help, difinition of Worker in t EEA treaty rights, please ?

[sham]

HI all,
i'm a dutch national married to a non-EEA national, living in his country. now we are planing to move to the uk, from what i read i nead to be practising a treaty rights there so he can apply for a family permit. i've been looking for work there but i don't know what type of work should i accept here so my husband get his family permit....at the Home office website it says: a worker: either full time or part time, but what if it's a part time, then the salkary isnt too much and then it wouldn't be enough for both of us......my question is do u think having a work contract is enough whateve it was ?

[Directive/2004/38/EC]

Which country are you in now and what are you doing there? Where is your husband and how long have you been married?

It does not matter what kind of work you do as long as it is "real" work. Can be part time. It does not have to pay any particular amount, though minimum wage is a good start. You can also study, as that is also considered exercising treaty rights.

[John]

Sham, I am just trying to understand your question, or the reason for asking it. It is not necessarily a question of you becoming a worker in the UK. You simply need to be exercising your EU Treaty Rights, and there are a number of ways of doing that.

Your spouse should apply for an EEA Family Permit at the British Mission in the country where the two of you are now living. Use application form VAF1. The application is free.

[sham]

i live with my husband in Syria his birth country, we've been married for 1 year, i think i might start working in the UK in June, but we don't know if it's better applying befor that date so we can travel together, or if it's beter that i go there and i start working there then he applies for his family permt ( regarding the less complicated way to have the family permit ).
sEcondly once we r both there, on what basis he can get a residence card for 5 years, dose the contract need to be valid for 1 year at the time of applying? or can he apply after 2 month of the start of thE 1 year contract (10 months left ) and he can still get a 5 years residency?
sorry if my questions r too long

[John]

I think he should apply for the EEA Family Permit now, so that the two of you can travel to the UK together. The EEA Family Permit is just for 6 months and in order to get the Residence Card in the UK it will then need to be shown that both of you are exercising Treaty Rights, for example by working.

Once in the UK, and after it is clear that Treaty Rights are being exercised ..... it is absolutely not compulsory for you to do so but I suggest that you apply on form EEA1 for a Residence Permit at the same time as your husband applies on form EEA2 for a Residence Card. Enclose both applications in the same envelope.

That is, whilst you do not need to apply for a UK Residence Permit, you would still need to prove that you are exercising Treaty Rights in order for your husband to get his Residence Card, so you might as well apply for the Residence Permit, the issue of which will show that you are indeed exercising EU Treaty Rights in the UK.

[Marco 72]

I think he should apply for the EEA Family Permit now, so that the two of you can travel to the UK together. The EEA Family Permit is just for 6 months and in order to get the Residence Card in the UK it will then need to be shown that both of you are exercising Treaty Rights, for example by working.

Actually, in order to apply for an EEA Family Permit the EEA partner needs to show that he or she is exercising Treaty Rights in the UK. They won't be able to do that now if they are both living in Syria. When my wife and I got married in the US, we had to provide evidence of my employment in the UK to the British Consulate. Of course, working in the UK is just one way of exercising Treaty rights: looking for work here, studying, or being a person of independent means are just as good. I have read on this board of people who got their application denied because their partner was not exercising Treaty Rights (see here).

Unless the OP already has a job offer, she would have to go to the UK, find a job or at least gather enough evidence that she is looking for one, then send the evidence (employer's letter and/or pay slips, etc) to her husband, together with a certified copy of her Dutch passport. Then the husband will be able to apply for an EEA Family Permit at a local British consulate.

[sham]

we do live in syria now but i have already got an employment offer (job contract ) in the uk starting june, so if we want to go to the embassy now holding our both passports, the marriage certificate, my work contract, our joint bank statement here in syria....would that be enough so we can go to the uk , before the first day of my work there?
secondly, is it true that i have to support a home renting document in the uk to show where we're going to stay there?

[Docterror]

Unless the OP already has a job offer, she would have to go to the UK, find a job or at least gather enough evidence that she is looking for one, then send the evidence (employer's letter and/or pay slips, etc) to her husband, together with a certified copy of her Dutch passport. Then the husband will be able to apply for an EEA Family Permit at a local British consulate.

I am sorry but I don't think that such an elaborate technique is needed to get an EEA Family Permit. They can take just their passports and their Marriage Certificate and head over and say that they are headed over for looking for a job and that should be enough to be able to secure the Family Permit because as you said-

one way of exercising Treaty rights: looking for work here, studying, or being a person of independent

Looking for work is not interpretted as proof of looking for work, but rather as plan for looking for work.

[Docterror]

if we want to go to the embassy now holding our both passports, the marriage certificate, my work contract, our joint bank statement here in syria....would that be enough so we can go to the uk , before the first day of my work there?

That would be more than enough to get the EEA Family permit before you start your work.

secondly, is it true that i have to support a home renting document in the uk to show where we're going to stay there?

It is not a requirement of the EEA Family Permit to show that you have suitable accommodation in the UK to be eligible for one. So you will need no such document.

[Marco 72]

I am sorry but I don't think that such an elaborate technique is needed to get an EEA Family Permit.

My wife was asked to bring proof of my employment and pay slips. Check also here (website of the British Embassy in France):

"If you intend to settle with your spouse/dependent in the UK, please provide evidence that the EEA national will be exercising his/her treaty rights in the UK (i.e. work contract/payslips or evidence of their activities). We also require evidence that you are able to support yourself and your dependants whilst in the UK. You should therefore provide your last three full bank statements."

In any case, since she has a job contract in her hands, the OP should have no problems.

[Docterror]

Yes, indeed the OP should have no problem in getting her EEA family permit processed due to the letter of employment.

But even if that had not been the case, the documents being asked by the British Embassy in France (assuming the website is correct) does not have a legal basis and should be challenged by anyone who is in such a situation using Article 6 of the current hottest EC Directive on the forum- the 2004/38/EC. While they cannot ask you for the bank statements to prove that you are financially safe, they may ask for joint proof of address in case they suspect that it is a marriage of convenience.. but this is not to be used as the norm, but rather as ruling out doubts.

Based on the Article, The Immigration(EEA) Regulations 2006 makes provisions for the Family Permit to be issued even if the application was made only for a week's holiday or even less.

[Directive/2004/38/EC]

the documents being asked by the British Embassy in France (assuming the website is correct) does not have a legal basis and should be challenged by anyone who is in such a situation using Article 6 of the current hottest EC Directive on the forum- the 2004/38/EC.

I agree completely.

The British have only one form for applying for an EEA family permit, even though there are several different types of applicant who can use the form. They are allowed to ask for proof of financial means only when you are applying on the basis of your EU partner being self sufficient (i.e. rich) and maybe when they want to retire. They can not ask it your EU partner will likely or definitely be working. Leave the answer blank on the application form or gently answer with something like "this question is not material to an application as family member of a worker under Directive 2004/38/EC and has been left unanswered".

While they cannot ask you for the bank statements to prove that you are financially safe, they may ask for joint proof of address in case they suspect that it is a marriage of convenience.. but this is not to be used as the norm, but rather as ruling out doubts.

I agree completely (again). If they suspect it is a fraudulent marriage, they can only then ask for additional evidence that you have a substantial marriage.

[sham]

thanks for all ur great post, we got the application, and we'll go to the british embassy on monday and we'll let u know about it, but i have few question before we apply:

1- i have been sent the contract via emial, can i print it and take it with me? or do we need the original contract to be sent to us via post?

2- in the visa application VAF1, it says how long the stay will be (for my husband), what would be the best answer? (he's planing to stay there as long as i'm working ther. the contract is permenant.

3- why r u going to the UK? what would be the good answer in our case (family permit )

4- if i want to set up a business?

[Directive/2004/38/EC]

1- i have been sent the contract via emial, can i print it and take it with me? or do we need the original contract to be sent to us via post?

If you have the contract by email, then print it off and take it. You can always offer, if that turns out to be a problem, for the employer to fax them a copy to the embassy.

2- in the visa application VAF1, it says how long the stay will be (for my husband), what would be the best answer? (he's planing to stay there as long as i'm working ther. the contract is permenant.

If you do not have plans to leave at a specific time, then put down something like "no planned end date" or "indefinite"

3- why r u going to the UK? what would be the good answer in our case (family permit )

It sounds like the reason he is applying is to be with his family (who is/are moving to UK).

4- if i want to set up a business?

I am not sure what you are asking here???


When you go to the embassy, take along any other documentation that you have which show you have been living together and have a life together. You may not need it, but it should be easy to carry.

[Marco 72]

But even if that had not been the case, the documents being asked by the British Embassy in France (assuming the website is correct) does not have a legal basis and should be challenged by anyone who is in such a situation using Article 6 of the current hottest EC Directive on the forum- the 2004/38/EC.

Could you quote the actual part of the directive which (in your opinion) would allow this challenge?

[Docterror]

But even if that had not been the case, the documents being asked by the British Embassy in France (assuming the website is correct) does not have a legal basis and should be challenged by anyone who is in such a situation using Article 6 of the current hottest EC Directive on the forum- the 2004/38/EC.

Could you quote the actual part of the directive which (in your opinion) would allow this challenge?

Actually it is the whole of Article 6 of the Directive. It is pretty short and concise and a quick look at it will show that it reads-

1. Union citizens shall have the right of residence on the territory of another Member State for a period of up to three months without any conditions or any formalities other than the requirement to hold a valid identity card or a passport.

2. The provisions of paragraph 1 shall also apply to family members in possession of a valid passport who are not nationals of a Member State, accompanying or joining the Union citizen.

The Member States can only ask for the passports of EEA and non-EEA citizen plus the proof of relationship,i.e- Marriage/Birth/Civil Partnership certificate to issue entry clearance for the first 3 months. All the asking of proof of exercising treaty rights is to be for periods longer than 3 months.

The ability of the right of the Member States to ask for further evidence in case a marriage of convenience is supected can be deduced by Article 35 of the Directive.

[Marco 72]

1. Union citizens shall have the right of residence on the territory of another Member State for a period of up to three months without any conditions or any formalities other than the requirement to hold a valid identity card or a passport.

2. The provisions of paragraph 1 shall also apply to family members in possession of a valid passport who are not nationals of a Member State, accompanying or joining the Union citizen.

This does not apply to the UK 'EEA Family Permit', which is valid for six months. Obviously the UK has not implemented this part of the directive, however EU directives do not have the force of law in individual EU countries.

[Directive/2004/38/EC]

This does not apply to the UK 'EEA Family Permit', which is valid for six months. Obviously the UK has not implemented this part of the directive, however EU directives do not have the force of law in individual EU countries.

Directive 2004/38/EC lays out a baseline from which member states can not be more restrictive. The Directive explicitly says that member states can implement less restrictive rules.

The UK “EEA family permitâ€

[Docterror]

This does not apply to the UK 'EEA Family Permit', which is valid for six months.

What does the validity of the EEA Family Permit being 6 months have anything to do with the 'right of initial residence'? If the UK wants to give make a Family Permit valid for 5 years, the Directive does not forbid it as long as the first 3 months are given with no conditions and formalities.

Obviously the UK has not implemented this part of the directive,

I am really sorry, but I absolutely do not agree with that statement at all. To me it is quite obvious that they have indeed implemented that part of the directive as well. The fact that the UK has done so can be seen by looking at 'initial period of residence' at 1.2.2 of these ECIs. Further proof of this can be seen in 21.4.1 of this DSP chapter of instruction for ECOs which clearly states that-

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).

[sham]

thanx for all the moderaters and members for their valuable posts, we r both going to the british embassy on Wed, and then we'll tell u all what will happen to us, so it might be useful for others trying to get the family permit, what we've prepared is the following:
1- our passports, my husband have the uk visa twice stamped on his old passport,1997, 2006.
2- marriage certificte, plus photos.
3-my work contract, permenant one, starts in July.
4-our joint bank statement
5- the vaf1 a application, writtn on it :
reason of travel; to live with my wife
duration: as long as my wife is a legal resident
the address where we will be staying: the address of a relative we have there that offered us to stay at his , but without a written letter from him.

i hope that will be enough, wish me luck, and i'll keep u updated.

[Marco 72]

What does the validity of the EEA Family Permit being 6 months have anything to do with the 'right of initial residence'? If the UK wants to give make a Family Permit valid for 5 years, the Directive does not forbid it as long as the first 3 months are given with no conditions and formalities.

You stated that an EEA Family Permit (EEAFP) should be granted without conditions, basing this claim on article 6 of directive 2004/38/EC. When I asked you to quote this article, it turned out it referred to a 3-month stay. So it has nothing to do with the EEAFP, since the latter is valid for six months.

I am really sorry, but I absolutely do not agree with that statement at all. To me it is quite obvious that they have indeed implemented that part of the directive as well.

So if an Italian marries a Kenyan citizen and they show up at Heathrow with only their passports and proof of marriage, and no visas, they will both be let in for at least three months?

[Marco 72]

thanx for all the moderaters and members for their valuable posts, we r both going to the british embassy on Wed, and then we'll tell u all what will happen to us, so it might be useful for others trying to get the family permit, what we've prepared is the following:
1- our passports, my husband have the uk visa twice stamped on his old passport,1997, 2006.
2- marriage certificte, plus photos.
3-my work contract, permenant one, starts in July.
4-our joint bank statement
5- the vaf1 a application, writtn on it :
reason of travel; to live with my wife
duration: as long as my wife is a legal resident
the address where we will be staying: the address of a relative we have there that offered us to stay at his , but without a written letter from him.

You should have no problems. No need for the photos, IMHO. Good luck

[Docterror]

When I asked you to quote this article, it turned out it referred to a 3-month stay. So it has nothing to do with the EEAFP, since the latter is valid for six months.

I am not getting the drift here. How does it have nothing to do with the EEAFP just because they issue it for 6 months instead of the 3 months they are obliged to issue it for? The UK is just being generous over here by issuing it for the 6 months as they are only required to issue the entry clearance (EEAFP in UK's case) for the 3 months. There is no legal basis (jobseekers exception) for the time period after the 3 months unless the EEA citizen is exercising the treaty rights.

So to summarise.. the EEAFP is based on the Article 6, but is given for 6 months instead of 3 months due to some the minor mistakes in the transposition of the Directive to the UK immigration laws. But depending on why a person claims to be coming to the UK, the embassy is allowed to ask for further information if the claimed stay is going to be for more than 3 months, which can be easily bypassed by claiming to be visiting for a lesser period than 3 months or by telling that you are a job seeker.

So if an Italian marries a Kenyan citizen and they show up at Heathrow with only their passports and proof of marriage, and no visas, they will both be let in for at least three months?

Exactly! They will have a bit of a delay to convince the officials, but they will be given entry to the UK and will be warned to obtain an EEAFP the next time they want to visit the UK or risk being refused entry the next time.

Hope everything is clear.

[Directive/2004/38/EC]

So if an Italian marries a Kenyan citizen and they show up at Heathrow with only their passports and proof of marriage, and no visas, they will both be let in for at least three months?

Yes.

I was talking with two immigration officers (the Bundespolizei, which used to be the BGS) at a German airport. They also said that as long as the couple have the marriage certificate and valid passports, there would be no problem. They did not once say "but next time you should apply for a Schengen visa".

(I suspect it would be more difficult if the marriage certificate was not European issued and was not in a language they could understand.)

[Docterror]

They did not once say "but next time you should apply for a Schengen visa".

Isn't that awfully nice of them? Why can't we find IOs of such generous disposition over here as well?