Immigrationboards.com

Posted: **Wed Apr 10, 2013 3:05 am**

Hello :) We are in dire need of your collective wisdom and advice, this forum's members seem to know more about immigration law than the agencies themselves!

We are a married couple (I am a non-EEA citizen, and my spouse is a UK citizen who has been self-employed as a sole trader for about 4 years in the UK). We are trying to find out whether we could apply for an EEA Family Permit, rather than a UK Spouse visa (for all the usual reasons - lower cost, less stress/worrying about re-applying every 2.5 years, etc.)

The slightly unusual aspect is that I (the non-EEA citizen) have my own NORWEGIAN permanent residency/settlement, which I have had since I was young. From what we have researched, it seems that this might (hopefully) save us some time, in that I wouldn't have to wait 3 months before obtaining a residence card in Norway, once we moved back there together.

I have had UK visas in the past (Student and Post-Study Work visas) and am currently in the UK visiting my British spouse on a regular 6-month tourist visa.

We are drafting a possible plan, but would appreciate your thoughts on each step:

1) My UK spouse will fly to Norway soon and request a registration certificate from the Norwegian (tax) authorities, in order to get the ball rolling as soon as possible. I know this isn't always mandatory or required until after 3 months, but hopefully they would let my spouse register earlier
(Source: http://europa.eu/youreurope/citizens/re ... dex_en.htm)

2) My UK spouse would set up living arrangements (we will be staying with family friends) and we will update our new residential address in Norway, etc.

3) My UK spouse would be travelling back and forth between Norway and the UK for work purposes (every other week or so), as they are self-employed and have clients in both the UK and Norway. We should be able to provide my UK spouse's invoices and recommendations from both UK and Norway-based clients, as suggested for proof of self-employment, assuming this is still relevant?
(Source: http://www.ukba.homeoffice.gov.uk/sitec ... cklist.pdf)

4) I will join my UK spouse in Norway the following month, and we will live together at our new residential address in Norway. We will both be working (I am also self-employed, but have other employment opportunities in Norway). My UK spouse will make sure to contact the Norwegian tax authorities and even offer to start paying tax for the 3-month+ period, if they let us pay early (rather than at the end of the tax year), just to show that we have paid tax to Norway (in case this is required?)

5) After 3 months of us living together (after 3 months + 2 weeks since my UK spouse first registered in Norway), we will submit our EEA Family Permit application to the UK embassy/consulate, and hopefully receive an answer within 10 working days. We know that just over 3 months of living/working in Norway isn't very long, but it doesn't state otherwise, and we've heard of someone who received their EEA family permit after only 2.5 months!
(Source: http://thailand-uk.com/forums/archive/i ... 14048.html)

6) After (hopefully) successfully entering the UK with an EEA Family Permit (valid for 6 months only?), my UK spouse would continue working as self-employed in the UK (we will try to give the Norwegian authorities notice of our leaving, if necessary?) and we would look into applying for a UK Residence Card (from within the UK, valid for 5 years?) We would be tempted to just pay the extra £300 that the UKBA is charging for in-person applications of the Residence Card (assuming we even need this?), just to avoid being stranded/not being able to travel while waiting for the postal application to be processed.

Does this sound right/legal/realistic? :)

Our other questions are:

1) What are the RISKS?
a) Immigration History: If, for whatever reason, the UKBA were to reject our EEA Family Permit application, would that count as "bad immigration history"? Would it be considered "as bad" as having a regular visa (f.ex. a UK Spouse visa) rejected? As they call it a "permit", rather than a visa, is there any difference in that respect? Bad immigration history/records are what scare us the most!
b) Tax Implications: I know that this is probably a question for the relevant tax authorities (we will ask them as well), but does anyone know if this moving between countries (UK>Norway for 3+ months>UK permanently) could end up causing tax confusion? I have been told that you have to live in Norway for at least a good few years before being liable for Norwegian tax for a period AFTER moving away from Norway (and its very strict taxation levels!) Likewise, we don't want to annoy the HMRC in the UK.

2) What is the BACK-UP PLAN?
a) If our EEA Family Permit application/appeal were denied, how soon could we re-apply under a different category (UK Spouse visa/Entry Clearance)? Do you think that a EEA Family Permit application rejection would significantly/negatively affect the outcome of future UK visa applications? Since it's technically a "permit", would we even have to declare it as a previously denied visa?

3) Do we even need to apply for the EEA Family Permit beforehand, or could you technically return to the UK and apply at the airport? This seems quite cheeky, we would probably prefer applying via the embassy first anyway, in case the airport staff aren't in the mood for the extra hassle :P

Sorry for the looooong post! Thank you for reading, if you made it this far :)

Posted: **Wed Apr 10, 2013 8:45 am**

1) a refusal would not cause a bad immigration history. And in any case, immigration history has no affect on application under EEA regulations and hardly any affect on spouse visa applications under the UK rules.

2) there is no £300 in person options. All applications under EEAa regulations are postal.

3) the main "risk" would be a refusal based on the fact that the ECO won't be convinced the British national has been exercising treaty rights due to the short period. In that case, you just wait a few weeks and reapply.

Posted: **Wed Apr 10, 2013 1:23 pm**

Wow, really? Thank you for your quick reply & advice! :)

I suppose that settles it then, we will go ahead with this plan, as there don't seem to be any "risks" (on the UKBA side of things) if they were to reject it - we would just reapply. We have legitimate reasons for living in Norway anyway (it's my home country) and are going to look at it as a chance to work hard and hopefully earn some Norwegian wages, before returning to the UK.

Thank you! I will post more updates here once we hear back from the embassy, etc. (in case others are considering going down the same route).

Posted: **Wed Apr 10, 2013 1:38 pm**

Self employment can be tricky in proving treaty rights. If your spouse has clients in Norway which brings in reasonable income, that would probably be fine.

Another option is becoming employed (even in low skills, low salary jobs) as employment is a lot straightforward to prove.

Posted: **Wed Apr 10, 2013 2:15 pm**

Key thing is what the UK citizen is doing in Norway. If they are realistically considered employed or self-employed there, then the route is open. Even part time work, e.g. working at McDonalds, counts.

See http://eumovement.wordpress.com/2011/12 ... -a-worker/

Posted: **Thu Apr 11, 2013 1:59 am**

Thanks!

Yes, he will be keeping his existing UK-based clients (he will fly back for meetings every other week or so), but also take on some Norway-based clients we have lined up. When you're self-employed, you can have clients based anywhere, but I realise that having Norway-based income would help. We may also set up a Norwegian bank account for him.

Posted: **Thu Apr 11, 2013 3:52 pm**

I would be shocked if he was working in Norway and did not have a bank account there. You being serious?

Posted: **Thu Apr 11, 2013 5:01 pm**

Of course we will set one up, don't worry : ) Sorry, by "may" I meant "we will set it up once they let us", since they usually require the EEA national to register with the authorities first (f.ex. apply for and receive a "D-Number" (a temporary national security number) and the Registration Certificate, etc.)

Posted: **Fri Apr 12, 2013 12:58 am**

norwegianish wrote:Of course we will set one up, don't worry : ) Sorry, by "may" I meant "we will set it up once they let us", since they usually require the EEA national to register with the authorities first (f.ex. apply for and receive a "D-Number" (a temporary national security number) and the Registration Certificate, etc.)

They can not require the foreigner to do that unless they also require Norwegian citizens to do so.

Posted: **Fri Apr 12, 2013 2:08 am**

Jambo wrote:

3) the main "risk" would be a refusal based on the fact that the ECO won't be convinced the British national has been exercising treaty rights due to the short period. In that case, you just wait a few weeks and reapply.

perhaps... but The Equality Act...

and....

on my FOI request: https://www.whatdotheyknow.com/request/ ... ing-377911

their response of 9th april: https://www.whatdotheyknow.com/request/ ... 0FINAL.pdf

on page 11 - in annex b...

Worker 18. For the purposes of regulation 15A, "worker" excludes a jobseeker or person who falls to be regarded as a worker by virtue of regulation 6(2).

19. With regards to the EEA national parent‟s capacity as a worker, evidence should be provided that the EEA national was working in the UK (for example, payslips, contract of employment) at a time when the child was also in the UK.

20. There is no minimum requirement for how long the EEA national parent must have worked in the UK, but in all cases the person needs to be / have been a "worker" as that term in defined in EU law (i.e. the activity must be / have been effective and genuine, to the exclusion of activities on such a small scale as to be / have been regarded as purely marginal and ancillary). In addition, work undertaken in accordance with the A8 and A2 worker schemes is included

I see this helping Singh cases. - as documentation from the ukba accepts that no min time needs to be undertaken to be classed as an EEA worker... - discrimination against biritish people if they apply a time limit to singh cases... which the equality act prevents?

I know this is guidance for Zambrano, but as its all guidance on EU law... it could help others possibly?

Posted: **Fri Apr 12, 2013 2:14 am**

norwegianish wrote: The slightly unusual aspect is that I (the non-EEA citizen) have my own NORWEGIAN permanent residency/settlement, which I have had since I was young. From what we have researched, it seems that this might (hopefully) save us some time, in that I wouldn't have to wait 3 months before obtaining a residence card in Norway, once we moved back there together.

Firstly,
have you been out of Norway for more than two years? if so you would of lost your PR status?

if not... have you considered approaching gaining your citizenship?

Posted: **Fri Apr 12, 2013 2:24 am**

Directive/2004/38/EC wrote:
norwegianish wrote:Of course we will set one up, don't worry : ) Sorry, by "may" I meant "we will set it up once they let us", since they usually require the EEA national to register with the authorities first (f.ex. apply for and receive a "D-Number" (a temporary national security number) and the Registration Certificate, etc.)
They can not require the foreigner to do that unless they also require Norwegian citizens to do so.

All the banks' websites I have checked all have the national security number (or D-Number/equivalent temporary ID number for refugees, etc.) as a requirement, regardless of nationality/immigration status - so there's no discrimination there. Norway doesn't make it problematic to apply for these numbers, they encourage it : )

Posted: **Fri Apr 12, 2013 2:32 am**

wiggsy wrote:
Jambo wrote:

3) the main "risk" would be a refusal based on the fact that the ECO won't be convinced the British national has been exercising treaty rights due to the short period. In that case, you just wait a few weeks and reapply.
perhaps... but The Equality Act...

and....

on my FOI request: https://www.whatdotheyknow.com/request/ ... ing-377911

their response of 9th april: https://www.whatdotheyknow.com/request/ ... 0FINAL.pdf

on page 11 - in annex b...

Worker 18. For the purposes of regulation 15A, "worker" excludes a jobseeker or person who falls to be regarded as a worker by virtue of regulation 6(2).

19. With regards to the EEA national parent‟s capacity as a worker, evidence should be provided that the EEA national was working in the UK (for example, payslips, contract of employment) at a time when the child was also in the UK.

20. There is no minimum requirement for how long the EEA national parent must have worked in the UK, but in all cases the person needs to be / have been a "worker" as that term in defined in EU law (i.e. the activity must be / have been effective and genuine, to the exclusion of activities on such a small scale as to be / have been regarded as purely marginal and ancillary). In addition, work undertaken in accordance with the A8 and A2 worker schemes is included

I see this helping Singh cases. - as documentation from the ukba accepts that no min time needs to be undertaken to be classed as an EEA worker... - discrimination against biritish people if they apply a time limit to singh cases... which the equality act prevents?

I know this is guidance for Zambrano, but as its all guidance on EU law... it could help others possibly?

Thank you for sharing the UKBA responses! It's a relief to see that they acknowledge that they can't demand a minimum period of "working" before returning to the UK...

However, that one line still bothers me: "(i.e. the activity must be / have been effective and genuine, to the exclusion of activities on such a small scale as to be / have been regarded as purely marginal and ancillary)"

It's so VAGUE and open to interpretation, which could just as much work against you rather than work in your favour :S What do they mean by "marginal"?

Surely by a billionaire CEO's standard, the 3 months we'll be working full-time as self-employed freelancers would be considered "marginal". I'm also a tad worried that they expect my spouse's Norway-based income to make up the majority/total of income for that period, when realistically it will probably make up only a small amount (the existing UK clients my spouse will be keeping will provide our base earnings - we're going to Norway for business development/start-up purposes, which doesn't usually pay off until ages later anyway!) In general, self-employed people are given a difficult time...

Posted: **Fri Apr 12, 2013 2:42 am**

wiggsy wrote:
norwegianish wrote: The slightly unusual aspect is that I (the non-EEA citizen) have my own NORWEGIAN permanent residency/settlement, which I have had since I was young. From what we have researched, it seems that this might (hopefully) save us some time, in that I wouldn't have to wait 3 months before obtaining a residence card in Norway, once we moved back there together.
Firstly,
have you been out of Norway for more than two years? if so you would of lost your PR status?

if not... have you considered approaching gaining your citizenship?

I travel back and forth very often, and have always kept up Norway-based clients/part-time employment throughout my studies/post-study years. I still use my permanent address there, etc.

I HAVE actually applied for Norwegian citizenship as well, but a reply for that isn't due until August (or later). I would be over the moon if I was granted Norwegian citizenship, but I may have JUST spent too much time outside Norway due to studying in the UK (it is their discretion to "ignore" absences due to studies or employment). Former caseworkers for the Norwegian citizenship authorities have recommended that I stress how I grew up in Norway and therefore have very strong humanitarian grounds for being granted citizenship anyway - so we'll see. As you can tell, I'm a "mongrel" and have lots of homes, but no country that can fully claim me, legally :P

Posted: **Fri Apr 12, 2013 5:37 pm**

norwegianish wrote: However, that one line still bothers me: "(i.e. the activity must be / have been effective and genuine, to the exclusion of activities on such a small scale as to be / have been regarded as purely marginal and ancillary)"

It's so VAGUE and open to interpretation, which could just as much work against you rather than work in your favour :S What do they mean by "marginal"?

..

well, on that point lets say this:

The UK Govt seams to think somebody can live on £53 per week (benefits due to the housing benefit cuts) or £71 of Income Support/JSA ETC.

I would say that any income above £71/week should be considered to be "effective"...

Posted: **Fri Apr 12, 2013 5:40 pm**

additionally...
https://www.whatdotheyknow.com/request/ ... 0.pdf.html

4. Legal advice has clarified that the British sponsor in a Surinder Singh case does
not need to prove that s/he continues to be a worker or self-employed person
upon his/her return to the United Kingdom. The UK national is only required to
show that s/he was a worker or self-sufficient person before returning to the United
Kingdom. The UK national is not required to be a qualified person under the
Regulations following his return to the UK.

Posted: **Fri Apr 12, 2013 6:29 pm**

wiggsy wrote:additionally...
https://www.whatdotheyknow.com/request/ ... 0.pdf.html

4. Legal advice has clarified that the British sponsor in a Surinder Singh case does
not need to prove that s/he continues to be a worker or self-employed person
upon his/her return to the United Kingdom. The UK national is only required to
show that s/he was a worker or self-sufficient person before returning to the United
Kingdom. The UK national is not required to be a qualified person under the
Regulations following his return to the UK.

There was a mistake in the original HO memo.

It is worker or self-employed, not self-sufficient.

Posted: **Fri Apr 12, 2013 6:45 pm**

My spouse will be self-employed (we'll apply for registration certificate, tax ID, bank account, etc.) however now I'm worried because the Norwegian tax authority says that (generally speaking) self-employed/sole-traders from outside Norway are NOT liable for tax if they spend less than half a year in Norway. I even OFFERED for us to pay tax voluntarily, but we can't.

Now the "million-dollar question" is - does anyone know if you definitely have to have paid tax / be liable for tax in the other non-UK EEA country, or if it is sufficient to spend just over 3 months there (fully registered otherwise) before trying to return to the UK via Surinder Singh?

I guess what I'm trying to ask is, is being 'liable for tax' the same as 'being self-employed'/exercising EEA treaty rights in that country?

Posted: **Fri Apr 12, 2013 11:12 pm**

Jambo wrote:
wiggsy wrote:additionally...
https://www.whatdotheyknow.com/request/ ... 0.pdf.html

4. Legal advice has clarified that the British sponsor in a Surinder Singh case does
not need to prove that s/he continues to be a worker or self-employed person
upon his/her return to the United Kingdom. The UK national is only required to
show that s/he was a worker or self-sufficient person before returning to the United
Kingdom. The UK national is not required to be a qualified person under the
Regulations following his return to the UK.
There was a mistake in the original HO memo.

It is worker or self-employed, not self-sufficient.

have you got referece to show that this was an Error... - note the whole section... LEGAL ADVICE ...
i also note a more recent release, without corrected statement?
https://www.whatdotheyknow.com/request/ ... 026146.pdf

if it was an error or not... im certain it wont take long before the self sufficient part is proved to be satisfactory

Posted: **Fri Apr 12, 2013 11:49 pm**

Just read the whole paragraph and you will see that this is typo:

wiggsy wrote:additionally...
https://www.whatdotheyknow.com/request/ ... 0.pdf.html

4. Legal advice has clarified that the British sponsor in a Surinder Singh case does
not need to prove that s/he continues to be a worker or self-employed person
upon his/her return to the United Kingdom. The UK national is only required to
show that s/he was a worker or self-sufficient person before returning to the United
Kingdom. The UK national is not required to be a qualified person under the
Regulations following his return to the UK.

Also read Regulation9(2)(a).

Singh was given in 1992, I doubt it would change in the near future.

Posted: **Sat Apr 13, 2013 12:07 am**

Jambo wrote:Just read the whole paragraph and you will see that this is typo:
....
Also read Regulation9(2)(a).

Singh was given in 1992, I doubt it would change in the near future.

if this is indeed the case, then why has no amended guidance been issued to state such...

but lots of caselaw is coming up... whats to say UKBA dont "flex" on some of the "harder to fight" cases to prevet it becoming caselaw. - if you just want your spouse to be able to reside... and appeal... its got three possibilities... overrule it, DLR or go to court, right?

Posted: **Tue Apr 16, 2013 3:37 am**

norwegianish wrote:(Following from this initial post: http://www.immigrationboards.com/viewto ... 428#821428)

Hi all! We have been trying to get a specific answer from the UKBA and tax authorities (in the non-UK EEA country where we will be living before returning to the UK), and neither of them can answer the following question:

Re: Applying for the EEA Family Permit to bring non-EEA Spouse to UK
For a UK citizen registered as self-employed in another EEA country (in our case, Norway), do they have to show that they have already PAID TAX in that EEA country, or is it sufficient to show that the UK citizen has fully registered with all the relevant authorities (registration certificate, tax ID, bank account, official business register) but has not yet received the end-of-year tax return?

(We cannot stay in Norway for the full tax year, we can only stay about 3+ months - so we can't wait on receiving the final tax return next year)

Alternatively, could we voluntarily pay some tax in ADVANCE (this seems to be an option in Norway), get a basic receipt for this payment and provide this as evidence?

The "problem" is that we have found out from the Norwegian tax authorities that the UK citizen actually WON'T be liable for Norwegian tax as a self-employed sole trader, because they will not have spent more than 50% of the full year in Norway. I imagine that any tax we paid in advance would probably be returned to us at the end of the year, anyway (as incorrectly paid). So, it's tricky - we WANT to pay Norwegian tax for the time we spend there (for EEA Family Permit purposes), but we're not liable!

What does everyone think? Will the ECO accept all the other registration evidence (WITHOUT the final tax return)? Surely they must do, as there have been so many other people who have succeeded with this route, having spent less that 6 months in the other (non-UK) EEA country...?

Posted: **Tue Apr 16, 2013 5:17 am**

there is no requirement to pay tax

the only requirementS are:
You do meaningful work under the instruction of somebody else (a client if self employed)
Your non-eea spouse lives with you.

the documentation you return with is just to prove that you meet the first two points.

so bank statements
EU registration certs
tenancy
--- these show living together

contracts
receipts
invoices
bank statemets
etc
--- these show work

also if coming invia a port with no eea fam permit....

see the freemovement blog for some useful print outs

Posted: **Tue Apr 16, 2013 4:35 pm**

wiggsy wrote:there is no requirement to pay tax

the only requirementS are:
You do meaningful work under the instruction of somebody else (a client if self employed)
Your non-eea spouse lives with you.

the documentation you return with is just to prove that you meet the first two points.

so bank statements
EU registration certs
tenancy
--- these show living together

contracts
receipts
invoices
bank statemets
etc
--- these show work

also if coming invia a port with no eea fam permit....

see the freemovement blog for some useful print outs :)

Thank you wiggsy! Sorry, I only just saw your reply now - fantastic :)
We will be living with a family friend/house-sitting rent-free, so we may have to just show a letter from the owner's stating this + our recently updated national registry to show our official address in Norway (we're being very difficult about this, I know :P What with being self-employed and "flakey" nomads... Will try our best to compensate for this in other aspects.)

Posted: **Wed Apr 17, 2013 8:12 pm**

get a bank account, and even if you have to pay for paper statements - GET PAPER STATEMENTS POSTED THERE FOR BOTH OF YOU!

this will show your address, and will be stronger proof of address than just having a friend write "they both lived here"

Immigrationboards.com

EEA Family Permit for UK (Surinder Singh) Route via NORWAY

EEA Family Permit for UK (Surinder Singh) Route via NORWAY

Re: EEA Family Permit for UK (Surinder Singh) Route via NORW

Re: EEA Family Permit for UK (Surinder Singh) Route via NORW

Re: EEA Family Permit for UK (Surinder Singh) SELF-EMPLOYED