holiday visit eea spouse

[scratchgolfer]

My son in law resides in Tunisia, his wife my daughter resides here in UK. She is currently a TEFL teacher working short contracts throughout EU staying in hotels and then returning to UK. This is the ongoing situation until their house is ready in Tunisia next year when she will relocate there and teach English in Tunisia. I want him to visit UK in November for a big family celebration. As we submitted a UK visitor visa application with me sponsoring him. This was refused in March and we have had a review with my MPs assistance turned down as well. I am aware of the recent CJEU case O and B which would treat my daughter as a frontier worker and although the court said the directive was not applicable TEFU 21 was. I feel though that an application for a UK EEA FP would be rejected and involve a fight which would take to long. So here is my question, two choices. Apply for Irish FAM 4 with my daughter travelling from Tunisia by air and landing at Dublin and staying in a hotel then entering UK by ferry then my son-in-law flying from UK back to Tunisia. Second we drive to Serbia from UK where Tunisians do not need visa collect him from airport enter Hungary MRAX RULING reach Calais and enter UK on 1A and then he flies home to Tunisia.
Any thoughts?

[Obie]

What is the nationality of your daughter.

I don't this O B or even S applies to your son in law's case.

You son don't reside in the UK, and has his wife providing service around the Eu, where he as the spouse looks after kids, in order to enable her to exercise her treaty rights. He is in Tunisia.

He is entitled to enter one of these country where your daughter performs her service, and after residing there with her, he can then enter UK via EU law.

[scratchgolfer]

Thank you for your reply. My daughter is British. Yes my so-in-law is not in EU, however the ruling found the following. My daughter wants to continue exercising her Treaty rights as allowed by TEFU 21 and 45 in fact she flew to Slovenia today for a week and then goes to Italy for two weeks to teach English then returns to UK. So If her Spouse is not allowed to visit she will have to stop these contracts and move now to Tunisia now, thus denying her the right to work throughout the EU. The work at present allows her to visit Tunisia every few weeks between contracts. So it is not an issue of family life it is the fact she will have to stop her exercising her rights under the directive. In the same way that the Zimbano case and O and B said that if the parties are forced leave the EU altogether they are denied the Treaty rights of an EU citizen. Nothing was said that they could settle out of the EU and work and live together, it is a separate issue. I hope this explains it. So if an EU citizen had to move to a non EU country ie China etc even if they found employment they have been stopped from exercising their treaty rights in the EU. Lastly the CJEU said that the free movement Directive doesn't apply but the Treaty Articles do, which is the primary legislation. However it is for each Member State or court to determine whether the rights would be denied.

[Obie]

What you are referring to is not O B but the appellant in S G, which sought to invoke the carpenter reasoning.

I will not discourage you adducing that argument, but i must say the Carpenter test is really a tough test.

Mr Carpenter was in the UK looking after Mr Carpenter's Children from her other marriage in the UK, they were a lawfully married couple, without the support of Mrs Carpenter, Mr Carpenter would have found it hard to exercise his right to provide service around the EU.

In S G the court used the same reasoning.

It is not an easy test, especially if the spouse is not in the EU state in which those right are being invoked.

[scratchgolfer]

Sorry I have read so many CJEU judgements you are correct. As you say it is a tough test however the court didn't say what the test is or should be. It did from memory refer to more than desirable whatever that means. I agree that it is a difficult one and therefore I feel that a UK EEA FP permit would not be issued at first but would involve an appeal through the Tribunal. That said have you any thoughts on my other options as I mentioned in my first post, as it would be really great if I could arrange him to visit in November of this year for my Mothers 8Oth when there is a large party. The UKVI declined a visitor visa in March this year. We didn't use the EEA route because his wife my daughter hadn't started working for this company working throughout Europe. She has since March/April spent weeks away which can be documented and in fact has just been promoted. The plan is for her to gain experience finish their house and then relocate to Tunisia where she can work after a years experience. What do you think of Ireland or Serbia.
Thanks again for your interest.

[Obie]

Also see S G.

Ireland may be OK, as she is British.

The Husband will have the right to join her there.

[scratchgolfer]

From Ireland would two nights in a hotel achieve an Irish fam permit and then how to enter UK?