7by7

1) As he said ".......say for instance I moved from the UK to Germany....."I got the impression that bifftastic was asking a hypothetical question!

2) I said " I'm not sure about Germany's procedures for this, but as Germany is a Schengen state I think she would first obtain a Schengen visa from the German embassy in Thailand and then apply for residence once in Germany." You may not understand what "I'm not sure" and "I think" mean; but I'm sure that bifftastic and other readers do.

3) If my thoughts on the German procedure are correct, then she would apply for residence once in Germany. EEA regulations mean this must be issued, assuming she qualifies, without delay. So any time limit and other restrictions on her Schengen visa would be irrelevant.

4) What 180 days has got to do with it, only you know. There is no minimum time one must spend in another EEA state before using the Surinder Singh judgement to return home with your non EEA family.

5) Bifftastic was seeking clarification of my earlier post, which he quoted, where I had explained that he must be exercising an economic treaty right in Germany for his wife to join him there under the EEA regulations. Furthermore I explained that for him to utilise the Surinder Singh judgement to return to the UK with his wife he must have been working in another EEA state and his wife have been living there with him. You should read all of the posts you wish to criticise; you'll look less foolish that way.

6) You are right, though, when you say "the facts speak for themself (sic)." Do they have facts under your bridge?

Almost.

In your scenario she would not have to go through German immigration/settlement procedures, she could apply under the EEA regulations. I'm not sure about Germany's procedures for this, but as Germany is a Schengen state I think she would first obtain a Schengen visa from the German embassy in Thailand and then apply for residence once in Germany.

If she was moving directly from Thailand to join you in the UK then yes, the EEA route would not be possible. Not because it would be seen as circumventing the UK immigration rules but because the EEA regulations specifically say that they do not apply when the family member is coming from outside the EEA to the EEA national's home country.

The TB cert requirement depends on where the applicant applies for their visa and therefore where they were living at the time, not where they happen to be flying to the UK from.

If she applied in Thailand then she will have needed a TB certificate, I'm not sure about the Philippines.

The Immigration Officer wont really care which flight she arrived on, only, from her visa, that she was granted her visa in Bangkok. So they may want to see a valid certificate and if she doesn't have one may send her to the medical centre before admitting her. Then again, they may not!

I have even heard of people with a valid certificate being sent to the medical centre. I've also heard of people not even being asked for it and allowed straight through.

A bit of a farce, really, as if a TB certificate is required then the visa holder would not have got their visa without one and therefore, in my opinion, this should not be an issue at UK immigration. Though if there is a longish gap between obtaining the certificate and traveling I suppose they could have contracted TB since obtaining it.

Either.

The LitUK test will be quicker and cheaper, if her English, reading and writing, is up to it she should do that. But if her standard of English is not at ESOL entry level 3 or better then she will probably struggle with the study materials and the test itself so a course would be the better option.

If she does the ESOL course, make sure that it includes citizenship materials; sometimes called skills for life.

See Demonstrating your knowledge of language and life in the UK

Can I just ask, for clarification purposes, does the non EEA spouse have to be already resident in the EU state that the EEA national is moving from in order for this permit to apply? Or can the non EEA spouse arrive from outside of the EEA with no previous immigration/settlement visa whatsoever?

What I mean is, wouldn't it be seen as trying to circumvent immigration law if the non EEA person moved directly from Thailand (in this example)?

I thought that this permit was for people from outside the EEA who had already gone through the immigration/settlement process in one EEA state and then wanted to move to another EEA state with their EEA national spouse/family.

There is much confusing information and misinformation in this thread, agreed. Most of it from one source!

EEA nationals have the right under EEA freedom of movement treaties to exercise certain 'economic treaty rights' in all other EEA countries. They also have the right to have their non EEA national family members live there with them.

These family members can either accompany the EEA national when he moves to the other state, or join him at a later date.

If the EEA national is living in or moving to the state of which he is a citizen then the EEA freedom of movement regulations do not apply and their non EEA national family members need to obtain the appropriate visa under that state's immigration law. Unless he has dual EEA nationalities, in which case he can use his other nationality to apply under the EEA regulations for his family.

However, if an EEA national has been working in an EEA state other than his own and his non EEA family members have been living there with him and he now wishes to return to his home country then the Surinder Singh judgement means that he can use the EEA regulations rather than his home country's immigration law to obtain entry clearance for them. Note that he must have been working, other economic treaty rights, such as living off independent means, are not covered by this judgement.

Hope that's clear.

N.B.

For clarity I have used the male pronoun throughout the above, but the gender of the EEA national is, of course, irrelevant.

As for how far fetched it may sound, yes, one can turn up at a border without a visa, and providing I can prove I am an EU citizen and that the person is a family member, a visa MUST be issued on the spot. Source the European Union website (not some silly website in the EU - this is the EU) I provided yesterday

I know. I linked to that website when I said that obtaining prior entry clearance would save a lot of time and effort at immigration.

You really should research thoroughly. Much of what you say is true, but further research of the relevant official websites will show you that there is a lot more to it than you seem to think.

Even if an EEA state does not require evidence of finances at any stage, remember that as I tried to explain to you earlier, the public funds which an EEA national and their Non EEA family members can claim in an EEA state other than their own is extremely limited. If they did not have sufficient resources of their own they would not survive for very long!

Am I saying the UK family permit is illegal. Yes, no, maybe etc. I am just trying to explain why such a challenge might have been made i.e. speculating.

Backtracking a bit here, aren't you!

I really can't be bothered with this anymore. You have a little bit of information and are extrapolating from that without checking all the relevant facts. You say that you are a teacher; I hope for your students sake that your lesson preparation is not as sloppy!

AngryParent, you said

I wish I could find the link that posted that such family permit was illegal and being challenged (as it somehow) reduced free movement - I think I read it in some Spanish immigration/expat forum.

Are you really saying that the EEA family permit system of the UK is illegal?

Do you also believe that the system used by the Schengen states is illegal?

What about the other EEA states; are their systems illegal too?

Are you really saying that every single EEA country has this wrong and that you are right?

All because you think you read on some Spanish website that the UK's EEA family permit system is being challenged!

Even if someone has decided to challenge the legality of the family permit system does not mean that it is illegal. If such a challenge is being made, it is for the courts to decide, not you.

I do believe that you are correct and that an EEA national can turn up at immigration in another EEA state with his non EEA national family members without obtaining that states appropriate entry clearance first; for example an EEA family permit for the UK. However, their passage through that country's immigration will be considerably eased if they have obtained said entry clearance. As is said in your link!

I'm not sure about other EEA states, but in the UK a residence card is not compulsory; although it is recommended.

Finally, read your Irish information again, you must have missed the bit about finances and health insurance rather than ignored it, because you don't cherry pick.

Nothing to do with visas and migration to other countries; moved.

It is unfortunate that the approved test providers in Thailand do not consider it worth their while to provide a speaking and listening course/test only; but as they get most of their clients from the business community I suppose I can't blame them. This is what happens when these things are contracted out to private companies; but that's another subject.

Yes, the paper showing the level reached in speaking and listening is fine.

One post removed; only forum sponsors may advertise on the forum.

You are correct, I did miss you saying that one had to have been working in another EEA state in order to exercise Surinder Singh rights; which you had previously denied. Apologies for that.

You are correct that an EEA national does not have to provide evidence of their finances; I have never said they do. But we are talking about their non EEA national family.

The reason why the EEA family permit is not in use in other EEA countries is because it is the UK's way of doing it. As Eff1n2ret said, other states have their own procedures; he gave the example of the Schengen states.

You say the EEA family permit is being challenged in the courts. Where? Who by? Do you have a link to the case?

Again I say, you have presented this as the solution to anyone who has, or is likely to have, their spouses UK settlement visa refused. It may be suitable for some, I have never said otherwise, but it is not the wonderful, simple solution you think it is. I have tried to explain why; but like in your gaining Thai nationality topic, you cannot accept that you have not considered all the factors.

I have neither the knowledge nor experience to compare A1 with an ESOL level, I'm afraid.

However, for ILR she does not need ESOL level 3, which is a very high standard, nor even the much lower ESOL entry level 3.

If her standard of English is at ESOL level entry 3 or better then she will be able to understand the study materials for the LitUK test and the test itself and so should follow this route; apart from anything else, it's cheaper!

However, if her English is not good enough for this she can follow the ESOL with citizenship course. All she needs to do here is move up one level. She will be assessed before starting the course, and if, for example, she is assessed at entry level 1 and moves up to entry level 2 then this will satisfy the requirement.

See Knowledge of language and life in the UK for more on this.

Theoretically, as long as the TB certificate was valid when she applied for her visa, that should be fine. In practice? By coincidence, I was talking to a friend about this last night! Her TB certificate was still valid when she arrived in the UK, but she did not have it in her hand luggage. The IO asked for it and when she could not produce it sent her to the medical centre! So she should be prepared for the same.

You say she has her visa already, but is not traveling until April. Did she have the start date of her visa postdated? The visa is valid for 27 months, and she must have been residing in the UK for at least 24 months to be time qualified for ILR. If the visa has not been post dated it will expire before this and she (you) will have to pay for an expensive extention!

For some reason, the UKBA in Thailand website no longer lists the approved test providers in Thailand!

This is the full list of approved providers; one suggestion is that you contact them to ask if they provide the test in Bangkok.

The British Council do offer English courses, but these appear to be way above the level required. However, they may be able to advise you on a suitable course or exam.

Most other courses and tests in Thailand are aimed at those who want to learn English for business use. They will include reading and writing and concentrate on business language etc.

However, the results scored in reading and writing are irrelevant. As long as the applicant scores A1 or better in speaking and listening, that is all that is required for their visa application; even if the actual test is failed.

The BULATS test is business based, and does include reading and writing elements. However, the results he scores in these are irrelevant; even if it means he fails the test!

As long as he scores A1 or better in speaking and listening, that is all that is required for his visa.

It is not the UKBA who introduced this test. The last government were going to, but they lost the election; so the present government did. Any changes to the test, such as raising the standard required, will be made by the government, not the UKBA.

Why do you say that a language requirement is unnecessary? How do expect him to find work and otherwise integrate into UK society if he cannot speak any English?

Remember that in order to obtain Indefinite Leave to Remain in the UK he will have to satisfy the much harder Knowledge of language and life in the UK requirement.

You bring up the jobseeker issue as if I have ignored this or am wrong. As post #23 by Eff1n2ret posted, jobseeking is a vaild when using this EEA route - to enter a third party EU state and also to enter the UK

As the Entry Clearance Guidance I linked to before says

Applications for EEA family permits must meet the following criteria:

The British citizen is residing in an EEA Member State as a worker or self-employed person or was doing so before returning to the UK.

Don't believe them; how about reading the judgement itself? Says the same.

You are also ignoring the not inconsiderable costs involved in first moving to another EEA state and then, after a period, moving back to the UK. Costs which will be far in excess of the cost of a settlement visa and then ILR.

You are also ignoring the considerable disadvantages faced by the non EEA national spouse regarding the wait for PR and then citizenship as opposed to a Spouse who entered via the immigration rules.

I still contend that presenting oneself at any EEA embassy and asking for their equivalent of an EEA family permit for one's non EEA spouse when one has no job, no income, no savings and no means of financial support will only result in a refusal.

If a British citizen wants to live and work in another EEA state with their non EEA national spouse or partner; fine, their choice. If they should then want to move back to the UK; fine, their choice. But to present the Surinder Singh judgement as a viable way of bypassing the UK immigration rules on spouse settlement, a loophole if you will, is in my honest opinion ridiculous.

The ECJ is a EU entity 100%! It is the court that deals with all these EU (non ECHR cases, but from my knowledge also does dabble a bit in ECHR matters). It is the court that was responsible for the Surinder Singh Judgement.

You are correct, the ECJ is an EU entity; I should have said the European Court of Human Rights.

On that subject, one cannot argue that the Council of Europe is an EU entity! The Council of Europe has 47 members; the EU 27. The European Convention on Human Rights and the European Court of Human rights are institutions of the Council of Europe.

BTW.

You will see that I have edited your preceding two posts. Please refrain quoting previous posts in full every time you post; particularly when it results in several nested quotes.

If you do not want or need to quote another post, either use use the "Fast Reply" box at the foot of the page or the "Add Reply" button immediately above that box.

If you do want to quote an earlier post, then please only quote the relevent part rather than all of it by deleting the parts which aren't relevent.

This will make your posts easier to read and is good 'netiquette'. See Forum Netiquette Please read before posting.

I also do not want to start a debate on them that takes the thread off topic.

That ship has long ago sailed!

because of that, and as the OP appears to have made a decision on his course of action: closed.

Angry Parent,

It seems that, like your two topics on Thai nationality, you have asked the question when you think you already know the answer!

It also seems that, like those two topics, you are cherry picking quotes from official publications, regulations, directives etc. that substantiate your argument and ignoring those that don't.

Yes, a UK national and their non EEA family members can use the EEA regulations to move to another EEA state if the UK national is, or intends to be, exercising an economic treaty right in that country. However, as previously explained, they will need some finances or income as their eligibility for state funds in that state will be extremely limited. If job seeking their time there will also be limited if they don't find one; and as Eff1n2ret has said, other EEA states tend to be more rigorous in enforcing this than the UK.

Yes, the Surinder Singh judgement does mean that an EEA national who has been employed or self employed in an EEA state other than his own whose non EEA family has been living there with him can use the EEA regulations to return to his home state with his family. But only if he has been actually working; job seeking, studying and living on independent means don't qualify for this.

Whilst your suggestion is legally possible, the practicalities of doing so are beyond most. Most UK sponsors of spouse or partner visas are living and working in the UK. They would have to quit their job, move to another EEA state and find work there.

Persons, such as yourself, who are currently living outside the EEA wouldn't have this problem, of course. However, there is also the cost element. First, the cost of moving from Thailand, or wherever, to one EEA state and setting up home there;followed by the cost of moving from that EEA state to his home one; in your case the UK. Whilst, obviously, one such move and it's costs will be unavoidable, the cost of the second will almost certainly be more than the cost of a settlement visa and then ILR.

You seem to think that obtaining a UK settlement visa for your spouse is extremely difficult. It isn't. The success rate of over 90% plus numerous posts in this, and other, forums shows that. You seem to be basing your opinion on just one case reported here, but in that case the refusal was not because the applicant didn't qualify but because they, or rather their sponsor, failed to show that they did!

Your statement that the sponsor would have to return to the UK at least three months in advance and find employment of some kind is utter nonsense. Funds for maintenance can come from the income and/or savings of the applicant, the sponsor, a third party or any combination of these. Also, the employment prospects of both applicant and sponsor can, and if necessary will, be taken into account.

As previously explained, there are disadvantages to following the EEA route instead of the UK immigration one.

However, it is your life and your decision. If you do decide to try this, let us know how you get on.

BTW, the European Convention on Human Rights and the European Court of Justice are not entities of the EU or the EEA. Although all EEA states are, I believe, signatories to the one and members of the other.

I am not totally au fait with the Schengen rules, but think that if your mother-in-law is totally and completely financially dependant upon you, and you can prove it, then she would qualify for a free Schengen visa, otherwise she'll have to pay.

Asking about claiming asylum in Thailand, so moved to Thai visas etc.

Yes, muti entry means that she can use the visa to enter the UK as often as she wishes, provided she leaves the UK for the final time on or before the expiry date.

N.B.

Please do not post all in capitals, it is the internet equivalent of shouting.

Indeed, Razz.

A Brit, call him Mr. AP, falls in love with and in the fullness of time marries a Thai. Mr. AP then has to quit his job in the UK and find one in another EEA state because to qualify to return to the UK using the EEA regulations under the Surinder Singh ruling he would have to be either working or self-employed in another EEA state, job seeking doesn't count. (I may have said elsewhere that it does; if so, I was wrong. Having checked; it doesn't.)

Mr. and Mrs AP then decide to return to the UK. However, his wife would have entered the UK under the EEA regulations, not the UK immigration rules. It is not possible to switch.

EEA regs, permanent residence after 5 years.

UK rules, ILR after 24 months.

EEA regs, have to have held PR for at least 12 months, so be in the UK for at least 6 years, before time qualified for British citizenship.

UK rules, time qualified after being in the UK for 3 years, provided you hold ILR; so for most this is just three years after first entering with their spouse visa. It could be less as time spent in the UK as, for example, a visitor counts towards the 3 years. (Current proposals mean this may change to 5 years, but it'll still be a shorter time than the EEA route.)

Yes, the EEA route is free and the UK route is expensive. But you have to balance the cost of the UK visas and LTR applications against the cost of moving to another EEA state for a period and then moving back to the UK. Not to mention finding a job in the other EEA state and no guarantee of a job when you return to the UK.

AP, you are right that an EEA national, or their family, cannot be deported for claiming public funds; but for most public funds any claim they made would be refused. Until they have PR they can only receive those benefits to which they have contributed through their NI contributions and some others; most they cannot. See page 18 of this document for the list. Similar rules in the other EEA states.

Turn up at any EEA embassy anywhere to apply for a permit for your non EEA family to live in that state with you saying that you have no income and will be relying on claiming public funds when you get there and you will be shown the door.

Thus while an entire family of EEA Nationals may be able to rock up in the UK with nothing but the clothes on their back and stay as long as they like because UKBA has never had the will to implement the removal provisions in these Regulations (see Para 19), those who have to apply for a Family Permit for a non-EEA national are liable to supply some evidence of their financial situation. One assumes that if the applicant or their sponsor declined to do so, the ECO would invoke 13-(3b), although I have no direct knowledge of such cases.

Any idea how rigorously, or otherwise, other EEA states apply this?

Besides can a UK citizen use the EEA method to return to his own country? Surely this is meant for EU Nationals setting up business or looking for work with in the UK or other EU country other than their home country.

EUN2.14 Can family members of British citizens qualify for an EEA family permit? ('Surinder Singh' cases)

As a general rule, family members of British citizens do not qualify for an EEA family permit. Article 3 of the Directive essentially says that an EEA national cannot be considered as exercising freedom of movement in their own State -

This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of Article 2 who accompany or join them.

However, where an EEA national has exercised a treaty right in another Member State as a worker or self-employed and they wish to return to their own State having exercised that right, certain provisions may apply in order for their non-EEA family members to qualify under the EEA Regulations.

A British national and his / her non-EEA national family members can only benefit from free movement rights if they meet the criteria established in the ECJ case of Surinder Singh. The case stated that nationals of a Member State who are exercising an economic Treaty right (that is, as a worker or self-employed person) in another Member State will, on return to their home state, be entitled to bring their non-EEA family members to join them under EC law.

Example: A British national is exercising an economic Treaty right in Germany and living with his non-EEA national spouse and children. On the British national's return to the UK, his non-EEA national family members can apply for an EEA family permit to join him under EC law.

The Surinder Singh judgement is incorporated into the EEA Regulations in Regulation 9. Family members of British nationals who meet the requirements of Regulation 9 are treated as family members of EEA nationals for the purposes of the EEA Regulations.

Applications for EEA family permits must meet the following criteria:

• The British citizen is residing in an EEA Member State as a worker or self-employed person or was doing so before returning to the UK.
• If the family member of the British citizen is their spouse or civil partner, they are living together in the EEA country or they entered into the marriage or civil partnership and were living together in that EEA country before returning to the UK.

Because EEA nationals have an initial three months right of residence in the UK, there is no requirement for the British national to be a qualified person on arrival. Therefore, an EEA family permit can be issued to the non-EEA national family member of a British national even if they are only visiting the UK with the British national before returning to the Member State where they are resident.

It does not matter if the only reason the British national went to another Member State was to exercise an economic Treaty right was so that he / she could come back to the UK with his / her family members under EC law.

The ECO should seek advice from ECCCAT where unsure about the decision to be taken in applying the Surinder Singh judgement

Note the emphasis on worker or self-employed. The British national must have been one or the other in another member state, and their spouse or civil partner must have been living with them in that state. There is, however, no minimum time laid down in the regulations that they must have been doing so.

Your wife would be better of claiming political asylum!

Apart from having to actually be in the UK in order to do so, her chances of success depend upon a number of circumstances; not least the situation in her homeland and whether or not she would be persecuted, or worse, there for her political, religious or other beliefs. If she is Thai, this is highly unlikely!

Asylum is not as simple and easy to obtain as the Mail and Express would have the gullible believe!

1) Each member state has it's own system. For the UK you would apply for an EEA family permit. For a Schengen member state I believe that your non EEA national family members would apply for a Schengen visa to enter the country and then apply to the relevant authorities for permission to stay. For the exact details, check with the country concerned.

2) You must show that you, the EEA national, are or will be exercising an economic treaty right and can support and accommodate you and your non EEA family without recourse to public funds.

3) Essentially for life; although if the holder no longer resides in the state concerned it will lapse and they will need to get a new on if they wish to live there again. They can apply for a residence card, but this is not compulsory. After living in a member state for 5 years they can apply for permanent residence.

4) If their EEA national partner is no longer exercising a treaty right in that country or if the relationship with their EEA national partner ends before they have permanent residence are two that spring to mind. There may be others, I'd have to check. Conviction of a criminal offence would probably do it, too.

5) You would apply to the British embassy in the country concerned for an EEA Family permit. The procedure and requirements are the same as for non EEA family members of any other EEA national.

European Nationals and Schemes (EUN) explains the UK's system. Other states, as said, have their own procedures and you should check with the country concerned, but the regulations are the same for all member states.