Advice on moving to UK with Thai wife and step daughter, Europe first?

[a99az]

There is a good guide specificity for people using Ireland, but with much applicable whichever country you use - look or google for "Surinder Singh for newbies"

one copy here https://drive.google.com/file/d/0B64cBIJj_CKucGF3UlF3cG5qdVE/view

This link is very informative I can see that the UK is applying centre of life now and that when it was taken to court the UK lost the case but still apply there rule I guess it's there way to try to slow things. But it's good to see that the EU route is still a good option and only slowed things by a few weeks. It's still in my book worth doing especially if you have a place to stay and a job lined up some where in the EU. Many of us even have second homes in Spain France etc.

[jpinx]

Hi

I have made the move to the UK with my wife and two girls. I did this via Spain. It was very easy cost nothing and was all done in just over 12 weeks. So let me fill you in on the facts.

1) If you are married or with a partner your wife / partner can apply for a FREE visa to any EU country you fly together. We went to Spain.

2) once in the EU your wife/ partner needs to apply for her residents card free or just admin charge of a few euros you will need one too. You also need to be there rather working ( I became self employed and paid min wage tax and did nothing for 12 weeks) They must provide her with residents card within 90 days under EU law or have a very good reason why not.

3) Then once she has her Card you can apply for a family permit from British Embassy and this will be provided within 14days again free of charge.

4) Then just go to the UK. Once there get your wife a NI number then apply for her British residents card. That is all she will ever need after five years she can simply renew it. Nothing else to do unless she wants Brit citizen ship then she needs to do the English knowledge but she does not have to do it.

NOTE

It is best if you have marriage cert that is certified by Thai foreign office dated within last few weeks before you leave and a copy of this and marriage cert in the language of the country you intend to go to.

When you get to the UK you are best off getting both of you settled in fast and join get everything you can so you can show this to the bodes that need it that you both are Habitually Resident in the UK. Doctors Bank Dentist Library club

Like I said it's fairly straight forward many go to southern Ireland as it's near to the UK and same language also easy to pop to the UK if you need to but YOU must be able to work or be in full time study.

GOOD LUCK

Very good summary -- thankyou.

Am I correct in reading your comment that you had to work in the EU country initially - not the thai wife?

Once in UK - is there any requirement for the wife to work, or is she allowed to be supported entirely by the UK husband?

[7by7]

It is the British citizen who needs to be exercising an economic treaty right in another EEA country; and the UK still insist this means working, employed or self employed.

There is no need for the non EEA spouse, e.g. Thai, to have been working in the other EEA state, nor for them to work once in the UK.

[7by7]

<snip>

I can see that the UK is applying centre of life now and that when it was taken to court the UK lost the case but still apply there rule I guess it's there way to try to slow things.......

I don't recall the UK being taken to court over this or if they were, losing (obviously may be wrong on that), and believe, as I said earlier, that the 'centre of life' test comes from, or at least was confirmed by, the the case of O and B v The Netherlands

From Free Movement

New case: O and B v The Netherlands

The most important change since Surinder Singh itself is the new case of O and B v The Netherlands Case C-456/12, handed down by the Grand Chamber of the Court of the European Union on 12 March 2014. Without much mentioning Surinder Singh, the judgment completely re-writes the legal basis of the earlier case and sets out important and binding new guidance........

........The following important points emerge:

1. A residence period of at least three months is required (para 54)

2. Weekend visits and holidays do not count as residence for this purpose (para 59)

3. Any citizen of the Union can potentially benefit from this right, not just workers and the self employed (references to Article 7 of Citizens Directive 2004/38 , e.g. para 56, and to Article 21 of the TFEU, e.g. para 54)

4. During the period of residence family life must have been “created or strengthened” (para 51)

5. Abuse is impermissible (para 58)

Surely points 1,2 and 4, especially 4, are the reasoning behind the "centre of life" requirement?

However, whilst the UK has been quick to implement this part of the ruling, they have yet to implement point 3, and still insist that the British citizen has been working, employed or self employed, in the other EEA state.

[tebee]

I seem to remember reading somewhere that the centre of life provisions they use, came from the Advocate General's opinion on the O and B v The Netherlands Case C-456/12, not the final judgement.

They probably won't stand up in court, but it took 6 years or so for the McCarthy case to reach the ECJ and the law be changed, so don't hold your breath.

Edited June 8, 2015 by tebee

[jpinx]

It is the British citizen who needs to be exercising an economic treaty right in another EEA country; and the UK still insist this means working, employed or self employed.

There is no need for the non EEA spouse, e.g. Thai, to have been working in the other EEA state, nor for them to work once in the UK.

OK - Thanks Now for more detail. Does the Brit have to join the Spanish tax system, or can he elect to remain under the UK tax regime?

[7by7]

Tax does seem to be one of the criteria UKVI use to judge whether or not the family have moved the centre of their life to the other EEA sate; in this case Spain.

That is, do they pay Spanish income tax?

[jpinx]

If a UK pensioner moved to Spain with his Thai wife, got a minimum 3 month lease of an apartment, got his UK pensions paid into a spanish bank UK tax free and pay Spanish tax - will this fulfill the requirements of "centre of life".

I know every case is probably taken on merit, but there has to be guidelines. Are they published anywhere?

[a99az]

The problem now in acquiring EU rights as a British citizen who has been economically active in another EU state and wishes to return to the UK under the EU regulations, utilizing the Surinder Singh judgement, is that the British government has incorporated a new stipulation that in order to qualify the British citizen must demonstrate that he has made that EU state ( i.e. In your case, France ) the centre of your " life". This is actually unlawful and appears nowhere in the 2004 Directive from which member states transpose the regulations into their own legislation.........

With respect, SA, does the "centre of life" requirement not come from the case of O and B v The Netherlands?

From Free Movement

New case: O and B v The Netherlands

The most important change since Surinder Singh itself is the new case of O and B v The Netherlands Case C-456/12, handed down by the Grand Chamber of the Court of the European Union on 12 March 2014. Without much mentioning Surinder Singh, the judgment completely re-writes the legal basis of the earlier case and sets out important and binding new guidance........

........The following important points emerge:

1. A residence period of at least three months is required (para 54)

2. Weekend visits and holidays do not count as residence for this purpose (para 59)

3. Any citizen of the Union can potentially benefit from this right, not just workers and the self employed (references to Article 7 of Citizens Directive 2004/38 , e.g. para 56, and to Article 21 of the TFEU, e.g. para 54)

4. During the period of residence family life must have been “created or strengthened” (para 51)

5. Abuse is impermissible (para 58)

Surely points 1,2 and 4, especially 4, are the reasoning behind the "centre of life" requirement?

However, whilst the UK has been quick to implement this part of the ruling, they have yet to implement point 3, and still insist that the British citizen has been working, employed or self employed, in the other EEA state.

But as the OP says he will have a job in France for 9 months, he will be ok on this point.

No, this is wrong.

The Home Office's current view is that their interpretation of the judgement, i.e a period of residence in the EU state must comprise a core change in the 'centre of one's life', is EU compliant - it isn't. They have stretched the creation or strengthening of family life to mean something else entirely and interpreted it as moving one's centre of life from the UK to the other member state. In practical terms they are demanding that Surinder Singh applicants should demonstrate this by means that include a forsaking of any financial interest in their home state ( mortgages, property ownership) in favour of establishing a financial bedrock in the adopted EU state and, my own personal favourite, show for example any charitable works they may have undertaken in the new state.

The issue of non compliance notices against the UK is moving ahead inexorably to force them to give up their daft interpretation but, so far, they are digging their heels in and dragging the issue out but the consensus is that they will have to accept the O and B judgement as it was intended.

Anyone thinking they are going to breeze through a Surinder Singh application because they and their family lived together for three months in wherever better think again. A refusal is likely and a wait of another year for the appeal is inevitable.

So I wonder what would happen if having been in the EU and qualified there for the required time of 12 weeks then entered the UK by private boat reporting on arrival direct to the UK immigration at say Dover as per the rules. As I understand it they can NOT deny entry.

[7by7]

If you turn up at a UK port of entry seeking entry under the EEA regulations without an EEA family permit you will need to satisfy immigration that the requirements of the regulations are met.

If in the opinion of immigration the requirements of the regulations are not met, they can and will deny entry.

Then it's back to whence you came to start the lengthy appeal process.

Three months is not the required time; it is the minimum time the couple need to have been living in another EEA state before a Surinder Singh application will even be considered. See point 1 in the quote from Free Movement above.

This is the latest guidance I can find if anyone has a later one, please post a link to it: European Operational Policy Team. Subject: Regulation 9 (Surinder Singh Cases)

Period of residence in another EEA member state
8. In general, the longer the British citizen has resided in another EEA member state as a worker or self-employed person, the more likely it is that they have transferred the centre of their life to that member state.
9. For example, a British citizen who has lived and worked in another member state for a period of two years is more likely meet the requirement of regulation 9(2)© than a British citizen who was employed in another Member state for a period of four months.

aa99az, I appreciate that you have brought your wife into the UK via Surinder Singh in the manner you have described; but the regulations have changed since then; it's not so easy now.

Don't get me wrong; I am not discounting the Surinder Singh route. On the contrary, I recommend it for those who qualify.

But it is no longer a simple matter of living in another EEA state for three months and then waltzing into the UK.

[jpinx]

If you turn up at a UK port of entry seeking entry under the EEA regulations without an EEA family permit you will need to satisfy immigration that the requirements of the regulations are met.

If in the opinion of immigration the requirements of the regulations are not met, they can and will deny entry.

Then it's back to whence you came to start the lengthy appeal process.

Three months is not the required time; it is the minimum time the couple need to have been living in another EEA state before a Surinder Singh application will even be considered. See point 1 in the quote from Free Movement above.

This is the latest guidance I can find if anyone has a later one, please post a link to it: European Operational Policy Team. Subject: Regulation 9 (Surinder Singh Cases)

Period of residence in another EEA member state

8. In general, the longer the British citizen has resided in another EEA member state as a worker or self-employed person, the more likely it is that they have transferred the centre of their life to that member state.

9. For example, a British citizen who has lived and worked in another member state for a period of two years is more likely meet the requirement of regulation 9(2)© than a British citizen who was employed in another Member state for a period of four months.

aa99az, I appreciate that you have brought your wife into the UK via Surinder Singh in the manner you have described; but the regulations have changed since then; it's not so easy now.

Don't get me wrong; I am not discounting the Surinder Singh route. On the contrary, I recommend it for those who qualify.

But it is no longer a simple matter of living in another EEA state for three months and then waltzing into the UK.

I don't see any requirement for the UK citizen to actually work in the other country -- only to move his centre of life there --or am I missing something?

[7by7]

One of the changes to the regulations concerning the Surinder Singh route in the judgement in O & J v The Netherlands was that the EEA, e.g. British, national did not need to be working in the other EEA state, simply exercising any treaty right.

But para 9 of the UK regulations still says

9. (1) If the conditions in paragraph (2) are satisfied, these Regulations apply to a person who is the family member of a British citizen as if the British citizen (“P”) were an EEA national.

(2)The conditions are that—

(a) P is residing in an EEA State as a worker or self-employed person or was so residing before returning to the United Kingdom;

If you read the policy document linked to above you will see that whenever the British persons residence in the other member state is mentioned, it specifically states that the British person must have been residing in the other member state as a worker or self employed person; including para 8 which I quoted above.

This does go against the judgement in O & J v The Netherlands; but it will probably require someone taking the UK government to court, a lengthy and expensive process, before they change it!