Post
by mym » Fri Jul 27, 2007 12:16 pm
The form you'd use under UK immigration law would be the VAF2, with your husband applying as a spouse of a UK citizen - the application fee is 500 quid.
But DON'T, apply under the Surinder Singh case mentioned above.
They MUST issue the permit promptly and for free.
Don't take any shit from ignorant pen-pushers at the embassy, this is your legal right as a citizen of the European Union.
Tell them to go and read their own handbook and procedures, and demand to see the ECM (Entry Clearance Manager) if you get any obstruction from the ECO.
Also read this, it is the relevant part of the guidance issued to the entry clearance officers:
21.4 - The EEA family permit
An EEA family permit is a document similar to an entry clearance which has been given the name "EEA family permit" to distinguish it from a visa or entry clearance issued under the Immigration Rules. Instead, EEA family permits are issued under the Regulations.
Regulation 12 of the EEA Regulations requires non-EEA family members of EEA nationals to hold family permits if they are a visa / non-visa national and they are coming to the UK with the EEA national or to join the EEA national who is already in the UK.
Non-EEA family members of EEA nationals must get an EEA family permit before they travel to the UK if they are visa nationals, or if they are intending to live with the EEA national permanently or on a long-term basis. If they attempt to enter the UK for this purpose without an EEA family permit, we may refuse them.
However, if they have a valid UK residence card they do not have to obtain a family permit each time they leave or enter the UK.
If the family member is travelling independently of the EEA national and will not be joining the EEA national in the UK they will need to satisfy the normal entry clearance requirements for third country nationals under the Immigration Rules. For example, the Indian wife of a French national travelling to the United Kingdom for a shopping trip while the French national stayed behind will require a visa. If she was travelling with her husband, or to join her husband who had travelled ahead of her, she will require an EEA family permit.
Please note, if a family member who is travelling with, or is to join the EEA national in the UK requests a visit visa, you should offer him (or her) the option of applying for a family permit under EC law or a visa under the Immigration Rules.
21.4.1 - Handling and assessing applications for EEA family permits
Under EC law, priority must be given to applications for family permits. Wherever possible a decision should be made at the time it is lodged or after the interview is conducted. Applicants for EEA family permits should not be put into a settlement queue and an interview should be conducted as soon as possible. However, there is no requirement in the Regulations to say that EEA Family Permits must be issued on the day the application is made. Where doubts exist (for example whether applicants are related as claimed) further enquiries may be made, but these should also be given priority.
If the application is made from an EEA Member State:
* Following the case of Akrich, which established that a right of movement for a family member is only derived if they are lawfully resident in an EEA member state, the requirement for an applicant to demonstrate lawful residence has been introduced into the EEA Regulations. Anyone who has a valid visa or entry clearance, and who is abiding by the conditions of that entry clearance, can be considered to be lawfully resident in that Member State. This would normally be in the form of the local equivalent of leave to enter / remain as a family member of a national of the member state in which they are residing. Or, alternatively, an EEA residence card would normally be held if they are the family members of an EEA national residing in a member state of which they are not a national.
* The non-EEA national could equally have entered the country in some other category (visitor, student etc) and would still be considered as lawfully resident in that Member State. For example, an Indian national married to a French national, who had obtained a visa to enter France as either the spouse of the French national or in some other category (as a visitor, student or work permit holder etc), would be considered 'lawfully resident' in France, if, at the time of application, they were abiding fully by the conditions of that visa.
* Those with valid Schengen visas would be considered lawfully resident in all Schengen states. If there are cases where you are not sure if an applicant can be considered as lawfully resident, please refer the details to ECO Support.
* Evidence of an outstanding application to reside in the member state in question should not be considered as sufficient evidence of lawful residence, and the applicant should be advised to await the outcome of their application before seeking a family permit. This does not apply to those that have entered the country legally and are now applying for a residence card. It only applies to those that have entered the country, for example as asylum seekers, and still have their claim being processed. An asylum seeker who has been given temporary leave to remain in another member state whilst their asylum claim is considered would not qualify as lawfully resident for the purposes of issuing an EEA family permit.
If the application is made from outside the EEA: If the applicant cannot demonstrate lawful residence in an EEA Member State, which includes those applying from outside the EEA, they would also be expected to meet the relevant requirements in the Immigration Rules for leave to enter the UK as the family member of an EEA national. If they satisfied the Rules, they would still be issued with an EEA Family Permit.
In assessing an application, you should be satisfied that:
* the applicant is related as claimed to the EEA principal,
* any children over the age of 21 and other family members (other than the EEA principal's spouse and children under 21) are wholly or mainly financially dependent on the EEA principal or satisfy one of the other conditions for extended family members (see Annex 21.1). The children of any age of a student should always be dependent,
In the case of "extended" family members you should consider dependence to be:
+ financial, or
+ 'living under the same roof' - to mean a period of at least six months in the country of origin, and
+ the particular facts of the case merit issuing a family permit. See Annex 21.1 for a definition of extended family members as well as more information.
In addition, that:
+ the EEA principal is intending to travel to the UK with the applicant within 6 months of the date of the application and there is evidence that the EEA national will, on arrival, be residing in the UK in accordance with the Regulations, or the applicant intends to travel to join the EEA national who is already residing in the UK in accordance with the Regulations. Provided his/her stay in the UK does not exceed three months, an EEA national is not required to exercise a Treaty right (for example, by working). An EEA national who will be in the UK for more than three months will have a right of residence for as long as he/she remains a qualified person (see Regulation 6).
A qualified person is an EEA national who is in the UK exercising a Treaty right. This must be one of the following:
* a jobseeker
* a worker,
* a self-employed person,
* a self-sufficient person,
* a student, or
* a worker or self-employed person in the UK who has ceased activity. (For example a worker who has ceased working due to permanent incapacity or someone taking early retirement.)
* a person on benefits can, in some cases be a qualified person - please see Paragraph 21.4.3 for further details.
If the EEA national has been residing in the UK for more than three months or intends to travel to the UK for longer than that period, you are entitled to ask questions in order to establish whether the EEA national will be a qualified person (although they are under no obligation to inform British authorities about how long they will stay initially).
This may include proof of:
* actual employment or self employment on arrival in the UK, or
* that he/she is a student, retired person or tourist with sufficient funds to allow him/her to support themselves and their family members in the UK (for the duration of their stay) without becoming a burden on public funds, or
* evidence that the EEA national has a good chance of gaining employment in the UK.
Alternatively, where the EEA national is already in the UK, evidence that:
* the EEA principal is installed in the UK and is economically active or is exercising some other form of Treaty right.
See Annex 21.2 for examples of questions and evidence that may be asked for.
In addition to these, you should be satisfied that neither the applicant nor the EEA principal should be excluded from the UK on public policy, public security or public health grounds.
21.4.8 Surinder Singh cases
The ECJ case of Surinder Singh states that nationals of a Member State who go with their non-EEA family members to another Member State to exercise a Treaty right in an economic capacity, (as a worker or self-employed person) will on return to their home state, be entitled to bring their non-EEA family members to join them under EC law. (For example a British national and his non-EEA national spouse/children who have lived in Germany and exercised an economic treaty right and are now returning to the UK).
The Surinder Singh judgement is now incorporated into the EEA Regulations in Regulation 9.
It is confined to those cases where a British national has exercised an economic Treaty right and the Non-EEA national family member can demonstrate their lawful residence in a member state. (see section 21.4.1 on applications made from another Member State for more information on lawful residence requirements).
It does not matter if the only reason the British national went to another Member State to exercise an economic Treaty right was so that he/she could come back to the UK with his/her family members under EC law.
The non-EEA spouse will be eligible for entry into the UK under the Surinder Singh ruling provided that the marriage is valid and that the couple are not formally divorced. This applies even in cases where the non-EEA national spouse has not lived with the British national for the whole period during which Treaty rights were exercised. You may, however, find along with other evidence that this leads you to believe it to be a marriage of convenience.
Evidence that the couple have lived together may include:
* a registration certificate/residence card issued by the Member State;
* tenancy agreements; or,
* joint bank statements.
You should seek advice from ECO Support where you are unsure about the decision to be taken in applying the Surinder Singh judgement.#
21.4.10 Charging fees
No charge should be made for any application for an EEA family permit made by a non-EEA national family member of an EEA national or by the family member of a British national, where the British national is exercising an economic Treaty right in an EEA state or Switzerland. Visa applications by non-EEA national family members of EEA nationals attract the usual fee for the category in which they are applying.
21.4.14 Issue of a family permit
The applicant should be issued a Category D Vignette. There are two types of endorsement on a family permit. This will be either:
EEA FAMILY PERMIT: TO JOIN/ACC SPOUSE/CP
or
EEA FAMILY PERMIT: TO JOIN/ACC RELATIVE
An EEA family permit should be made valid for 6 months from the date of issue.
You should explain to the permit holder that:
* the permit will indicate to the Immigration Officer the status of the holder as a family member of a person exercising Treaty Rights
* the Immigration Officer retains the right to refuse entry to a permit holder:
o if the revocation is justified on grounds of public policy, public security or public health; or
o the person is not at that time the family member of a qualified person.
21.4.15 After entry
You should also explain that after entry to the UK the holder could apply to the Home Office for a residence card.
The possession of a valid residence card (presently a Home Office endorsement in the holder’s passport) will enable the holder to re-enter the UK without the need for an EEA family permit. This is providing he/she continues to qualify as a family member of an EEA national (as defined in Regulations 7, 8, 9 and 10), and is subject to the normal derogations of public policy, public security and public health.
Please note, registration certificates and residence cards are not currently required in the UK in order to be considered legally resident. (EEA nationals and their family members may choose to apply for this documentation as confirmation of their right of residence).
--
Mark Y-M
London
