Article 10 - live in Spain, Thai spouse

[kopite]

I have just come across a few links that make me believe that with my wife's Spanish residence card we can gain entry to the UK (if she is with me). I'm only interested in a holiday at first without the need for applying for a visa.

Allegedly all the documents we would need is flight tickets, passports, proof of marriage (we have an official document from the British embassy in Madrid that confirms our Thai marriage).

Second question is, I read that by this method, there is no need for a EEA family permit. So does this mean we can travel visa free if we wish to relocate to the UK?

Thanks in advance

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[kopite]

I'm British by the way

Edited June 13, 2016 by kopite

[post]

Where did you get married?

May I ask what official document from the British embassy in Madrid that confirms your Thai marriage do you have?

[kopite]

We were married in Thailand (2009) and have the certificate of foreign marriage recognition. Plus legalised translations in Spanish and english

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[7by7]

If your wife's residence card is issued by a Schengen state and clearly states that her residence is due to her being the spouse of a named EEA national then strictly speaking that is sufficient for visa free travel to all other Schengen member states.

But, the UK is not a member of the Schengen area!

So she will need entry clearance of some kind.

Also EEA freedom of movement regulations do not apply to non EEA national family members if they are travelling to the state of which their EEA national family member is a citizen. In such cases they need the appropriate visa issued under the states immigration rules.

Unless Surinder Singh applies.

If you meet the Surinder Singh requirements, she can apply for a free EEA family permit to enter the UK; both as a visitor and to take up residence with you.

If not, then she will need the appropriate UK visa.

[Donutz]

If she has a Spanish residence card that says "family member of an EU/EEA citizen" (which she should have if you are a Briton living with her in Spain), there should be no need for any visa (EEA permit or other) or any papers what so ever. The UK refused to apply these rules for a long time untill the EU court made them about a year (or two?) ago.

If all this is properly enforced now by the border authorities only UK forum members may know.. Same in regards of airliners, who often know very little about visas and may wrongfully deny boarding insisting on seeing a visa. To be on the save side I'd take the documents you mentioned with me even though there should be no need for them.

Also see:

http://europa.eu/youreurope/citizens/travel/entry-exit/non-eu-family/index_en.htm

And (some background info/news):

http://eulawanalysis.blogspot.nl/2014/05/reconciling-eu-free-movement-rules-with.html

http://www.bbc.com/news/uk-30528189

Edited June 14, 2016 by Donutz

[kopite]

Thanks for the comments. 7by7 yours is the first post I have seen on any forum that states this regarding article 10.

Donutz that seems to be the case. I am reading on various forums that there have been success stories trying this method. Obviously I don't want to find out the hard way. Especially if we skip the holiday part!

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[mgb]

Immigration (European Economic Area) Regulations 2006

Section 11

Right of admission to the United Kingdom

.

.

(2) A person who is not an EEA national must be admitted to the United Kingdom if he is

( a )a family member of an EEA national and produces on arrival a valid passport and a qualifying EEA State residence card, provided the conditions in regulation 19(2)( a ) (non-EEA family member to be accompanying or joining EEA national in the United Kingdom) and ( B ) (EEA national must have a right to reside in the United Kingdom under these Regulations) are met; or

.

.

Section 2

General interpretation

.

.

qualifying EEA State residence card means

( a ) a valid document called a Residence card of a family member of a Union Citizen issued under Article 10 of Council Directive 2004/38/EC (as applied, where relevant, by the EEA Agreement) by an EEA State listed in sub-paragraph ( B ) to a non-EEA family member of an EEA national as proof of the holders right of residence in that State;

( B ) any EEA State, except Switzerland;

Edited June 14, 2016 by mgb

[7by7]

It seems that the UK is now accepting residence cards from other EEA states where the residence is granted due to the holder being the qualifying family member of an EEA national, the card clearly states this and the holder is travelling with or to join their EEA national family member.

Thanks to Donutz and mgb for the update, and apologies to kopite for any confusion I caused by not keeping fully up to date.

However, as kopite is a British citizen and he and his wife are travelling to the UK, I am still not sure if his wife would be allowed entry with just her residence card because, as I said before, to the best of my knowledge the EEA regulations do not apply when entering the state of which the EEA national is a citizen; that state's immigration rules apply instead.

Unless, of course, they qualify under the Surinder Singh ruling; which, I assume, they would have to satisfy UK immigration that they do and, IMHO, the simplest and easiest way of doing this would be to obtain an EEA family permit in advance.

Doing so would also remove any possible problems they may have with their airline; although I would hope that check in staff for flights between EEA states would be fully aware of the regulations and paperwork required!

Thoughts anyone?

Edited June 16, 2016 by 7by7

[bobrussell]

Don't count on the UK authorities doing what they should be. History now but last summer the non-EEA spouse of a Swiss citizen and mother to two Swiss children, was refused an EEA family permit in Zurich.

As I see it (and SOLVIT, which oversees such matters) this was in direct contravention of the rules. The applicant is Thai and holds a residence permit for Switzerland and has for years.

It was never resolved and her multimillionaire husband has vowed never to travel to the UK!

Went to Disney instead!

I wish they had just turned up at the border. I bet they would have been allowed to enter with minimal delay. This is unlikely to work with airlines though!

[mgb]

Thoughts anyone?

section 9

Family members of British citizens

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;

(b)if the family member of P is Ps spouse or civil partner, the parties are living together in the EEA State or had entered into the marriage or civil partnership and were living together in the EEA State before the British citizen returned to the United Kingdom; and

©the centre of Ps life has transferred to the EEA State where P resided as a worker or self-employed person.

(3) Factors relevant to whether the centre of Ps life has transferred to another EEA State include

(a)the period of residence in the EEA State as a worker or self-employed person;

(b)the location of Ps principal residence;

©the degree of integration of P in the EEA State.

(4) Where these Regulations apply to the family member of P, P is to be treated as holding a valid passport issued by an EEA State for the purpose of the application of regulation 13 to that family member.

[7by7]

Yes, I'm aware of that, mgb; although I'm sure it will be useful to others who are not.

However:-

The UK's regulations are not fully compliant with the Surinder Singh ruling as it currently stands; due to the UK government's interpretation of the 'centre of life' test.

From Free Movement's Surinder Singh immigration route; UK Government’s interpretation of Surinder Singh

However, it can be seen immediately that the ‘centre of life’ test has no place in the new case of O and B v The Netherlands. The test originates in the Advocate General Opinion that proceeded final judgment in O and B v Netherlands. Basically the UK Government jumped the gun and rushed to adopt a test that was ultimately not adopted by the final judgment of the Court. The EU Commission is now investigating the UK for adopting non compliant rules and is very clear that the UK approach is incompatible with EU law

Further on in that article, Mr Yeo gives an example of someone who meets this requirement from the UKVI guidance to it's staff

...The following is given as a person with a high degree of integration:

“For example, a British citizen is working in France, is fluent in French and has bought a house there. Their children were born in France and are educated in a French school where the British citizen sits on the school council. In this example it is likely that the British citizen has moved the centre of their life to France."

It is salutary to consider how many British citizens resident in the south of Spain might meet this integration test.

As he says, the UK's interpretation is wrong, and being investigated by the EU commission; but until, and unless, forced to do so by the commission or the ECJ, the UK government is not going to change it.

In order for their non EEA national partner to benefit from Surinder Singh, the British national needs to show that they meet the requirements of the UK'S regulations; including the 'centre of life' test.

In my opinion, this will be a lot simpler and easier to do by obtaining an EEA family permit in advance for their partner than attempting to convince immigration at their UK port of entry.

Assuming their carrier boards them in the first place without a visa or EEA family permit and they get that far!

[kopite]

been on a few forums seems like if you ask the airlines they give you a response before you book see below Jet2 = Yes no problem

Ryanair = Yes no problem

British Airways = referred me to International Air Transport Association http://www.iatatravelcentre.com/ and that says Yes.

Monarch = After lots of emails and arguments they said No, a visa or family permit needed. I then stated they were wrong and would make a complaint to the Civil Aviation Authority. They then changed their mind and said Yes.

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[Donutz]

IATA is a good source to see if the airliners are likely to be aware. They use that as a primairy source. Though it's no guarantee if an individual airliner or staff member is aware of either IATA says, let alone actual law, durictives or court rulings

I prefer the KLM tool though, it is linked to the IATA database but with less questions to answer:

----

National Thailand (TH) /Residence Spain (ES)

Embarkation Spain (ES)

Destination United Kingdom (GB)

United Kingdom (GB)

Passport required.

- Passports and other documents accepted for entry must be

valid for the period of intended stay.

Passport Exemptions:

- Passengers with an emergency or a temporary passport.

Visa required, except for Passengers with a "Family Member"

Residence Card marked "Permanent Residence Card of a Family

Member of a Union Citizen or Residence Card of a Family

Member of a Union Citizen issued by Spain to family members

of an EEA national For details, click here or national of Switzerland if

traveling with or traveling to join the EEA national or

national of Switzerland.

Visa required, except for Passengers with an EEA Family Permit

issued by the United Kingdom if the holder is traveling with,

or to join the EEA For details, click here or Swiss national.

Minors:

- When their names are registered in the passport of (one of)

their parents or guardians, For details, click here

- Child Visit Visas For details, click here

- Pupils For details, click here

Additional Information:

- Flights between the United Kingdom and the Channel Islands,

Ireland (Rep.) and Isle of Man are treated as domestic

flights, therefore are not subject to UK immigration

control.

- Valid visas in expired travel documents are accepted if

accompanied by a new travel document.

- Leave to remain issued by Guernsey, Isle of Man or Jersey,

which are in the form of wet ink stamps, are also valid for

entry into or transit through the United Kingdom.

----

Source: https://www.klm.com/travel/gb_en/prepare_for_travel/travel_planning/travel_clinic/visaform.htm

Edit: it's only a brief overview, does not cover a UK national returning to the UK with a Thai spouse carrying an EU family member residence card. Though your avarage staff member may know little to nothing about freedom of movement, let alone when it does or does not apply if the EU national wishes to enter the country he is a citizen of with the non EU spouse. They tend to take IATA's information for granted or (if they can be bothered to contact them) whatever border control has to say.

Edited June 17, 2016 by Donutz

[kopite]

Dear Sir,

Thank you for getting in touch with Your Europe Advice.

You appear to have questions which relate to border control and to visa policy, as applied by the UK, pertaining to your wife.

Article 5 paragraph 2 Directive 2004/38 allows family members of an EU citizen to travel to another member state of the EU without having to process an entry visa, provided they hold the relevant residence permit.

This provision was upheld by the Court of Justice of the European Union in Case C-202/13 McCarthy.

The question is whether your wife can travel without having to process a specific entry visa, on the grounds that she holds a residence permit issued by the Spanish authorities. Your wife is a Thai citizen, you are a UK citizen. You both live in Spain, where you have settled for a number of years.

The key notion that has been highlighted is that the exemption hinges on your wife being able to prove that her Residence permit was issued by virtue of Article 10 of Directive 2004/38.

In your wife's case, she has obtained a residence permit on the basis that she is the family member of a UK citizen, who has exercised his rights of residence in Spain by virtue of Directive 2004/38.

Accordingly, it appears that you have both resided in Spain for a number of years.

You would like to know whether your spouse qualifies for a visa exemption under article 5 Directive 2004/38, which may entitle her to travel to the UK visa free, on the grounds that she is the holder of a Spanish residence permit, which indicates that she is the family member of an EU citizen.

Your spouse is a Thai citizen, and she must therefore obtain or hold a visa prior to travelling to the UK (under UK law).

Notwithstanding your wife's rights to travel visa free to the UK, she is advised to apply for an entry visa (the so called EEA family permit), on the basis that she is the family member of a UK citizen returning to the UK, after having exercised his rights of residence in another member State of the EU (Case C370/90);

Our reasons for this advice are given below.

Restrictive UK Surinder Singh rules under Regulation 9 of the 2006 EEA Regulations, (as amended in January 2014).

I) The centre of [the British citizen] s life has transferred to the EEA State (ie. Spain), and that

2) The British citizen must have resided in the other EEA state (ie. Spain), as a worker or self-employed person.

Thus, your spouse must prove that you have changed the centre of your life from the UK to Spain, that you have been employed in Spain and that you have both cohabited as a married couple in Spain.

We reiterate that these conditions are the result of UK law which is a restrictive interpretation on the terms of the ECJ caselaw cited above.

Also, these restrictions appear to be incompatible with cases C456/12 and 457/12, where the Court of Justice of the European Union held that your spouse is vested with the right to accompany you back to the UK, provided the following two conditions are met:

You have exercised your rights of residence in another Member State of the EU for a period in excess of 3 months in compliance with article 7 Directive 2004/38 (as a worker, a self employed person, or a self sufficient person);

AND

your spouse has created or strengthened family life in the same member state (e.g. has lived with you in Spain in married cohabitation).

Given that you have lived in Spain for a few years, and that your wife has obtained a residence card on the basis of your continuous exercise of Treaty rights during the same period, the UK authorities may accept that your spouse satisfies the conditions enacted under UK law, (as described above).

Our advice is for your spouse to apply for a UK entry visa, given that she appears to be able to prove compliance with the conditions indicated above.

The visa must be issued free of charge and on the basis of an accelerated process (2 to 3 weeks processing).

Please note that your spouse may also rely on the provisions under Article 5 paragraph 4 Directive 2004/38, to compel the UK immigration officer to consider her case at the border, once landed in the UK, in the light of the eligibility conditions listed above; (instead of applying for the visa at the UK visa centre in Spain).

If your spouse chooses to follow the latter route, note that she must carry the proof with her and produce it for the benefit of the UK immigration officer who may demand such proof to scrutinize your wife's claim.

For more on this, please follow the link:

https://www.gov.uk/government/publications/entering-the-uk-as-the-holder-of-an-article-10-residence-card/entering-the-uk-as-the-holder-of-an-article-10-residence-card

You can get further advice concerning this topic through the Citizens Advice Bureau.

http://www.citizensadvice.org.uk/index/getadvice

Alternatively, you may seek the assistance of a law centre:

http://www.lawcentres.org.uk/directory/location/London/

Please find the link to the Law Society website, with a search engine to locate a specialized lawyer by area of specialization and proximity to domicile.

http://www.lawsociety.org.uk/choosingandusing/findasolicitor.law

The AIRE centre will provide direct legal advice and assistance on a case by case basis:

http://www.airecentre.org/law_index.html

I trust the above answers the questions you had and thank you again for getting in touch with Your Europe Advice.

Kind regards.

Your Europe Advice

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