EEA spouse options (short-term working visit)

[punktlich02]

Facts: X was born in USA, grew up in UK, had ILR but (stupidly, but never mind that) let it expire while working in USA for financial services firm. Obtained Swiss nationality by ancestry. Married US national; 3 children (1 born in UK has UK nationality; others are Swiss/USA). Expects to visit UK for 2/3 weeks and he and TCN wife will work in UK on behalf of UK employer in work that would otherwise require work permit but for EEA status. (FWIW spouses married in UK with marriage visa, returned subsequently on H's ILR and W's conditional ILR; both now invalid.)

Question: X's non-EEA spouse queries whether lengthy and intrusive EEA Family Permit application is worthwhile for brief working visit with US passport. H & W have NIC numbers and from my knowledge of PAYE neither HMRC nor Home Office would know or care so long as taxes were paid. But suppose (this being financial services, there was a whistleblower: let's keep this legal).

Can H&W (and children) arrive together, claim W's right to work, remain for 2/3 weeks, without EEA permit? Does it help to say at port of entry that W wants a Residence Card even though she obviously will not be staying long enough for one to be issued? The UKBA materials are confusing (to say the least) especially on the points of landing cards and passport stamps on entry.

Comment: I ask these questions because years ago I worked in a court case when a US national stenotypist was brought from the USA for a case and was unable to work ... until it was discovered she had an Irish-born grandparent.

[punktlich02]

The FAQ seems to answer the "work" question. Sorry.

"Although the HO would like to give the impression EEA FP is required, it is not really required if are a non-visa national and are married to EEA national. You can just board a plane (as you do as a tourist) and once at the border, seek to enter as a family member of EEA national. You will need to produce similar evidence which is required for the EEA FP namely your passports and a marriage certificate. You will get a 6 months stamp for EEA family member (used to be called Code 1A) which allows you to work."

[Wanderer]

Sorry, not being awkward but could you post the query again without the back story (sorry for being rude!!) I got quite lost!

If it's entering UK with an EU citizen without an EEA permit, in theory I think it's legally possible, since the permit only affirms treaty rights, not grants them as they derive from the EU citizen. But will the airline board you? Probably not. That's the real battle.

[punktlich02]

@Wanderer: Thanks for trying to help. But I had seen a reply to another question in this area that pointed to the FAQ, so I looked there and found pretty much what I needed to know -- and confirmation that I wasn't really illiterate: it's UKBA that is obtuse in the way it posts advice.

What may have seemed irrelevant to you is to me -- as a PAYE clerk -- necessary: that the parties are already registered with DWP and have NIC numbers. I just need to plug in the passport numbers to HMRC's PAYE Tools to show I looked at the passports and they have the right to work.

W will be boarded, no problem: from the air carrier's standpoint she could be a tourist. What I want to see is a border agency stamp in her passport that doesn't forbid employment. I think that H needs to tell the border police that he "intends" to seek a EEA resident card. The UKBA internal instructions to border agents ("Processes and procedures for EEA documentation applications") is very difficult to read because it assumes institutional knowledge. The more general Immigration Directorates' Instructions, Chapter 7 Section 3, "EEA Nationals & Their Family Members" is clearer, but I was confused by its presumption that most third-country national spouses would already have a family permit or residence card. And then this: "However, this does not apply when a person’s claim to be a family member is assessed and accepted for the first time at port and the person is admitted on a Code 1A (see paragraph 5.3). This is because we do not otherwise have a record of the person." -- but I now see from this board that "Code 1A" is obsolete and that's why I could clarify it.

My instructions to H & W (or X as I called him in the beginning) will be to see to it that the border agent does not restrict W from employment. All the other issues are resolved by CJEU judgments (Riaz Zambrino and the others) so even though the family may be arriving from the USA no residence in Switzerland or anywhere else in the EU/EEA/Switzerland is required. (To take the hypothetical case a bit further: H's sister has British nationality as well as Swiss: we know from the McCarthy case that absent a Surinder Singh working residence within EU/EEA/Switzerland she could not bring a TCN spouse to the UK.)

Thanks again for trying to help. I've spent hours on this and it was the Board's FAQ that gave me the final hint I needed.

[punktlich02]

Should read (of course):

... that's why I could *not* clarify it.

[Magelan]

Hello everyone!

I'm Spanish,my husband is a USA Citizen,living with me and our child in Spain and in possession of a "Residence Card of a Family Member of a EU Citizen"(so it states in the RC). We already entered the UK in the past months for a short visit and he was only asked to show his Spanish RC.
I read that since April 2015, entering the UK as a holder of a RC under the Article 10 makes everything easier(but not sure this applies to our case). As we plan to move together to the UK and work there, would my husband need to fill in for the EEA(FM)before arrival and then apply for RC once there? Could he enter and have the right to live and work from day 1 with his current RC processed in Spain? Hope to receive some guidance.

thanks to all in advance!
Mags