UKBA definition of established in another member state

[rogerlongships]

Greetings all.My first post. I am a UK citizen,married to a Russian national, and we both have residence rights in Sweden,where i practice my treaty rights. WE both need to visit the UK during the summer. There is no way we are prepared to apply for an EEA family permit, that in my opinion asks for far too much information than required by the Directive.
It is my understanding that we can arrive and ask for entrance ,and the only documentation we have a legal responsibility to provide is passports, a marriage certifcate, and evidence we have residence status in another member state. I do not want to return on a short visit as a UK national, as i wish to excercise my rights as an EU citizen. With regards to the Surinder Singh and entry,my only concern is UKBA definition of being established in another member state. I have found no definition or requirements to be labeled as such. I may hasten to add,although we have a house and reside in Sweden, my work is carried out in a 5 month period in the UK,though again,i see this as my right to travel freely and work within a member state,but the UKBA may not see it that way.I do not wish to be put in the catorgory of UK citizen. Can anyone point me in the direction of the definition of being established,or.as i believe, the fact Sweden has granted us resident permits,has already made it clear that under the Directive,I am already excercising my right of free movement and resinding in another member state?

I am quite happy to arrive at a UK port and ask for Code1A clearence for my wife, but my wife is,understanderbly, a little reluctant. Thanks in advance for any help you may offer.

[86ti]

There are no clear definitions for that. The UKBA used to require six months minimum in the past and the British citizen needs to be either employed or self-employed. If you spend more than six months in Sweden that would be fine but the problem is that you are British and this makes it possibly much more complicated than for any other EEA national. You may find it hard to convince the immigration officer and the residence documentations only may not be enough. How do you want to come to the UK BTW? Your wife being a visa national may find it hard to board.

[rogerlongships]

we intend to return via car ,either ferry or euro tunnel. I want to apply under EEA rules. I have the right to enter the U K my wife,has the right to travel with me. The only sticking point i see is UKBA classifying me as a UK resident.....i have the right to reside in both, i also have the right to reside in Sweden. I am self employed,and i choose to work in the UK,but reside in Sweden. If i have been excercising my right to live in another member state,the UKBA must accept even a uk passport holder as someone travelling under EEA Directive rules. What am i missing?

[86ti]

I do not think that you are missing anything and your case looks, in theory at least, quite straighforward. But if you read a little through this forum (esp. the EEA-route subforum) you will realise that some of the UKBA staff seem to have trouble to follow their own guidelines and the law. The least you need to do is to bring ample evidence of your activity/residence in Sweden. Just wondering, where are you paying your taxes? Are you classified as self-employed in Sweden?

[rogerlongships]

im classed as self employed/person of adequte means on my 5 year resident permit.

However,due to my 3-4 months of the year working in the UK,i retain the right to pay any earned tax to HM. I spend another 3 months of the year in Russia,the remaing time of just under 6 months of the year in SWeden means i am not liable for taxation on my global income. I dont think taxation rules will be in the remit of most IO,if they struggle with UE Directive.

This has been my schedule pretty much for the past 6 years,so as is, i spend more time in Sweden than i do in the UK.....so i still see myself as excercising my treaty rights.

[rogerlongships]

i may add that there is a taxation agreement with sweden/uk. The information and advice i recieved from HM was to keep paying taxes in UK, and if/when i start to pay taxes in Sweden,then double taxation rules apply. The tax office itself in no way sees my residence as a problem in this case,just the fact that i work at least 3 months of the year in the UK, they accept im not "ordinarily resident for tax purposes".

But this is a bit of a thread drift!!

[86ti]

But this is a bit of a thread drift!!

Sure. Tax residence does not necessarily equal physical residence and you are at the mercy of exisiting bilateral agreemeents.

All I can say is that you need to be prepared for an argument at the border.

[Mr Rusty]

I would think that if the OP and his wife both hold residence permits issued by the Swedish authorities it would be indisputable that they have been exercising their treaty rights there.

In effect he poses a choice between filling in an application form - always a tedious chore, but it won't take very long and can be done in the comfort of one's own home - and sitting in his car at a border post somewhere for several hours arguing the toss with officials whose understanding of EU law may not coincide with his. It is most unlikely that they'll just wave them through on production of their documents. Frankly, passengers like him who want to make a point about something or other are just a pain in the Rse, both to the officer who has to deal with them and the passengers who have to wait in the queue behind them.

[rogerlongships]

[quote="Mr Rusty"]I would think that if the OP and his wife both hold residence permits issued by the Swedish authorities it would be indisputable that they have been exercising their treaty rights there.

In effect he poses a choice between filling in an application form - always a tedious chore, but it won't take very long and can be done in the comfort of one's own home - and sitting in his car at a border post somewhere for several hours arguing the toss with officials whose understanding of EU law may not coincide with his. It is most unlikely that they'll just wave them through on production of their documents. Frankly, passengers like him who want to make a point about something or other are just a pain in the Rse, both to the officer who has to deal with them and the passengers who have to wait in the queue behind them.[/quote]

I certainly do not expect to just be waved through the border. From evidence gathered from the internet and ECJ judgements on UKBA officials not adhering to EU law, i see no reason why ,legally, entrance can be denied, it quite clearly states that no spouse can be turned away from the border.
Your quote about people who are pushing for their rights being a pain the butt is uncalled for and frankly astonishing. If i have no legal obligation to fill out unecessary forms and supply information that under EU law is not required,then why should i do so? Rights of people was not easy to come by,but you seem quite happy for goverment to erode what rights the people have,just so you do not have to wait in a queue. May i politely suggest you go live in a country where your rights are very few,then,maybe, you will appricaite the rights you do have,and will see fit to excercise them,and not be suppressed.

[86ti]

I would think that if the OP and his wife both hold residence permits issued by the Swedish authorities it would be indisputable that they have been exercising their treaty rights there.

I am not sure if it would be that simple. Some member states are considered to be rather 'sloppy' in issuing such documents. Not to say of, course, that Sweden is but the UK certainly have their own standards. In the case of an application other supporting documents would have to be shown. Would the border police accept less?

i see no reason why ,legally, entrance can be denied, it quite clearly states that no spouse can be turned away from the border.

Well, there is still public security, policy and health, and of course fraud and deception. Also, proper ID and a certificate proving the relationship to the EEA national must be available.

If i have no legal obligation to fill out unecessary forms

Directive 2004/38/EC allows member states in Article 5(2) to require entrance visa for third-country nationals.

supply information that under EU law is not required

You do not necessarily have to provide this information and the internal documentation does not appear to require all that information either although in practice that may turn into an appeal case. The UK may change the process but I wouldn't expect too much. You may want to look into some of Richard66's contributions to this forum.

[fysicus]

Directive 2004/38/EC allows member states in Article 5(2) to require entrance visa for third-country nationals.

That is in itself true, but OP's wife does have a residence card (issued by Sweden) which, according to the same Article 5(2), would exempt her from such visa requirements in the entire EU or even EEA.

And there is also the Brax arrest...

[rogerlongships]

i have just read those amazing posts from Tracy,and her endless and succesfull quest to get her Morrocan husband to the UK,what a story.

Having read most of the day what information i can find,it seems we can either apply for an EEA FP whilst in sweden to visit the UK, and not answer the questions that are unlawfull under EU law,and then face the possible risk that this is rejected ,and appeal, which we have time to do.

However,im not one who likes anybodies rights,let alone those of my wife or myself, being rejected,when EU law insists that we have the right to entry on identification and proof of marriage only. I suggested to my wife that we can do a trail run by booking some cheap tickets and fly into Gatwick with no visa for my wife and see how we go. I have no doubt we will be asked questions,but i am confident at least in actually getting on the plane in Sweden, and once in UK, just a matter of time discussing relevant law with BO and getting a Code1 entry for my wife. Will at least make for an interesting weekend. If we have no problems,we wont hesitate to return by car.

I still have not read anything about a UK citizen doing this though, even if a german national has done with a visa wife,and succesfully got a code1.

[fysicus]

do a trail run by booking some cheap tickets and fly into Gatwick with no visa for my wife and see how we go

Note there is a serious possibility that you will not be allowed to board the plane. Low-budget Stupid have a tendency to be over-demanding with respect to travel documents (passports and visas). It will still be an interesting experiment though: some of these Stupid really need a forceful slap on the nose and be forced into submission to the European Denied Boarding Directive.
If you only want to test the UK passport control, you could travel via Brussels (Eurostar), where the UK passport control is done before you board the train. But from Sweden that is probably more complicated and expensive to do.

[rogerlongships]

Thanks for the reply. I will be checking the small print of the booking conditions before booking any flights,if we decide to take this route;and also check into relevant law concerning denied boarding.

I have requested clarification on the Directive from the EC,and if positive and with their desicion in print,we will just drive back to UK. I will keep the forum posted on any developments.

[Nimitta]

we intend to return via car ,either ferry or euro tunnel.

Rogerlongships, it would be wonderful if you could let us all know how it went for you at the border. I hope everything would be just fine.

BTW, we too are going to go to the UK by either ferry or tunnel, and I am still considering which way is more convenient (never traveled by either one).

[Directive/2004/38/EC]

If you only want to test the UK passport control, you could travel via Brussels (Eurostar), where the UK passport control is done before you board the train. But from Sweden that is probably more complicated and expensive to do.

You can also take the ferry from Calais (or likely other ports), or the the tunnel car train from Calais. I would probably pick to do the ferry if I was doing this.