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Thomas
Thomas, Solicitor
Category: UK Immigration Law
Satisfied Customers: 6294
Experience:  BA (Hons), PgDip, Practising Solicitor
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hello i am asking this question for a friend of minds i will

Resolved Question:

hello i am asking this question for a friend of minds i will give the fact of the case below:

My friend was deported from the UK in 2009, back to his native country, however he got married to a British citizen in his country and they both went to live in Germany, where he was issued a 5 year family member of a EU citizen residence card in Germany. After obtain this card his wife got a job offer in the UK so they both return to the UK he travel to the UK on the card that was issued in Germany, from the German immigration, and he had no problem at the airport upon his return to the UK, however both him and his wife is a little confused ens the need for this question. they want to know;

what type of application can he submit to the Home Office to stay in the UK and what time frame does he have to submit such application.

point to note his wife was practice eu treaty right in Germany.
Submitted: 1 year ago.
Category: UK Immigration Law
Expert:  Thomas replied 1 year ago.
Hi,

What date did they enter the UK?

Did they stamp anything in his passport upon his return to the UK?

Tom
Customer: replied 1 year ago.

no they did not stamp anything into his passport and they entered the UK yesterday 10/12/12

Expert:  Thomas replied 1 year ago.
Okay.

Was the UK spouse until recently exercising their treaty rights in Germany by working or being self-employed? If so please state the relevant period (ie. from xx/xx/xxxx to xx/xx/xxxx or approximate)...

Tom
Customer: replied 1 year ago.

his spouse was self employed in Germany, for about 4 months from august this year to December this year.

Expert:  Thomas replied 1 year ago.
Okay.

Drafting your answer. May take some time because it's quite complicated. It should take 15 mins before I am able to post it.

Once posted I am likely to be in a meeting which I will get out of at 5.30, whereupon I will answer any further questions you have on this..

Please be patient.

Tom
Expert:  Thomas replied 1 year ago.
Hi

Thanks for your patience.

I think what has happened is that he has been granted entry under the rights afforded to persons under the Surinder Singh case.

Basically, non-EEA spouses of EEA nationals have it easier when they wish to come to the UK with their spouses than non-EEA spouses of UK nationals in the UK. This is because there are lots of restrictive eligibility criteria for non-EEA spouses of UK nationals to comply with, whereas all that is required for non-EEA spouses of EEA nationals is that they have to show that theie EEA spouse is exercising treaty rights in the UK.

Non-EEA spouses of EEA nationals usually just have to apply for a family permit before they travel:-
http://www.ukba.homeoffice.gov.uk/eucitizens/eea-family-permit/
And then a residence card after they have come to the UK confirming their right to remain in the UK for 5 years:-
http://www.ukba.homeoffice.gov.uk/eucitizens/documents-family/

Non-EEA spouses of UK nationals in the UK have to apply for spouse visas before they travel:-
http://www.ukba.homeoffice.gov.uk/visas-immigration/partners-families/citizens-settled/spouse-cp/can-you-apply/

This is because when a UK citizen is in the UK working their right to do this is regarded as being derived from the fact they are a UK citizen, rather than an EEA member state national (which of course they also are). Therefore, the UK government are free to impose more restrictive criteria.

However, the Surinder Singh case established that if a UK citizen travels to an EEA country and exercise treaty rights by being employed or self-employed (usually for at least three months) then when they return to the UK with their non-EEA spouse then the UKBA can be regarded as a the non-EEA spouse of an EEA national (rather than simply a UK citizen) and avoid the restrictive eligibility criteria imposed on UK citizens. It’s a loophole.

It seems that he has been granted entry on this basis. Please refer to 2.5.1 of the following UKBA guidance for confirmation of this:-
http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/ecis/chapter2.pdf?view=Binary

I should think that the appropriate application for him to make now would be for an EEA residence card as the Non-EEA spouse of an EEA national. Confirmation on 3.2 of the most recent link that I have posted.

The UKBA on applying for the residence card is here:-
http://www.ukba.homeoffice.gov.uk/eucitizens/documents-family/applying/


Please remember to RATE my answer OK SERVICE, GOOD SERVICE OR EXCELLENT SERVICE or above if you are satisfied that you have received the correct legal advice (even if it is not the answer you wanted to hear), otherwise I do not receive any credit for answering your question.

If you are not willing to rate my answer as OK SERVICE, GOOD SERVICE OR EXCELLENT SERVICE then allow me to assist further by replying asking what clarification you require rather than rating my answer at levels below.

If you wish for me to provide you with further guidance on any question you may have in the future then please submit a further question to the board requesting me either by my profile or by marking your question. “FAO Tom”.

Kind regards,


Tom
Customer: replied 1 year ago.

still confused are you saying his previous deportation from the UK is now void with this new EU family member permit that was issued in Germany??


 


He was deported for entering the UK illegal in 2007 using someone else passport and he was sentence to 12 months in prison.

Expert:  Thomas replied 1 year ago.
Hi,

His Article 8 Right to a Family and Private life gets around the deportation and ban (which he would have received). If he was applying for (say) a work visa not based on his relationshpi to a UK national then the deportation would be a certain reason for rejection but that does not apply here.

He needs to apply for the residence card so that he has a document which confirms his right to be in the UK and work but apart from that he should be fine provided that they can prove their time in Germnay and that the UK spouse was working.

PLease rate my answer.

Kind regards,

Tom
Customer: replied 1 year ago.

what i was wondering is, if the resident card as a family member of a EU citizen, that he got in Germany, would be be sufficient evidence to rely on when he makes any application to the Home Office. because i have seen case where the Home Office ignore Article 8 Right to a Family and Private life.

Expert:  Thomas replied 1 year ago.
Hi,

If the residence card is a card issued by the German government then this is evidence that he can rely on to show that he was legally in Germany. He appears to have been admitted entry because he had this card and his wife had worked in Germany under the Surinder Singh ruling. Please read the links I gave you above.

He now has to get a residence card from the UKBA, the UK regulatory authority, to confirm his status in the UK.

If they were going to object on the basis of that the deportation superecedes his rights to family and private life then they would have done it when he attempted to enter the UK to stop the problem at source.

Please rate my answer. I will continue to help.

Tom
Customer: replied 1 year ago.
Relist: Other.
i want to see what other expert view is on this matter.
Customer: replied 1 year ago.

seems like you are the only expert here willing to have a look at my question tom!!

Expert:  Thomas replied 1 year ago.
Hi

That may be the case. I can assure you that my answer is correct. All you need to do is refer to the links.

Please rate my answer. If you do not I will not receive any credit whatsoever for the time I have taken to answer your questions, which is considerable as you will see from original extensive answer.

Kind regards.

Tom
Thomas, Solicitor
Satisfied Customers: 6294
Experience: BA (Hons), PgDip, Practising Solicitor
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