URGENT: Refused 1A stamp & denied entry as visitor

[EUsmileWEallsmile]

I understand you entered under the immigration rules (you've confirmed this).

You may well find that a gap between living in an EU country and returning to the UK cannot be used as a reason for refusal. However, this was the argument used by the IO on your first attempt. If you were to successfully appeal this decision, then your situation would be clarified.

[Directive/2004/38/EC]

You have said he was admitted in the basis of the immigration rules as a "visitor" one day after being refused entry as a long term migrant under the EEA free movement rules. You have also said that the border officer was aware of the earlier refusal.

I think several mistakes were made by home office.

First of all the initial EEA refusal was clearly incorrect. As pointed out in the court case mentioned, there is not a time limit to the SS rights (and you are also not required to stay in a particular location for SS rights to remain). You can appeal and I suggest you do that.

The successful entry was made under EU free movement law, because the spouse was covered by EU free movement law (because of SS). This is true even without any intention or explicit action on the part of the border guard.

The officer might have also done an admission on the basis of the immigration rules. Or the officer might have been vague in describing the entry and it was actually done on the basis of EU free movement laws.

I tend to think the the description was vague, and then entry was actually on the basis of EU free movement law. Typically if you have been refused entry as a long term settler, then it is very unlikely that they will (the next day!) let you in as a (immigration rules) visitor: they will obviously suspect (maybe with good reason) that you will try to stay. There is no different under the EU free movement rules between entry for a short visit and long term residence.

Anyways, you are in the UK. Welcome!

I would suggest you do a SAR to get the details from your home office file: http://www.ukba.homeoffice.gov.uk/navig ... onal-data/ It takes 40 (business?) days to get a reply.

If you are worried about your status, I suggest you consult with a solicitor who really understands EU free movement law.

[bobbert]

Hello,

We've spoken to a solicitor friend who has talked to other immigration solicitors and barristers. Their belief is that it's a bit of a grey area we fall in as there is no case law specifically concerning living in a 3rd country (or countries) between leaving the host state and returning to the member state. And they have comprehensively searched records of cases.

The case referenced above concerns a gap between living together in the host state and moving back to member state, as well as a period of unemployment in the host state before moving back, but there was no moving to a 3rd country in between...

Their feeling is that we should appeal because in the end we should win but we would be 'guinea pigs' and the whole process would take a long time. Two of the main points on our side are
- immigration laws cannot be interpreted restrictively
- When we left France 3 years ago I had the same rights as a Frenchman. If I was a Frenchman I would still have the same rights.

[EUsmileWEallsmile]

I am inclined to believe your acquired EU rights do not expire. If you look at the advocate generals opinion in the sticky thread above (to do with changed in EEA regulations), that view appears to be supported. However, I'm not convinced that the law is yet clear on the issue and therefore suggest you exercise caution. Keep your options open. You can appeal the original decision to refuse entry.

link to thread

http://www.immigrationboards.com/eea-ro ... 52660.html

[bobbert]

I see it the same way. We are going to be very careful and leave the UK to live/work in the EU, before the limited leave to remain expires. This isn't a big problem, we're more used to living in France than the UK anyway, we met there and both speak French. We'll appeal the decision from outside the UK.

[Directive/2004/38/EC]

I see it the same way. We are going to be very careful and leave the UK to live/work in the EU, before the limited leave to remain expires. This isn't a big problem, we're more used to living in France than the UK anyway, we met there and both speak French. We'll appeal the decision from outside the UK.

It sounds like you really want to leave. If so, fair enough and enjoy continuing to exercise your free movement rights.

I should note that UKBA has no guidance that I have ever found that suggests that your right to renter the UK on the basis of European law (because of SS) is in any way time limited or decays after you finish working. And frankly it is absurd for a border guard to suggest it does.