Illegal entry into UK from Ireland?

[rosebead]

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?

Could anyone please point me to a relevant link that says that family members who are eligible for a Code 1A stamp, EEA Family Permit or EEA2 are not subject to immigration control with or without these documents. i vaguely remember reading something about it but I am not sure. Thanks.

[chaoclive]

This was on the old UKBA website:

"Q14.
Which groups in the UK are not subject to immigration control?
A.
Those who are not subject to immigration control in the UK, and whom you can employ without
restriction are:

• Nationals from European Economic Area (EEA)/European Union (EU) countries and
Switzerland (except for EU2 nationals);
and
• Family members of adult nationals from EEA/EU countries and Switzerland, providing the
EEA/EU national is lawfully residing in the UK. "

Not sure if it's on the gov.uk site. You can search and see.

[jestew]

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?.

Thanks rosebead for asking this. I don't have an answer, but it concerns me, too, so I would really love the answer.

Thanks!

[dalebutt]

It is a little difficult to interpret that scenario with the current changes to regulation 9, previously I am of the opinion that, the spouse would be entering the UK legally irrespective of having a FP or not as a family member they are exempted from immigration control, Metock judgement expressly confirmed it, and it does apply to UK citizens as well as they would then be classified as a qualified person under the regulation. I myself have benefited from that provision in exactly the manner you have described.

Previously it is easy for a British citizen to determine if they qualify under the regulation before the changes, but with the changes now in force, it is not a clear cut situation as it's difficult for a potential applicant to know in advance if they have transferred their centre of life to ROI, not that I think that changes are correct interpretation of the law, but if the British citizen would not qualify because of the centre of life once they have already travelled to the UK, then their spouse would have been regarded as having entered the UK illegally.

[Radconn]

I've thought about this situation recently as well.
But one thought that has crossed my mind about this would be if you want to apply for an EEA 2.

As I understand the rules, the documentation required is the same that you should have produced for the EEA Family Permit. So if they are not strong enough for the FP then they are unlikely to be good enough for the EEA 2.

Of course if you don't intend to apply for the EEA2, which I don't think is a legal requirement then it's a moot point.

We want to come back to the UK from Ireland and my wife had her FP refused at the beginning of January. So I am going to apply for the FP again, but if it should be refused again, then I am seriously contemplating going through NI and into Scotland via the ferry route.

Another member from the forum is making the trip in a couple of weeks and will let me know if he meets with any passport controls.

I see what you mean about the changes to Reg. 9 but, if they are not stopped and documentation requested then does the responsibility for that lay with the person making the trip or lack of border control.
Plus everything I have read about this points to the immigration official having to issue a A1 stamp.

[dalebutt]

The CTA is for the benefit of the Irish and British citizens only, although as EEA & EU citizens are exempted from immigration control they expressly benefit from that provision anyway, any other persons with no UK visa or equivalent document who crosses from there to here, and who isn't exempt from immigration control in the UK by some other means is actually an illegal entrant, it does not matter if there were border checks or not, it will be classed as a circumvention of the immigration rule. Responsibility lies with the person making the trip not on the Border control.

I agree that the documentation required for FP is the same as EEA2, but it doesn't mean when one has been refused an FP that the decision is always correct, time and again ECO will look for reasons to refuse to acknowledge one's right under the regulation it doesn't mean they are right, an applicant who was refused an FP may be granted a residence card with the same document, and I have seen on this forum applicants with FP who were refused RC here in the UK on the basis of Singh.

[Radconn]

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?

[kristine015]

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?

What is the purpose of your travel with your non eea family and wife in to the UK?

If say you did travel via ferry with your wife who does not have the right of entry to UK. She is then class as an illegal. However if the border control caught her (which to me is unlikely because she does not live in the uk and has nothing in their data system)
Worst case scenario would be your wife will be detained and ask for some questioning. They will ask her to leave the country immediately and will be ask to provide documents I.e travel tickets to their destination country.
If this happens then all you have to do is go back to Ireland with your wife. I will assume she has the right of entry in the ROI then she shouldn't have a problem entering back and will not be force deported back to her country origin.
May I also add that the border control in the UK isn't as tough like ROI.
I went on the trip to Dublin twice in 2012 to get my Philippine passport sorted via bus. On both occasions the bus I was in was stopped by Gardai and Border patrol. At one point I was actually taken Into their office for not providing me passport lol. Had to explain I was trying to get it sorted.

[rosebead]

Thank you chaoclive for the quote. If family members of EEA nationals are not subject to immigration control you would have thought that if a family member held a non-UK Residence Card it would exempt him/her from having to apply for an EEA Family Permit. But I guess it's well-known that individual Member States do not always adhere to Community law.

Thank you for the reply dalebutt. I did think the new 'centre of life' rules might complicate things. As you said, previously people doing Surinder Singh could in theory be considered qualified if they had worked enough in their host country to be deemed a 'worker' under EU law, but now with the UK's new 'centre of life' requirements it's anybody's guess. I still wonder though how a possible illegal entry into the UK could be viewed under the new 'centre of life' rules. If I were a cold-hearted Entry Clearance Officer, I might choose to view that as the sponsor trying to circumvent immigration rules all along, therefore never having the intention to transfer centre of life to the host country.

For those in Ireland I wonder if it's worth waiting until your spouse had at least got their Irish Residence Card before attempting the border. At least then you could argue that under Directive 2004/38/EC your spouse could not possibly be an illegal immigrant in the UK.

[dalebutt]

The centre of life test gives ECO an almost unchecked power to decide any application as they deemed fit, it is interesting how the tribunal will interpret it, in Singh judgement paragraph 24 says;

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).

The judgement of Akrich also confirmed that statement;

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.

If the spouse has already received residence card in Ireland, and suppose they do not even meet the centre of life test to qualify for an FP, the person's entry will be considered legal as they will be entering on the basis of their residence card, there is an FOI request that confirms that. I shall post the link later.

[Radconn]

Hi
@Kristine015
I live in Ireland at present but we want to go to the UK to live.
So her being classed as illegal and being made to leave would be the wrong way to go about this.
Actually as far as going back into Ireland, she wouldn't be able to do that until she has her residence card issued or applies for a re entry visa. I'm pretty sure that as her residence card with Irish Immigration is still pending they would want to know where she is going and for how long. Thanks for your comments, I appreciate it.

@rosebead

From what I've read the Code 1A is given to a non EU spouse arriving at a port in the UK without the FP but having all documentation with them to prove their rights of entry, and that they are traveling with, or traveling to meet their spouse in the UK.

Try this site for details: http://eumovement.wordpress.com/2010/08 ... to-travel/

This comes under Re. 11
This is the section from Reg.11 itself:
(4) Before an immigration officer refuses admission to the United Kingdom to a person under
this regulation because the person does not produce on arrival a document mentioned in paragraph
(1) or (2), the immigration officer must give the person every reasonable opportunity to obtain the
document or have it brought to him within a reasonable period of time or to prove by other means
that he is—
(a) an EEA national;
(b) a family member of an EEA national with a ri
ght to accompany that national or join him
in the United Kingdom; or
(c) a family member who has retained the right of residence or a person with a permanent
right of residence under regulation 15.
(5) But this regulation is subj
ect to regulations 19(1) and (2).

Under the new changes from 01/01/2014 I cannot see any changes to (4) they seem to have made amendments to (2) and (3) of Reg. 11 only.

Don't know if this helps or I have got it wrong, but it does seem that you can still turn up at the port of entry and be allowed in without reference to the new "centre of life" requirements.

If anyone things I am incorrect please reply on here.

[dalebutt]

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?

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.

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.

[dalebutt]

The centre of life will be applied at a point of entry, as your appeal in on going, you will need to check if entry to the UK will affect your outstanding appeal, I will also check this for you, if it won't have any effect on the appeal then I don't think there is anything you have to be worried about.

[Radconn]

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?

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.

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.

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?
If all that is the case then I would have thought my wife should be able to follow the same procedure.

But when I look at the EEA 2 application the documents required are based on exercising treaty rights in a member state, if using the Surrinder Singh route. Does that mean you applied for the EEA 2 not under Surrinder Singh?

Sorry about all the questions, just really need to get my head around all the possible connotations involved here.

Thanks for any information you can give me.

[dalebutt]

Yes non EU married to British citizen, lived in Ireland with spouse then came to the UK, your situation 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.

[Radconn]

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.

Yes makes sense what you suggest.
my only issue is with the length of time for the appeal. The "appeal bundle" has to be back to the tribunal by 25th April, but then they delay for a further 8 weeks at least, after that date, in order to give more time to get any additional documents. As if that is necessary after it has already taken 4 months up to that point. It's a joke really!

This is why I was considering applying again, really very difficult for us to remain here in Ireland until, in effect July. If the appeal is successful at that.

But if you can find out anything about coming to the UK I would really appreciate it. Thank you!

[dalebutt]

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.

[Radconn]

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 like the sound of what you are suggesting.
Just not sure why or how I would be able to instruct the caseworker to decide the application on the old regulation. Sorry but would you mind giving me the reasons for your thinking on that?

Thank you

[dalebutt]

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.

[Radconn]

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.

I see, yes that makes sense to me.
Thank you