EEA family permit for my non-EEA, non-visa national husband

[emvannini]

Hello! I apologize if this question has been answered in the past, but I'm still unclear on a few things regarding family permits/residence permits.

My situation is the following:
- I'm an Italian citizen married to a non-EEA national
- My husband is a non-visa national
- My husband and I have lived legally in Spain (exercising treaty rights) for the last 2 years
- I'm starting a new job in London on May 1st

I understand from what I've read in this forum that my husband has to apply for a family permit here in Spain. However, I also understand that even if he were to enter the UK as a tourist once I am excercising treaty rights, he could still apply for a residence permit, since the family permit is not a requirement of the EEA2 application. I also understand that under EU directives, the spouse of an EU citizen traveling within the EU accompanied by the EU citizen cannot be refused entry into a member state.

That brings up two questions:
1) If my husband were to travel to the UK with me, could he be denied entry to the UK on the grounds of not having a famiy permit? How would the immigration officer ascertain that we are in fact moving to the UK rather than just vacationing there if they are not allowed to question me OR - from what I understand from EU directives - my husband?

2) Am I correct in interpreting that the family permit is not a requisit of the EEA2 application?

Just to clarify - we live in Barcelona and family permits are ONLY issued in Madrid. You can't apply by mail - if we were to apply for one, we would have to travel to Madrid to get it. We don't want to make the expense if it is unnecessary.

Thank you in advance for any advice you can give me. Kind regards,

Eva

[Directive/2004/38/EC]

How long have you been married?

The UK's "EEA family permit" is a slightly odd beast. Because they can not require a visa in this case, they call it a family permit. Sadly they require you to apply in person in many countries. And they seem to require it of all family members, not just of visa nationals. In China they even charge a required "processing fee" for issuing the family permit, but that is another story.

Directive 2004/38/EC requires that when you arrive at an EU country without the required documentation, the government must allow you to get the documentation or prove by other means that you are elegible for admission before they turn you back. What this means in practice is not clear and it will likely take a few extra hours at the arrival airport (so bring food and water!).

The advantage of having a "family permit", is that it is clear documentation of the right to work and travel into and out of the UK.

[emvannini]

Thanks for your reply!

We've been married for over three years, and we've lived in Spain together for 2 years. My husband has a Spanish "European Community Regime" residence card issued for 5 years, and if you flip it over on the back it says that he is a resident of Spain under European law, based on being the husband of so and so (me), who is an EEA national. He's also got the equivalent of an Italian family permit in his passport stating he is a member of the family of an Italian citizen. It's expired, but it's there. That - thankfully - will probably make it quite easy for us to prove he's my actual legitimate husband, both for the family permit and for being admitted to the UK, but I'm just reluctant to spend unnecessary money on a plane ticket to Madrid and possibly a hotel!

[Docterror]

Emvannini, you might be interested in this story if you are to attempt entry without the EEA family permit. Best of luck if you are going to attempt it and do keep us posted.

[Directive/2004/38/EC]

Well, you and your wife are in an interesting place.

Congratulations to both of you on being married so long! The previously issued residence documents are also helpful.

First off, I think it is worth reading Directive 2004/38/EC.
http://eumovement.wordpress.com/directive-200438ec/

I would also read carefully the UK implementing legislation
http://eumovement.wordpress.com/info-united-kingdom/
specifically PART 2 -- EEA RIGHTS
Right of admission to the United Kingdom
(this is on page 9 of The Immigration (European Economic Area) Regulations 2006)

My reading of page 9 is that they can not refuse her entry as long as you can prove that you are married and entitled to enter. That does not mean that they have to be quick or nice – I would assume you have to spend the whole day there, and make sure you arrive on an early flight.

Questions:
Can you afford (in time and money), the worst case that your wife is denied entry and flown back to Madrid to apply for the EEA family permit?
Does she need to start work the next day too?
Does she need to be able to fly into an out of the UK on her own while you apply for a Residence Card?

I am not sure if the family permit is a requirement for a UK Residence Card. Good question!

[emvannini]

Thanks, Docterror for your input. My case is slightly different than the case of the Colombian and Russian spouses - my husband is a non-visa national. He was allowed to enter the UK visa free long before he married me, and he's been admitied to the UK several times traveling without me, so that's not an issue. Since we've been married, we've been to the UK together several times as tourists and they haven't given us so much as a second look. As a matter of fact, they haven't even asked us what the purpose of our visit was so it may well have been that we were coming to stay permanently (it wasn't).

Directive - My husband doesn't have to start work right away (I start May 1st), but you're right - it would be much more expensive to have him fly back to Madrid and then back to the UK just bc of our being cheap! I think we're going to go for the family permit route, but not until we get back from out flat-hunting trip to London this weekend. I'll keep you all posted.

[Docterror]

Oops, my mistake. Even though I read that he was a non-visa national, somewhere along the line my brain forgot and interpretted him as visa-national.

It would still be interesting to find out whether the HO will issue Residence Cards to non-EEA family members even without the EEA family permit and what reason under the Directive would be provided even if they were to reject such an application. Since you are going for the family permit anyway, its a bit disappointing for us that you are not going to be the one who gets to find out about it for us. Bad for us if we were to consider you a lab-rat but good for you as it is safer.

[emvannini]

Docterror - if it's any help, when my husband and I first moved to Spain from his country, we did it the "risky" way - even though they told us at the Embassy he needed a family visa, he came into Spain without one and applied for his residency directly. He got it no problem 3 weeks later, no questions asked - but then again, I think surprisingly Spain has been pretty good about respecting EU directives, so you should probably take my story with a grain of salt.

Best wishes to you all!

[Docterror]

Thanks for the info, but non-visa nationals married to spanish nationals can anyway apply for the residency without the "visados de reargupacion" after just turning up over in Spain. So, I guess its almost normal that they would also let them do the same with any other EEA national as well, irrespective of what they were to inform from the embassy.

UK does no such favours to British nationals and so until someone tries and succeeds the "risky" way, I would not be too sure what to expect. Are you sure there is no way I can persuade you to be generous enough to become the guinea pig?