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I am a UK citizen. In 2004 I foolishly (hindsight) sank my pension fund into a business in Spain and moved there to live and work. In April 2005 I started to cohabit with my partner, non-EU West African, and we were formally married in Spain in June 2006. We worked together in the business. The marriage was, and is, wonderful. The business eventually was not. I completed the sale of it in October 2010. I returned to UK on my own in January 2011 while my spouse went to visit family in Africa, now he has returned to Spain. I have a Spanish residencia by virtue of EU citizenship, he has a Spanish residencia by virtue of the marriage.
I am now 61 years of age and with the loss of most of my capital qualify for State Pension Credit and Housing Benefit.
Our wish is that he should now join me in UK as soon as possible and work here. My reading of the various rules, routes and this forum, leads me to believe we can use the EEA Family Permit.
My concerns about the outcome revolve around the financial requirements, “no recourse to public fundsâ€

You are married and were exercising your treaty rights in Spain. You now have a right to bring your non-EU family member with you to the UK.

I assume you are not working at all in the UK? Do you have any savings? Are you considered officially retired?

I am not working at all. There is nothing to stop me seeking employment, but obviously not easily found. I have savings remaining of under £10,000 which entitles me to full State Pension Credit. There is no compulsion to seek work, the basis of this is to equalize in due course the state retirement age of men and women, eventually at 68. At my age 61 I am over the current age whereby there are any restrictions.

When here in UK my spouse will be seeking work. All of that will be straightforward once we are settled here together.

I can come and go between here and Spain, I would like to know the simplest and speediest route to take. Is it to apply at UK embassy in Madrid, or here in UK, or simply to drive back with him and turn up at Calais for the Dover ferry?

Practical advice will be greatly appreciated, thanks.

miki61 wrote:I am not working at all. There is nothing to stop me seeking employment, but obviously not easily found. I have savings remaining of under £10,000 which entitles me to full State Pension Credit. There is no compulsion to seek work, the basis of this is to equalize in due course the state retirement age of men and women, eventually at 68. At my age 61 I am over the current age whereby there are any restrictions.

Let me be more explicit. Have you been officially recognized as retired in the UK? Have you been officially recognized as retired in Spain?

Who officially thinks you are resident where?

I do not know anything about what you did or might do. But please note that you do not need to be working in any specific job. You could work part time at McDonalds, or watering the plants (as a job) at a local garden shop. Or be self employed doing paid real consulting for local churches...

miki61 wrote:When here in UK my spouse will be seeking work. All of that will be straightforward once we are settled here together.

What your wife does or does not do is 100% legally irrelevant for the purpose of this. What matters is what the EU citizen does.

The non-EU citizen could be rich or poor, working or not - basically the right of free movement comes from the EU citizen moving and doing things.

miki61 wrote:I can come and go between here and Spain, I would like to know the simplest and speediest route to take. Is it to apply at UK embassy in Madrid, or here in UK, or simply to drive back with him and turn up at Calais for the Dover ferry?

An EEA FP would allow your spouse to work immediately on arrival in the UK. I personally then to think it is better to get one and then move, especially when entering your own country on the basis of European law.

Thanks for your ongoing help. Am I officially recognized as retired in UK? Good question, but I don’t think there is an answer, it is a grey area, as the glossary in this link says

http://www.statistics.gov.uk/hub/popula ... index.html
[quote]“ • Retirement
There is no widely agreed definition of retirement. Generally, it refers to someone who used to be in employment and has withdrawn from the labour market but there is no agreement on whether people should only be considered to be retired if their exit from the labour market is permanent, or if they are in receipt of a pension, or other factors.â€

miki61 wrote:We have the necessary valid passports, marriage certificate, evidence that I was exercising my treaty rights in Spain, evidence that we lived together for over 5 years in Spain. My reading of Surinder Singh says the application for the EEA Family Permit should be straightforward. (being optimistic)

Singh would be pretty straight forward if you had not moved to the UK.

But if you look at it in the right way, I could say you moved to London in January, and have so far have not found work. If I were a hard-assed UKBA employee, I would say that "He has been in the UK for almost 6 months, he is not exercising treaty rights, so he is not a qualified person, and so Singh does not apply." (Although I would have to be less clear if I worked for UKBA).

BUT: If you have proof that you are looking for work, and that you have reasonable prospects of finding something, then you also qualify! So send out applications, and keep a record of all the people you talk with! And register with the JobCentre (if you can do that these days?).

miki61 wrote:The reason for my being tempted to try arriving at Calais without having the Family Permit in advance is that there are a multitude of questions on form VAF5 DEC 2008 which I do not believe should be necessary. I prefer not to give unnecessary hostages to fortune for what may be subsequent applications in future years. (being pessimistic)

Some of the intrusive questions are allowed (e.g. criminal background). Some of the questions seem 100% irrelevant (or should I say "not material to a decision"). For instance, you have to put the EEA FP applicants occupation and salary. It is a totally irrelevant question, and I so not see a reason to not just leave it blank.

You should look specifically at the ECJ case of Eind (C-291/05). I think this is maybe the approach you may need.

Specifically he was a Dutch citizen working in the UK. When he returned to the Netherlands, he did not work.

http://ec.europa.eu/social/BlobServlet? ... &langId=en has big a document that goes over Eind, and talks about how some member states are treating it.

UKBA only mentions the case once on their web site, and in that they say it has not yet been decided by ECJ. But I think you could mention it explicitly in any

Thanks again for responding. I take the point about my presently not being seen to be exercising treaty rights in the UK.

This seems to be the relevant regulation -

S T A T U T O R Y I N S T R U M E N T S
2006 No. 1003
IMMIGRATION
The Immigration (European Economic Area) Regulations 2006

Family members of United Kingdom nationals
9.—(1) If the conditions in paragraph (2) are satisfied, these Regulations apply to a person who is the family member of a United Kingdom national as if the United Kingdom national were an EEA national.
(2) The conditions are that—
(a) the United Kingdom national is residing in an EEA State as a worker or self-employed
person or was so residing before returning to the United Kingdom; and
(b) if the family member of the United Kingdom national is his 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 that State before the United Kingdom national
returned to the United Kingdom.
(3) Where these Regulations apply to the family member of a United Kingdom national the
United Kingdom national shall 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.

There is no mention here of time limits before applying for or being granted the EEA Family Permit. In any event, my latest plan is to drive back to Spain and apply from there. I see two possible outcomes, either a) approval under Surinder Singh rules or b) refusal.

a) Job done, success
b) See what the grounds are for refusal. My opinion, and please advise if I am wrong, is that refusal could only be that I was not at the time of application economically active in Spain, although I had been until January 2011. It would be simpler for me through my contacts in Spain to become formally employed there and then reapply, rather than convincingly following your jobsearch suggestion in UK.

Any thoughts? May I say to you, Directive/2004/38/EC, that I hugely appreciate your input and expertise, and would also welcome other expert opinion, indeed anybody’s relevant experiences.

PS. I wrote this before seeing your 6.00pm latest, referring to Eind. I shall read it now, thanks.

miki61 wrote:There is no mention here of time limits before applying for or being granted the EEA Family Permit.

Your quote says that if you (as UK passport holder) qualify, that you are to be treated as if you had an EU passport of another member state.

So think of yourself as Spanish or Italian or German. You can come to the UK for up to 90 days with no preconditions (i.e. you do not need to be working) - so you are legally in the UK no matter what you do (work wise) or don't do. After that you need to be working (or otherwise exercising your rights) to be legally in the UK.

Your non-EU family member can come with you to the UK so long as you are legally there. So for the first 90 days, it does not matter what the EU citizen is doing. And after 90 days they need to be working.

I hope that clarifies rather than muddies.

OK, here is where I am up to after much further digging – it’s a bit like gold mining I think, tons of irrelevant crap (as in not directly applicable to my case) to get through before coming up with the nugget.

As you rightly point out, Surinder Singh could achieve my first need to get entry clearance for my spouse, but that would only allow me 90 days max in UK before I would have to be economically active. Maybe I will be, maybe not, so there is a worrying degree of uncertainty there. The solution then is to rely on Eind which seems to fit my case perfectly. The link you gave me above to Eind implementation gave me great encouragement, which was reinforced by my reading of the complete judgement. For the benefit of anyone following this thread, the link is here :-

http://curia.europa.eu/jurisp/cgi-bin/f ... Rechercher

and the nugget, for me, is this :-

When a worker returns to the Member State of which he is a national, after being gainfully employed in another Member State, a third-country national who is a member of his family has a right under Article 10(1)(a) of Regulation No 1612/68 as amended by Regulation No 2434/92, which applies by analogy, to reside in the Member State of which the worker is a national, even where that worker does not carry on any effective and genuine economic activities.

Yes you have certainly clarified, not muddled!

As the UKBA European Casework Instructions Chapter 9 says :-

The EU has issued a number of Regulations and Directives that give effect to the rights laid down in the Treaties. A Regulation is binding law, and takes precedence over contrary domestic legislation.
It is BIA’s view that the EEA Regulations are completely compatible with the UK's obligations under EEA law, and that all EEA appeals should be dealt with in accordance with the Regulations. However, it is important to remember that EEA law takes precedence over domestic law.

So the latest version of my plan is to apply for the EEA-FP in Spain, producing valid passports, marriage certificate, evidence of my economic activity in Spain and of living together there, also including a letter. Do you think I would be correct in this letter only to quote the Surinder Singh case and after arrival in UK apply for a residence card for my spouse, at that point referring to Eind so it doesn’t muddy the FP waters?

I must say my confidence levels have been roller-coasterish, currently high, thanks to your help.

I enjoy writing cover letters. I think it adds some special emphasis to the application, which is otherwise just like filling out a stupid form.

I would personally probably not mention the case law directly. Leave that for an appeal...

I would state facts:
(1) My husband is a UK citizen (passport or photocopy of passport attached)
(2) We are married (marriage certificate attached)
(3) He has been working in Spain (proof of work attached)
(4) I will be moving to the UK with him on the basis of EU law
(5) Please issue the visa as soon as possible and on the basis of an accelerated process

That is least what I would probably write (as if I were your wife)...

Point (5) is just to mark, subtly, that the applicant is aware that this is an EU law application.

Right then, the strategy is clear. It will be a couple of weeks before I travel to Spain and proceed with the application from there. So if nothing unthought of pops up I will stop hogging your time. When I have received a decision I will post an update.

I can't thank you enough for your kind, thoughtful and expert advice.

I am not in any sense a legal professional or an expert and do not want you to consider what I say to be advice. "Amateur but interested" opinion is more like it!

I know what I would do were I in certain situations, but you know your situation and you need to decide what is best for you.

Hi, an update as to what has happened, especially to you Directive, who gave me much valued info and advice.
After delays for other reasons, I drove back to Spain at the beginning of August and rejoined my non-EEA spouse there so we could apply online in Spain and travel back by car together. The Madrid Consulate-General website said it was dealing with EEA FP applications quickly, 91% in 2 days, 98% within a week if memory serves. But what they did not say was the time we had to wait for an appointment in person in Madrid. The first appointment available was in 7 weeks time. This information was not given until the VAF5 form had been completed online (with no option to print it out, by the way). So having read up on other advice about European Freedom of Movement and travelling without a visa, we decided to try our luck by simply turning up at Calais UK Border Control. En route we purchased a ferry ticket and arrived at Border Control 2½ hrs in advance of the ferry.
Having been invited to park and come into the office, we explained the situation; that I had been economically active in Spain, that I was returning to UK with my non-EEA spouse of 5 yrs and that I believed I qualified to be treated under the European regulations. When asked what evidence we had and wished to be considered, we produced the Spanish marriage documents, official Spanish certificates that we had both been registered at the same various addresses for the same dates as each other for 6 years, details of my Spanish business and bank statements covering the last six months which still show deposits, both our Spanish residence cards and of course passports, including a previous one of my spouse with an expired but unused British tourist visa. My spouse was asked to fill in a Landing card, which I politely queried, we were asked how long we intended to stay in the UK to which I gave non-committal answers and I made casual reference to Surinder Singh and what questions were relevant.
We were asked to take seats and wait while the officer went with our documents to consult his senior. After maybe 10 minutes, certainly no longer than 15, the officer returned and proceeded to start writing, finally producing a rubber stamp and stamping a 6 months entry clearance in my spouse’s passport. Success!!!

So here we both are now in the UK and trying to make sense of the next steps. My spouse needs a National Insurance number, we tried the correct phone number to make an appointment for ID checks etc, but the hurdle was they wanted the category of visa. The stamp simply says “Leave to enter the United Kingdom is hereby given for/untilâ€

miki61,

That is super news that your trip to the UK went smoothly.

What exactly does the stamp on your wife's passport say? It should say something like "Code 1A" or maybe "1A".


[quote="miki61"]So here we both are now in the UK and trying to make sense of the next steps. My spouse needs a National Insurance number, we tried the correct phone number to make an appointment for ID checks etc, but the hurdle was they wanted the category of visa. The stamp simply says “Leave to enter the United Kingdom is hereby given for/untilâ€

The stamp is called "Code 1A" but I'm not sure it actually say 1A in it.
If this doesn't say "No work or recourse to public funds", then there are no restrictions.
As you probably appreciate, the NI people don't see this type of stamp very often so they don't know what to do. You should tell them that your wife is having a EEA "visa". She should not have any problem working or obtaining a NI number.
Worth applying for Residence Card using EEA2 or she will need to explain her situation over and over again (to employers, when crossing the border etc.)

Nhs entitlement and charges for people from abroad:

http://www.dh.gov.uk/en/Healthcare/Enti ... /index.htm

http://www.adviceguide.org.uk/index/you ... abroad.htm

nonspecifics wrote:Nhs entitlement and charges for people from abroad:

http://www.dh.gov.uk/en/Healthcare/Enti ... /index.htm

http://www.adviceguide.org.uk/index/you ... abroad.htm

This is the spouse of (effectively because of the Singh decision) an EEA national who is resident here in the UK. As long as the spouse currently plans a long residence in the UK, then they qualify for NHS coverage.

have come to the UK to take up permanent residence

*****apoligies, have later seen that was mentioned later in the posts*****

Directive/2004/38/EC wrote: But if you look at it in the right way, I could say you moved to London in January, and have so far have not found work. If I were a hard-assed UKBA employee, I would say that "He has been in the UK for almost 6 months, he is not exercising treaty rights, so he is not a qualified person, and so Singh does not apply." (Although I would have to be less clear if I worked for UKBA).

BUT: If you have proof that you are looking for work, and that you have reasonable prospects of finding something, then you also qualify! So send out applications, and keep a record of all the people you talk with! And register with the JobCentre (if you can do that these days?).

Directive/2004/38/EC, I beg to differ on that interpretation. It was the interpretation the Danish immigration services had 8 years ago which I challanged. The below is an excerpt of the change into EU law due to this challenge.

Please substitute every mention of a Danish National with EU national moving back to his/her country of nationality.

Economic activity upon return

As a consequence of the Eind judgment, a Danish national who has exercised his/her right of free movement in another EU/EEA Member State as:

a worker
a self-employed person
a service provider
a retired worker
a retired self-employed person
a retired service provider

need not be economically active to obtain family reunification with his/her spouse/registered partner/permanent cohabitant and/or his/her or the spouse's children under 21 years of age upon his/her return to Denmark.

Accordingly, it follows from the Eind judgment that:

"When a worker returns to the Member State of which he is a national, after being gainfully employed in another Member State, a third-country national who is a member of his family has a right under Article 10(1)(a) of Regulation No. 1612/68 as amended by Regulation No. 2434/92, which applies by analogy, to reside in the Member State of which the worker is a national, even where that worker does not carry on any effective and genuine economic activities."

Paragraph 6 below provides more information on the condition of support.

Support of yourself and your family

The condition of support differs depending on the basis of residence of the Danish national in the EU/EEA Member State in which the relevant person has exercised his/her right of free movement, and depending on the family members included in the application for family reunification.

A Danish national applying for family reunification in Denmark under EU law after having exercised his/her freedom of movement in another EU/EEA Member State as a worker, self-employed person or service provider (economically active person) or as a retired worker, self-employed person or service provider (retired economically active person) is not required to prove that s/he can support his/her spouse/registered partner/permanent cohabitant and children under 21 years of age and the spouse's children under 21 years of age. This applies regardless of whether the relevant person receives cash assistance or other maintenance in Denmark.

However, a Danish national applying for family reunification with family members other than his/her spouse/registered partner/permanent cohabitant or children under 21 years of age or the spouse's/registered partner's/permanent cohabitant's children under 21 years of age after having exercised his/her freedom of movement in another EU/EEA Member State as an economically active or retired economically active person and having returned to Denmark may be required to prove that s/he is able to support those family members.

A Danish national applying for family reunification upon his/her return to Denmark after having exercised his/her right freedom of movement in another EU/EEA Member State as a student may also be required to declare or prove in another similar way that s/he has sufficient means for him/herself and all his/her family members, including his/her spouse/registered partner/permanent cohabitant and children under 21 years of age and the spouse's/registered partner's/permanent cohabitant's children under 21 years of age.

Moreover, a Danish national who has exercised his/her freedom of movement in another EU/EEA Member State as a self-supporting person may be required to prove that s/he has sufficient means for him/herself and all his/her family members, including his/her spouse/registered partner/permanent cohabitant and children under 21 years of age and the spouse's/registered partner's/permanent cohabitant's children under 21 years of age.

Thanks to all for this extra input. The stamp in the passport simply reads as I stated above - “Leave to enter the United Kingdom is hereby given for/untilâ€

[quote="miki61"]Thanks to all for this extra input. The stamp in the passport simply reads as I stated above - “Leave to enter the United Kingdom is hereby given for/untilâ€

Latest - NI form received from Glasgow, completed and returned. Impression is that it will be dealt with by post without interview.

EEA2 form on the verge of being completed when I noticed this :-

"8.4 Temporary incapacity
A consultant's letter or medical report confirming your EEA national family member's temporary incapacity. If the incapacity is likely to be permanent you should complete an EEA4 form."

I had never noticed this little bit before, I was going to tick 8.1 and provide proof of my State Pension Credit. But does this mean that if I, aged 61 and having some long-term health issues, can get a consultant to confirm I have a permanent incapacity, then my spouse can apply on EEA4 for permanent residence without waiting for 5 years? Sounds too good to be true to me, so probably is. Any thoughts please?

EEA4 makes frequent reference to the 5 year requirement. I am confused as to why EEA2 form tells us to use EEA4 if the EEA national has a permanent incapacity, backed by a consultant.

Because a worker or self-employed person with permanent incapacity may have a right to permanent residence under the conditions mentioned in 5.(3). This also extend to the family members as per 15.(d).

miki61 wrote:EEA4 makes frequent reference to the 5 year requirement. I am confused as to why EEA2 form tells us to use EEA4 if the EEA national has a permanent incapacity, backed by a consultant.

Hi , I just want to asked if you get answer of your question ,as I am in same boat that,
As per EEA2 FORM If the EU national permanently incapacitate backed by gp letter , thus it means that non eu family member apply for EEA4 form without completing 5 years in uk .

I really appreciate your reply if have any update regarding this , because mine 5 year residence will expire in 2 years , and my husband has progressive kidney and heart disease after his heart by pass surgery 1 year ago he is 62 and his health goes down day by day .
I need to extend my daughter residence in order apply 3 year course in UNI , so UKBA told me to there is no extension in current visa you have to apply fresh application and when I fill out the form I stuck at same point where you were .
Hope to have reply soon thanks