UK Citizen married to Indian national

[ex_brit_girl]

Hi,
Would really appreciate some advice. I am a female UK citizen married to an Indian national. We now live in Spain and have been married for 4-5 months.
My husband was in the UK some years ago. He stayed in the country for 3 years, illegally. He has a mark against him. When he last applied for a visit to the UK (before we were married), he was refused as they say he breached immigration law and he is likely to be refused for the next 10 years.
With this in mind, we both moved to Spain hoping that we could make a life here. Unfortunately, it is not that easy and I am constantly missing my family and friends.
I would like to know what our chances are of being able to return to the UK.
Please help.
Regards.
RK

[Kitty]

ex_brit_girl, have you been working, looking for work, supporting yourself etc. in Spain?

Depending on your circumstances you may be able to use European free movement rules to bring your husband to the UK with you (without troubling anyone with his previous immigraiton history).

What did his last visa refusal actually say? Was the basis for refusal just a breach of his conditions of leave or overstaying, or was it worded as something more serious (like "deception" etc.)? If you do have to use the spouse visa route, there are some previous visa offences that cannot be used against a spouse visa applicant.

[ex_brit_girl]

Hi Kitty,
Thanks for your reply.
I am currently working part time. I am an I.T. consultant. The job situation in Spain is dire so it was a miracle that I got this! I have been working for 2 months. I have no problems getting work in the UK, however.
My husband is considering buying a business here, but due to the current financial crisis, we are having to think hard before getting into it.
I own a flat in the UK, which is currently being rented out, but we would move there if we could go back.
It says he overstayed and hence breached immigration law.
Regards

[ex_brit_girl]

Does this relate..what does it mean...

Member States that are not in the Schengen area ( Ireland, the UK, Bulgaria, Romania and Cyprus) maintain border checks and may require non-EU nationals to have a separate entry visa issued by the non-Schengen country to which they are travelling. Under Directive 2004/38/EC, third-country members of the family of an EU citizen are exempted from the visa requirement when they accompany or join the EU citizen in a Member State other than that of the EU citizen’s nationality, on condition that they have a residence card of a family member of a Union citizen (e.g. a Russian spouse of a German national residing in Belgium and holding a Belgian residence card does not need a visa to enter Bulgaria when they travel there together on holiday).

I read that we have free movement within the schengen zone, but what about the UK? He does need a visa to get to the UK, right?

[ex_brit_girl]

He received a letter saying:
He employed deception to get entry. He didn't have the intention of leaving (although he did, voluntarily).
He went on a transit visa which was valid for 6 months, but he could not stay for longer than 2 days at a time..

[Kitty]

ex_brit_girl, hang on to that job!

OK, so, as a UK national working in Spain you are exercising your right to live and work in another European Union member state.

This is good. Basically, it means that after you have exercised that right for about 6 months, you should be able to return to the UK and bring your Indian husband with you using European free movement rules.

Yes, he will require permission to enter the UK, but this is only a "Family Permit", which is free to apply for. More importantly, it is not the same thing as a "spouse visa", and is not assessed under UK immigration law. The only thing your husband has to show to get entry to the UK this way is that he is married to you, and that you are exercising your right to move to the UK to live and work. Basically, if you have a job lined up before you go, you're pretty much there.

The judgment that allows Britih nationals to make use of European law in this way is known as "Surinder Singh": have a search for it and see what you can find out.

The only disadvantage of this route compared to using the Immigration Rules is that it takes longer for your husband to acquire a permanent right to stay int he UK.

When it comes to your husband's immigration history, it could be that this would be disregarded if he were to make a spouse visa application. Overstaying and deception are both grounds for refusal under paragraph 320(7A) of the Immigration Rules. But 320(7A) grounds cannot be used against a spouse visa applicant. However "deception" could also encompass wrongdoing like "failing to disclose material facts", which is an offence that is not bypassed for spouse applicants.

It depends on how serious his previous sins were, really.

[ex_brit_girl]

Thanks for this.
Overstaying was the only issue and he left voluntarily, albeit after 3 years!
Should we try after 6 months then? Do you think we have a good change.
And he is applying for a spouse visa?

[mrlookforward]

In simple terms: Because you a British Citizen and now living and working in spain, you have now become a "EEA" citizen for immigration matters. Your husband can now apply a visa called "EEA" family permit. If he is in spain legally then he can apply in spain, otherwise not.

Whenever you look for any information over the net for any information then foreget the word "British Citizen". Only treat yourself as EU/EEA Citizen and look for the relevant information.

read this: http://www.ukvisas.gov.uk/en/howtoapply ... ionals#Q10

[ex_brit_girl]

Can we apply 6 months from the date of arrival into Spain?
Or is it 6 months from when he has obtained a particular document eg. NIE?

Thanks all.

[mrlookforward]

Just count 6 monthswhen you entered spain and started excercising treaty right (work/study etc). Have you obtained any endorsement in your passport which confirms your stay in Spain as an eea national excercising treaty rights?

[ex_brit_girl]

Personally (the EU national) I have not. But I did get my NIE straight away and I got a job pretty quick too, so that shouldn't be a problem. My husband probably has a stamp on his passport.
Thanks for your help, greatly appreciated!

[alex__uk]

Hello,

I don't know if you have seen this advice from the Citizens Advice Bureau

You will have to go there to get the advice, or maybe online, but look at 3.12.2.30. Getting entry clearance and leave to enter

Paragraph 32c and 32d talk about the penalties imposed if applying for a UK visa, having previously overstayed. They state that if you overstay but leave of your own accord and expense than there's a one year ban on reapplying. If you leave voluntarily but at public expense the ban if 5 years. If you are removed/ deported then its a 10 year ban

However, curtially in your case, these penalties do not apply to a spouse coming to settle in the UK as the partner of someone already settled in the UK.

Therefore although you will have to go through the (extensive) process of proving yours is a genuine marriage, there shouldn't be any reason why you and your husband can't now apply since you're married and you are a UK national

Good luck!

[Kitty]

I would still be a bit concerned about the allegation of deception.

ex_brit_girl, you said that your husband got a letter saying he had used "deception" to enter the UK. He may find that his immigration offences are of a type that can be overlooked for spouse applicants (as alex__uk says).

However, I would be concerned that the "deception" allegation could still be interpreted by an Entry Clearance Officer as falling under paragraph 320(7A):

(7A) where false representations have been made or false documents or information have been submitted (whether or not material to the application, and whether or not to the applicant's knowledge), or material facts have not been disclosed, in relation to the application.

The situation may indeed fall under the concession alex__uk has described, but I would check it out completely before spending over £600 on a spouse visa!

The overstaying shouldnt be a problem at all (firstly, as a spouse applicant, and secondly because he left voluntarily over 12 months ago).

Can you post the entire text of the letter that refers to "deception"?

[mrlookforward]

The best way woul still be under the eea rules rather than uk rules. Eea requirements and rules are way easier to fulfill compared to uk rules.

[alex__uk]

Ahh ok,

Appologies, didn't see the deception part.

[ex_brit_girl]

But he did leave the country voluntarily and at his own expense...

We both also have jobs here in Spain now.

[ex_brit_girl]

Would you be able to advise what essential documents we should submit with the application?
Is there any point in getting a lawyer?
Thanks v much!

[Kitty]

Are you making a spouse visa application or using the EEA route?

[ex_brit_girl]

We will go the EEA route, if this is the best.
Also, another question:
We have now been in Spain together as a married couple for 4 months. If I was offered a job in the UK and we decided to apply soon, would this be enough time. Many have advised that applying after 6 months of being here will help. But we have really had enough of this place!!!!

[ex_brit_girl]

Oh and additional information:
I got my NIE in December 2009.
I started working 22nd Feb 2010.
My husband arrived in Spain 6th Feb 2010.
He has been working for over a month now.

[Kitty]

In order for your husband to apply for an EEA Family Permit, the main documents you will need are:

Certified copy of your passport
Your Spanish work documents and any residence documents
Wage slips and corresponding bank statements for your Spanish income
Evidence of where you have been living in Spain
Marriage certificate and certified translation if not in English
Evidence of your relationship prior to marriage (e.g. letters, emails, photos etc)
Evidence of your accommodation (e.g. office copy entries of the flat you own) and prospective job in the UK: you need to show you are exercising "treaty rights" by returning to the UK. The easiest way to do this is to line up a job.

If you use the UK visas website, you should be directed to the right form and supporting information.

I would suggest waiting a few months before you start the procedure, to get a full 6 months' work behind you before you apply. If you search the forums you will find other people who have made similar applications: it seems that some ECOs are often not familiar enough with the rules that allow UK nationals to use the EEA route so I would over-prepare if at all possible!

[ex_brit_girl]

Thank you very much! Am very grateful!!

[ex_brit_girl]

Hi,
With regards to the above situation. My husband applied for the EEA permit. It was just refused on the grounds of my missing tax documents (as I was self-employed in Spain) and that our marriage certificate was not legalised in Spain. It was legalised in India.
So my question is, and I would be very grateful if you could shed light on this for me, do we have to apply all over again with a new case and the new required documents? As they have returned the passport and orginals but retained all the copies and evidence provided.
We have tried to contact the given numbers and email addresses and no one replies.
Thank you in advance for your help.
Regards.

[ex_brit_girl]

ie. is there a short cut way of just submitting my tax documents and marriage cert without starting the whole process again?

[HRY2005]

Why not sort the tax issue out and find out if there's a way to register/legalise your marriage in Spain, then re-apply, you have nothing to loose, it's free.

I believe the EEA rule is still your best option, compared with the UK immigration rule.

Good luck