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Thanks rosebead for asking this. I don't have an answer, but it concerns me, too, so I would really love the answer.rosebead wrote:If a UK citizen in Ireland doing Surinder Singh travels into the UK from Ireland with his non-EU spouse without encountering border guards and with no EEA Family Permit, would the spouse's entry be considered an illegal entry into UK if she is not a non-visa national? If it is an illegal entry, do you think this would adversely affect their application for a an EEA2? Metock case law would cover such a situation if you were an EEA national but I don't know if it applies to returning UK citizens?.
What is the purpose of your travel with your non eea family and wife in to the UK?Radconn wrote:Right I see what you mean.
But there are cases where people do travel into the UK without the requisite visa and rely on being given access via the 1A stamp.
If I read your earlier post correctly, is that what you did?
So the only alternative is to make the trip and ask for entry at the port, I guess. If that's feasible.
So for arguments sake if a person did make the trip and didn't present themselves to any border control, would they be entering illegally and could they then be deported?
The judgement of Akrich also confirmed that statement;it should be mentioned that the motives which may have prompted a worker of a Member State to seek employment in another Member State are of no account as regards his right to enter and reside in the territory of the latter State provided that he there pursues or wishes to pursue an effective and genuine activity (Case 53/81 Levin [1982] ECR 1035, paragraph 23).
Where the marriage between a national of a Member State and a national of a non-Member State is genuine, the fact that the spouses installed themselves in another Member State in order, on their return to the Member State of which the former is a national, to obtain the benefit of rights conferred by Community law is not relevant to an assessment of their legal situation by the competent authorities of the latter State.
One cannot receive code 1A if one is not a qualified person, a qualified person will be in this context a family member of an EU citizen, including family member of a British citizen who have exercised their treaty rights in another member state.Radconn wrote:Right I see what you mean.
But there are cases where people do travel into the UK without the requisite visa and rely on being given access via the 1A stamp.
If I read your earlier post correctly, is that what you did?
So the only alternative is to make the trip and ask for entry at the port, I guess. If that's feasible.
So for arguments sake if a person did make the trip and didn't present themselves to any border control, would they be entering illegally and could they then be deported?
So you are Non EU entered UK without a FP and once in the UK applied for a residence card (EEA2) with no problem, is that correct?dalebutt wrote:One cannot receive code 1A if one is not a qualified person, a qualified person will be in this context a family member of an EU citizen, including family member of a British citizen who have exercised their treaty rights in another member state.Radconn wrote:Right I see what you mean.
But there are cases where people do travel into the UK without the requisite visa and rely on being given access via the 1A stamp.
If I read your earlier post correctly, is that what you did?
So the only alternative is to make the trip and ask for entry at the port, I guess. If that's feasible.
So for arguments sake if a person did make the trip and didn't present themselves to any border control, would they be entering illegally and could they then be deported?
I didn't receive code 1A, I just came to the UK from Ireland, applied for residence card in the UK and it was no problem. If one enters the UK from the ROI without an entry permit or equivalent document, the person may be deported as an illegal entrant if they cannot on some other ground of stay in the UK. Your case is different, and I don't see your spouse facing such difficulty. You will be fine ultimately.
Yes makes sense what you suggest.dalebutt wrote:Yes non EU married to British citizen, lived in Ireland with spouse then came to the UK, your case is different from mine now as the regulation has changed, that was why I suggested to follow your appeal through, if you made new application now, be it EEA2 or FP it will be decided on the new regulation which might fail, but if you appeal and are successful, the subsequent application you make for EEA2 will be decided on the old regulation.
There is no separate application for Surrinder Singh, it is the same EEA2 form that one has to fill in, you will fill in the section about about surrinder Singh on the form, it is nothing new, I am not the only one who has done this, UKBA aren't making a fuss about it either because they understand it is actually not a factor that affects decision making.
What you need to establish is, if coming to the UK will have effect on your appeal, if it won't, then it is OK for you to come to the UK, I will confirm this and will let you know.
I like the sound of what you are suggesting.dalebutt wrote:There is a poster called pablito on the board, I think he came to the UK via France whilst an appeal was still pending, you may either write to him to read through his post. I have not yet found anything definite but I suspect it will have not effect on your appeal.
In fact you can come to the UK, and submit an application for a residence card and instruct the caseworker to decide your application on the old regulation, as if the previous family permit had not been erroneously refused you will still be a beneficiary of the old regulation anyway. You are in fact in a strong position.
I see, yes that makes sense to me.dalebutt wrote:As your previous FP has been refused on the sole ground of the centre of life, that expressly means you would have been deemed to be a qualified person under the old regulation, your application was submitted before the new regulation came into force but the ECO has ignored the transitional provisional that you should enjoy and refused your application on a reason which isn't lawful.
Had the law been applied correctly, your spouse would have received her FP and should you decide to apply for residence card (EEA2) in the UK, it is still the old rule that will apply regardless of when you make the application.