EEA Family Permit refused - because I work in Gibraltar?

onlineamiga · Post by **onlineamiga** » Fri Oct 26, 2012 2:03 pm

Just as a side thing, the YourEurope advice replied to me and said:

Dear
Thank you for your submission to the Your Europe Advice service.
You are correct. It is provided under EU law (Directive 2004/38/EC, Article 5) that if the non-EU national is travelling with or to join her EU family member, the residence card of the country where she is living should be accepted in lieu of a visa.
If a visa is required, it should be granted without delay or formality and without charge. There certainly appears to be a breach of EU law in this case.
First, your wife’s residence card should be accepted in lieu of a visa. Second, the Commission has stated in a Communication in 2009 that delays of four weeks in granting a visa are not regarded as reasonable. Third, it is contrary to EU law to insist that you provide evidence of your employment to support your wife’s application for a visa. This breach is compounded by using the employment issue as a reason for refusal. The Embassy is permitted to seek only your wife’s passport and your marriage certificate in support of her application for a visa.
The Commission is aware of the approach taken by the UK in refusing to recognise residence cards from other Member States in lieu of visas. It issued a formal warning to the UK in April of this year to correct this matter. Obviously this correction has not yet taken place.
In your case, to first try to resolve the issue, I recommend that you refer the matter to SOLVIT. This is an EU network established to resolve problems caused by misapplication of EU law by public administrations. The website address for SOLVIT is www.ec.europa.eu/solvit/ You should contact the Spanish SOLVIT centre to have them refer the complaint to the British centre.
In order to bring this matter to the attention of the European Commission, I would also encourage you to submit a formal complaint to the European Commission. A standard complaint form together with guidelines for completion are available on the following website: http://ec.europa.eu/eu_law/your_rights/ ... rms_en.htm
You should note that your complaint will also be noted by this service and by SOLVIT and brought to the attention of the European Commission also by both services.
I trust that this information is of assistance to you.
Yours sincerely,
Your Europe Advice

It seems that your case may be further dealt with by SOLVIT which is a free-of-charge network that seeks to solve problems caused by the misapplication of EU rules by public authorities in another member state. Find more about SOLVIT. If you want to pursue your case with SOLVIT please click on the following link.

I had already logged a complaint with solvit.

Post by **Lucapooka** » Fri Oct 26, 2012 4:21 pm

That's good general advice but perhaps given in response to the wrong question (either they did not listen to what you said, or you did not explain in sufficient detail). Perhaps they have no idea that, in conjunction to being British, you were working in Gib rather than another EU member state. Ignore it!

tanabrennan · Post by **tanabrennan** » Fri Oct 26, 2012 4:59 pm

I think OP believe in all he read from the HO website regarding time frame for application. Anyway HO staff are very train to refuse application, there is no guarantee that a visitor visa will be granted, but there is guarantee if OP work for only 3mths in spain you can use EEA SS route to get his spouse to UK, no immigration officer can refuse OP spouse at the border even without applying for eea permit before coming if OP have work for at least 3mths in spain. But i will remind OP, apart from my own opinion of working in spain for only 3mths to use SS route to get the spouse to UK, the rest application he made on uk national rules, HO reserve the right to refused the application as many times they wish, case can only be won in the appeal which will still take more than 3mths OP should have used to exercise treaty right in spain. Any other games OP is trying to use will backfire.

tanabrennan · Post by **tanabrennan** » Fri Oct 26, 2012 5:08 pm

But one big point, OP said his spouse already hold spainish residence card, which residence card will that be? Is it an EEA residence card as a family member iof an EEA? And if it is for an EEA, OP just need to come to UK with his spouse through road or sea through france or any where, if you get to UK port, IO cannot refuse your spouse entry if he or she hold a spanish EEA residence card. Spain has different kind of residence card but only the EEA residence card will work.

Post by **Lucapooka** » Fri Oct 26, 2012 5:27 pm

Your well-intentioned posts are not really helpful as they are not specific to the circumstances that have been well-elaborated by the OP. It would be fine for a French, or German or any other national of an EU member state to enter the UK with his non-EU partner on the basis of what you have stated, but a British person wishing to enter the UK with his non-EU partner would need to show that Singh was relevant. In the case of the OP, it is not.

tanabrennan · Post by **tanabrennan** » Fri Oct 26, 2012 7:50 pm

I dont think you take time to read my post very well, all you just want to do is to contradict me. You just wrote the same opinion i gave to OP, when i mean EEA SS route it mean the same surender sigh or how every they call it in abreviation. It will better you give your own opinion rather than coming against mine. You just wrote the same opinion i gave, i dont see how yours will help becuase its nothing new to what i have already gave.

Post by **Lucapooka** » Fri Oct 26, 2012 8:54 pm

Ok, as it seems you don't understand what I was referring to, I will be more specific. This comment by you is completely incorrect in the case of a British person entering the UK with his non-EU partner and where he has not been working in another member state. The OP has not been working in another member state. He was self-sufficient in another member state.

tanabrennan wrote:But one big point, OP said his spouse already hold spainish residence card, which residence card will that be? Is it an EEA residence card as a family member iof an EEA? And if it is for an EEA, OP just need to come to UK with his spouse through road or sea through france or any where, if you get to UK port, IO cannot refuse your spouse entry if he or she hold a spanish EEA residence card.

onlineamiga · Post by **onlineamiga** » Sat Oct 27, 2012 10:19 pm

Just to confirm, my wife holds a 5 year spanish residence card that does say on the back "family member of eu citizen" (in spanish: Familiar Ciudadano de la union" and then lists my name and spanish ID number. Its a pink card with Extranjeros on it, and a big E in the centre. It is different than what a normal spanish citizen would get. When entering Gibraltar she shows her passport with this ID card and then they check that the name on the back of it matches my passport, and then let her through without stamping anything. I have to be present with her to enter Gibraltar. Although she can leave Gibrlatar back into Spain without me.

If I don't get anywhere, which is looking like the case. The last ditch attempt will be to take all our documents, marriage certificate etc. And try and board the flight. Ryanair dont allow you to print off boarding cards for non-eu's. But maybe if I hit them with EU law and take print outs of 2004/38/EC they will allow her to fly. I don't know.

On the side note of obtaining visas in Gibraltar despite the fact we are living just over the border, I received the following reply from them:

Dear

Thank you for your email below.

In order to give you as complete a reply as possible it would be helpful if you informed me of your wife’s nationality and normal place of residence.

From what you have written I surmise that your wife is a UK visa requiring national who lives in Spain. If this is so then both the information supplied by my office and the information contained in the Home Office websites http://www.ukba.homeoffice.gov.uk/count ... %20English and http://www.ukba.homeoffice.gov.uk/count ... ableAnchor is correct. The ‘you’ being referred to in the website is your wife not you. In other words your wife must be the applicant so that if she lives in Spain she must apply from the British Embassy in Madrid.

On the question of the processing time please note that I am currently addressing this apparent discrepancy with UKBA but I can assure you that it takes on average approximately 8 weeks for a UK visa forwarded from Gibraltar to be approved unless you pay and arrange for a courier service in which case the processing time can be less.

If you continue to be dissatisfied or have any further concerns about the service being provided I would advise you to contact Visaenquiries.ukvisasection@fco.gsi.gov.uk
Yours sincerely

Post by **Lucapooka** » Sat Oct 27, 2012 10:29 pm

They seem to be denying the information in their own link that is written in black and white.

Additionally the ECGs are even clearer:
ECB5 Where to apply - the policy
Applications for visit visas and EEA Family Permits can be made at any post designated by the Secretary of State to accept applications for entry clearance. The applicant will need to be in the third country or territory in accordance with that country or territory's immigration laws.
Applications for all other types of entry clearance, including PBS* and settlement (*see tier 5 exception below) should be made in the applicant's country of residence

You can see the clear distinction being made.
I can't believe how stupid the person who sent you that email is! It's worth complaining just on the basis of this alone. A person who is merely visiting any country in world is entitled to apply for a UK visit visa or EEA Family permit. A Indian visiting Australia can apply for a UK visit visa from Sydney.

Post by **Jambo** » Sat Oct 27, 2012 10:57 pm

I doubt Ryan air would let her board without a visa.

You can try to get to Paris/Calais and board the train/ferry. The advantage is that UKBA are on the continent side so you can deal directly with them. In that case, I would base the case on the employment in Spain (even though it was a few years back) than the current employment.

Post by **Directive/2004/38/EC** » Fri Nov 02, 2012 2:34 pm

About Gibralter, UKBA says: http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/IDIs/idischapter7/section3/section3.pdf?view=Binary

2. Member States of the EEA
2.6. Gibraltar

For immigration purposes Gibraltar is part of the EU. Gibraltarians should be admitted as EU
nationals. Please also refer to IDIs Chapter 37 Section 2.

So another way of looking at this is that YOU are working in this different EU member state, just as they would be considered to be from a different EU member state if they came to the UK.

Ok, lets review the facts:
(1) You have previously working in Spain. (Were you married at that point?)
(2) You are presently working in Gibraltar, which is not part of the UK and is like a different EU member state
(3) As you have worked in a different member state, you are covered by Singh.

Now you have a couple of options:
(a) force UKBA to issue your visa the same day, as they are supposed to do
(b) enter the UK without a visa if (a) does not work, but in full accordance with the law

Make sense?

Post by **EUsmileWEallsmile** » Fri Nov 02, 2012 3:11 pm

I don't believe that Gibraltar is treated as a different member state by any of the member states. While it is not part of the UK it is treated as being a territory for which that member state has responsbility for. I believe it falls under article 22 of the directive.

Post by **Directive/2004/38/EC** » Fri Nov 02, 2012 3:14 pm

EUsmileWEallsmile wrote:I don't believe that Gibraltar is treated as a different member state by any of the member states. While it is not part of the UK it is treated as being a territory for which that member state has responsbility for. I believe it falls under article 22 of the directive.

Meaning?

Post by **EUsmileWEallsmile** » Fri Nov 02, 2012 3:18 pm

I stand to be corrected, but Gibraltar and the UK are the one and the same place as far as article 22 is concerned.

Post by **Directive/2004/38/EC** » Fri Nov 02, 2012 3:23 pm

EUsmileWEallsmile wrote:I stand to be corrected, but Gibraltar and the UK are the one and the same place as far as article 22 is concerned.

How does that reconcile with the quote above?

Post by **Jambo** » Fri Nov 02, 2012 3:37 pm

I would agree with EUsmileWEallsmile. Your quote doesn't state it is a member state, just the that Giblartarians should be treated as EU citizens (similar to mainland UK citizens, unlike IoM and Channel Islands).

See also

modernised guide wrote:Nationals of Gibraltar have full British citizenship and are considered part of the European Economic Community. This means that people from Gibraltar have rights of free movement within EEA member states other than the UK. EEA nationals may also exercise free movement rights within Gibraltar.

So Gibraltar is not considered "another member state" for the purpose of Surinder Singh by British national.

But I believe the OP can use his employment in Spain even though several years passed since.

Post by **EUsmileWEallsmile** » Fri Nov 02, 2012 5:14 pm

Directive/2004/38/EC wrote: How does that reconcile with the quote above?

You may find this interesting

onlineamiga · Post by **onlineamiga** » Sat Nov 10, 2012 11:03 pm

Directive/2004/38/EC wrote:About Gibralter, UKBA says: http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/IDIs/idischapter7/section3/section3.pdf?view=Binary
2. Member States of the EEA
2.6. Gibraltar
Ok, lets review the facts:
(1) You have previously working in Spain. (Were you married at that point?)

Yeah i worked in Spain in 2008. Was not married then. But I have been resident in Spain since 2008.

(2) You are presently working in Gibraltar, which is not part of the UK and is like a different EU member state
(3) As you have worked in a different member state, you are covered by Singh.
Agreed.

Now you have a couple of options:
(a) force UKBA to issue your visa the same day, as they are supposed to do
How exactly does one do this? The British Embassy Visa Section is a 7 hour drive away in Madrid. You cant even enter the building without a barcoded appointment. The only way to obtain this is to go through the application on visas4uk website, and find an appointment some 2 - 3 months in the future. You cant call the UKBA, you cant speak to anyone. I'd be very interested to hear how to force the UKBA to do this.

(b) enter the UK without a visa if (a) does not work, but in full accordance with the law

And once again how? We turn up at the airport for our flights and the airline refuse to issue a boarding card because she doesn't have a visa? Perhaps the airline is clued up that the UK Don't accept the residence cards despite them saying "family member of union citizen" on the back of it. I'd actually be very happy to get to the arrivals hall in an airport and speak to the UK Border Agency. I've seen every episode of Border Force and it seems at that point they are at least somewhat human and dignified. I'm sure if i took all our documentation and explained to them the circumstances and made sure they knew I was aware of the laws, then they would allow her through. But its getting there isn't it?

onlineamiga · Post by **onlineamiga** » Sat Nov 10, 2012 11:11 pm

And just an update on this one..
Well actually no update:

1. Sent off the appeal costing £80 and relevant documentation. Heard nothing.

2. My MP in the UK has contacted the UKBA asking for an explanation of the refusal. No response.

3. No response from complaint to EU Commission.

4. A slight response from Solvit Spain who asked for a copy of her residence card last week. Sent it straight away. No further response from that.

5. An automated email which took over 2 weeks to arrive from the UKBA saying they don't respond to general enquiries on that email address anymore.

6. No response to complaint to Visas4UK and Worldbridge.

7. No response to complaint to British Embassy in Madrid.

8. No response to Home Office Public Enquiries.

Anyone else I forgot to complain to? Anymore email addresses I can shoot complaints down a black hole to?

No one gives a flying f**k. And I guess Christmas is doomed

.

On Gibraltar matters.

No further response from the CSRO about them not accepting visa applications from non residents. Will escalate to Ombudsman next week.

It now also seems my wife needs a work permit to work in Gibraltar because I'm British. Whereas if I was Spanish or another EU nationality she wouldn't need a work permit to work there. Once again I cant excersise treaty rights between Gib and UK. Why do we need passports to go from Gib to the UK and vice versa then if it isnt abroad!? Pick and choosing.

Time to rip up my British passport and see if I can apply for a Spanish one. I'm sick to death of being discriminated against by my own government for being British!!!

Post by **Directive/2004/38/EC** » Sat Nov 10, 2012 11:46 pm

You need to relax or this will go nowhere.

Can your wife enter Gibraltar easily?

Who told her in Gibraltar that she could not submit the visa application there? What sort of visa application did you say you would be submitting there?

onlineamiga · Post by **onlineamiga** » Sun Nov 11, 2012 12:52 am

Yes she can enter Gibraltar as long as I am present with her, crossing with her south african passport and her residence card.

The CSRO said that she cannot apply for a visa because she is not resident. We were attempting to apply for a standard visit visa seeing as the EEA Family Permit was refused. Madrid is 7 hours drive away and their nearest appointment time was in December, which would be too late for our flight on the 21st December for Christmas. Gibraltar also said that it takes 8 weeks as they just send everything off to the UK.

I challenged them on it and got emails back as discussed earlier in this thread.

And yes as you can imagine I'm really stressed about this. To the point where I've even developed Shingles this last couple of weeks. (Doctor said its stress related) I havent been home for a year and its an important family occasion where we will all be together possibly for the last time. I am missing out

I cant leave my wife alone in Spain. I cant win

Post by **Directive/2004/38/EC** » Sun Nov 11, 2012 5:30 am

If I were you and your wife.... I would do the following:

She should just go to the visa section and submit an application for an EEA Family Permit. Force the issue!

modernised guidance eea family permit

Any British embassy, high commission or
consulate abroad designated by the Foreign
& Commonwealth Office as an issuing post
can issue EEA family permits. An applicant
does not have to travel to their country of
origin to apply.

She should take evidence that you have worked in Spain and that you are working in Gibraltar.

She should have a cover letter from you explaining that you plan to travel to the UK together, that you are a British citizen who has been working in Spain and Gibraltar (evidence enclosed), and that you expect that your wife will be issued an EEA Family Permit as required by Regulation 12 and Regulation 9 of the European Regulations.

Ask for the visa to be issued as soon as possible and on the basis of an accelerated process. I should be issued same-day, as discussed in the rules, but they can take longer in exceptional circumstances. Remind them that any refusal must be issued in writing.

The goal is win/win: either they issue the EEA FP, or they refuse her in writing (at which point you can do something about it).

In the mean time, consider the various alternatives for legal entry into the UK.

Easiest is to drive/train/bus to Calais, and take the ferry/train to the UK. You will need to be carrying both your marriage certificate and proof that you have been working in both Spain and Gibraltar. See http://eumovement.wordpress.com/2010/08 ... to-travel/

Alternatively you could fly to Ireland. Your wife can enter there on the basis of her Spanish Residence Card. You can then drive to Northern Ireland and fly from there, or fly from Dublin to England. The following discuss some of the issues of relevance: https://dl.dropbox.com/u/27885818/UK/le ... reeEEA.pdf and http://www.whatdotheyknow.com/request/7 ... member.pdf for some detail

Travelling from Ireland would make matters slightly more complicated in that there is no
routine immigration control between there and the UK, due to what is called the common
travel area (CTA). The CTA operates on the principle that once a person has been granted
leave to enter in one part of it, they will not normally require leave to enter another part of it
whilst that leave is still valid and provided that they do not leave it. Consequently, so long as
you are subject to one of the exceptions to this general principle (excluded, previously
deported etc.), you would not need to anything further in order to travel here from there for a
visit.

onlineamiga · Post by **onlineamiga** » Sun Nov 11, 2012 11:31 am

Hi Directive/2004/38/EC

Thanks very much for your reply it is very encouraging that there are other ways. I'm still not exactly sure how I can demand someone here to issue an EEA Family Permit on the same day. As I said, the Civil Status and Registration Office in Gibraltar will not entertain any application at all and said that they just send everything to London and it takes 8 weeks to come back. (This includes EEA Family Permits). I have raised complaints with them, and thanks to the links you and others provided in this thread I have brought that to their attention but they are now refusing to even reply. I have therefore escalated up to the Gibraltar Ombudsman.

The idea of going via Calais and approaching the UKBA there sounds like a good plan. I just hope it works. I have papers to show i worked in Spain in 2008 (theyre in spanish tho!) and tenancy contracts (with both our names on) and padron certificates. (Registered with local town hall in Spain as living here). And of course I have our unabridged South African marriage certificate. So hopefully these will do the trick.

Out of interest, we have been interested in visiting Ireland anyway. I heard that the Irish Garda Border people and the UKBA have their computer synchronised up. Would an EEA Family permit refusal show on their system as we land. Could we have problems at the border there if they thought we were going to go on to the UK? Incidentally also South African nationals do not need a visa to enter Ireland. Yet they do for the UK.

Post by **Lucapooka** » Sun Nov 11, 2012 11:33 am

Directive/2004/38/EC wrote:She should just go to the visa section and submit an application for an EEA Family Permit. Force the issue!

Legal grandstanding will not get the OP to the UK by Christmas because it's already been established with absolute clarity that an EEA permit can't be granted to someone in this situation (for the reasons stated that a British person working in Gib is not considered working in another member state). I fear that trying to apply again based on working in Spain over 4 years ago (4 years ago!) will be met with yet another refusal . This is the case for an application at the British mission overseas; trying to cross the border without an EEA FP is another matter and the outcome of that is something that can't be guessed but should be refused if Singh does apply to the situation (please read the thread). Try by all means as you have noting to lose. However, her previous refusal will be in the database for the admitting officer to view.

Post by **Directive/2004/38/EC** » Sun Nov 11, 2012 12:38 pm

Lucapooka wrote:
Directive/2004/38/EC wrote:She should just go to the visa section and submit an application for an EEA Family Permit. Force the issue!
Legal grandstanding will not get the OP to the UK by Christmas because it's already been established with absolute clarity that an EEA permit can't be granted to someone in this situation (for the reasons stated that a British person working in Gib is not considered working in another member state). I fear that trying to apply again based on working in Spain over 4 years ago (4 years ago!) will be met with yet another refusal . This is the case for an application at the British mission overseas; trying to cross the border without an EEA FP is another matter and the outcome of that is something that can't be guessed but should be refused if Singh does apply to the situation (please read the thread). Try by all means as you have noting to lose. However, her previous refusal will be in the database for the admitting officer to view.

Absolute clarity? Your wimpy quotes are as undefinitive as mine! Do you have some more substantial proof about the status of a British person working in Gibraltar?

Or for that matter about refusal of Singh rights because it has been "too long"? I see no mention of that in the European Casework Instructions. And certainly the court case did not provide a limit.

Finally, you think that submitting an application for an EEA FP is grandstanding? In what way? Without submitting the application, the OP has no grounds to complain. If they refuse his wife, at least that is the start.

So I guess you would argue that the only legal option for his wife is to enter via Ireland?

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EEA Family Permit refused - because I work in Gibraltar?