Family visitor visa - after spouse visa refused

[Obie]

Hi Casa,

As the UK denies a visit visa to spouses who are separated by the income threshold requirements can it be argued the non-EU spouse be allowed to travel with their spouse to the UK by invoking Article 5 of the EC directive?

All they would need to provide is a marriage certificate to prove their relationship when boarding the plane and upon arrival in the UK.

In accordance with the case of McCarthy and Surinder Singh. This can only happen if the British National has exercised Free Movement rights in another memberstate.

Otherwise Article 5 of the Citizen Directive is not applicable.

[Obie]

I recently succeeded in assisting a person who had entered the UK with a visitors visa and then apply for Leave, to obtain leave, by arguing that notwithstanding the fact that he is on visitors visa, it will be absurd to penalise him in circumstances, where a person who has been in gross violation of the rules for many years will succeed.

The person was granted leave outside the rules, on the basis of their British Child under the 10 Years Route.

So yes, there is hope for some people who entered with a visitors visa, and subsequently decide to switch.

[webbynz]

thanks, Obie. are you able to provide some more information on the specific circumstances? are they similar to mine?

[webbynz]

i assume you're an immigration lawyer? would you be able to assist us?

[Obie]

Is your wife already in the UK or in New Zealand?

Do you guys intend to return to New Zealand.

[webbynz]

she's in NZ with my son. she intends to come back in the next 2 weeks and i want to do everything i can to make sure she gets in.

yes, we do not plan to be here for ever, maybe another 2-3 years.

[Obie]

You need to get her in first.

I don't believe they will refuse her entry with a Kiwi (NewZealand) passport.

[Obie]

You need to get her in first.

I don't believe they will refuse her entry with a Kiwi (NewZealand) passport.

[mkhan2525]

Hi Casa,

As the UK denies a visit visa to spouses who are separated by the income threshold requirements can it be argued the non-EU spouse be allowed to travel with their spouse to the UK by invoking Article 5 of the EC directive?

All they would need to provide is a marriage certificate to prove their relationship when boarding the plane and upon arrival in the UK.

In accordance with the case of McCarthy and Surinder Singh. This can only happen if the British National has exercised Free Movement rights in another memberstate.

Otherwise Article 5 of the Citizen Directive is not applicable.

Hi Obie,

The directive doesn't explicitly make it clear that the EU member has to have exercised their treaty rights.

Does the McCarthy judgement put an end to the prospects of a spouse of a British Citizen being able to get away with entering the Schengen area without a Schengen visa unless they have exercised their treaty rights?

[webbynz]

yep i know that's what we need to do. i'm trying to make sure we've done everything possible to ensure she does. i'm not worried about once she gets here, just want to be as sure as possible she'll get in. the worst possible situation is they tell her to turn around and get on another flight back to NZ, the 24 hours here is hard enough with a baby on her own as it is.

does the kiwi passport make a difference?

[Obie]

Hi Obie,

The directive doesn't explicitly make it clear that the EU member has to have exercised their treaty rights.

Does the McCarthy judgement put an end to the prospects of a spouse of a British Citizen being able to get away with entering the Schengen area without a Schengen visa unless they have exercised their treaty rights?

Well a proper reading of article 5, provides for EU citizen who move to another memberstate other the one in which they are a national.

Surinder Singh and McCarthy, explicitly provides that this right extends to National of the Host Memberstate, who return home following the Exercise of their EU free Movement right in another memberstate.

So yes Article 5 does not apply to a British Citizen who is entering UK, unless they have exercised treaty rights in another memberstate.

[Obie]

does the kiwi passport make a difference?

Kiwi passport makes no difference, save for the fact that she will not require a Visitors visa.

Well, your wife can book to Ireland, and from Ireland you can take an internal flight to UK, and then apply under FLR(M).

Provided you are there to receive her.

[webbynz]

i'm confused, isn't FLR(M) the spouse visa? we don't meet requirements for that.

flight is already booked to come into heathrow.

[Casa]

Obie how will she qualify for FLR(M) when she has no valid leave to extend and was an overstayer. Most recently a refused spouse settlement visa applied for in NZ due to the OP as sponsor not meeting the minimum finances??

[Obie]

My mistake, she will not qualify for FLR(M), as notwithstanding the financial, she will not meet the immigration status requirement.

She has a decent prospect with FLR(FP).

Sorry about the Typographical oversight.

[webbynz]

so you're saying she'll have a better chance to fly into Ireland than to London?

[Obie]

That is my provisional view, bearing in mine i have no details of her immigration and other history.

[webbynz]

she has no negative immigration history apart from overstaying for 4 months. she has also failed to obtain a spouse visa (which i personally don't deem to be negative immigration history).

we've made a decision that she's going to try to get into Heathrow and see what happens. i think it is unlikely they'll make her and our son get back on a plane immediately as it will be detrimental to the child to do so with it being such a long flight.

any thoughts from anyone on this? the advice i've received is that her having a young baby will mean it's also unlikely she is detained, besides, they cannot detain our son because he is a British citizen so i'm just wondering what the most likely outcome is? will they let her stay in a hotel and make her check back the next day or something (if indeed they want to remove her?)

there must be a precedence for this having happened in the past?

[Obie]

She could be refused an entry if the officer is not satisfied that she is a genuine visitor, that all the requirement of Paragraph 41 of the rules are met..

The child cannot be deported, but will be expected to accompany mother in the event of a refusal of entry, or if you request, they could hand the child to you if she so wish.

[webbynz]

you're telling me things i already know.

what will happen to my wife if they decide that is the course of action required and that she is to be removed?
how long will the process take and where will she be kept?
what will happen to my son during that time?

[Obie]

you're telling me things i already know.

what will happen to my wife if they decide that is the course of action required and that she is to be removed?
how long will the process take and where will she be kept?
what will happen to my son during that time?

If i knew i was telling you things you already knew then i will not have responded.

No one can give you the answers to the questions you are seeking.

No one know the frequencies of flight to New Zealand, or what course of action an Immigration officer may take.

She may well be allowed in.

We are not psychic here. We can only tell you what the law says and not make predictions, unfortunately.

The other gentleman who was successful, had entered the UK on 3 occasions on visitors visa which was successful on appeal on each occasion.

He was married, and had been refused a Spousal visa, but he made it through the border.

I will have difficulty in saying your wife will succeed like he did. It is simply a 50/50 situation.

[webbynz]

thank you for responding and apologies if i came across as being short. all i am asking is for what you've just provided. a spectrum of possible outcomes that may occur.