Possible Flaw In Immigration Rules Allowing Residence

[torrenova]

I watched a programme downloaded from UK tv about bogus marriages of convenience for non EU nationals. Though these illegal marriages are not the point of this post, I was wondering if the loophole they exploit could be used to legally allow Thai (or other country) nationals to gain entry to and residence in the UK (or another EU state). I may have got the wrong end of the stick but it seemed quite clear.

The man was African, the woman from Brazil but with either a Portuguese passport or residence in Portugal. The exploitation of the loophole, which is illegal in their case but which would not be illegal for a couple who really wanted to marry, was that if she was in another EU state (namely the UK in this example) and married the African guy there, then he did not have to return to his home country and apply for a fiancé visa. He could be in the UK on some other visa (I do not know if he could be in the UK illegally) and here is the important point - he would be granted some form of residence or permanency which he would not have gotten had he married the girl in her EU member state.

Now I don't know the technical things and I haven't googled around but I wondered that if a fiancée visa was hard to get but a tourist visa was quite easy, then could a UK guy not marry his Thai girlfriend in another EU country and then head off to the UK with her gaining some advanced form of residency etc.

As I said, I cannot be 100% that I've picked it up totally accurately but it would be interesting to know if anyone else has information on this.

[nisakiman]

I think not.

I am a UK citizen living in Greece. I got married to a Thai woman here in April last year, and the Greek immigration authorities have given her a residents permit which is linked to mine - that is to say as long as my residents permit here remains valid, then she will automatically retain hers. (There is, of course, paperwork, but it's relatively straightforward.)

I made enquiries as to her status if I wanted to return to UK, and this is the answer I got.

Thanks for your enquiry. I can advise as follows:

1) As a EEA national exercising your Treaty Rights to live and work in another EEA state, your wife is entitled to an EEA Family Permit. Howeveer, when you return to your own state, your dependant will be subject to the requirements of "local" Immigration Rules and, as such, a (family) visitor's visa will be required for her to accompany you back to the UK.

Guidance Note INF 2 on our website (ukvisas.gov.uk/en/howtoapply/infs/ (click on the relevant link at the left-hand side of the page)) gives advice to persons wishing to visit the UK. The visa application form (VAF 1B) may also be printed-out from this web-site and used in making a visa application.

You will note that amongst the requirements are that the visa applicant:

- does not intend to work;

- will not have recourse to public funds;

- will not stay in the UK for longer than six months; and

- will be able to meet the cost of onward travel (or holds a ticket for this purpose).

Multiple re-entries to the UK within six months of the initial entry should not normally present a problem, but please note that a person is not normally permitted to stay in the UK as a visitor for more than a total of six months in any period of 12 months.

The cost of a standard visit visa, valid for any number of entries to the UK within six months of the date of issue, is currently the equivalent of 67 pounds per person.

2) If/when you decide to return to live in the UK, a (spouse) settlement visa will be required for her purposes.

Information on entry to the UK as a fiancé(e) or spouse to join for settlement a person settled, or about to become settled, in the UK, will be found in our guidance leaflet INF 4. This, and the relevant visa application form (VAF 4A), may aalso be printed-out from our web-site.

The visa cannot be applied for in the UK.

A person entering the UK as a spouse may take up employment immediately.

The current fee for a settlement visa, as set by Parliament, is 585 pounds for each person applying for entry clearance. International custom requires that the visa fee must be paid in the currency of the country where the application is made (that is, it cannot be paid in sterling).It is possible to apply on-line for UK entry clearance (visas, EEA family permits, etc) in most countries overseas via the website at visa4uk.fco.gov.uk.

Further information relevant to the country from which the application will be made will also be found via a link from that website. This will normally include the amount of the visa application fee in local currency and likely processing time.

Sent by:

Public Enquiries [J], Visa Services, International Group,

UK Border Agency, London SW1A 2AH

Web-site: ukvisas.gov.uk

When I tried to post this, I was told I can't post URLs, so I've knocked off the www from all of them in the hope it will pass muster this time.

[Eff1n2ret]

"2) If/when you decide to return to live in the UK, a (spouse) settlement visa will be required for her purposes."

UK Visas actually told you that? It's utter tosh.

Email them back and ask "What about Surinder Singh cases?" The Surinder Singh judgement long ago established that where an EEA national has been exercising their treaty rights outside their own country, they have the same status when they come back to live and work in their own country, so their dependants qualify for EEA Family Permits which are free of charge. This is now enshrined in the EEA (Immigration) Regulations 2006.

There are so many people who have got themselves into positions of authority in UKBA whose level of knowledge of immigration matters is as little or less than most members of this forum, that one can have no confidence in it becoming an efficient and effective organisation. We'd be better off with no immigration controls, and just let the police go out and shoot a few of the riff-raff now and again - just like Thailand, eh?

[nisakiman]

"2) If/when you decide to return to live in the UK, a (spouse) settlement visa will be required for her purposes."

UK Visas actually told you that? It's utter tosh.

Email them back and ask "What about Surinder Singh cases?" The Surinder Singh judgement long ago established that where an EEA national has been exercising their treaty rights outside their own country, they have the same status when they come back to live and work in their own country, so their dependants qualify for EEA Family Permits which are free of charge. This is now enshrined in the EEA (Immigration) Regulations 2006.

There are so many people who have got themselves into positions of authority in UKBA whose level of knowledge of immigration matters is as little or less than most members of this forum, that one can have no confidence in it becoming an efficient and effective organisation. We'd be better off with no immigration controls, and just let the police go out and shoot a few of the riff-raff now and again - just like Thailand, eh?

That's very interesting. I'll google that bit of info and see what I come up with. If what you say is correct, I'll definitely be communicating further with UK Visas! Thanks for that snippet of information. Could save me a fair lump of money!

[nisakiman]

I've just skimmed through the judgement in the Surinder Singh case, and the reference seems to be

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 territory of the State of which he or she is a national

, which to me suggests that my wife, had she accompanied me from the UK here to Greece would be covered by this ruling. However, she has never been in the UK, as we married here in Greece. Not sure whether she would be covered in the same way under these circumstances.

[nisakiman]

This is the summary of the judgement.

The provisions of the Treaty relating to the free movement of persons are intended to facilitate the pursuit by Community citizens of occupational activities of all kinds throughout the Community and preclude measures which might place Community citizens at a disadvantage when they wish to pursue an economic activity in the territory of another Member State. For that purpose, nationals of Member States have in particular the right, which they derive directly from Articles 48 and 52 of the Treaty, to enter and reside in the territory of other Member States in order to pursue an economic activity there as envisaged by those provisions.

A national of a Member State might be deterred from leaving his country of origin in order to pursue an activity as an employed or self-employed person in the territory of another Member State if, on returning to the Member State of which he is a national in order to pursue an activity there as an employed or self-employed person, his conditions were not at least equivalent to those which he would enjoy under Community law in the territory of another Member State. He would in particular be deterred from so doing if his spouse and children were not also permitted to enter and reside in the territory of that State under conditions at least equivalent to those granted by Community law in the territory of another Member State.

The fact that a national of a Member State enters and resides in the territory of that State by virtue of the rights attendant upon his nationality, without its being necessary for him to rely on his rights under Articles 48 and 52 of the Treaty, does not preclude him from relying on the latter rights when he takes up residence again in that Member State.

Consequently, Article 52 of the Treaty and Directive 73/148 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 must be construed as requiring 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 territory of the State of which he or she is a national. The 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 or resided in the territory of another Member State.

Still not sure if it applies to my situation. I'll have to enquire further.

If it does apply, however, it could open up a few more possibilities for those wanting to take their Thai wife to UK.

[7by7]

If an EU national has been exercising his/her treaty rights to live and work in another member state and is married to a non EU national then when they return home they can either apply via their home state's immigration rules or via the EEA route; the choice is theirs. Obviously the EEA route would be better as it's cheaper.

However, I am fairly sure that to apply under the EEA rules they must have been living together in the host state for a minimum period. Can anyone advise if this is so, and if so; how long?

Certainly, if the intention is to only visit then the non EU national will need the appropriate visa.

[Eff1n2ret]

This is how that judgement is expressed in the instructions to Visa Officers:

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

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 (i.e. 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."

If, as you say, you and your wife have already been accepted as exercising your treaty rights by the Greek authorities, you should have no difficulty getting an EEA Family Permit for her to come to the UK - and it won't cost you a bean. What's even better is the bit I've highlighted in bold, so that she is entitled to a visit visa on the same basis.

Shame UKVisas don't weem to know any of this

[7by7]

Certainly, if the intention is to only visit then the non EU national will need the appropriate visa.

Thanks for that, Eff1n2ret. It appears that a visit visa is not required in these circumstances.

Any ideas on how long the couple have to live in another EEA state before they can apply? The guidance doesn't make it clear.

On the subject of marriages of convenience, the entry clearance guidance says

EUN2.10 What if I suspect a marriage/civil partnership of convenience?

The definition of 'spouse' and 'civil partner' in the EEA Regulations does not include someone who has entered into a marriage/civil partnership of convenience.

When a marriage/civil partnership of convenience is suspected, the burden of proof is high and rests with the ECO. However, in these cases the ECO is entitled to interview the applicant. Factors to consider include:

• an adverse immigration history;
  
• doubts about the validity of documentation;
  
• application follows soon after the marriage/civil partnership;
  
• no previous evidence of the relationship.
  

The ECO should not consider the following cases as marriages/civil partnerships of convenience where:

• there is a child of the relationship;
  
• there is evidence to suggest cohabitation.

[nisakiman]

Curiouser and curiouser.

Assuming that as my wife and I have (demonstratively) been together for nearly three years, and married for the latter half of that period and as as such (presumably) would not be considered as a "marriage of convenience", to whom would we apply for the EEA family permit?

Yes Eff1n2ret, my wife has been issued an official, legal Greek resident's permit, and the woman who dealt with us even pointed out that this permit gave my wife the right to work here in Greece.

But I repeat. Who the hel_l issues these EEA family permits? Do I have to go to Brussels to apply?

I shouldn't be asking these questions here, I should be googling them! (Sorry!) And then posting the answers I get!

Thanks to all for the info posted so far. I will pursue this, and update this thread with any new data I come across.

And if anyone has any other gems to add to this topic, I would be most interested to read them.

Cheers all!

[7by7]

to whom would we apply for the EEA family permit?...........But I repeat. Who the hel_l issues these EEA family permits? Do I have to go to Brussels to apply?

You apply to the embassy of the country you are moving to.

If you are currently in Greece and are moving to the UK you would apply to the British embassy in Athens using Form VAF5.

[Eff1n2ret]

Any ideas on how long the couple have to live in another EEA state before they can apply? The guidance doesn't make it clear.

There is no set minimum. A European Court judgement some years ago accepted that a short fixed-term contract of 10 weeks employment was sufficient to qualify as a "worker", but that's not laid down as a minimum. Some time ago I saw a report on another case, which I can't find now, I think it was in Denmark or Sweden, where the outcome suggested that you could take a couple of weeks holiday together in another EEA country, get a job, get married (if you aren't already) then march into your embassy, slap down the payslips and say "family permit please". But I don't know if anybody has tested it to those limits.

[7by7]

the outcome suggested that you could take a couple of weeks holiday together in another EEA country, get a job, get married (if you aren't already) then march into your embassy, slap down the payslips and say "family permit please"

Thanks.

The important part is, of course, "get a job" as one has to be exercising one's economic treaty right (i.e. as a worker or self-employed person), not just there on holiday!