EEA family permit refused

[wet26]

Hi,

I've just had my EEA Family Permit refused because they are not satisfied I meet all of the requirements of Regulation 12. The reason being:

"You have applied for admission to the United Kingdom by virtue of EC Law as the family member of an EEA nation who is exercising or wishes to exercise, rights of free movement under the Treaty establishing the EC in the UK, but I am not satisfied that the EEA national of whom you are a family member is a qualified person"

WTF? My husband is British and has been working in Spain since August 2007. We have been living together in Spain for 18 months. We are travelling to the UK together on 29 June 2009 where we intend to live permanently. My husband has been employed by a UK company since 2006, was transferred to Spain, and is now being transferred back to England.

Considering I was applying under Surinder Singh, how can they have refused the application?

I am not lawfully resident in Spain, but under s12(1)(b)(ii)

would meet the requirements in the immigration rules (other than those relating to entry clearance) for leave to enter the United Kingdom as the family member of the EEA national or, in the case of direct descendants or dependent direct relatives in the ascending line of his spouse or his civil partner, as the family member of his spouse or his civil partner, were the EEA national or the spouse or civil partner a person present and settled in the United Kingdom.

I meet all the requirements under 281 of the Immigration rules and my British husband should be considered as present and settled in the UK.

I don't know how they can have refused the application based on the reason provided. Do they just not know the rules??

I don't have time to appeal because we have our tickets booked for 29 June and my husband has to go back to work.

I've read in the Border Control manual that entry clearance can be issued at the port. Am I correct that the EEA Permit should have been issued? I can't see how they have lawfully refused me.

Thanks

[noble72uk]

Hi

I do believe that when you have applied for EEA permit which is I am not surprised that been refused, but don’t worry about you future residence in the UK.
The officer who dealt with your case, suppose to tells you that you have applied under a wrong application form, your actual residence I do believe that you hold a 5 years visa under the Directive 2004/38/EC of European law, when you go for living to your husband’s country from where he holds his citizenship UK, you need to apply under the UKBA as spouse/partner of a British citizen they will grant you a 2 years visa and then after the ILR indefinite leave to remain and you can wait another 1 which will be after residing in UK as spouse of a British citizen you will be allowed to apply for naturalize for a British nationality.

Here‘s the Link to check your right before entering to live in the UK.
http://ukba.homeoffice.gov.uk/partnersa ... /partners/

Hi,

I've just had my EEA Family Permit refused because they are not satisfied I meet all of the requirements of Regulation 12. The reason being:

"You have applied for admission to the United Kingdom by virtue of EC Law as the family member of an EEA nation who is exercising or wishes to exercise, rights of free movement under the Treaty establishing the EC in the UK, but I am not satisfied that the EEA national of whom you are a family member is a qualified person"

WTF? My husband is British and has been working in Spain since August 2007. We have been living together in Spain for 18 months. We are travelling to the UK together on 29 June 2009 where we intend to live permanently. My husband has been employed by a UK company since 2006, was transferred to Spain, and is now being transferred back to England.

Considering I was applying under Surinder Singh, how can they have refused the application?

I am not lawfully resident in Spain, but under s12(1)(b)(ii)

would meet the requirements in the immigration rules (other than those relating to entry clearance) for leave to enter the United Kingdom as the family member of the EEA national or, in the case of direct descendants or dependent direct relatives in the ascending line of his spouse or his civil partner, as the family member of his spouse or his civil partner, were the EEA national or the spouse or civil partner a person present and settled in the United Kingdom.

I meet all the requirements under 281 of the Immigration rules and my British husband should be considered as present and settled in the UK.

I don't know how they can have refused the application based on the reason provided. Do they just not know the rules??

I don't have time to appeal because we have our tickets booked for 29 June and my husband has to go back to work.

I've read in the Border Control manual that entry clearance can be issued at the port. Am I correct that the EEA Permit should have been issued? I can't see how they have lawfully refused me.

Thanks

[wet26]

thanks, for posting, but I am applying for an EEA Family permit, not a visa.

[ribena]

Hi
You have married to a British citizen and now wanted to live permanently in UK.
noble72uk is correct that you need to apply as s spouse/partner of a British citizen.

EEA FP is not the right application.


But if wet26 has a RC from Spain, is she allowed to live in UK w/o the need to apply as a spouse of a British citizen? just curious ..

[wet26]

Hi
You have married to a British citizen and now wanted to live permanently in UK.
noble72uk is correct that you need to apply as s spouse/partner of a British citizen.

EEA FP is not the right application.


But if wet26 has a RC from Spain, is she allowed to live in UK w/o the need to apply as a spouse of a British citizen? just curious ..

No, the British Consulate in Madrid agree that my husband is an EEA National. I have married a British citizen exercising treaty rights in Spain for 18 months, he is therefore classified as an EEA National. I am entitled to apply for an EEA Family Permit on this basis.


The issue is not whether I have applied for the correct permit/visa, but why the correct application I have made has been refused. That is, why the ECO refused on the basis that my husband is not a qualified person, when he clearly is, and furthermore, it is not a requirement for a British national to be a qualified person under the Surinder Singh judgment.

If I had a RC for Spain, I would still need to apply for an EEA Family permit.

[noble72uk]

Hi
I introduce my self:

I am Algerian I’m married to a French I hold a 5 years residence card under Derictive2004/38/EC, we lives in the UK.
My wife has applied for a residence card for a treaty right in the UK which was granted for her and for me because of her residence in the UK (outside France).

In your case, your husband has applied for a residence card in Spain which was granted for him and then for you as well. Correct me if I’m wrong?
If my wife goes back to France, she doesn’t need to apply because she’s French citizen but for my self I have to apply from the beginning for a residence in France under the French Immigration law not EEA
As I have told you before your husband is a British and you need to apply for spouse/partner residence which is a visa UK clearance for 2 years and then a (ILR) indefinite leave to remain.

You need to forget about the EAA directives if you intend to live in the UK + you need to apply where you reside actually if in Spain.

Best regards
Feel free to ask any questions, I will help you.

PS: I have studied the law in Algiers and read European and UK laws since I come to Britain 4 years ago.

Hi
You have married to a British citizen and now wanted to live permanently in UK.
noble72uk is correct that you need to apply as s spouse/partner of a British citizen.

EEA FP is not the right application.


But if wet26 has a RC from Spain, is she allowed to live in UK w/o the need to apply as a spouse of a British citizen? just curious ..

No, the British Consulate in Madrid agree that my husband is an EEA National. I have married a British citizen exercising treaty rights in Spain for 18 months, he is therefore classified as an EEA National. I am entitled to apply for an EEA Family Permit on this basis.


The issue is not whether I have applied for the correct permit/visa, but why the correct application I have made has been refused. That is, why the ECO refused on the basis that my husband is not a qualified person, when he clearly is, and furthermore, it is not a requirement for a British national to be a qualified person under the Surinder Singh judgment.

If I had a RC for Spain, I would still need to apply for an EEA Family permit.

[Ben]

Hi wet26,

You're right - Singh conditions apply. UK spouse visa not required (not unless you prefer to use UK rules instead, which, by the way, you might).

Anyway, what country are you a citizen of?

[Ben]

Hi
I introduce my self:

I am Algerian I’m married to a French I hold a 5 years residence card under Derictive2004/38/EC, we lives in the UK.
My wife has applied for a residence card for a treaty right in the UK which was granted for her and for me because of her residence in the UK (outside France).

In your case, your husband has applied for a residence card in Spain which was granted for him and then for you as well. Correct me if I’m wrong?
If my wife goes back to France, she doesn’t need to apply because she’s French citizen but for my self I have to apply from the beginning for a residence in France under the French Immigration law not EEA
As I have told you before your husband is a British and you need to apply for spouse/partner residence which is a visa UK clearance for 2 years and then a (ILR) indefinite leave to remain.

You need to forget about the EAA directives if you intend to live in the UK + you need to apply where you reside actually if in Spain.

Best regards
Feel free to ask any questions, I will help you.

PS: I have studied the law in Algiers and read European and UK laws since I come to Britain 4 years ago.

With respect, noble72uk, you've not studied hard enough.

Familiarise yourself with the ECJ ruling on Surinder Singh.

[Ben]

If I had a RC for Spain, I would still need to apply for an EEA Family permit.

Not according to:

Right of entry
2. Family members who are not nationals of a Member State shall only be required to have an
entry visa in accordance with Regulation (EC) No 539/2001 or, where appropriate, with national
law. For the purposes of this Directive, possession of the valid residence card referred to in
Article 10 shall exempt such family members from the visa requirement.

[noble72uk]

Hi I'am just Trying to help and thanks for the breifing: I thgink you too need to read this article:
THE COURT,

in answer to the question referred to it by the High Court of Justice (Queen' s Bench Division) by order of 19 October 1990, hereby rules:

Article 52 of the Treaty and Council Directive 73/148/EEC of 21 May 1973 on the abolition of restrictions on movement and residence within the Community for nationals of Member States with regard to establishment and the provision of services, properly construed, require a Member State to grant leave to enter and reside in its territory to the spouse, of whatever nationality, of a national of that State who has gone, with that spouse, to another Member State in order to work there as an employed person as envisaged by Article 48 of the Treaty and returns to establish himself or herself as envisaged by Article 52 of the Treaty in the State of which he or she is a national. A spouse must enjoy at least the same rights as would be granted to him or her under Community law if his or her spouse entered and resided in another Member State.


That mean still need to apply for a UK entrance visa which is they will grant her with 2 years residence visa and after need to apply for the indefinite leave to remain.

I hope I'm Wrong

[Ben]

I hope I'm Wrong

You are.

(Search "Singh").

[wet26]

If I had a RC for Spain, I would still need to apply for an EEA Family permit.

Not according to:

Right of entry
2. Family members who are not nationals of a Member State shall only be required to have an
entry visa in accordance with Regulation (EC) No 539/2001 or, where appropriate, with national
law. For the purposes of this Directive, possession of the valid residence card referred to in
Article 10 shall exempt such family members from the visa requirement.

Well, that is helpful, but I am Australian and don't have a residence card.

[wet26]

Hi I'am just Trying to help and thanks for the breifing: I thgink you too need to read this article:
THE COURT,

in answer to the question referred to it by the High Court of Justice (Queen' s Bench Division) by order of 19 October 1990, hereby rules:

Article 52 of the Treaty and Council Directive 73/148/EEC of 21 May 1973 on the abolition of restrictions on movement and residence within the Community for nationals of Member States with regard to establishment and the provision of services, properly construed, require a Member State to grant leave to enter and reside in its territory to the spouse, of whatever nationality, of a national of that State who has gone, with that spouse, to another Member State in order to work there as an employed person as envisaged by Article 48 of the Treaty and returns to establish himself or herself as envisaged by Article 52 of the Treaty in the State of which he or she is a national. A spouse must enjoy at least the same rights as would be granted to him or her under Community law if his or her spouse entered and resided in another Member State.


That mean still need to apply for a UK entrance visa which is they will grant her with 2 years residence visa and after need to apply for the indefinite leave to remain.

I hope I'm Wrong

Thank you for trying to help. But you are not reading my question. British Consulate says that EEA FP applies to me, but they have refused it, saying I don't meet the requirements under Regulation 12, because my husband is not a qualified person.

I'm applying for an EEA FP because both my husband and I are living in Spain. He does not have a Spanish RC though. If I were in Australia (my country) then I would apply for a spouse visa. But as I am not, I am applying for a EEA FP.

[Ben]

I am Australian

Then you don't need an EEA FP. Just go.

Right of entry
1. Without prejudice to the provisions on travel documents applicable to national border controls,
Member States shall grant Union citizens leave to enter their territory with a valid identity card or
passport and shall grant family members who are not nationals of a Member State leave to enter
their territory with a valid passport.

a non-Community spouse of a Union citizen who accompanies or joins that citizen can benefit from the directive, irrespective of when and where their marriage took place and of how that spouse entered the host Member State.

Carry your marriage cert with you when you arrive at the UK border.

[wet26]

Hi wet26,

You're right - Singh conditions apply. UK spouse visa not required (not unless you prefer to use UK rules instead, which, by the way, you might).

Anyway, what country are you a citizen of?

Hi benifa,

I'm an Australian citizen.

I think the ECO was wrong in refusing the EEA FP on the grounds given. I don't think they know the rules properly.

I have read that I may still be granted entry at the port in the border force operations manual, whether or not this doc can be relied on, I don't know. Paragraph 5 in the below link.

http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary

Do you know of anyone who has done this with success??

[wet26]

I am Australian

Then you don't need an EEA FP. Just go.

Right of entry
1. Without prejudice to the provisions on travel documents applicable to national border controls,
Member States shall grant Union citizens leave to enter their territory with a valid identity card or
passport and shall grant family members who are not nationals of a Member State leave to enter
their territory with a valid passport.

a non-Community spouse of a Union citizen who accompanies or joins that citizen can benefit from the directive, irrespective of when and where their marriage took place and of how that spouse entered the host Member State.

Carry your marriage cert with you when you arrive at the UK border.

OK thanks! This response negates my previous question.

Is it going to matter that I have been in Spain illegally?

Also, is this applicable for settlement, as that is what we are going to do... surely it is more complicated than that?

[Ben]

Is it going to matter that I have been in Spain illegally?

No, but how are you in Spain illegally when you are the spouse of a UK national who is working in Spain?

[wet26]

Is it going to matter that I have been in Spain illegally?

No, but how are you in Spain illegally when you are the spouse of a UK national who is working in Spain?

I came to Spain in 2007, then met my husband and we were married in America on 1 June 09. I assume I am still here illegally as I don't have a visa or anything.

They let me back in the country, but I was not asked any questions, just the usual entry stamp.

[Ben]

Is it going to matter that I have been in Spain illegally?

No, but how are you in Spain illegally when you are the spouse of a UK national who is working in Spain?

I came to Spain in 2007, then met my husband and we were married in America on 1 June 09. I assume I am still here illegally as I don't have a visa or anything.

They let me back in the country, but I was not asked any questions, just the usual entry stamp.

Gotcha. Well, you became legal the day you got married anyway. It's your relationship with an EU national that determines your right to reside, not any document confirming so. Even without a Residence Card - you're still legally resident in Spain and perfectly entitled to work, open a business, enrol on a course of education..

But anyway, has no bearing on your right to follow your husband to the UK and reside with him there, under the EEA regs.

[wet26]

Is it going to matter that I have been in Spain illegally?

No, but how are you in Spain illegally when you are the spouse of a UK national who is working in Spain?

I came to Spain in 2007, then met my husband and we were married in America on 1 June 09. I assume I am still here illegally as I don't have a visa or anything.

They let me back in the country, but I was not asked any questions, just the usual entry stamp.

Gotcha. Well, you became legal the day you got married anyway. It's your relationship with an EU national that determines your right to reside, not any document confirming so. Even without a Residence Card - you're still legally resident in Spain and perfectly entitled to work, open a business, enrol on a course of education..

But anyway, has no bearing on your right to follow your husband to the UK and reside with him there, under the EEA regs.

Ok, so what should I say when I'm at the port?

p.s. thank you so much for helping

[sebhoff]

I'm applying for an EEA FP because both my husband and I are living in Spain. He does not have a Spanish RC though. If I were in Australia (my country) then I would apply for a spouse visa. But as I am not, I am applying for a EEA FP.

Yes - an EEA FP sounds right in these circumstances.

http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary -> Section 1.3

http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary -> Section 2.5.1


You mention that it is not a requirement for a British national to be a qualified person under the Surinder Singh judgment. Well - as far as I can see, this is slightly misleading. By definition, your husband can't exercise treaty rights in the UK - but on his return, he has to be in a position that would make any non-British EEA member state citizen a qualified person - e.g. be employed. Also, he presumably must have been a qualified person in the member state from which he is returning.
You write that you were told that your husband was not a qualified person. Since he has worked in Spain, this seems very unlikely.

Some possible questions:

- Is he actually still working now or has he stopped a while ago. In other words, is he exercising his treaty rights at the very moment?
- I don't think this has anything to do with it, but: you write that your husband was employed by a UK company. Is he paying taxes in Spain or in the UK? I could imagine that some unsympathetic case worker could try to construct something out of him paying taxes in the UK (if that is possible in the first place...)

You mention you and your husband don't have a Spanish residence card, but as someone has already pointed out that doesn't matter - as long as your husband is exercising his treaty rights... His right to reside and work in Spain (and yours!) is not dependent on the completion of any administrative formalities - so even if you failed to do something you should have done, I would think that this should have no influence on his status for the Brits now...

But I'm just groping in the dark here as I am no expert on this. It's highly likely that it's just another case of blatant incompetence on the part of British authorities... (Sorry - couldn't resist...)
Good luck!
sebhoff

[Ben]

Ok, so what should I say when I'm at the port?

That you are the family member of a UK national who has been exercising Treaty rights in an economic capacity in Spain and who is moving permanently to the UK.

IO's are entitled to ask you to provide evidence of your entitlements.

Easier if your husband enters with you. Or if he has to go to the UK before you, have him meet you at the airport.

p.s. thank you so much for helping

Pleasure!

[sebhoff]

That you are the family member of a UK national who has been exercising Treaty rights in an economic capacity in Spain and who is moving permanently to the UK.

IO's are entitled to ask you to provide evidence of your entitlements.

Easier if your husband enters with you. Or if he has to go to the UK before you, have him meet you at the airport.

And please post your experiences afterwards!
sebhoff

[wet26]

I'm applying for an EEA FP because both my husband and I are living in Spain. He does not have a Spanish RC though. If I were in Australia (my country) then I would apply for a spouse visa. But as I am not, I am applying for a EEA FP.

Yes - an EEA FP sounds right in these circumstances.

http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary -> Section 1.3

http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary -> Section 2.5.1


You mention that it is not a requirement for a British national to be a qualified person under the Surinder Singh judgment. Well - as far as I can see, this is slightly misleading. By definition, your husband can't exercise treaty rights in the UK - but on his return, he has to be in a position that would make any non-British EEA member state citizen a qualified person - e.g. be employed. Also, he presumably must have been a qualified person in the member state from which he is returning.
You write that you were told that your husband was not a qualified person. Since he has worked in Spain, this seems very unlikely.

Some possible questions:

- Is he actually still working now or has he stopped a while ago. In other words, is he exercising his treaty rights at the very moment?
- I don't think this has anything to do with it, but: you write that your husband was employed by a UK company. Is he paying taxes in Spain or in the UK? I could imagine that some unsympathetic case worker could try to construct something out of him paying taxes in the UK (if that is possible in the first place...)

You mention you and your husband don't have a Spanish residence card, but as someone has already pointed out that doesn't matter - as long as your husband is exercising his treaty rights... His right to reside and work in Spain (and yours!) is not dependent on the completion of any administrative formalities - so even if you failed to do something you should have done, I would think that this should have no influence on his status for the Brits now...

But I'm just groping in the dark here as I am no expert on this. It's highly likely that it's just another case of blatant incompetence on the part of British authorities... (Sorry - couldn't resist...)
Good luck!
sebhoff

Hi,

Thanks for replying. He is employed, but he is on annual leave at the moment - I don't think this will make a difference though? He is back to work in England on 2 July 09. We are due to travel from Spain to England on 29 June.

The situation is that he is employed by an English company and was transferred to Spain in 2007. He receives his income from England and pays UK taxes and NI. He has been living permanently in Spain since August 07, but all of his income is from the UK.

The ECO has not made it clear whether he is not a qualified person in the UK, or not a qualified person in Spain.

The ECO has referred to him as an EEA National though, which leads me to believe they refused because he is not a qualified person in the UK, although he is in full time employment with a UK company, just based in Spain. I provided a copy of his employment contract and P60, but these were not taken into account as evidence in the refusal letter.

I'm really confused, because from what I had read, I should have been granted the EEA FP and I think the ECO has made an error in interpreting the legislation. I'm also worried because perhaps I have missed something and will be denied entry at the port.

Thanks

[wet26]

Ok, so what should I say when I'm at the port?

That you are the family member of a UK national who has been exercising Treaty rights in an economic capacity in Spain and who is moving permanently to the UK.

IO's are entitled to ask you to provide evidence of your entitlements.

Easier if your husband enters with you. Or if he has to go to the UK before you, have him meet you at the airport.

p.s. thank you so much for helping

Pleasure!

Will do, I have all the evidence that I gathered in support of my EEA app. 20 documents, of which 6 were taken into account.

My husband and I are entering together.