Richard W

A visa is required.  The UK is not in the Schengen area, and is not subject to the directive on long-term residents.

On 06/10/2016 at 7:02 PM, Atkinsos said:

I am sure the SS loophole that allows us with Thai partners & children to 1st move to Europe & then the UK will most surely be closed & that is what I presume concerns most British on this forum.

Indeed.  Official guidance now explicitly prevents 'extended family members', like your partner, from benefiting under the SS regulations.  See Tony M's link for details.

2 hours ago, ilgitano said:

There was no deception. She had applied for a visa for a six month visit, to stay with her husband, me. First time, no ongoing pattern of behaviour.

Unless you changed your plan after that visit, the intention was to use visit visas as a way of living together in the UK for six months a year.  Such a pattern of residence is not permitted.  Additionally, an Immigration Officer does not always immediately know that there is deception; often he can only strongly suspect it and need to make further inquiries. 

On 12/08/2016 at 0:14 AM, theoldgit said:

Relationship:

Marriage certificate

Certificate Surname change

Certificate Marriage registration

Marriage addendum

House particulars marriage NO

Wedding photos NO

photos of us together over 1.5 years NO

Birthday/Valentine/wedding cards. NO

Transcript of communication 10 pages taken from each month. NO

Screen shots of FB wall showing our story. NO

Hotel/Flight tickets/bookings together. NO

 

 

On 14/08/2016 at 11:22 AM, 7by7 said:

Strictly speaking, since the abolition of the primary purpose rule in the 1990s (iirc) all that should be necessary to prove the relationship is a marriage certificate. However, the immigration rules do say

So I agree that some evidence of the relationship other than just the marriage certificate should be provided.

 

Unfortunately, neither specified evidence appendix nor the guide to supporting documents give any examples!

Actually, the 'guide to supporting documents' does make some suggestions, on p3, as to supporting documents for a subsisting relationship:

• This could be a letter from your sponsor confirming your relationship and that

  they are supporting your application along with copies of:

• photographs of your wedding, civil partnership ceremony or other time spent

  together

• phone records

• emails, letters or cards

Possibly a bit late for the OP, but one omission I hadn't noticed was a letter of permission from the mortgage lender for the wife to reside at the property.

 

On 14/08/2016 at 1:03 AM, theoldgit said:

It's not a turn round at all, the OP is not asking about a family permit he's asking about the documentation required for a settlement visa, please don't try and complicate matters.
The guidance from the UKVI is very clear, in the event that a couple are married, and they meet the financial requirement, the suggested evidence includes "a marriage certificate, a civil partnership certificate, a divorce certificate or a death certificate".

At the end of the day it's for the OP to decide what documentation is required to satisfy the ECO that he and his wife are married, he may decide that a Western Union transaction does little more than prove that he's sending cash to a woman in Thailand, it doesn't actually prove they are married.

Being married is not enough, as 7by7 has pointed out.

 

A WU transaction does not prove that cash is being sent to just any woman in Thailand.  It proves that it is being sent to a specific woman.  The wife's documents will show that she is that woman.

1 hour ago, theoldgit said:

 

They're married and the application is for settlement, so the marriage certificate should suffice.

That's quite a turn around.  Indeed, in the case of family permits (the EEA-route equivalent), where a marriage certificate should normally be all the evidence required of a marriage, family permits are still (2016) being (wrongly) refused because no evidence of a genuine relationship was supplied and the marriage is being declared a marriage of convenience.

57 minutes ago, 7by7 said:

I would not worry too much about the previous visit refusals as she is applying for settlement, not a visit and so the criteria are different. You can briefly mention them in your sponsor's letter with a brief explanation that you and she made mistakes due to inexperience and poor advice, if you like; but I wouldn't go further than that.

I would view them as evidence of an ongoing relationship - they should count positively for a settlement visa.

15 minutes ago, 7by7 said:

 

Indeed; and surely the date of travel entered by the applicant on the form is also the date from which they wish the visa to start?

That's OK unless the date is merely the best estimate.  For example, by the time the visa is received, there may no longer be suitable seats available, so a different date must be chosen.  Normally, it might be earlier or later, on a less suitable day of the week.

On 12/08/2016 at 0:14 AM, theoldgit said:

Sponsor Financial: (self employed)

<snip>

Western Union transfer receipts NO

SU07 form (required??) NO

 

Relationship:

 

Interesting.  I'd have included the transfers under evidence of the relationship.  At least, I assume these are evidence of the husband supporting the wife.

On 08/08/2016 at 11:08 AM, sas_cars said:

lol. surinder singh route gonna be obsolete isn't it? thanks to Brexit

There's a lot of suspicion that we won't actually exit the EEA or will end up like Switzerland currently is.  (No-one knows how Switzerland will end up.)  The EFTA court has decided that not just Surinder Singh, but even Eind, applies to Norway.  Besides, if the default exit time applies, we won't be out of the EU until 2019.

 

Family permits for Ireland are taking an inordinate time to issue, at least, if Surinder Singh is suspected.

I definitely agree that it's better to sort it out from the UK.  I don't know that you need to cut short your trip to Thailand.  £1,000 is the maximum fine, but I think that is supposed to come in after ignoring several warnings.

 

The rules on penalties are linked to from Non-compliance with the biometric registration regulations .  On my reading, your wife should get a warning and then a £125 fine if she takes to long to apply.  Make a note of what the Immigration Officer says at when she re-enters the UK.

7 hours ago, mike1983 said:

yes I'm aware of that, what I'm saying is what are the chances of her obtaining the actual visa and then if she had it we got married in the 6 months, can she apply to remain whilst here and what are the costs and time scales ect.

With any luck, your rejected visit visas have established that you are a couple.  I can't say much more than that, except that when my wife came over there was a regular pattern of failed visit visa followed by successful settlement visa, as spouse or fiancée.  That was back in the stone age, when physical love letters could be presented as evidence of a relationship.

 

Once you've married in the UK, your wife then promptly applies for settlement - per person, it comes to £811 fee + £19-20 biometrics fee + £500 Immigration Health Surcharge.  I say per person, because your fiancée might be accompanied by children.  Roughly 30 months later, you do the same again, but now she has to demonstrate competence in English at the A2 level.  Roughly another 30 months later, you do similar, with a steeper fee (£1875 per person) but I think no IHS, demonstrating competence in English at B1 and evidence of passing 'Life in the UK' (LitUK).  All being well, she then gets ILR.  I don't know what the current delays are, or how much things are being slowed by EU nationals panicking over Brexit.

My best guess is that strictly she needs a BRP replacement visa as though she had lost her BRP.

 

I think your least stressful path is to change her Thai passport in the UK and ignore the name change until you are back home.  You may face a £1,000 fine, but the potential for mishaps and delays in Thailand appals me.  You can't get a long term BRP  in Thailand; they can only be collected in the UK.  Neither form NTL nor BRP(RC) can be used for applications from abroad.

She may need a new passport first.  I can see all sorts of problems if her Thai passport doesn't show the new name.  Remember the renewal problem with Thai and British passports showing different names.  See p26 of No Time Limit (modernised guidance) for the handling of name changes.  The Home Office claims one cannot appeal against a refusal to issue a BRP, and willingly conceives of people being left without a BRP.

 

The correct form is form NTL - for which the fee is £308.  You won't get past question C1 in the March 2016 version of BRP(RC).

 

So could she get a tourist visa travel to the UK with her son then apply for a settlement visa to look after her son.

Dodgy at best. We know that the visa would have been obtained by concealing her true intention.

If she did use a tourist visa to obtain carriage to the UK, she could actually ask to be admitted on the basis of the derivative right that would arise once they entered the UK.

So first she has to enter the UK; which, because this is a matter of EU law, not UK law, she can do by applying for an EEA family permit as someone with Derivative rights of residence.

This uses the terminology of the guidance; by the Regulations, she does not have a derivative right of residence.

Worse, the derivative right of residence only exists if the child is 'residing in the UK'.

This is correct by the wording of the Regulations.

Shame that you wont also acknowledge that you were originaly wrong; but I suppose that's too much to hope for.

OK, I was wrong to believe what you wrote. Happy?

The correct nuance, which the UKVI advice doesn't employ, is "she can do by applying for an EEA family permit as someone who would have Derivative rights of residence." (That may be overly inclusive - I haven't checked all the interactions of Regulations 11(5) and 15A.) However, that link and what it references don't actually mention the possibility of non-EEA parent(s) and citizen child entering together - you have to read Regulation 11(5)(e) to find that. Another link raises hope with 'may' - but that 'may' also covers cases where there is no right.

I still can't completely dismiss the argument that the child could live with its British grandparents, and therefore there is no need for its primary carer to live with it if it is to be in the UK. Paragraphs 24 to 26 of EOPN 21/2012 bother me in this regard. Do you think I am worrying too much?

She will be able to apply for ILR on grounds of long residence after the required period.

While I believe you, I have been pooh-poohed when I have put forward that claim. (I presume you are talking of 10 years rather than 20 years). Do you have a good source for this statement? I have seen claims, not backed by evidence, that (a) lawful presence under the EEA regulations does not count, and ( the Immigration Rules are not available to some one with an EEA right of entry except where the Rules so state - Immigration Rule 5.

So his mother can apply for a derivative right of residence using the European court judgement in the Zambrano case.

But she can only do this from inside the UK.

Worse, the derivative right of residence only exists if the child is 'residing in the UK'.

In the part of my post you haven't quoted I provided a link which you have chosen to ignore; in which it says

5. Derivative rights of residence

You can apply for an EEA family permit if you have a ‘derivative right of residence’ as the.....primary carer of a British child......

So, I believe, this means that as she is the child's primary carer the mother can apply for an EEA family permit in order to accompany her British child when he moves to the UK to take up his lawful residence and once here she then applies for her derivative right of residence.

But, as Bob says, this is a complicated area and professional advice is recommended.

As I said to you elsewhere, maybe one day you will offer some useful advice to an OP instead of merely naysaying what others have said.

Have you any to offer here?

There is a problem with the conflicting terminology of our sources. I prefer to work from the law, in this case the EEA Regulations as they are known as. According to these regulations, the derivative right only exists if the child is residing in the UK. However, the law on admission to the UK is not based on having a derivative right of residence, but rather is based seemingly independently on the bases for such a right.

In particular, the key article in the regulations is the seeming odds and sods Regulation 11(5), and in particular Regulation 11(5)(e):

"P is accompanying a British citizen to, or joining a British citizen in, the United Kingdom and P would be entitled to reside in the United Kingdom pursuant to regulation 15A(4A) were P and the British citizen both in the United Kingdom."

The mother meets the requirements of Regulation 15A(4A), quoted by BobRussell earlier in this thread. Your preferred source uses a subtly different definition of 'derivative right'.

The good news is that we can now cite chapter and verse for the right of mother and child to come to the UK together.

By excluding the OP's wife, the government hopes to exclude the OP's children and therefore save on the cost of educating them, as well as other costs relating to them. This is quite a considerable saving.

Not wishing to be pernickety, but the OP's wife isn't excluded it's just that she has to meet different requirements from those wishing to enter from the EU.

I didn't mean that the government has succeeded in excluding the OP's wife permanently; I am merely referring to what is 'achieved' if the financial requirement does keep her out. The OP will be coming to the UK without her, a situation he hopes to rectify. The cost-benefit analysis of the 2012 change included the savings made by children not enjoying UK services and benefits.

I recall the assessment that delaying children arriving in the big wave of black immigration had dire social and educational effects. I don't think that splitting the OP's family is actually in the UK's long-term interest. Perhaps the government had no way of putting a price on the effects, but I can't help thinking they have forgotten them.

There was also the potential political benefit in the 2012 changes. If the family stays together, they can make the difference in net migration between 4 incomers and none.

More to the point, a Frenchman in the OP's position could bring his family to the UK with no problem. Now, has the UK voted to remain, the Frenchman would have been in the same position as the OP. As it is, that anomaly remains until the UK leaves the EEA.

I assume by 'has' you mean 'had.'

But then, had the UK voted to remain the Frenchman, like all other EEA nationals, would not have been in the same position as the OP! He would still have been able to use the EEA regulations.

What will happen when the UK does finally leave the EU remains to be seen.

The freedom of movement rights are not an anomaly; they are rights granted under international treaty. Rights currently enjoyed by approximately 1.5 million British citizens living in other EEA member states; many with their non EEA national partners.

But part of the agreement was that the Commission would propose a modification to the directive whereby spouses could not use these rights to enter the EU - the change had been described as reversing the Metock judgement, and there was a lot of uncertainty as to what the changes would have been in detail. Once the directive had been modified, the Regulations would have been modified to reflect what the Home Office expected out of the agreement.

The anomaly is that non-citizens have greater rights than citizens. It used not to be such a great difference, and at one time citizens' wives could be established securely much more readily than non-citizens'. What has happened is that EEA nationals' rights have been improved, while UK citizens' rights have been diminished. Italy resolved the anomaly by giving its citizens the same rights with regard to Italy as other EEA nationals.

Where are those restrictions laid down? I can find them in neither the directive (2004/38/EC) nor the Immigration (EEA) Regulations. He does not have to demonstrate and capability to support himself to enter the UK, and he can stay if exercises a treaty right, even if he claims housing benefit.

You could not have looked very hard!

Para 10 of the directive

Persons exercising their right of residence should not, however, become an unreasonable

burden on the social assistance system of the host Member State during an initial period of

residence. Therefore, the right of residence for Union citizens and their family members for

periods in excess of three months should be subject to conditions.

Maybe my wording was not to your liking, but I'm not going to indulge in another of your petty arguments over semantics.

Note that these 'conditions' boil down to being a qualified person. In principle, part-time work suffices, though the UK imposes a minimum earnings level for it to be counted as effective work. There was a very real prospect that the UK's income-based definition of effective work would be challenged by the Commission.

In this directive, there seems to be quite a gap between the recital and the actual articles.

So his mother can apply for a derivative right of residence using the European court judgement in the Zambrano case.

But she can only do this from inside the UK.

Worse, the derivative right of residence only exists if the child is 'residing in the UK'.

Your single Romanian man can only come to the UK if he is exercising a treaty right and can show he can support himself without becoming a burden upon the state; as can all other EEA nationals. British citizens have the same right in all other EEA states.

Where are those restrictions laid down? I can find them in neither the directive (2004/38/EC) nor the Immigration (EEA) Regulations. He does not have to demonstrate and capability to support himself to enter the UK, and he can stay if exercises a treaty right, even if he claims housing benefit.

More to the point, a Frenchman in the OP's position could bring his family to the UK with no problem. Now, has the UK voted to remain, the Frenchman would have been in the same position as the OP. As it is, that anomaly remains until the UK leaves the EEA.

By excluding the OP's wife, the government hopes to exclude the OP's children and therefore save on the cost of educating them, as well as other costs relating to them. This is quite a considerable saving.

You might need a large set of stamps. The problem is that you'd probably want a set of stamps for each combination of letter (44), superscript or subscript vowel (7) and tonemark (3 or 5, including no mark) and also consonants with maitaikhu or karan. A lot of combinations don't occur, so you might be looking at a set of 500.

In my opinion it is simply not possible to change the directive.

The right of free movement is given in the Treaty on the Functioning of the European Union (TFEU). That is primary law.

Surinder Singh is safe in principle by that argument. The Metock judgement ruled that the EU had capacity to make rules relating to the matter, and then interpreted the directive 2004/38/EC. The general view was that a new directive would be required to make the changes, which many believe would be compatible with the treaties. Still, the proposal is dead for now - unless the Dutch or the Danes pick it up. (When do the Netherlands leave the EU?)