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UKSolicitorJA
UKSolicitorJA, Solicitor
Category: UK Immigration Law
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Experience:  English Solicitor and UK Immigration Law Expert
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This question concerns both UK immigration law and EU freedom

Resolved Question:

This question concerns both UK immigration law and EU freedom of movement law:
My daughters' passports are currently at UKBA Durham for visa renewal (Form FLR(O), for dependents of member of Visiting Forces). They've been in nearly 8 wks and biometrics were done some weeks ago. My problem is that my "wedding part II" (the religious ceremony) will be held in Luxembourg evening of Friday 25 May. I (a non-EEA national like my daughters) will have been married to an EEA national exercising treaty rights in the UK as of 10:30am on Friday 25 May. At that point, as far as I can tell from reading all the EU law, we are all three instantly under my EEA spouse for residency and freedom and movement purposes. The question is: if, by some miracle, I got my daughters' passports back from UKBA (request return of docs) in time, would they legally be able to assert their rights as immediate family of an EEA citizen resident in the UK in order to re-enter the UK from Luxembourg. In other words, I guess the question is can they switch from UK immigration law to EU immigration law just like that? The UK Border Force Operations Manual addresses situations where a non-EEA family member arrives at the border without a residency card or family pass, and their ops manual makes it clear that as long as the person can prove they are related to the EEA citizen then entry has to be permitted. But would this apply in THIS case since they were already resident in the UK and not entering for the first time? For clarification, I have a valid residency visa to 30 September 2013 (FLR(O), Visiting Forces), so my ability to re-enter is not an issue.
Submitted: 2 years ago.
Category: UK Immigration Law
Expert:  UKSolicitorJA replied 2 years ago.
Hello,

I am happy to deal with your UK immigration law issues.

What passports do you hold?

Thank you
Customer: replied 2 years ago.

I realized after I hit the button that I'd missed a few key items: I and my daughters hold US passports. They are here as my sponsored dependents as part of the Civilian Component of the US Visiting Forces, but they live with their biological mother here in the UK, who is also a US passport holder.

 

Further clarification: civil marriage will be morning of 25 May, and council assures me I will walk out with a certified marriage certificate. Spouse (to be) is Luxembourgish, has been exercising treaty rights in the UK since 1992, and has more than enough documentation to prove same. She has never applied for any sort of residency in the UK.

Expert:  UKSolicitorJA replied 2 years ago.
Hello,

Yes, they may switch from UK immigration rules category to EEA immigration rules if they qualify, which they clearly do in this case.

There is nothing wrong in them returning to the UK on their leave to remain and then applying for a change of status from within the UK.

Hope this clarifies.
Customer: replied 2 years ago.

Just to clarify:

It is your view that the UK Border Force would not have grounds to prevent their re-entry into the UK from Luxembourg even though their current FLR(O) visa is expired, as long as they can prove their relationship to an EEA citizen traveling with them, thus putting them under EU freedom of movement law and not under UK immigration law?

 

Sorry to be pedantic, but if I end up getting my daughters stuck outside the UK my ex-wife will probably hunt me down and kill me.

Expert:  UKSolicitorJA replied 2 years ago.
I understand why you are being pedantic.

The law and regulations are clear but whether or not the chap at the border applies it or doesn't cause problems is another matter I am afraid which could lead to refusal and appeals etc.

Hope this clarifies.

UKSolicitorJA, Solicitor
Satisfied Customers: 3720
Experience: English Solicitor and UK Immigration Law Expert
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