Refusal of EEA Family Permit & UK Entry Options

[Moscow_Wolf]

I have spent the last few hours reading this forum and have found partial answers to some of my questions that do overlap some sub-forums and where I thought I should place my post and questions - 'states no UK or Ireland questions please'. So, I'll try here without wishing to upset a Moderator on my first post.

Current circumstances:

Myself: UK Citizen living in Bulgaria with Long Term Residency Card (5 years). I have never worked or been self employed since arriving here from Russia in 2009.

Wife: Russian Citizen with Bulgarian Long Term Residency Card as a Family Member of an EU Citizen.

Problem: Gaining FREE access to VISIT the UK - not return there to live just VISIT.

I lost my Father just over a year ago and wish to visit my Mother the UK with my Wife. My understanding of EU Rules and Directives were that my Wife could accompany me anywhere within the EU visa free on the basis of having a Bulgarian Residency Card showing her as a Family Member.

I apply to the British Consul in Sofia for advice that do not provide any advice and they refer me to WorldBridge. I go to them and they say that my Wife requires a visa to visit the UK and refer me to the UKBA website. I go there and the only FREE visa I can find is the EEA Family permit so we fill out this application on-line and then later by appointment travel the four plus hours to Sofia which also requires and overnight stay so that my Wife can attend an interview and have her digital signature requirements carried out. I made it quite clear in the application and in a covering letter that we only wished to visit the UK.

Some weeks later, we receive a REFUSAL with appeal forms sent back from Warsaw basically saying that 'they could find no evidence that I had ever worked or been self employed in Bulgaria and therefore UK Family Permit refused. During a later follow up, I understand that I have been Surinder Singh(ed) for want of a better description.

I complained to all and sundry, Your Europe, Solvit, my Mother's MP, WorldBridge based on the Rights of EU Citizens and their Non EU Spouses and although I got plently of supportive responses, nobody is taking up my case as they say the UK is already being called to issue of this and similar matters by the EU legal system.

I am not going to appeal as it costs too much to do so and I doubt that my claims of Self Sufficiency have any real bearing on the application. So, it seems to me that I have two options, go through the application procedure for a paid family visitor's visa OR, just fly to the UK with my Wife together with our Bulgarian marriage certificate (translated into English with an Apostille).

I have contacted the carrier Whiz Air, Burgas to Luton and they say that they will NOT stop my Wife boarding a flight to Luton however, it is yet to be tried and tested.

My questions are these:- as a UK citizen returning to the UK, does this allow me the same provisions under the EU Directives or, am I subject to some more stringent UK Immigration Laws. Will my Wife be allowed entry without a visa?

Or, do I need to bite the bullet and purchase a visa for my Wife at around £80 plus all our travel costs?

Thank you for your patience and understanding if I have crossed the borders of the wrong sub section of the Forum. My head is going around in circles having spent another day trying to understand changes in the UK Immigration Policy and none of them seem directly applicable to my case. Thank you.

[Jambo]

The UK doesn’t recognise other member state Residence Card (the European Commission is in dispute with the UK on that). The UK would have expected your wife to apply for a EEA Family Permit as a Surinder Singh even just for a visit (EEA Family Permit doesn’t need to be used for settlement only).

If you can prove at the border that you are a Surinder Singh, then your wife should be allowed entry under the EEA regulations. You will need to provide evidence of employment in Bulgaria and evidence of your wife living there with you.

The biggest challenge is getting on the flight. Try to get a confirmation in writing from the carrier beforehand so you can use that at the airport.

See also MelC - Surninder Singh @ Calais.

[Moscow_Wolf]

The UK doesn’t recognise other member state Residence Card (the European Commission is in dispute with the UK on that). The UK would have expected your wife to apply for a EEA Family Permit as a Surinder Singh even just for a visit (EEA Family Permit doesn’t need to be used for settlement only).

If you can prove at the border that you are a Surinder Singh, then your wife should be allowed entry under the EEA regulations. You will need to provide evidence of employment in Bulgaria and evidence of your wife living there with you.

The biggest challenge is getting on the flight. Try to get a confirmation in writing from the carrier beforehand so you can use that at the airport.

See also MelC - Surninder Singh @ Calais.

Thank you however, I have NEVER worked in Bulgaria, employed or self employed as I am self sufficient on funds I earned in Russia. I am neither officially retired either as I am not of retirement age. Therefore, I CANNOT qualify under the Singh ruling. Albeit, this is what Your Europe sent me: -

Further to our previous advice, please note that you could challenge
the decision on your visa application on the following grounds:
You are residing on a long-term basis in Bulgaria, the UK should treat
you as a returning national from another EU member state and apply
Directive 2004/38/EC with regards to your wife’s entry in the UK. You
have settled in Bulgaria as a self-sufficient person according to Art.
7 (1) (b) of Directive 2004/38/EC. On that basis you have been issued
a Bulgarian long-term residence certificate. Your wife has been issued
accordingly a Residence Card of a Family Member of Union Citizen. By
virtue of Art. 5 (2), as a holder of such a Card, your wife should be
allowed visa-free entry in the UK, as long as she accompanies or joins
you.

It is true that, according to the Surinder Singh C-370/90 judgment,
the UK is obliged to apply EU law with respect to British nationals,
only if they return from another EU member state in which they have
lived and exercised economic activity. And you are not exercising
economic activity in Bulgaria. However, you could argue that EU law
has moved a lot since the Singh judgment. When the Singh case was
decided EU free movement law related mainly to workers and
economically active citizens. Now we have Directive 2004/38/EC whose
Art. 7 (1) (b) provides for long-term residence rights of economically
non-active persons. More importantly, with the development of the
notion of EU citizenship, in a series of cases (e.g. Cases: C-413/99
C-310/08, C-480/08), the Court of Justice of the EU extended the
application of EU free movement law to non-economically active
citizens and their families returning from another EU member state.

We cannot give you a specific case which is identical to your
circumstances to which you could refer in your appeal. The
jurisprudence so far relates mainly to residence rights, rather than
rights of entry. However, we can confirm that Union citizenship has
been interpreted as a source of rights. Cases such as Martínez Sala
(Case C-85/96), Trojani (Case C-456/02), and Bidar (Case C-209/03) ,
to name but a few, illustrate how in the EU of today rights can be
derived from the EU Treaty by nationals, even in situations which do
not involve any economic activities.

All very useful information, but how do I apply it to my own situation and in quick time?

[Moscow_Wolf]

Sorry, just to keep all potential replies abreast of my circumstances I should also show what SOLVIT stated to me in their reply: -

Your complaint against UK concerning the Immigration (EEA) Regulations
2006 and its contradiction with Directive 2004/38/EC has been
transferred to the Bulgarian SOLVIT Centre from our British
colleagues.

After careful examination of all circumstances described in your
complaint we agree that there is nonconformity of the law in UK with
EU law. In such cases our practice is to launch a case against the
Member State concerned.

However, according to the information received from UK SOLVIT Centre
the European Commission has already started so-called pre-infringement
(pre-258 TFEU) procedure against UK on this particular issue –
nonconformity of UK law (Immigration Regulations 2006) with EU
requirements. In such cases SOLVIT does not accept complaints due to
the fact that could hardly intervene and the particular plaintiff’s
problem cannot be solved within the estimated time period of 10 weeks.

In the light of the above, we could advise you to launch a complaint
before the European Commission at
http://ec.europa.eu/eu_law/your_rights/ ... rms_en.htm

If you have any further questions, please do not hesitate to contact us.

Regards,

Dennitza Nedeva
EU Affairs Coordination Directorate
Council of Ministers
Republic of Bulgaria

In respect of making a complaint as advised before the European Commission, I did, weeks ago, but have received absolutely no acknowledgement of my email complaint.

[Jambo]

Sorry. Missed the self sufficient part (it is a long post...)

If you want a quick solution - your wife should apply for a visitor visa.

other options:

1. Get a job now (any job) and apply as Surinder Singh (you probably need a few months of employment).
2. Hope the UK would start to recognise other states Residence Card.
3. Take the UK government to court.

I wouldn't risk jumping on a plane without a visa in your case (my personal view).

[Directive/2004/38/EC]

Getting a job does not mean you have to start working and work for the rest of time. You could, for instance, work part time over the next 3 to 6 months. Find something you enjoy which will keep you warm and entertained over the winter? Start a (viable) small business? More details at http://eumovement.wordpress.com/2011/12 ... -a-worker/

[Moscow_Wolf]

Getting a job does not mean you have to start working and work for the rest of time. You could, for instance, work part time over the next 3 to 6 months. Find something you enjoy which will keep you warm and entertained over the winter? Start a (viable) small business? More details at http://eumovement.wordpress.com/2011/12 ... -a-worker/

Thank you. but it all seem a bit on an overkill for a one week to 10 days VISIT. If I was planning to return to the UK to live then, I would have the time to do everything suggested even start my own company albeit, what I was really hoping for was more advice about entering the UK with my Wife without a visa and using EU Directives as my basis for a rightful claim of entry.

Looks like I'll have to pay and apply for a visa (we've done it successfully on 5 previous occasions in Moscow), but now that we are married and living in an EU country, I was led to believe that my Wife has the same rights as any other EU Citizen which is clearly not the case in the eyes of the UK.

I read something on here which rings the bell and I wish I had copied it. The post said something along the lines of, 'the UKBA does everything it can for foreigners, but nothing for its own countrymen'. I feel I have a case of discrimination, but do not have the time or the knowledge to challenge it - hence I was hoping that SOLVIT would do that on my behalf.

In the good old days, we used to go to the British Embassy in person in Moscow which was on our doorstep and sort things out face to face with an Embassy immigration official - these days the Embassies offer no advice whatsoever and refer you to an Agency which in a lot of cases do not know their arm from their elbow - rant over.

[Directive/2004/38/EC]

Getting a job does not mean you have to start working and work for the rest of time. You could, for instance, work part time over the next 3 to 6 months. Find something you enjoy which will keep you warm and entertained over the winter? Start a (viable) small business? More details at http://eumovement.wordpress.com/2011/12 ... -a-worker/

Thank you. but it all seem a bit on an overkill for a one week to 10 days VISIT. If I was planning to return to the UK to live then, I would have the time to do everything suggested even start my own company albeit, what I was really hoping for was more advice about entering the UK with my Wife without a visa and using EU Directives as my basis for a rightful claim of entry.

Looks like I'll have to pay and apply for a visa (we've done it successfully on 5 previous occasions in Moscow), but now that we are married and living in an EU country, I was led to believe that my Wife has the same rights as any other EU Citizen which is clearly not the case in the eyes of the UK.

I read something on here which rings the bell and I wish I had copied it. The post said something along the lines of, 'the UKBA does everything it can for foreigners, but nothing for its own countrymen'. I feel I have a case of discrimination, but do not have the time or the knowledge to challenge it - hence I was hoping that SOLVIT would do that on my behalf.

In the good old days, we used to go to the British Embassy in person in Moscow which was on our doorstep and sort things out face to face with an Embassy immigration official - these days the Embassies offer no advice whatsoever and refer you to an Agency which in a lot of cases do not know their arm from their elbow - rant over.

Your sentiment has been expressed by many people about the laws of their mother country.

And the mother country does not like EU free movement rules spoiling their fun with their own citizens. That is why they often try to restrict it only to people who have worked in another EU member state.

So you pick your poison. If you work for a bit, then you have fun, earn money, and get (mostly) hassle free entry into the UK.

Or you stick with UK normal immigration law and pay a fee for the application for a not 100% secure outcome.

Remember, for the future, that it has to be "real and effective" work