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New article: Derived free Movement Rights at the Border without a Family Permit or Residence Card


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#1 Stefan-TR

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Posted 08 January 2012 - 10:02 PM

EU and EEA nationals enjoy broad free movement rights throughout the union and can usually come to the UK without any hassle. The relevant EU regulation (Directive 2004/38 EC) also gives derived free movement rights to non-EEA family members when they travel with their EEA national "sponsor". These rights directly come from relevant legislation and any related visa sticker, such as an EEA Family Permit or a Residence Card, serves only to confirm the derived free movement rights.

Still, there is little practical experience when trying to exercise derived free movement rights without such confirmation in the non-EEA national's passport. In this article I will describe our personal experience when I, a German national, was entering the UK together with my Turkish wife who didn't have any EEA residence documentation in her passport.

Background

Since 2009, both my Turkish then-fiancée and I have been living and working in the UK. As a German national I was equipped with a registration certificate, my fiancée was on a Tier 1 Highly Skilled Migrant visa. In September 2010, we got married abroad and went off to spend our honeymoon in the Dominican Republic.

As soon as we'd be returning from our honeymoon, we wanted to switch my wife over to the EEA regulations, as they have some advantages over the Tier 1 status. First, there are basically no restrictions on family members of EEA citizens, e.g. they are allowed recourse to public funds, they are exempt from police registration, and they can work or be self employed however they please. Also, we wanted to be sure that my wife's clock for permanent residency starts ticking as soon as possible, as time spent under the Immigration Rules is unlikely to count towards the EEA permanent residence requirement.

Airline check-in

When we were returning from our honeymoon, my wife had two passports. One was expired and contained the still valid Tier 1 Entry Clearance; the newer one had been recently issued and contained only a Schengen Visa. We intentionally packed the old passport in our checked luggage, to prevent immigration officers from insisting that my wife be admitted under her Tier 1 conditions.

The major problem when trying to travel without a valid visa by plane is the airline check-in. Airlines are liable to hefty fines when they bring passengers to the UK who are missing entry clearance. But as we were checked-in by local Dominican personnel, who probably had little experience with European visas, our check-in wasn't a problem. The check-in agent found the Schengen Visa in my wife's current passport, consulted one of her colleagues and the seemingly both agreed that this would be sufficient.

At the border

After landing at Gatwick around seven o'clock in the morning, we made our way to the UK Border. We already expected that our plan to enter via the EEA Regulations without a valid Family Permit would be rather rare. So we had prepared a little dossier that stated our intentions in a cover letter, provided highlighted excerpts of the relevant legislation and guidance notes (see attached document), and contained original documents to proof our marriage and my employment.

At the border we queued in the EU line and came to a booth where a lady immigration officer (IO) with two shoulder stripes was working, accompanied by a younger guy with a single shoulder stripe. The male border agent only observed and didn't say anything; probably he was some kind of trainee immigration officer. We politely apologized for bothering both of them with a non-standard request so early in the morning and handed them our little file and a landing card for my wife.

As was to be expected, the lady IO was immediately confused and claimed we had handed her an application and that we couldn't hand in applications at the border but only directly with the UKBA public enquiry offices. Part of what led her to that belief was the fact that we had provided my employment confirmation on the UKBA form that's part of the EEA2 application package.

After convincing the IO that we were not handing in an application but that my wife was actually seeking admission, she turned to read our cover letter. The IO quickly concluded that our request must be unusual and consulted another colleague, this time an officer with three shoulder stripes; perhaps a senior immigration officer. Together they went to their colleagues at the non-EEA queue to have a quick discussion. Luckily, we were the only passengers left of our flight and besides us the border was empty, so we didn't have to wait long to get everybody's attention. All we could hear from the discussion further away was the three-striped officer saying "We'll have to land her anyway because of EU rules", which nurtured our hopes that someone did indeed know about the regulations.

Together they disappeared in the UKBA glass box with the tinted windows. Our lady IO then came back to the booth where we'd been waiting and was carrying a big stamp with "Code 1A" written on it. She told us that they had checked my wife's Tier 1 Entry Clearance in their computer system, but couldn't admit her on it without the passport being present. She lectured us that we had seemingly been mistaken by packing the passport into the checked luggage and that we should have better presented it at the border. (Surely, so that she would have had an easier life, ignored our EEA request and landing my wife under Tier 1.) After her little lecture, our IO admitted my wife on the Code 1A for six months as requested by the guidance notes. All together, our waiting time at the border was at most 15 to 20 minutes, and once we were through most of our fellow passengers were still waiting for their luggage.

Conclusions

In hindsight we can conclude that it is indeed possible to enter the UK as the family member of a qualified EEA citizen, even without a Family Permit or Residence Card. The largest caveat is surely the airline check-in. If one doesn't manage to get to the UK Border, all rights under the EEA Regulations are worthless. Once at the border it might help to count shoulder stripes and seek a more experienced officer. But if you have time and don't mind waiting a little, try a junior officer so that they can learn some "new" regulations. Also, our experience taught us not to hand anything that looks like a form to the IO at the border. Carrying the employer confirmation on official form is certainly a good idea, but it should better stay in the hand luggage unless specifically requested.

Download the Dossier >>

About the Author:
Stefan-TR is married to a Turkish national and an immigration hobbyist. He is mainly involved with the immigration law of his home country, Germany, but also tries to follow all EEA-related developments within the UK Border Agency.

Useful and Relevant UK Immigration Forum Discussions:

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#2 limi22uk

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Posted 15 August 2012 - 07:14 PM

Dear Stefan,

Thank you for the above post ,,, which is very helpfull.

I wanted to ask you: Did they asked you why you have not applyed for EEA FP at the nearest British Embassy?

I am a British NAtional but going to live in France with my Fioncee who is non -EEA national than try and use thee EEA route aftter 3-4 months.

MAny thanks

#3 Mutly

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Posted 17 August 2012 - 08:14 AM

I am a British NAtional but going to live in France with my Fioncee who is non -EEA national than try and use thee EEA route aftter 3-4 months.


The easist would be for your then spouse to apply for an EEA family permit. Otherwise you also have to prove the ECJ Singh criteria (joint residence in France as a married couple whilst you were employed or self-employed there) at immigration control, which may be difficult in practice.




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