URGENT: Refused 1A stamp & denied entry as visitor

[bobbert]

Today my civil partner (non-visa national) and I tried going to England from France by ferry and applying for an 1A stamp for her. I am British. We were using the Surinder Singh route based on having worked in France for 4 years, up to 2010, living together there and having a PACS in France from 2009.

Since leaving France we have lived in S. America and travelled around a lot. We have never returned to the UK for more than a few weeks, visiting.

She was refused the 1A stamp, reason given that we were not living in the other EEA state immediately before returning to the UK (wrong I believe). And because before returning to the UK in December we had been in another EEA state for a month, without working (irrelevant I believe).

Then they told us that they were denying my partner entry as a visitor because by applying for the 1A stamp she had stated intent to settle in the UK.... so here we are holed up in a hotel in Calais assessing options....

[EUsmileWEallsmile]

The UK has imposed a new test on British citizens who had exercised treaty rights abroad. Are you aware of this? We have a sticky on this subject above.

Having worked in France for a substantial period, not withstanding the legality or otherwise of the new rules, it would appear difficult to argue that you did not move to and reside in another EU state of which you are not a national. (Sorry for the technical jargon, but it's important). Periods of up to six months (twelve for specified important reasons) would not impact on your continuity of residence. Therefore, holidays outside of France whether outside Europe or within would not count against your period of residence. Periods greater than that might.

Did you get a written refusal? Where you given permission to appeal?

Do you intend to return to the UK on a more permanent basis or otherwise?

[bobbert]

Yes we got written refusal and permission to appeal.

Main reason for returning is because my Dad will be having a bypass soon and I want to be around. Probably wont stay more than 6 months. Obviously better if we can both work while there.

They told us that there's nothing stopping her trying to enter again as visitor but I don't know if it's worth it if we end up sitting around in the terminal for 7 hours again...

[EUsmileWEallsmile]

Another angle to pursue might be that you've already benefited from a code 1 and so should not be subject to the new rules. When last did you enter the UK?

I can understand why you want to be home until your Dad gets better.

[Jambo]

Read this post about the gap.

You can argue Code 1A can also be used for visiting, not just settlement as it doesn't indicate intention to settle.

Ask to speak to the Chief Officer. Ask them to call HO in Liverpool (EU policy team) for guidance.

[bobbert]

Yeah, we did talk to the chief officer. The thing was her decision, she was telling me that the right to qualify for SS "expires", that it doesn't matter that it was 3 years ago we were in France. Could try again tomorrow and ask them to call HO, but I'd rather not have to waste any more time on them. And wont they just tell me to appeal anyway?

[bobbert]

By the way, in the case in the link above, Morocco [2010] UKUT 420 (IAC), included in the decision was that

" We assume that there has to be some link between the exercise of the Treaty rights in the Republic of Ireland and the return of the spouse to the United Kingdom" but it wasn't broken in that case (13 months)

I have heard from some immigration professionals (from a top firm) that they believe in our case the SS route would be closed as the gap is too long. I don't know what the limit is...

[Directive/2004/38/EC]

my civil partner (non-visa national)

Exactly what is the legal relationship? Do you have a formal government issued "civil partnership" and if so from where?

Did your partner have a Residence Card while you were working in France?

I have heard from some immigration professionals (from a top firm) that they believe in our case the SS route would be closed as the gap is too long. I don't know what the limit is...

I do not see any reason that SS route would be closed because of a prolonged period between when you were exercising your treaty rights by working and then wish to return to the UK.

Imagine you moved to Germany and worked there for a year, with the expectation that you could return to the UK afterwards. At that point you both can return to the UK. But you get a great job offer in Shanghai and so move there and remain happily for 20 years. There is no particular legal justification for gradually eroding your right to return to the UK just because (for example) you are living outside of the UK for those 20 years.

Finally it would be useful to understand the exact words used for the refusual.

[bobbert]

Hi,

We have a French civil partnership - PACS.

Yes my partner had a residence card. Not as a family member, but student. But we can prove we lived together which is all that is needed. Utility bills with both names, payslips with same adress etc.

We managed to get back to the UK today. Went back to the same ukba post at Calais. Said she wanted to enter as visitor, showed them the refusal from yesterday (refusal was under european law, not uk entrance visa), they eventually gave her limited leave to remain.

Some more background info, before going into details of the letter:

I lived and worked in France 2006-2010, lived with partner for 2 of those years
2010 we moved to Chile, lived there until mid 2012
mid 2012 - mid 2013 we travelled all over Asia
june-sep 2013 I worked in Paris (proven), we lived together (not provable)
Sep2013- Nov 2013 we were in Mexico
Nov-Dec 2013 we were in Malta for 5 weeks. I went to Montenegro for some contract work during that time (proven).
Came to the UK december 23rd. Made a trip to France this weekend. Applied for 1A stamp on way back....

So now the important part of the letter:

You have sought admission to the UK under EC law in accordance with regulation 11 of the immigration (EEA) regulations 2006 on the grounds that you are a family member of___ME____
To qualify, you must meet the following criteria: the British citizen must be residing in an EEA member state as a worker or self employed person, or have been doing so before returning to the UK, and the family member of the british citizen must have been living together with the british citizen in the relevant EEA country before the british citizen returned to the UK. you have no right of residence in the EEA country, only having arrived in Malta on 20 November 2013. Furthermore, your common law spouse has no recent evidence of employment in an EEA member state. You have stated, and provided evidence of, that you lived in France with your common law spouse but this ended in 2010. I am statisfied that____ME_____ is not a qualified person under Surinder Singh case law and that you do not therefore have a right to be admitted under regulation 11.

[euroguys]

Hi,




You have sought admission to the UK under EC law in accordance with regulation 11 of the immigration (EEA) regulations 2006 on the grounds that you are a family member of___ME____
To qualify, you must meet the following criteria: the British citizen must be residing in an EEA member state as a worker or self employed person, or have been doing so before returning to the UK, and the family member of the british citizen must have been living together with the british citizen in the relevant EEA country before the british citizen returned to the UK. you have no right of residence in the EEA country, only having arrived in Malta on 20 November 2013. Furthermore, your common law spouse has no recent evidence of employment in an EEA member state. You have stated, and provided evidence of, that you lived in France with your common law spouse but this ended in 2010. I am statisfied that____ME_____ is not a qualified person under Surinder Singh case law and that you do not therefore have a right to be admitted under regulation 11.

The key is interpretation of the words "have " & "before" there is no way that those words "need" to be exclusionary but clearly UKBA are seeking to place a very narrow and immediate interpretation but if that were the case clearly one might be discouraged from the exersize of ones treaty rights not something the directives in any way wish to limit the citizen in my view and a simple challenge on appeal since you clearly "have " resided in another EU state as a worker and were doing so "before" you returned to the UK even UKBA dont say in there refusal "immediately before" neither am I aware of any guidance or limit so were they say "recent " the question is under which Directive do they find this conclusion

[bobbert]

concerning this case...
http://www.bailii.org/uk/cases/UKUT/IAC ... rocco.html

...it was determined that right of entry cannot be restrictively interpreted...

"10. Although neither Surinder Singh nor Eind addresses the period of time (if any) between employment in the host state and the return to the state of origin of the EEA national, the case law does establish the principle that the right of entry afforded to the non-national spouse cannot be restrictively interpreted and Community law must be interpreted sufficiently broadly to promote the objective of ensuring protection for the family life of nationals of the Member States. In our judgment similar principles must apply to the interpretation of a national law measure designed to implement Community law rights (see Case C-106/09 Marleasing [1990] ECR 1-4135)."

[bobbert]

Can anyone advise on implications of applying for RC with EEA2 while on limited leave to remain? What if the leave expires while waiting for the RC, or while waiting for the CoA? Could she end up overstaying?

[EUsmileWEallsmile]

Can anyone advise on implications of applying for RC with EEA2 while on limited leave to remain? What if the leave expires while waiting for the RC, or while waiting for the CoA? Could she end up overstaying?

For a non contentious case (let's say French citizen living in the UK legally with non-EU spouse), the non-EU would be considered to be living legally - even if they entered under the immigration rules. Applying for UK documentation is voluntary and merely confirms rights (does not grant them).

In your case, there is doubt as to whether you would qualify under the EU route, so this might not work out for you.

[Directive/2004/38/EC]

We have a French civil partnership - PACS.

Yes my partner had a residence card. Not as a family member, but student. But we can prove we lived together which is all that is needed. Utility bills with both names, payslips with same adress etc.

We managed to get back to the UK today. Went back to the same ukba post at Calais. Said she wanted to enter as visitor, showed them the refusal from yesterday (refusal was under european law, not uk entrance visa), they eventually gave her limited leave to remain.

With a formal civil partnership, you are effectively married from a UK perspective. See http://eumovement.wordpress.com/2011/09 ... -marriage/ on Uk recognition of civil partnerships.
So she is a full direct family member.

She entered the UK on the basis of MRAX. Read through http://eumovement.wordpress.com/2010/08 ... to-travel/

I would write the third paragraph differently: You were initially unlawfully refused entry into the UK, and somebody partly corrected their mistake. Note that she does not require "leave to enter" the UK, and it is not limited. She can legally remain in the UK and work, so long as you are there too. She could (in theory) start work tomorrow.

[Directive/2004/38/EC]

Can anyone advise on implications of applying for RC with EEA2 while on limited leave to remain? What if the leave expires while waiting for the RC, or while waiting for the CoA? Could she end up overstaying?

For a non contentious case (let's say French citizen living in the UK legally with non-EU spouse), the non-EU would be considered to be living legally - even if they entered under the immigration rules. Applying for UK documentation is voluntary and merely confirms rights (does not grant them).

In your case, there is doubt as to whether you would qualify under the EU route, so this might not work out for you.

What doubt do you have?

[bobbert]

She entered the UK on the basis of MRAX. Read through http://eumovement.wordpress.com/2010/08 ... to-travel/

I would write the third paragraph differently: You were initially unlawfully refused entry into the UK, and somebody partly corrected their mistake. Note that she does not require "leave to enter" the UK, and it is not limited. She can legally remain in the UK and work, so long as you are there too. She could (in theory) start work tomorrow.

Thanks. I've read the MRAX info (quickly) and to be honest I'm not sure I understood exactly how it applies, I'll have to read it again tomorrow in more depth (unless someone could summarise it for me ). But I gather that it means that she can apply for RC via EEA2 even if her leave to remain expires (if she was in such a position that her leave would really expire). Is that right? and in any case, she is probably here perfectly legally anyway under SS case law so it doesn't matter that her leave to remain "expires"...

I have little doubt that she qualifies under the SS case law. the doubt I have is whether the home office will accept that she qualifies under SS case law without going though courts and a lot of hassle etc.. However, if I have understood the general meaning of the MRAX case law (and I know I might not have, I read it very quickly) then even if they don't accept that she qualifies then it doesn't matter if she stays and applies for a RC? (they wont know they don't accept her qualification until they process her application...)

But if she did apply and somehow got rejected could she still be marked as having overstayed and that could only be resolved by going through courts etc. to prove that she was here legally under SS or MRAX?

going back to the refusal letter... the principle reason they give for refusing is that we have to have been living in the other EEA state immediately before returning. Even if they don't mention "immediately before" that is expressed by their statement that we don't qualify as the last EEA country we were in was Malta. As I understand, this is wrong as it has already been established in case law that gaps are permitted and laws cannot be interpreted restrictively.
Their mention of the fact that we lived in France in 2010 isn't clearly saying that that was too long ago, as I see it it can mean that it doesn't count because 2010 was not "immediately before". It does not say that it was "too long ago". The only thing that seems to be making the argument that we were in France "too long ago" is the sentence saying that I do not have any proof of recent employment in another EEA state. But this seems somewhat ambiguous/irrelevant and unrelated to the rest.
Am I being too subjective?
I submitted proof that I worked in France from June 2013 to August 2013. I submitted it even though we have no proof of living together in France during that period so it was irrelevant for the SS route, but as we have been moving about all over the place we showed them everything we could to prove that we had really been where we said. In my book June-August 2013 is recent. If they had said we had not submitted evidence that we have lived together recently in an EEA state ok, but as it is it's is untruthful (depending on your definition of recent).
Anyway, I doubt we will appeal against that refusal, I think I'm just going through this looking for reassurance that the refusal was wrong and so she is legally in the UK with me as long as she wants and can apply for RC....

The only reason she might not qualify is if the gap between leaving France after working&living there and coming to the UK is indeed "too long", and even though it appears to have been determined in case law that there should be a maximum gap, as far as I know it has never been established how long this maximum gap is....In the letter we were not told that our time in an EEA state was too long ago, we were told that we had to be working/living in an EEA state immediately before, and that is incorrect. So we can't know that there is a maximum gap and how long that is until someone tells us - e.g. apply for RC and get refused....
Please tell me if it seems I am interpreting the letter the way I want to.....

I left France in summer 2010. In summer 2013 I returned to work on a project in the same place. I was working with many of the same colleagues, it was like I hadn't been anywhere. 3 years is not a long time.

[dalebutt]

I have copied the most important bit of the judgement below, it may assist with comprehension thereon.

Paragraph 62 of the judgement ; The answer to the first question referred for a preliminary ruling must therefore be that, on a proper construction of Article 3 of Directive 68/360, Article 3 of Directive 73/148 and Regulation No 2317/95, read in the light of the principle of proportionality, a Member State may not send back at the border a third country national who is married to a national of a Member State and attempts to enter its territory without being in possession of a valid identity card or passport or, if necessary, a visa, where he is able to prove his identity and the conjugal ties and there is no evidence to establish that he represents a risk to the requirements of public policy, public security or public health within the meaning of Article 10 of Directive 68/360 and Article 8 of Directive 73/148.

Paragraph 80; The answer to the second question referred for a preliminary ruling must therefore be that, on a proper construction of Article 4 of Directive 68/360 and Article 6 of Directive 73/148, a Member State is not permitted to refuse issue of a residence permit and to issue an expulsion order against a third country national who is able to furnish proof of his identity and of his marriage to a national of a Member State on the sole ground that he has entered the territory of the Member State concerned unlawfully.

Paragraph 86 continued to 91; Where a third country national remains in the territory of a Member State after his visa has expired, he infringes the legislation of that Member State concerning residence of aliens.

(91) The answer to the third question referred for a preliminary ruling must therefore be that, on a proper construction of Articles 3 and 4(3) of Directive 68/360, Articles 3 and 6 of Directive 73/148 and Article 3(3) of Directive 64/221, a Member State may neither refuse to issue a residence permit to a third country national who is married to a national of a Member State and entered the territory of that Member State lawfully, nor issue an order expelling him from the territory, on the sole ground that his visa expired before he applied for a residence permit.

Paragraph 104; The answer to the fourth question referred for a preliminary ruling must therefore be that, on a proper construction of Articles 1(2) and 9(2) of Directive 64/221, a foreign national married to a national of a Member State has the right to refer to the competent authority envisaged in Article 9(1) of that directive a decision refusing to issue a first residence permit or ordering his expulsion before the issue of the permit, including where he is not in possession of an identity document or where, requiring a visa, he has entered the territory of a Member State without one or has remained there after its expiry.

[Directive/2004/38/EC]

Just to make fully clear:

(1) MRAX should guarantee entry to the UK (or any other EU member state) should there ever be an issue, even if you do not have the "right visa"

(2) MRAX also says that even though you do not have the right visa, you can still apply for a RC

(3) Finally the case http://www.bailii.org/uk/cases/UKUT/IAC ... rocco.html says that it does not matter when you lived+worked in France. That work means that your SS right to enter the UK on the basis of EU law remains. (This is why the border guard was wrong to initially refuse you entry).

Note that it does not matter that you originally told them you wanted to stay in UK forever and later said you wanted to visit. It makes no difference. Either way you can both stay.

You can both now go and find a job and stay warm!

[bobbert]

It certainly does seem that it's fine for her to stay. However, I am trying to think of what could possibly go wrong as I've learnt that even if you're right sometimes it doesn't matter...

Lets say she stays and applies for RC. Wouldn't there be 2 simultaneous processes going on:

A) limited leave to remain under UK law, expires in 2 weeks, she can overstay that by 90 days without getting a 1 year ban.

B) application for RC under european law. CoA (and passport) back in 6 weeks, decision in 6 months.

Now lets say she gets the CoA and it even gives her permission to work and then she has to travel after 90 days have passed since the limited leave to remain expires.

I'm concerned that if she then wanted to come back, the CoA would not automatically give her the right to enter and because of the expired leave to remain they would not let her in or apply for a visa until a year has passed.

Does MRAX make all of this irrelevant?
Can you confirm - is MRAX for everybody, not limited to couples who qualify under Surinder Singh?

Thanks.

[dalebutt]

Mrax judgement is for all European citizens exercising their rights, you just need to forget about the UK immigration rules, relying on it will give you almost nothing to desire, you might want to forget about travelling until decision has been issued on her application given the nature of your case, albeit in my view I do not think they were right to have refused admission on the basis of SS, if your partner leaves the United Kingdom before the case is finalised, from my view this will put you in a very bad situation if you seek admission at the border again, if this case has not been decided by the court, and or being issued with a RC, the border guard will, as previously done form the view that the decision to refuse to admit under SS was correct, and given that she then went on to apply for a RC after being previously admitted on a TA, they would be inclined to refuse admission altogether, and considering it is within 3 months after the first TA she may not have a right to do an in country appeal see below.

2.6 Regulation 27 - out of country appeals.

Regulation 27 deals with the out of country right of appeal for EEA nationals.

It states: 27(1) Subject to paragraphs 2 and 3, a person may not appeal under Regulation 26 whilst he is in the United Kingdom against an EEA decision - to refuse to admit him to the United Kingdom to refuse to revoke a deportation order made against him; to refuse to issue him with an EEA family permit. To remove him from the United Kingdom after he has entered or sought to enter the United Kingdom in breach of a deportation order. (2) Paragraph (1)(a) does not apply where The person held an EEA family permit, a registration certificate, a registration card, a document certifying permanent residence or a permanent residence card on his arrival in the United Kingdom, or can otherwise prove that he is resident in the United Kingdom; The person is deemed not to have been admitted to the United Kingdom under Regulation 22(3) but at the date on which notice of decision to refuse to admit him is given he has been in the United Kingdom for at least three months. [This covers people who have been given Temporary Admission (TA) at Port, but whom we later decide not to admit.

The ECJ case of Yiadam [2001] C-357/98 provided that, where the appellant had been in the UK for several months on TA, we could not rely on the fact that, legally, he had not been admitted to the UK to deny him an in-country right of appeal

[Graham Weifang]

Yes we got written refusal and permission to appeal.

Main reason for returning is because my Dad will be having a bypass soon and I want to be around. Probably wont stay more than 6 months. Obviously better if we can both work while there.

They told us that there's nothing stopping her trying to enter again as visitor but I don't know if it's worth it if we end up sitting around in the terminal for 7 hours again...

.
.
I guess your non-visa national wife was detained, photographed and fingerprinted.
Then after several hours, the French police were called.
They simply took her around to the ticketing office, which is technically "outside the port".

You were both reunited there.

Yes the UKBA, Border Force are wrong, but it is difficult to argue with them there and then on their "home turf"


GW.

[EUsmileWEallsmile]

Can anyone advise on implications of applying for RC with EEA2 while on limited leave to remain? What if the leave expires while waiting for the RC, or while waiting for the CoA? Could she end up overstaying?

For a non contentious case (let's say French citizen living in the UK legally with non-EU spouse), the non-EU would be considered to be living legally - even if they entered under the immigration rules. Applying for UK documentation is voluntary and merely confirms rights (does not grant them).

In your case, there is doubt as to whether you would qualify under the EU route, so this might not work out for you.

What doubt do you have?

OP's partner appears to have entered under the UK immigration rules (or so I've interpreted it that way). If this is the case, they didn't avail of MRAX.

[Directive/2004/38/EC]

It certainly does seem that it's fine for her to stay. However, I am trying to think of what could possibly go wrong as I've learnt that even if you're right sometimes it doesn't matter...

Lets say she stays and applies for RC. Wouldn't there be 2 simultaneous processes going on:

A) limited leave to remain under UK law, expires in 2 weeks, she can overstay that by 90 days without getting a 1 year ban.

B) application for RC under european law. CoA (and passport) back in 6 weeks, decision in 6 months.

Now lets say she gets the CoA and it even gives her permission to work and then she has to travel after 90 days have passed since the limited leave to remain expires.

I'm concerned that if she then wanted to come back, the CoA would not automatically give her the right to enter and because of the expired leave to remain they would not let her in or apply for a visa until a year has passed.

Does MRAX make all of this irrelevant?
Can you confirm - is MRAX for everybody, not limited to couples who qualify under Surinder Singh?

Thanks.

MRAX in fact applies directly to the spouse of EU citizens going to a different EU member state. It also applies (this is you) to Eu citizens returning to their own country because of the Singh ruling: Because you can be considered am EU person because you have worked in another EU member state.

limited leave to remain under UK law, expires in 2 weeks, she can overstay that by 90 days without getting a 1 year ban.

Why do you think you have a limited leave under UK law? You showed all sorts of info about having exercised treaty rights, yes? Very unlikely that they would "voluntarily" admit somebody on the basis of UK law one day when they had previously refused them entry the day before unless they were forced to: namely EU law.

Basically I think your entry was clearly done on the basis of EU law, even if the border guard told you something else.

[bobbert]

I think I'll have to assume that MRAX doesn't apply for us as we were refused entry using SS.

I still think that the limited leave to remain is under UK law.
When we returned the second day we did not use the SS argument again, as it seemed likely they would uphold the argument of the day before. We thought they might even be capable of putting another "entry denied" stamp in her passport... Our aim was getting in, so we said we had been refused using EU law the day before and she wanted to enter instead as a visitor.

As we did not want to give them any opportunity to use the same "cannot give entry as visitor because of intent to settle", we said that she was coming back for 2 weeks, then flying to Mexico and I am going to fly to Mexico once my Dad has had his bypass operation and recovered and we are going to live happily ever after in Mexico. We thought it was safest to not mention or give them the chance to mention applying for a spouse visa in Mexico (though this isn't an option for now), as based on their performance the day before I would half expect them to class that as "intent to settle" and so deny entry as visitor...

I don't think I've really explained what happened the first day when we applied for the 1A - we showed all the papers to prove I had exercised treaty rights. These are all fine. From 2010. When asked why she wanted the stamp we explained that we were going to the UK because my dad is on the waiting list for a heart op and we want to be around "probably for a few months" and my partner wants to be able to work during that time. After refusing us the SS route, they said they couldn't admit her as a visitor because she had "stated intent to settle". I suppose because we were a bit ambiguous about how long we would stay.

I guess your non-visa national wife was detained, photographed and fingerprinted.
Then after several hours, the French police were called.
They simply took her around to the ticketing office, which is technically "outside the port".

You were both reunited there.

They didn't photograph and fingerprint her actually, even though they said they might. She was detained but we weren't separated apart from her going for an interview to which I wasn't allowed. So we spent about 7 hours sat together on plastic chairs next the passport check posts. While waiting for the French police they gave us some tuna & egg sandwiches (urgh). the French police took 1.5 hours to turn up (it seemed that they came from the office next door), gave her passport back and yes, took us into the ticket hall and said bon, au revoir. I thought we were going to get a ride into town but no we had to walk.

[bobbert]

I actually have a new doubt after re-reading the Morocco [2010] UKUT 420 case referenced above.

What was determined was that the link between exercising treaty rights (working) and returning to home state was not broken in that case. There is nothing about a link between leaving the member state and returning to home state because in that case there wasn't another country involved between.

In our case we lived outside the EEA between leaving the EEA state and returning to the UK.

I have not yet heard of any cases where there was a gap in residing as well as in working, and outcomes. I suppose there must be some.