Brit in Spain, Moroccan partner with expulsion, married soon

[TracyCK]

I just changed the title again since every step I take, the plan changes.. Hopefully I wont have to change it again!

Hi, I just signed up to this board after lurking for a while and reading the wealth of information that is available here.

After receiving a very lame and unsatisfactory response from the Sign Post service, and subsequently changing my life plans, I have spent the last 4 weeks researching the internet almost non-stop for information and my brain is a little fried! I am hoping that I can get some guidance for best steps forward from some in the community here. I will outline our history and circumstances as briefly as I can (ok, I wrote this first and the rest after and realise it's not so brief, I'm sorry), and also what I believe we need to now do. If anyone can offer advice on what will be the easiest, least painful, and least costly way for us to just enjoy our life as newlyweds, I will be incredibly grateful!

Me:
UK Citizen (and also US Naturalized Citizen, but irrelevent here, I think) with English Mother, Spanish Father
I hold current UK and US Passports
Between 1988 and 2004, I was resident in the USA
In 2004, I returned to the UK where my son was born (he also holds both UK and US passports)
In July 2006, I moved to Spain and was Self Employed paying Social Security between April 2007 and December 2008.
Both my son and I hold a Spanish Residency Certificate and current Empadronado (from November 13th 2008)

My Fiance:
Moroccan National
Between 1997 and January 2009, lived the majority of this time in Spain without papers or formalities
Between 2003 and 2006, spent time in Spanish prison in Barcelona for involvement in a fight in a nightclub with Moroccan and he thinks English Nationals (he is unsure of formal charges and simply accepts that this happened. 3 years is a lot considering nobody was seriously hurt).
In July 2006, upon his release, was sent back to Morocco with an 'Orden de Expulsion'
In 2007, he had returned to Spain and was wrongly charged for a fight (GBH equivalent perhaps) and sent to prison for 5 months until the charges were reversed and he was released (freely into Spain) with an apology and told that he, in effect, had 5 months 'in the bank' as it came out that he had nothing to do with the incident whatsoever.
From 2007 to January 2009, he lived quietly in Spain (Costa del Sol) with no problems

Our history:
- My Fiance and I met early in 2008 as he was a customer in the bar that I ran. We became friends and began our actual relationship in April 2008.
- In November 2008, we rented an apartment together, I have a copy of this lease with both our names on it.
- In December 2008, we discussed getting married (for the right reasons, but...), requested documents from Morocco and started to inquire about how we got married in Spain.
- In January 2009, he was approached by the local police and asked for ID. He provided his name, our address and his expired Passport number.
- The local police subsequently checked his information, discovered the Expulsion Order from 2006 and returned to collect him.
- My Fiance was taken to the Comisaria for National Police in Estepona and even though we got a (useless) lawyer and showed all documents as evidence of our intention to marry, he was scheduled to be sent back to Morocco 2 days later.
- The Police Officer in charge of Foreign Deportations was very helpful and compassionate, arranged to meet them at the port in order to travel to Morocco with my Fiance and advised me that all we needed to do was to get married in the Embassy in Morocco and we would be able to return together. My Fiance was only escorted to the Ferry and after that, we travelled alone.
- My Fiance and I ended up staying in Morocco with my son who I had collected from Spain a week after. I kept my ties with Spain, frequently travelling to Ceuta to shop and making the occasional trip to the mainland to sort out things that cropped up, sell my car, register a new one, change my legal address to my father's address in Malaga, etc.
- My Fiance has now sorted all his documentation (National ID, Driving License, Passport) and we have decided to finally go ahead with our marriage plans which after researching, I have decided that Gibraltar would be the best place for us to do this. (I do not wish to marry in Morocco under Islam law and Gibraltar has no residency requirement for marriage. In addition, since the Expulsion Order covers the Schengen area and Gibraltar is not covered in this, my Fiance should be able to receive a visa). We have submitted all our documents to the Registrar in Gibraltar and have been given the go ahead to apply for my Fiance's visa to attend our appointment to marry on October 20th.

- I sent a version of this to Sign Post and said that we were thinking of returning to live in Spain once we were married and asked what steps we needed to take. They responded that my Fiance cannot return to Spain until the Expulsion Order had expired (2 years) although we could possibly appeal it via the Spanish or British Embasy in Tunisia (Tunisia????) - I have posted their reply below, but I believe now, after researching, that they are incorrect as although my Fiance has some spotty history, I don't believe that he can be considered a threat to Public Policy as they suggest.
Response from Sign Post Service:
Council Directive 2001/40/EC of 28 May 2001 provides for the mutual recognition of decisions on the expulsion of third country nationals. Based on this Directive, your fiance will not be permitted to re-enter the Schengen area until the expulsion order expires. Even if he applies for a residence card in Spain based on his marriage to you, he will not be granted this on the basis that he would be regarded a threat to public policy in the light of the expulsion order. Consequently, you will have to await expiry of the expulsion order or appeal the expulsion order in order to enable your fiance to legally enter Spain. In order to pursue the possibility of appeal against the expulsion, you can choose either to contact the Spanish or British Embassy in Tunisia to discuss the procedures.

Given this advice from Sign Post, my Fiance and I decided that we would settle in the UK, at least for the next couple of years. The urgency on making a decision is due to my son reaching school age and my desire for him to be in quality education. Spain would have been ideal for us given my Fiance does not (currently) speak English, but the UK now became our only option, I believed, and I returned 4 weeks ago to enrol my son in school and start looking for work and housing. During this time, I have read much information regarding the Directive, Treaty rights and non EEA Family members and have been talking daily with my Fiance using Skype. We have decided to continue with the move to the UK since it will be a good opportunity for him to learn English, and my son is settling nicely into school here. However, I believe that it will be in our best interests to move forward with me being considered as a EU Citizen exercising my Treaty rights given how convoluted the UK Immigration appears to be and also the fact that neither of us are currently working, we are relying on good friends and family to help get us on our feet with putting us up, etc. We need a bit of time to look for work and make a new life.

Current Plan:
My son and I return to Spain tomorrow, then on to Morocco to our house there on Sunday.
On Monday, My Fiance and I will go to the British Consulate in Tangier to apply for his visa to enter Gibraltar.
The following Sunday (18/10/09), we will take the Ferry from Tangier direct to Gibraltar (this service only runs Friday and Sunday evenings)
On Tuesday, 20th October, we will marry and presumably get a couple of copies of our marriage certificate.
Once we are married, we would prefer to not have to wait 3 days in Gibraltar for the next ferry back to Tangier so we are going to attempt to leave Gibraltar into Spain in order to go to Algeciras and catch a ferry from there. There is nowhere to apply for a visa in Gibraltar so thinking we should try our luck at passing into Spain at the Border, in our Wedding Attire, and with any friends and family (including my Spanish father) that have come to see us get married.
- I am a little hazy on exactly what we do next but since I have booked tickets for us from Tangier to the UK, via Madrid for October 28th, I am thinking that we need to return to Tangier and visit both the Spanish and British Embassies. I am hoping that we can do this at the Consulates in Tangier rather than have to travel half a day to the UK Embassy in Rabat (Unsure where the Spanish Embassy is at this point).
- At the Spanish Consulate, we request a Schengen Visa and Spanish Residency for my then Husband based on my Spanish Residency there and request that the Expulsion Order is revoked.
- At the UK Consulate, we request the EEA Family Permit in order to 'visit' the UK
- Once we are in the UK and are a little more settled (presumably before 3 months), we then apply for UK Residency stating that I have decided to re-settle there for a while.

Questions:
Am I in La-La land thinking we have the right to go from Gibraltar to Spain immediately after we marry, particularly with the existing Expulsion Order? (I have a copy of this order and it simply states that it is due to being in Spain without correct documentation)

I am not sure what we really need from Spain, whether it is just the Schengen Visa (which optimistically might actually be issued at the border when we leave Gibraltar...), or whether we need the Residency application in order to simplify the forthcoming UK process? It is also highly likely that we will return to live in Spain at some point in the future and in the interim, we will be travelling there frequently to visit friends and family.

Should I expect to receive the UK EEA Family Permit upon application in person based upon my residency in Spain, and at the least to be issued before we plan to travel on October 28th?

Would there be any benefit, or valid reason why we might consider basing our residency in Morocco at the onset?

Summary:
I am SO sorry this is so long!
We just want to have a simple life with the freedom to come and go as we please and without anyone requiring that we provide copious amounts of documentation, sponsorship, and financial information.
I will be grateful to anyone who has the patience to read through this and offer any advise, reality checks or pointers in best steps.
I will be offline after tomorrow (today!) midday until I am in Morocco on Sunday evening and have access to my internet access at my house there.
TracyCK

[TracyCK]

We are now in Morocco, and will go to the British Consulate tomorrow morning to get my Fiance's visa to enter Gibraltar at the weekend.

Any advice for after we marry will be much appreciated!

[TracyCK]

Apparently, Visas are not processed in Tangier and we had to complete the very long UK Visitor Visa application online and now have an appointment at the British Embassy in Rabat at 8:15am Wednesday morning.

We have no way of getting police records from Spain so not sure how it will go since we were completely honest on the form. I learned from my fiance that he was spent 3 years in jail there only because of a fight in a Disco, and not anything to do with Hashish as I thought. He says that nobody was even seriously hurt so not sure what that is about at all.

Anyway, we have stated that we are only going to Gibraltar to marry but not sure how it will go with the lack of a Spanish CRB check on hand.

[Directive/2004/38/EC]

Wow, this is a BIG and complicated post. It may be too much to deal with in one mouthful, which is likely why you have gotten no responses so far.

First off, good for you in thinking about and investigating your rights under European law. It is a big and complicated.

For normal situations (e.g. no expulsion orders), most of your rights are comes from Directive 2004/38/EC. For complicated situations (like yours), a lot of your rights come from ECJ case law, which you should become very familiar with.

I have a couple of questions:
(1) Where would you both really like to be, assuming you had a free choice?
(2) When was the last time you were working or exercising treaty rights in Spain?
(3) Do you plan to work in XXX if you move there?

I would also say that Citizen's signpost is decent for information about straight forward cases. I have not been so impressed in their response for more complicated cases. A very good lawyer with experience with European law would be helpful, but I personally find it very difficult to sort the very good from the very bad until long after my money is gone.

[TracyCK]

Thanks for the response!

Our biggest hurdle right this minute will be getting my Fiance's Visa to enter Gibraltar so we can marry and this we will know more about tomorrow morning. We have been completely honest on the application but although I have a copy of the Expulsion Order (in Spanish), we have nothing on his conviction/sentence as he is just not in a position to do anything about it here in Morocco. (If and when we ever get to Spain again, we will look into this as I believe from what my Fiance has told me that his rights may have been violated - but that's another story... lol)

I am hoping that he is issued the Visa given that we will show evidence of our communication with the Registrar's Office and confirmation of our appointment to marry, we will take along enough cash to show that he can pay for the return trip, and at the end of the day, where would anyone go but home if they don't have a Schengen Visa to leave by entering Spain? Certainly, nobody would remain in Gibraltar by choice?

In answer to your questions:

1: 9 months ago, we simply wanted to return to Spain and our lives there. I think now, we would actually like to go to live in the UK for a period of time - we are initially thinking 2 years. This will give my fiance an opportunity to experience my cultural background firsthand and learn to speak English; it will also give my son a solid foundation to his education which is important to us. Ultimately though, I see us returning to Spain as we enjoy the lifestyle there and its proximity to Morocco and my fiance's family.

2: I last worked and paid Social Security contributions in Spain in December 2008. However, I have maintained my Spanish Residency and can have a legal address at my Fathers' house in Malaga. I sold one car and bought another (registered to my Father's address) in August this year, and opened a new bank account (also listed to the Malaga address) just last month.

3: We both plan to work, wherever we end up. We don't have any spare cash at all and have sold personal belongings in order to pay for the recent travelling and upcoming marriage ceremony and additional travelling. I will claim benefits to begin with in the UK, but hope to quickly move off them - this will be infinitely easier if my fiance (husband) is there with me. I have also researched my personal entitlement to benefits and habitual residence and again, it seems better to be treated under EU Law in that case also.[/list]

[Directive/2004/38/EC]

Moving to Spain would be done under EU law, as you are a UK citizen and your spouse is your family member.

Moving to the UK would normally be done under UK law since you are a UK citizen. This may be a long and difficult processes, especially since your spouse has an EU based expulsion order, and you do not have much money.

Since you have been working in Spain recently, you may be able to move to the UK under EU law (esp. the Singh ruling http://eumovement.wordpress.com/2007/04 ... ional-law/ ). The problem is that (1) you are no longer resident in spain and (2) you were last exercising your treaty rights in Spain almost a year ago, which may or may not be too long a pause for the Uk to easily accept.

Have you considered trying to enter Spain from Gibralter (with your marriage certificate)? If you were admitted, you could then work for 6 months and then deside to make an easy Singh entry into the UK.

[TracyCK]

Assuming that my fiance is issued his visa tomorrow for us to marry in Gibraltar next Tuesday, here is the current plan:

1. We go with our marriage certificate, wedding guests, appropriate printouts of the Directive and Case Law judgements in both English and Spanish directly from the Registrar to the Spanish border and attempt to enter Spain.

2. We go to my Father's house in Malaga where we will visit the Ayuntamiento and empadron at this address.

3. We will apply for Spanish Residency for my then husband based on my existing Residency which has never lapsed even though I haven't been working since December last year.

4. We will go to the British Consulate in Malaga and apply for the EEA Family Permit in order to visit my friends and family there using our booked flights on the 28th.

5. If these steps go smoothly, I don't believe we will need to do anything else other than just live happily?

In the event that my fiance is not issued a Visa to visit Gibraltar so we can legally marry, I am considering insisting that we are in actual fact already a couple who lives together which should actually be relatively simple to prove as I think about it. I am hoping however, that it wont come to that.

What would be most useful, I think is if anyone can point me to specific extracts of the Directive and Case Law that I should be armed with. I have read an awful lot and have a lot of things bookmarked, but I know that there is much out there.

[John]

TracyCK, in what way are you exercising EU Treaty Rights in Spain at the moment? Employed? Self-employed? Or how?

[TracyCK]

I moved to Spain in July 2006

I was running our family owned bar as 'Autonomo' from April 2007 until December 2008 and paid social security contributions and taxes during this time.

In January of this year, when my fiance was deported, I came with him to Morocco along with my son, but never acquired residency here as I didn't feel it was in my best interests. Therefore, I considered myself still legally resident in Spain and made frequent trips there both to Ceuta and to the mainland.

My Father is Spanish and lives in Malaga, so I have now registered much of my stuff at his address and when I am next in Spain (should be next week), will Empadron there as living at my father's address (probably, this should include my husband in order to apply for his residency in Spain?)

It is not set in stone at this point that we will settle in the UK. It will depend on where we are able to find work etc., but I guess that I would like to know that the freedom to choose remains without having to jump through hoops.

From what I understand from reading various documents, since I have exercised my Treaty rights, I should therefore be covered by Community Law even if I am not economically active at this time?

[meats]

In January of this year, when my fiance was deported, I came with him to Morocco along with my son, but never acquired residency here as I didn't feel it was in my best interests. Therefore, I considered myself still legally resident in Spain and made frequent trips there both to Ceuta and to the mainland.

I don't think that's classed as exercising treaty rights as you haven't been living and working in Spain for the best part of the last year, regardless of whether you're using you Dad's address or not.

[John]

TracyCK, I have to say, I agree with the conclusion of "meats", I don't think you are currently exercising EU Treaty Rights in Spain.

[Wanderer]

If the OP has a Spanish Father why not apply for Spanish Citizenship and move to UK under EEA rules as a Spanish Citizen?

Or have I missed something!

[Directive/2004/38/EC]

If the OP has a Spanish Father why not apply for Spanish Citizenship and move to UK under EEA rules as a Spanish Citizen?

Sounds like a prudent thing to do in any case. See for instance http://en.wikipedia.org/wiki/Spanish_nationality_law

[TracyCK]

Thanks everyone for the comments, it is much appreciated and I now have a few more things to consider.

After a very long and difficult day today, it does look like my fiance will be able to return to Rabat and collect his passport with Visa to enter Gibraltar, so fingers crossed that the first hurdle is taken care of.

I need to do some more research on the exercising Treaty rights definition as from what I have read so far, I perhaps incorrectly understood that since I have already exercised Treaty rights, I am considered a 'worker' and would be covered by Community Law when returning to my home country even after a lapse in being economically active. Although I have not worked in Spain for several months, I have maintained my residency in as much as I still own a car and have open bank accounts there and I haven't been legally resident anywhere else. I actually maintained our apartment until April and the Empadron from there is active until next month.

Since we (and our family members) should have the freedom to come and go as we please, surely we have the right to not actually make a hard decision as yet and would be requesting the EEA Family Permit in order to visit family after marrying rather than to settle there?

My brain is fried again! I will try and get in some more reading tomorrow, and once again, thanks for all your help!

[Wanderer]

Sounds like you've already decided on the answer you want!

[TracyCK]

Sounds like you've already decided on the answer you want!

LOL, yes, of-course, but it doesn't mean I am right!

I have read somewhere, I think in some Case Law judgements maybe, that once your are covered by Community Law, you don't necessarily lose that.

I guess I am taking one step at a time and trying to be armed with information for each variable.

It looks like we will be getting married in Gibraltar on Tuesday, so the next hurdle will be attempting to enter Spain with the marriage certificate and appropriate printouts.

If this is successful, we will go to the British Consulate in Malaga on the 21st, (I believe there is one there, need to check), and request an EEA Family Permit to visit my family in the UK. If unsuccessful, we will need to wait in Gibraltar until Friday evening when there is a ferry back to Tangier and then have to visit both the Spanish and British Embassies in Morocco on the following Monday to do the same. (Presumably, it does not HAVE to be the Spanish Embassy, but ANY Schengen country Embassy, not clear on this yet). This just gives us less time to get everything sorted before our flights from Tangier on the 28th to the UK, but changing planes in Madrid.

[Directive/2004/38/EC]

You are scheduling things very tightly! Do not expect things to go tick tick tick.

I would expect Uk visas to be only issued in Madrid and that it will not be same-day. I would also expect they will want a lot of evidence that you have been exercising treaty rights, which they would not ask for if you had a Spanish passport.

[TracyCK]

Unfortunately, I wanted to get my son back to the UK so we are not messing too much with his schooling, hence the tickets booked for the 28th as he will go back to school on Nov 1st. I do realise that it doesn't give us a lot of time at all....

Perhaps we will be better off returning to the Embassy in Rabat where they are already familiar with us and already have sighted the booked flights to the UK? My fiance could perhaps ask them about this when he picks his passport up tomorrow morning, and ask them what they might need to see.

I have my Residencia certificate, Empadronamiento (which I can renew to Malaga), tax return from last year, car registration documents, and can get bank statements.

[TracyCK]

Huge blow this morning... After being told to come and collect his Visa in Rabat, my Fiance arrived to discover that it had been refused by Gibraltar.

Crying my eyes out, I called Gib and got some stuck up woman who told me of course he was refused a visa, he's Moroccan, been expelled from Spain, and spent time in prison. If I want to marry him, I can do so in Morocco, but we would not be marrying in Gibraltar this Tuesday.

Need some to rethink what we do now so will come back once plan is in place again....

[dublin3]

I am sorry to hear about that I think you should try in Spanish embassy I am sure you will get visa..

[meats]

I am sorry to hear about that I think you should try in Spanish embassy I am sure you will get visa..

Don't waste your money following this advice OP. Going to a different embassy a day or 2 later won't mean that the outcome is different.

What is stopping you from marrying in Morocco?

[TracyCK]

The Visa people in British Embassy in Rabat were lovely and I think had it been up to them, they would have issued the visa. However, the decision was made in Gibraltar and they could do nothing.

We will now marry in Morocco. I was reluctant to as I preferred to marry under British Law as opposed to Islam Law, but at the end of the day, marriage is marriage and I don't suppose it makes much difference. It's just more complicated with getting papers through the Embassy, or returning to the UK for them.

I am now thinking that we just need to simplify everything and we will not go to the UK at this point but return to Spain and work for a short period at least before deciding if that's what we want to do.

Once married, which is truly what we want, we should be able to enter Spain as we were going to attempt to do from Gibraltar anyway, go live with my father in Malaga and secure some kind of employment (or self employment).

My biggest issue has always been my son and the amount of mucking about he is getting with moving countries and schools, etc. But he is only 5 next month, practically tri-lingual (English, Spanish and now quite a bit of Moroccan Arabic), and happy if I am happy. I will get him into school in Malaga and that will be good enough until if and when we return to the UK.

[SBT_Owner]

Hi Tracy , i hope you dont mind this reply .... i can not really comment on your case or offer guidance but i can tell you i just walked my dog , how was the walk you may ask , well my dear it was dark , really cold and piddling down with rain . If you end up spending winter in Spain or Morocco then hey it has its up side , ya know ?. By the way if you are reading this while you lay on the beach in sweating hot heat ... i dont need to hear about it !!! hehe

The real reason for my reply is your great comments about your son , so many parents nowadays seem to drag their kids up rather than raise them , they do not give them 2 thoughts at times ... so it was lovely to see your comments about your son .

I wish you all the best for the future for you , your son and your husband . Aslong as you all have each other than life will be good , i am sure of that .

I quit smoking a few weeks back , it is a nasty habbit . Make sure the boy avoids the demon that is nicotene .

Take care and all the best .

[Directive/2004/38/EC]

I am now thinking that we just need to simplify everything and we will not go to the UK at this point but return to Spain and work for a short period at least before deciding if that's what we want to do.

I suspect this will be more relaxing.

When you are in Spain and working, you should apply for an EEA family permit. When you have it, you can make trips to the UK to see family and see what it feels like to be there.

You might (I know nothing about marrying in Moroco) find you can marry in Morocco in a non-religious or Christian ceremony. The British embassy may also do marriages (I know they do civil partnerships for gay couples).

[TracyCK]

Thanks again for the comments. I am with my Moroccan family who are always so lovely. My son has conked out and my poor fiance is not back yet even though he left about 23 hours ago!

Yes, I believe that if we are together and always think of each other in our actions that we will be ok. And yes, there are worse things than spending the winter out of the UK.... LOL

The British Embassy doesn't perform marriages but they have pretty decent up to date information on how to marry here which will begin with a trip to the British Consulate in Malaga on Monday to acquire some papers and get the ball rolling.

While I am in Malaga, I will Empadron at my father's address and start looking for some kind of work, and at schools for my son. If nothing else, all of this will resolidify my residence in Spain, hopefully making everything everything to follow later, that much easier.

It looks like the process will take a minimum of 6 weeks and 300 euros but then we will be able to marry and get on with our lives however we like.

Will keep you all posted