Calais.
The plan is to stay in the UK and rent an apartment (we have enough money) until he finds a job, either in the UK or in Europe (preferably, as then we could use Singh to come back).
My boyfriend has lived in Denmark for a considerable part of his life and worked here, but not reently, recently he has been living in Israel with me.
My quetion is this - we will be arriving to the UK via Calais. Should I even attempt to show his Danish passport and the marriage certificate, print out directives as per this link (http://eumovement.wordpress.com/2010/08 ... to-travel/) and bring proof that he has worked in Denmark in the past, or is that completely silly as he is still British and has no chance of working and receiving the Code 1A stamp?
If that fails, could they refuse to admit me as a tourist? I am not a visa national, I have usually just been given a 6 month tourist visa while entering, so I have no issue with having had to apply for that visa.
I know in the past I was told it was silly to try, but thought I would ask and give it a try anyhow.
If it fails we were hoping to try and appeal from the UK but not sure how easy it would be. I guess we would just evaluate the situation and if he can't find a job in Europe, he would consider giving up his UK citizenship.
Would appreciate any feedback.
Thanks!

[Lucapooka]

You may remember me,

No, and if you have posted previously with relevant details of your situation, it's always better to continue in that thread. That way people can see your situation and won't post information that has already been imparted.

[Jambo]

What are your intentions in the UK? If you plan to settle, then you won't be admitted as a tourist on your Israeli passport. If you do want to be admitted as a tourist, you should have evidence to prove you are planning to leave. Entering together with your partner might indicate this is not just a visit. Have you got a flight booked out of the UK (or Europe)? If they ask you for your travel plans in the UK, would you be able to explain your trip plans?

If your husband tries to enter on his Danish passport, they might spot he is also has a British one. They might not. I don't know how good are the HO databases. Has he held a UK passort until recently? Does he has a British accent?

Even if you manage to enter on Code 1A, then you will face problems later on when applying for a Residence Card.

[Obie]

I believe you husband falls outside the scope of McCarthy and the UK changes. He has worked in Denmark. You should be fine. The only problem is you are not spouse but boyfriend and girlfriend, which sort of make things complicated, as you are subject to an examination.

[JulietSoul]

I believe you husband falls outside the scope of McCarthy and the UK changes. He has worked in Denmark. You should be fine. The only problem is you are not spouse but boyfriend and girlfriend, which sort of make things complicated, as you are subject to an examination.

'

Well we are getting married tomorrow!
But now I am very conflicted given Jambo's and yours conflicting suggestions.
I don't have a plane ticket to leave the UK but am planning a visit to Israel in the summer to have an informal wedding there.
Not really sure what to do now. My fiance has a British passport and a British accent too.
I could say, even when trying to get the 1A stamp, that I am anyway not planning to stay long. I have a diplomatic note from the Israeli Foreign Office, inteneded for the US consulate in London, stating I am going to intern at the Israeli permanent mission to the UN between 15.1 and 15.7. However that plan has been cancelled (to get the visa then buy plane tickets to NY for a few months) so I don't know if I feel comfortable using the diplomatic note.

I appreciate your advice!

[JulietSoul]

You may remember me,

No, and if you have posted previously with relevant details of your situation, it's always better to continue in that thread. That way people can see your situation and won't post information that has already been imparted.

Hi, I found the link to my previous post, here it is :
http://www.immigrationboards.com/viewto ... 1fc7c962af

[Jambo]

But now I am very conflicted given Jambo's and yours conflicting suggestions.

I don't think we gave conflicting suggestions.

I advised you:

* Not to enter as a tourist if you are not one.
* Not to enter as a spouse of a Danish citizen.

I believe Obie advised you to enter as a spouse of a British citizen (using the Surinder Singh route). This is a similar advice that was given to you previously.

Surinder Singh route is for returning British citizens who are returning after working in another EEA state. The problems with using this route in your case are:
1. Several years have past since your partner worked in Denmark.
2. You were not living together in Denmark during this time.

Most chances are that your application will get refused and you will need to challenge the decision in court. You might have difficulties convincing the IO in Calais to allow entry based on evidence a few years back (have you been able to obtain proof of your partner work in Denmark?).

[Obie]

Well, i am not sure time spent in Israel will break continuity of residence.

However i have to err on the side of caution, given the fact i don't know the exact reason for his move to Israel, and the length of time he spent there. In order to do give advice that i will later on regret.

I will not disrespect anyone who holds contrary view though.

The situation of the OP, in my view, cannot be assimilated to that of McCarthy.

Mrs McCarthy had never lived in Ireland. She had been on benefit throughout her working years, had never worked, and was seeking to benefit from community law.

Essentially, she was seeking to abuse community law. In the case of OP, this was not the case. It cannot be held against her fiance, in my view, that he simply went to Denmark to Circumvent community law.

He lived there for a long period, by her account.

Also see OB (EEA Regulations 2006 - Article 9(2) - Surinder Singh spouse) Morocco [2010] UKUT 420 (IAC)

[JulietSoul]

Well, i am not sure time spent in Israel will break continuity of residence.

However i have to err on the side of caution, given the fact i don't know the exact reason for his move to Israel, and the length of time he spent there. In order to do give advice that i will later on regret.

I will not disrespect anyone who holds contrary view though.

The situation of the OP, in my view, cannot be assimilated to that of McCarthy.

Mrs McCarthy had never lived in Ireland. She had been on benefit throughout her working years, had never worked, and was seeking to benefit from community law.

Essentially, she was seeking to abuse community law. In the case of OP, this was not the case. It cannot be held against her fiance, in my view, that he simply went to Denmark to Circumvent community law.

He lived there for a long period, by her account.

Also see OB (EEA Regulations 2006 - Article 9(2) - Surinder Singh spouse) Morocco [2010] UKUT 420 (IAC)

My fiance (soon to be husband) has resided in Israel for over 3 years because of our relationship and was given a work permit in Israel after we proved our relationship to the ministry of interior. However it was a tourist visa (with work permit), not a residence visa.
However, he continued to be self employed in the UK, doing various online jobs from Israel, and paying NI and tax. So not sure what that means for his residency.
Before that he was resident in the UK for about 2 years (studying and working) and before that, five years in Scotland studying in Aberdeen.
Only before that he lived and worked in Denmark and has indeed got proof of that, but that work was in 2003.
If you think it is better to enter as a tourist I could buy a ticket to Israel prior to travel or to somewhere else in Europe and visit someone, it is no issue.
But I am assuming I can only apply for the EEA2 from Israel. Trouble is we have no idea if we qualify and fall under McCarthy or not because the UKBA wouldn't talk to us, referring us to the UK consulate in Israel, and they wouldnt speak on the phone or allow a meeting, and answered our e-mails with completely standard unrelated answers that didn't answer anything.
Feeling really trapped at the moment!

[Obie]

In my view, your partner does not fall under Mccarthy.

Provided he can get evidence of his past activity in Denmark, can show you married there and lived there as man and wife prior to entry to the UK, i believe you have an arguable case, that you fall within the Singh principle.

[JulietSoul]

Well I have some good news!

A few days ago I entered the UK through Calais with my husband and I was allowed in on a Code 1A stamp!

Here's the story:
We drove up in a car with my partner's brother and handed over our passports and marriage certificate. The lady atnthe window said I should have applied for a family permit but of course I insisted we had a right for free movement. She said we would have to go to the immigration office.
We went to the part where people who arrive by bus sit at and were told to sit and wait. After a short while two men (turned out one was training the other) showed up and asked me to fill in a landing card while they quizzed us.
The mot surprising part was that they asked us whether we could prove our relationship. When I stated that we have a marriage certificate the guy said 'so what? anyone can get married!'. I was a bit confused then. Until that point we had presented only my partner's Danish passport but his brother (with the same last name) ha only a British passport so I saw no point in hiding the British one, so I said he had several visas in his British passport for Israel, given because of our relationship. They persisted with many questions about where we have been and how we met etc, and said that we should have applied for a family permit (that we could have even done that in Denmark apparently, though I am Israeli) and because we didn't we would probably have to wait for an hour.
We replied that that is fine and that we purposefully came there a long time before our ferry.
After about 20 minutes they came back and said I would be issued the Code1A stamp, because my husband is Danish, and that when travelling together he should travel on his Danish passport.
I had prepared proof (in Danish) that he had worked in Denmark almost 10 years ago and printed off a bunch of official immigration rulings etc but none were necessary!

Needless to say we are very pleased. I have already managed to register at a GP's office where my husband's father belongs. They did not even ask to see my passport or any ID or visa! Strange.
We think we will wait before applying for RC because my husband may find work in Europe rather than in the UK.
If we did apply, would it hurt our chances that he has been self employed in the UK for the last few years? Would it be better to apply as a job seeker, or would that then require private health insurance?
I am not planning to travel out of the country unnecessarily because I know that I may not be admitted again with that stamp.
I'm still not sure why I was admitted - perhaps they decided my husband did not fall under McCarthy, but it was definitely not under Surinder Singh.
Thanks again for everyone's advice, it is much appreciated!

[smalldog]

I would question whether Surinder Singh applies here. The EEA national is a citizen of Denmark so hasn't exercised treaty rights by working there.

The McCarthy judgment may or may not be applicable to this case but the UK Government decided to implement it in quite a restrictive way that clearly excludes the OP from being able to make use of EEA free movement. I think the immigration officer erred in giving the 1A stamp and I would expect an application for a residence card to fail as the husband's British nationality will have to be declared.

[Obie]

There is an element of cross border movement between two countries. The OPs husband resided and worked in Denmark. McCarthy is therefore not applicable.

Paragraph 43 of McCarthy clearly indicates this.

[smalldog]

Obie I think I agree with you, but any UKBA caseworker has to decide an application based on the UK's regulations, not their personal interpretation of ECJ case law. The UK regulations were modified after the McCarthy judgment to exclude all dual British nationals irrespective of where they have lived.

[Obie]

I agree that the EEA regulation is very problematic in regards to McCarthy.

However the European Communities Act 1972 oblidge the UK to act in accordance with directly enforceable community instruments.

In cases such as this, were the EEA regulation is in some respect contrary to the CJEU judgement, the courts are under obligation to ignore the EEA regulation, and apply community law to the appealant in accordance with the wording of mccarthy.

[smalldog]

Obie again I agree with you, but it would take years to go through the courts. The OP seems to be expecting to be able to get a residence card by the summer and I don't see how that can happen.

[Obie]

Lets try and be optimistic. pessimism is not very good for the heart.

I must point out, that regulation 9 does not preclude the british citizen from having another nationality, for it to be applicable. Therefore in all the circumstance, OP will be fine.

If application is made now, and matter went to Tribunal, i believe there is a possibility OP may be alright by Summer or at the worst, by the end of it.

This is not a matter that can run throught the system for years.

A reference is not necessary. I will be surprised if a Judge thinks otherwise.

[JulietSoul]

Hi everyone,

Just wanted some additional advice, if possible.
Have been in the UK for almost 3 months now, and have not applied for an RC yet as my husband is looking for work not only in the UK but in Europe as well, so it seemed silly to apply if we end up moving.
He has not been very lucky with the job search, meanwhile he is self employed with some online work, but would like to find a full time position.
Now we have the dilemma of whether to keep waiting and risk my code 1A stamp slowly 'running out of time' or applying, since most of the jobs he is applying for are in the UK.
If we do decide to apply, should we state that we are applying through the Singh route (even though it doesn't seem to apply exactly) or acknowledge the possible issue of the McCarthy judgement in our application, stating as Obie has why we think it does not apply?
I would not want to make an application that ignores the fact completely, since I imagine the UKBA would not fail to notice his British citizenship and would reject it.
What do you think?
I really appreciate this advice, once again!

P.S. Have managed to get an NHS number and a NIN so that is very good.