Returning to UK under EU rules but with adverse UK history!

[Kader]

Dar all, please some advice.

I am British. I met my partner many years ago in the uk. She got a UK student visa under a false name or passport (I think) although I didn't know this at the time. She overstayed her student visa after it expire and we had a baby together. She had to go back to her country so she left voluntarily.

I have been raising our baby myself.

About 5 years ago she applied to come back to the uk as my wife. When we apply we said she had never been to the uk before, because she was now applying with her proper id. We thought it would make things difficult if she admit she was in the uk with someone else's documents.

They refused her because they said they had finger prints of her matching proving she was in the uk before.

So we didn't try again because the lawyer said maybe we would win on appeal but not on the first application and we didn't have enough money to go to appeal stage.

Now I have been offered a job in France. I was told that if I go to a eu country to use my treaty right and work. I might be able to apply for reside for my wife to come to France.

Then after some short time I can apply to bring her back with me to the UK.

I was reading a document from the HOme office. The document said that regulation 17 isn't going to allow residence card just because we are married and I was returning from working in a eu country. It says also there is a extra question about if that person deserves to come, ie do they have criminal record or bad immigration history.

If we admit that she came before, but illegally will that mean a likely refusal?

Also, if they see that we sort of lied 5 years ago will that affect us? Can we appeal.

I don't want to go to France and leave my 11 year old son with family if doing this means I still can't have my wife in the country.

Application under the normal route is still too expensive for me as I can't pay the fees for court and lawyer as well.

Any advice is very very desperately welcome. I have been depressed for years about this so I didn't do anything before this because I didn't want to mess up again. My wife has been pretty abandoned and I can't afford to make another bad application.

Thank you

Kader

[vinny]

See also BBC Explains Surinder Singh with a nice diagram! and Can I enter to EU country if I have a 1 year ban in the UK?

17(5) isn't applicable to family members. Refusal is subject to 7(8) > 20(1) > 21.

You should get the full details of what she did 5 years ago, to determine the seriousness of her actions.

See also Chapter 5 Residence Cards applications.

[Kader]

Thank you for your reply!

So about this line which I think is relevant to me:

(5) Where a relevant decision is taken on grounds of public policy or public security it shall, in addition to complying with the preceding paragraphs of this regulation, be taken in accordance with the following principles—

(a)the decision must comply with the principle of proportionality;
(b)the decision must be based exclusively on the personal conduct of the person concerned;
(c)the personal conduct of the person concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society;
(d)matters isolated from the particulars of the case or which relate to considerations of general prevention do not justify the decision;
(e)a person’s previous criminal convictions do not in themselves justify the decision.

Do you think that false information from a application to the uk 5 years ago will count as a proportionate or disportionate reason for refusal? Just so that you know we didnt use any fake documents in our last application five years ago. We gave all genuine documents but the only thing we said not truly was no, in response to "have you travelled to the UK before".

Thank you for the Bbc link and for the regulations

Kader

[John]

Kadar, as they say as regards visa applications, "get caught in the lie, wave the visa goodbye", as you know only too well.

I think no one on this board, or indeed any immigration adviser, will be able to give you a guarantee that an EEA Family Permit will be issued in France. But clearly the application must be 100% truthful!

Having said that, I would be surprised if the application was refused, That is I cannot see a "sufficiently serious threat" from the facts you outline.

So maybe the plan should be :-

• you start work in France
• if necessary your wife applies for a Schengen visa to enable her to join you as her family member, the application being made in at the French Embassy/Consulate in her country of residence
• you work for a while in France and then she applies for an EEA Family Permit .... while you are still working there in France
• if the application for EEA Family Permit is refused, at least you have a job, and you can continue to live with your wife in France
• if granted, you resign from your job, then you all move to the UK

[Kader]

Thank you both vinny and John for your quick replies.

I am hopeful that I am doing the right thing this time!

You have been helpful!

[Pablito]

Adding to John's suggestion I would also say that refusal of Family Permit does not mean that she can't really get it if you continue to fight for it, but of course it may take time. Schengen Visa should be much easier to obtain once you are already in France working.

[Kader]

Thank you

When I apply for the eea family permit, that's the one to allow to go from France to the uk, right?

Also, is there a minimum time for me to work in france before we can apply for the permit Ie, can I apply for an eea family permit within three months of starting work without applying for the schengen visa first? This way i can work for a while without my wife leaving her country and then directly apply for her to return with me to england...

Finally, is there a right of appeal if the family permit is refused?

Thank you

Kader

[John]

I think you should have a read of this UKBA wording about the way Surinder Singh works.

There you will see that it is totally necessary for the British Citizen to be exercising Treaty Rights in another EEA country, and for their non-EEA family members to be living there with them. So for you your wife will need to live with you in France, and needs a Schengen visa to enter France? Right? I ask because you have not actually told us her nationality.

After arriving in France your wife would apply for a Residence Card.

Three months is considered the minimum time of you exercising Treaty Rights in an economic way before the application for EEA Family Permit can be made.

An appeal is available if necessary, but hopefully that would not apply.

[wiggsy]

Three months is considered the minimum time of you exercising Treaty Rights in an economic way before the application for EEA Family Permit can be made.

An appeal is available if necessary, but hopefully that would not apply.

John, I hate to disagree with experienced persons ETC... But there is no law set in which states there is a minimum time, and infact a reply from the Home Office confirmed this...

People have got into the country after shorter times of working abroad.

@OP

After a matter of weeks - with proof of work, Apply for a EEA FP to "visit your parents" ETC... if it works - Great, if not... you wouldnt of really lost much?

I agree that the misrepresentations could well go down against your spouse... but is it proportionate to ban a mother from living with her child?...

Also, you could also try a border crossing at Calais if the EEA FP fails with the correct documentation..

[John]

I totally agree that there is no minimum time specified by law. However in the link you provide it does say "Each application is, therefore, considered on a case by case basis and consideration given to whether the work/self-employment was genuine and effective".

Therefore a very short time could well cause problems. Wayne in that link thinks one day is enough, but to that I say, really? Is that enough time to show that the employment is genuine and effective?

Can we at least agree on this? That a longer time is clearly better than a short time? Or put it another way, why risk disappointment or delay (because of the need to appeal), when waiting a bit longer will show that the work situation is genuine and effective.

[wiggsy]

Therefore a very short time could well cause problems. Wayne in that link thinks one day is enough, but to that I say, really? Is that enough time to show that the employment is genuine and effective?

I state that 1 day could be enough as if you earn a substantial amount in that day - is it not effective... What is the "average min wage" income of 1 day in the UK...

Can we at least agree on this? That a longer time is clearly better than a short time? Or put it another way, why risk disappointment or delay (because of the need to appeal), when waiting a bit longer will show that the work situation is genuine and effective.

I agree on that, no doubt! Don't get me wrong... However, As established in Carpenter... and stated in many cases... there is "dilution" of what constitutes free movement, where by actual movement doesnt necessarily need to happen.

Note also, on the link, I actually say TRY. You apply for the EEA family permit in person, there is no cost, and you DO NOT need to appeal the decision... You don't really have anything to loose, as long as you go with the idea that your application could well (and most likely will) be refused.

[John]

To my knowledge there has been no tribunal case on the point that you are making. Do correct me if I am wrong.

However on another EEA point, what constitutes employment to make someone a "worker", under the terms of the EU Directive, that has been tested.

Let's say someone is in the UK as a student. The EU Directive is clear, in order to exercise Treaty Rights as a student, not only do they need to be a student, they also need to have sickness insurance.

But what if they also claim to be employed or self-employed, but for a minimal amount of time, and thus claim to be exempt from the sickness insurance requirement. That has been tested by the Tribunal, and the student lost! In other words a minimal employment or self-employment does not amount to exercising Treaty Rights as a worker or self-employed person.

So I think the same sort of principle would be applied to the point you are making.

[wiggsy]

To my knowledge there has been no tribunal case on the point that you are making. Do correct me if I am wrong.

But that doesn't mean that there won't be in the future...

and the student lost! In other words a minimal employment or self-employment does not amount to exercising Treaty Rights as a worker or self-employed person.

So I think the same sort of principle would be applied to the point you are making.

This I wasn't aware of... Can you point me to this case?

But, it all depends on how active the person was for employment ETC at the time? - As stated in the HO response, if they could live on the money they earnt, or not - after all... if not they would be deemed Self Sufficient off their own money, and still require CSI?

[John]

Have a look at this document, and in particular go to 071179. This refers to the case of 1 De Biasi v Secretary of State for the Home Department [2012] EWCA Civ 1015.

So 8 hours per week, for a period of 8 weeks was held to be insufficient to make the person a "worker".

Lots of use of the expression "genuine and effective" in that document.

[wiggsy]

Have a look at this document, and in particular go to 071179. This refers to the case of 1 De Biasi v Secretary of State for the Home Department [2012] EWCA Civ 1015.

John, I know you've quoted the above case from the DMG... but I can only find the following two ref's...

MDB v Secretary of State for the Home Department [2012] EWCA Civ 1015

De Brito v Secretary of State for the Home Department [2012] EWCA Civ 709, CA.

and no Bali text's... Do you have a link to the rulings/texts ETC?

So 8 hours per week, for a period of 8 weeks was held to be insufficient to make the person a "worker".

Lots of use of the expression "genuine and effective" in that document.

But, the work on the next paragraph, was this the case on the student's case? or is this a different case ( as I say above, I cant find the text's for the case ):

Example
Thijs is a Dutch national. He first came to the UK in 1999 and has resided in the UK
ever since. He claimed IS on 2.1.13. The DM established that the only work Thijs
had done in the UK was a period of 8 weeks in November and December 2012
when he worked as a part-time cleaner for 8 hours per week at an hourly rate of £10
per hour. There was no evidence that he had been self sufficient at any time since
1999, nor that he had genuinely been seeking employment during that period. The
DM concluded that Thijs was not a worker and that accordingly he had not retained
worker status.

I'm guessing this is why it was ruled that he needed CSI, as he hadn't aquired PR during the 13/14 years of residence...?



Also note:

Genuine and effective work
071180 The DM should be satisfied that the work is genuine and effective and is not on such a small scale as to be marginal and ancillary1.

As the terms ''genuine and effective'' and ''marginal and ancillary'' are not defined in EC law the DM should decide each case on its own merit.

The DM should take account of all work done in the UK and consider, amongst other things
1. the period of employment
2. the number of hours worked
3. the level of earnings
4. whether the work was regular or erratic.

and then reading...

Example
An EEA national who claims JSA shows that he has been working for three hours per day, five days per week for the last four months. The DM decides that the work is genuine and effective because it is not on such a small scale as to be marginal and ancillary. The work was on a regular basis continuing for a reasonable length of
time.

It appears that 15 hours a week for 16 weeks = effective... so stating three months DOES appear to be a good guideline, as if refused, you can always rely on a government issued document as support in appeal.


Whilst I agree (as I say above) that longer is better... Each case is different, and the reason for moving to another country for free movement is different for everybody.

Family life established PRIOR to moving must be considered. As fear of reprecussion of taking a job could effect free movement.

[John]

Also look at this document and search for ..... MDB ... starting on page 13.

[wiggsy]

Also look at this document and search for ..... MDB ... starting on page 13.

Thanks John, I'd already found that one - but couldnt find the case quoted

[Obie]

In Barry, the court was prepared to accept that a work that lasted for 2 weeks was effective and genuine for the purpose of community law.

However one can expect the threshold to be much higher in a Surinder Singh case. The circumstances surrounding Mr Barry's employment, and the seasonal nature of it, meant that factors going beyond the length of the employment relationship had to be considered. This may not necessarily be the case in a Singh scenario.

Also see. O

No one can produce authority at a national level or CJEU level, that comprehensively deals with this issue.

I believe things will be much clearer after that judgement is promulgated.

[wiggsy]

However one can expect the threshold to be much higher in a Surinder Singh case.

but that would go against equality? A worker is still a worker... and a Singh case still states that the returning person is the bearer of another states passport...?

Also see. O

No one can produce authority at a national level or CJEU level, that comprehensively deals with this issue.

I believe things will be much clearer after that judgement is promulgated.

I am awaiting this already - (I think it was you who posted this previously? - along with (S?))

[Obie]

It may be best to wait until the judgement is out, rather than speculate, which you are trying to get me to do. Something I dont intend to indulge in.

Inequalities involves like cases treated differently and dissimilar cases treated the case.

If a case arise under Surinder Singh which centered around the same fact as barry, it may be be arguable that that person should be considered a worker.

It should be noted that Barry had been in the UK for a lengthily period. He had work history.

[wiggsy]

It may be best to wait until the judgement is out, rather than speculate, which you are trying to get me to do. Something I dont intend to indulge in.

Sorry, Wasn't trying to get you to speculate. It just seemed to me that you were saying (and I guess we know it is true of them) that the HO would say that a British Cit returning as Singh would be evaluated on their "meaningful work" at a higher threshhold than a EEA Cit coming to work in the UK would be?

It should be noted that Barry had been in the UK for a lengthily period. He had work history.

I noticed that...

[Kader]

Dear all

Thank you for the comments on my post.

I have how moved to France. My brother in law has given me his flat on a six month lease and I have a catering job where not much french was required starting this week. I'm glad for this.

I spoke to the jakarta embassy for France as my wife lives in Indonesia. They asked me if I wanted to apply for my spouse to join me under short stay (schengen) or long stay visa. I said I didn't know. He said that there wasn't much difference in the paperwork required but send me both applications.

Which is more relevant for me?

Secondly, the decision maker at the embassy (seemed like a nice guy) said I would need to show proof that my accomodation was atleast 24 sq m living space for me and my spouse and that I would need proof of my employment.

As I have just started working I will not have a payslip, or bank statement (my bank account cannot be opened until I have a bill send to my new address which will take atleast a month). All I will have are the follows:

Marriage certificate and translation
Employment contract
Tenancy contract
French social security number.

Does this look to be sufficient? My relative will be travelling to jakarta to help my spouse with her application and he will also wait for the outcome (the embassy asked for three working days to consider the application). I do not therefore want to make a premature application or waste the journey.

As always, thanks you for the advice you all give me.

Kind regards

Kader

[Kader]

Ps - I was reading the comments from another post on this forum regarding the rules on a schengen visa. It appears that another person was advised (regarding moving to the Netherlands) that his wife could apply for a schengen visa to enter the country with him even though he did not yet have a job. Does that seem correct to you?

If so does that mean that now I am in France and working and with a apartment, I can ask her to join me? Even without having received pay or having a bank account?

[stars]

Ps - I was reading the comments from another post on this forum regarding the rules on a schengen visa. It appears that another person was advised (regarding moving to the Netherlands) that his wife could apply for a schengen visa to enter the country with him even though he did not yet have a job. Does that seem correct to you?

If so does that mean that now I am in France and working and with a apartment, I can ask her to join me? Even without having received pay or having a bank account?

yes thats right and good luck

[Kader]

Thanks for the reply.

So, just to re-re-re cap, my wife will attend the embassy with the following:

Our marriage certificate
Certificate copy of my passport
Her passport
My tenancy agreement
Passport photos
Application form
Letter from me supporting her application
Airplane ticket (the embassy asked for it)

That's pretty much it as my employer keeps promising a letter of employment but it hasn't materialised yet.

Does that seem complete?

Regards

Kader