NON-SPOUSE MOVING TO UK WITH UK CITIZEN

Hi,

My family, of whom are all UK citizens, and myself a NZ citizen are moving to EU, with intent to settle either in France or Italy. HOWEVER, we want a fall back plan - which is to hot tail it to the UK if our dream falls short and the money dries up.

I have spoken directly to the British Embassy here (Australia - for a hefty charge of $10 on my visa) and the woman told me that I could only stay on a Settlement visa which I must apply for from Australia. Quote: "Its a very long and complicated process." We are leaving in two months and won't have time to do this. Furthermore, the fee is $1,050.00 and I would have to fly to another town for biometric fingerprinting.

She told me categorically that I could not go on a tourist visa and then switch while I am there. That's a no-no, never gonna be allowed. Can't do it, if I want to stay longer than six months I must have a settlement visa issued from Australia. I had an ILR visa years ago which lapsed while we were back in Australia. Apparently this has no bearing on any future applications.

I cannot believe that after bearing three UK citizens and being married for over 10 years, that I cannot simply go the UK and organise necessary visas while I am there. What is the deal??

Frustrated Kiwi[/i]

The visa officer was correct. There is absolutely no way for you to switch from visitor to settelement whilst in the UK. I'm afraid your previous residence (I'm assuming this ran out some time ago) is not likely to be of any help to you.

Well the irony is that I don't want to settle. I just want the option of being able to live there if my husband needs to go their for work while we're in Europe. The idea that I have to pay a thousand dollars and jump through all these hoops, and that I can only do this from a country of residence is crazy, it gives us no options for being able to make spontaneous decisions if need be. Oh well, that's my rather pointless whinge ...

Thanks though.

What you have been told is true, but not the whole story.
If your husband is going to work in France or Italy, he is "exercising his treaty rights" as an EU citizen, and you can apply to the embassy of either of those countries for an EEA Family Permit, which should be granted without question free of charge.
Having lived in Europe even for a short time, you benefit from a European Court Judgement known as "Surinder Singh", which says that your husband, although a UK citizen, should be regarded as any other EU national moving to the UK to exercise his treaty rights, because he's been doing the same in Europe, and therefore as his family member you are entitled to an EEA family permit, which you can obtain foc from the British Embassy in France or Italy. Alternatively, as a non-visa national, there's nothing to stop you travelling to the UK as a visitor and applying for an EEA Residence Card once you're here. Best not to tell the IO on the Border Control that you intend to do this, though. They couldn't refuse you entry, but your journey would be delayed.

Thanks very much. That is not only very interesting information, but also very helpful.

My husband was rather peeved at the notion, that as the odd one out in the family my situation prevented all of us from 'just going'. What I wonder though, can they just refuse, and insist it's their way or no way?

siquel wrote:Thanks very much. That is not only very interesting information, but also very helpful.

My husband was rather peeved at the notion, that as the odd one out in the family my situation prevented all of us from 'just going'. What I wonder though, can they just refuse, and insist it's their way or no way?

Yes they can, they make the rules are they are ever-tightening after years of slackness.

Wanderer wrote:

siquel wrote:Thanks very much. That is not only very interesting information, but also very helpful.

My husband was rather peeved at the notion, that as the odd one out in the family my situation prevented all of us from 'just going'. What I wonder though, can they just refuse, and insist it's their way or no way?

Yes they can, they make the rules are they are ever-tightening after years of slackness.

Well, they can huff and puff, but in reality every time they try and tighten the rules they get shot to bits by European law or the Human Rights Act. In this case, once the lady's husband has established himself as a worker in any EU state except the UK, if he then choses to come back here and work, his rights accrue under EU law, not the UK Immigration Rules, and she will have an absolute right to accompany him as an EEA Family member. There are no grounds for refusal except "Public Policy, public security or public health", as long as they can show that they are a genuine family unit and were exercising their treaty rights in another EU state. In effect, unless she's a criminal, terrorist or has some unpleasant disease likely to cause an epidemic, they can't refuse her - and applications for EEA Family Permits or Residence Cards are free of charge.

Perhaps her experience with an ignorant or obstructive ECO in Australia suggests that when the time comes she should simply enter here as a visitor and then apply in-country. (Although ECOs in European posts should be well familiar with the Immigration (EEA) Regulations 2006, which are what cover this type of case.)

Mr Rusty wrote: In this case, once the lady's husband has established himself as a worker in any EU state except the UK, if he then choses to come back here and work, his rights accrue under EU law, not the UK Immigration Rules, and she will have an absolute right to accompany him as an EEA Family member.

I guess the problem the OP is going to have is that she suggests that they only really want to come to the UK if her husband fails to establish himself as a worker in another EU state.

Mr Rusty wrote: Well, they can huff and puff, but in reality every time they try and tighten the rules they get shot to bits by European law or the Human Rights Act.

Until either or both get repealed or amended.

guys although she had ilr years ago would it not be possible for her to come in as a returning resident??? or is it impossible cos she has spent over 2yrs out of the uk

"or is it impossible cos she has spent over 2yrs out of the uk"

Yes

Mr Rusty wrote:"or is it impossible cos she has spent over 2yrs out of the uk"

Yes

Not exactly. The ECO's guidance says:

"20.4 - Exception to the two year rule for those who have strong ties to the United Kingdom
Paragraph 19 of the Rules provides for persons who have ties with the country which merit admission even if they have not been resident in the UK for two years. ECOs should, therefore, consider the following factors in assessing whether strong ties exist:

the length of the original residence in the UK;
the time the applicant has been outside the UK;
the reason for the delay beyond the 2 years - was it through their own wish or no fault of their own (e.g. having to care for a sick or elderly relative)?;
the reasons for leaving the UK and for wishing to return now;
the nature of the family ties in the UK;
how close are they and to what extent have they been maintained during the absence?;
do they have a home in the UK and, if admitted, would they remain and live there?
The longer a person has remained outside the UK (over 2 years), the more difficult it will be for them to qualify for admission under this provision. The longer the previous residence in the UK, the stronger the case for consideration, provided that there had not been a break in residence which extended over a number of years.
Other more specific circumstances which would support an application are:

travel and service overseas with a particular employer before return to the UK with the employer;
service abroad for the UK Government, or as a dependant of a member of H M Forces or as an employee of a quasi-governmental body, a British company or a United Nations organisation;
employment abroad in the public service of a friendly country by a person who could not reasonably be expected to settle in that country permanently;
a prolonged period of study abroad by a person who wishes to rejoin the family in UK on completion of studies;
prolonged medical treatment abroad of a kind not available in the UK. "

Mr Rusty wrote:

Wanderer wrote:

siquel wrote: once the lady's husband has established himself as a worker in any EU state except the UK, if he then choses to come back here and work, his rights accrue under EU law, not the UK Immigration Rules, and she will have an absolute right to accompany him as an EEA Family member.

What if my husband fails to obtain work in another EU country, and then we arrive in the UK.

Mr Rusty wrote:Alternatively, as a non-visa national, there's nothing to stop you travelling to the UK as a visitor and applying for an EEA Residence Card once you're here.

Are we able to come directly to the UK and apply for this "EEA Residence Card from within?"

UKBAbble wrote:

Mr Rusty wrote:"

"20.4 - Exception to the two year rule for those who have strong ties to the United Kingdom
Paragraph 19 of the Rules provides for persons who have ties with the country which merit admission even if they have not been resident in the UK for two years. ECOs should, therefore, consider the following factors in assessing whether strong ties exist:"

Their isn't particularly strong evidence for my case. We married in the UK, I lived their for almost six years. We traveled back to Australia in Oct 01 to be with my family, and are now only returning to Europe after seven years here so he can be near his family. We have three children who are all British citizens.

siquel wrote: What if my husband fails to obtain work in another EU country, and then we arrive in the UK.[/qupte]

You are asking questions which an online forum isn't going to be able to answer, sorry. If you wish to research further you may want to look at:
http://www.ind.homeoffice.gov.uk/policyandlaw/guidance/

If you arrive as a tourist with an intention to remain, you might be refused entry and put on the next plane to New Zealand.

The option to apply for a spouse visa, returning resident visa, or an EEA family permit from your country of new residence might be there, if you could show you had been legally admitted to that country other than as tourists.

You also need to investigate what processes France and Italy operate to grant you resident status there.

UKBAbble wrote:

Mr Rusty wrote:"

"20.4 - Exception to the two year rule for those who have strong ties to the United Kingdom
Paragraph 19 of the Rules provides for persons who have ties with the country which merit admission even if they have not been resident in the UK for two years. ECOs should, therefore, consider the following factors in assessing whether strong ties exist:"

Their isn't particularly strong evidence for my case. We married in the UK, I lived their for almost six years. We traveled back to Australia in Oct 01 to be with my family, and are now only returning to Europe after seven years here so he can be near his family. We have three children who are all British citizens.

You might want to discuss this with a good immigration lawyer before jumping to conclusions.

Is there any reason why you didn't become a British citizen before you left the United Kingdom? Are you aware that your situation now would be much easier.

And what about Australia? What visa status do you all have in Australia and is this also being abandoned?