EEA Family Permit refused - because I work in Gibraltar?

[Directive/2004/38/EC]

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.

I hope they have their computer systems synchronised. But doubt it actually. And it really does not matter. They MUST let you and your wife in.

Read this http://courts.ie/Judgments.nsf/09859e7a ... b8005ae84f example of a case where they did not let the spouse in, and got fined 7500 Euro (bad news: this was compensation for her being detained). There was some question about whether they produced the marriage certificate ==> be very clear to show the marriage certificate to each person you see if you have any problems. But the judgements' review of the law is very clear and worth reading.

Note that my wife entered Ireland without a required visa. We showed the marriage certificate, but were able to enter.

And with a Residence Card issued by another EU member state, you probably will not even have to show the marriage certificate at all.

So even if they see that your wife was refused 100 times for entry to the UK, it is not relevant for your entry to Ireland. (Unless she is a threat to national security, or BIG public policy).

[Lucapooka]

Do you have some more substantial proof about the status of a British person working in Gibraltar?

Well, yes, how about the directive that is so prominently linked in your profile; that is a good place to start. British citizens can't exercise treaty rights in Gibraltar because, although a British overseas territory rather than part of the United Kingdom, it is not another EU state as defined in the directive; where does it say that it is? Show me a list that indicates Gibraltar as a member state. It's part of the EU but it's not a member state.

What has your wife entering Ireland got to do with a UK citizen citing Singh when returning to the UK from Spain where he was self-sufficient rather than working ? I don't see the relevance of this.

I realise you may have a person axe to grind on this issue of EU directive, but your insistence that Singh can be used by the British OP and all he need do is complain is patently very bad advice. Yes, he can try his luck at the UK border and I wish him well, but if admitted his wife would be admitted in error or ignorance of EU law rather than in support of it.

[onlineamiga]

but if admitted his wife would be admitted in error or ignorance of EU law rather than in support of it.

My wife would be admitted in ignorance of EU Law? Oh I'm sorry but you're forgetting the fundamentals of EU 2004/38/EC which clearly states:

Article 5, paragraph 2 of the Directive states
2. Family members who are not nationals of a Member State shall only be required to have an entry visa in accordance with Regulation (EC) No 539/2001 or, where appropriate, with national law. For the purposes of this Directive, possession of the valid residence card referred to in Article 10 shall exempt such family members from the visa requirement.

My wife has this residence card! So her refusal to enter the UK is in ignorance of the EU law.

As confirmed by YourEurope Advice

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.

[Lucapooka]

Yes, that's perfectly okay for any EU citizen and partner other than British. You seem to be overlooking the fact that you are not Spanish trying to bring your non-EU wife to the UK. You are British and are trying to bring your wife to the UK in the same circumstances as a Spaniard. Per the SS judgement the UK only accepts this if you were working in Spain. That's the problem.

[onlineamiga]

So why as a British Citizen do I have LESS RIGHTS than a Spaniard to bring my wife to the UK? There is something very wrong here!

[Lucapooka]

Perhaps, but at least now the penny has dropped and you can decide what to do next knowing what rules apply, why and what risks might arise.

As stated, employment in Spain (from 4 years ago) may be something to cite but I would have to be pessimistic about success. However, if it's you only hope you might as well give it a shot. Good luck.

[onlineamiga]

Yeah you can say Perhaps. But if you were British and learned that Spanish/Polish etc could bring their wives/non eu family to the UK with NO HASSLE at all. Yet British citizens have hell to go through if they want to do it.. You'd be pretty annoyed at the system. You'd feel your own government is treating you unfairly, as I do. As the rest of my family and friends now do, now that they realise what an utter disgrace the immigration laws are when it comes to this.

I would understand jumping through a few hoops if I wanted to bring my wife to the UK permanently. But I don't. I just want to go home for Christmas for a week with her.

Sometimes you have to take a step back from laws, regulations and reasons, and just look at it from a common sense point of view.

The fact it is harder for British Citizens to visit the UK with their non-eu family than it is for other EU Citizens is WRONG. My British passport should have more power and rights in my own country than a polish one, or a Latvian one etc.

[Lucapooka]

I am British. If and when I return to the UK office of my organization I will have to show how I meet the onerous requirements of the UK immigration rules to bring my Brazilian wife. Her elderly parents will have no hope of joining her (no worries on my part!). If my French work colleague (working alongside me in Rio) were re-called to work in the same UK office, he could bring his Brazilian wife, and her parents with absolutely no problem.

I don't argue with the rules; I prefer to simply understand them and if the law changes, I then try to understand that. It's a lot easier on the blood pressure that way.

[Directive/2004/38/EC]

Do you have some more substantial proof about the status of a British person working in Gibraltar?

Well, yes, how about the directive that is so prominently linked in your profile; that is a good place to start. British citizens can't exercise treaty rights in Gibraltar because, although a British overseas territory rather than part of the United Kingdom, it is not another EU state as defined in the directive; where does it say that it is? Show me a list that indicates Gibraltar as a member state. It's part of the EU but it's not a member state.

Best if you can explain the subtleties of this. You say it is part of the EU. Is it part of some member state of the EU?

What has your wife entering Ireland got to do with a UK citizen citing Singh when returning to the UK from Spain where he was self-sufficient rather than working ? I don't see the relevance of this.

Neither my wife's entry into Ireland nor his wife's hypothetical entry into Ireland would have anything to do with Singh. Singh only has to do with re-entering your home member state (in this case the UK).

I realise you may have a person axe to grind on this issue of EU directive, but your insistence that Singh can be used by the British OP and all he need do is complain is patently very bad advice. Yes, he can try his luck at the UK border and I wish him well, but if admitted his wife would be admitted in error or ignorance of EU law rather than in support of it.

I was clearly not clear enough. So let me use different words. I am not, as you suggest, 100% sure that work in Gibraltar means that the OP would be able to travel back to the UK on the basis of Singh. Sorry if that is the impression I left. But I also do not think it is 100% clear that "British citizens can't exercise treaty rights in Gibraltar", especially when UKBA seems to think that Gibraltar citizens should be treated as if they are Europeans for the purpose of their stay in the UK.

I think a EEA FP application by the OP, and quite possibly a refusal by UKBA, will help make the issue more solid. If UKBA thinks the application does not make sense, then they can write a big nice explanation in the refusal letter!

[Lucapooka]

I think a EEA FP application by the OP, and quite possibly a refusal by UKBA, will help make the issue more solid. If UKBA thinks the application does not make sense, then they can write a big nice explanation in the refusal letter!

They did: as clearly mentioned in the first post of this thread.

Best if you can explain the subtleties of this. You say it is part of the EU. Is it part of some member state of the EU?

You can easily Google for information on Gib's special EU status with regard to the UK.

[onlineamiga]

Yeah the FP was refused. But they didnt refuse saying anything about Gibraltar. They just say I didnt submit any evidence that I work in another EU Member state. Even though I did. I submitted payslips, letter from employer, tax forms etc.

Which left me with two conclusions.

1 . The Visas4UK at the consulate screwed up and lost those papers and didnt submit them to the UKBA. (Complained to them suggesting this but never received a response.

2. They don't recognise Gibraltar as another state. In which case, next time I fly from Gibraltar to the UK, I'm refusing to show my passport to the UKBA, considering Gibraltar isn't abroad in their books its surely an internal flight..... oh yes pick and choose time isn't it!

But I think its unfair for the UKBA to give a copy paste response saying I didn't supply proof that I work in another EU state. Perhaps they should appreciate the fact I have supplied paperwork to this effect and take time to explain that they don't recognise Gibraltar for this purpose. A human response would be nice considering the extra efforts that I had to go to, to get the FP, even though EU law states it shouldn't be required due to her residence card being accepted in leu of a visa.

[Lucapooka]

It's 2. Generally, with EU applications, they don't bother to elaborate on the evidence by suggesting improvements; they have ignored what you provided as being irrelevant (not from another member state) and have said that you did not provide the evidence that was necessary for this type of application (but did not mention it was lacking in a pile of other material that has no significance). I agree that it's rude and robotic and not helpful.

[Directive/2004/38/EC]

onlineamiga,

On what basis does your wife enter Gibraltar? Why does she not need a visa? If you tried to bring her in without a Spanish RC, what formalities would she need to comply with?

Do you need to be travelling with her, or could you just be present already in Gibraltar?

[onlineamiga]

Hi Directive/2004/38/EC

My wife can travel into Gibraltar with her Spanish Residence card and her South African passport. I have to be present with her at the time. (So yes, travelling together). Never had an issue with the authorities there for letting us in.

They check my name on the back of her ID card which states "Family Member of Union Citizen" against the name on my passport to ensure it is me, and we cross with no worries. We cross frequently so a lot of the border staff know us by now and wave us in

It is a pain at times that I have to be with her, as if i'm already in Gibraltar then I have to go down to the border to meet here there. But hey ho, at least they're complying with EU free movement law unlike some countries *cough*UK*cough*


I've not tried crossing her in without her residence card, they'd probably refuse. Maybe they'd accept if we showed marriage certificate and stuff. but they're happy with the residence card.

[Directive/2004/38/EC]

Why do you think that you have to be crossing with her?

[onlineamiga]

Because they refuse to let her in without me being with her.

As confirmed by the chief immigration officer:

Once she arrives providing she has the necessary documentation and you can, as I believe you can, prove that she is your wife, she will be granted leave to enter Gibraltar. There is however no provision for her to enter Gibraltar if you are not at the border to meet her.

[Directive/2004/38/EC]

Interesting!

When you went to work in Gibraltar, did you have to do anything other than present your passport to employer? Did you have to get any sort of permission or approval from a government office?

[onlineamiga]

Nope, nothing. It was really easy. Easier than Spain actually! I just got offered the job. Then the employer gave me a form and I went down to the tax office to register which took all of five minutes. No issues at all.

[Directive/2004/38/EC]

Nope, nothing. It was really easy. Easier than Spain actually! I just got offered the job. Then the employer gave me a form and I went down to the tax office to register which took all of five minutes. No issues at all.

Did you have to present your passport to anyone?

[onlineamiga]

Yeah I think just took my British passport

[cubanguy]

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!

Doesn't matter where are you working, the UKBA is ignoring the european laws, regulation and everything. She is your wife, she have a residence card, that is all she should need.
I will suggest.

http://eumovement.wordpress.com/2010/08 ... to-travel/

[onlineamiga]

I got a formal response from the EU Commission to my complaint today. They sent me a PDF which I converted to text to post here:

Let me know your thoughts:


Dear
I refer to your complaint of 24 October 2012 concerning the problems you and your spouse have encountered in the United Kingdom which was registered under reference number CHAP(2012)3085 (please quote this reference in anyfurther correspondence).
Article 21(1) of the Treaty on the Functioning of the European Union stipulates that every
citizen of the Union shall have the right to move and reside freely within the territory of
the Member States, subject to the limitations and conditions laid down in the Treaties and
by the measures adopted to give them effect. The respective limitations and conditions are
to be found in Directive 2004/38/EC on the right of citizens of the Union and their family
members to move and reside freely within the territory of the Member States. You can
download consolidated version of the Directive in English at http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=CONSLEG:2004L0038:20110616:EN:PDF.
Article 5(2) of the Directive stipulates that 'family members who are not nationals of a Member State shall only be required to have an entry visa [...] but possession of the valid residence card referred to in Article 10 shall exempt such family members from the visa requirement."
In order to comply with the provisions of the Directive, the United Kingdom brought into force The Immigration (European Economic Area) Regulations 2006.
Regulation 11(2) of Regulations 2006 stipulates that a non-EU family member of an EU citizen must be admitted to the UK if he/she produces on arrival a valid passport and "an EEA family permit, a residence card or a permanent residence card"
I would like to inform you that, having analysed Regulation 11(2) of Regulations 2006, the Commission concluded that it constitutes an incorrect transposition of Article 5(2) of the Directive. A letter of formal notice under Article 258 TFEU was addressed to the UK authorities on 22 June 2011. They submitted their observations on 22 September 2011.

As the UK reply was not satisfactory, the Commission addressed to the UK authorities on
24 April 2012 a Reasoned Opinion under Article 258 TFEU and invited the UK authorities to take the necessary measures to comply with the Reasoned Opinion'. The UK replied on
24 July 2012 and the Commission is currently analysing this reply with the view to decide on next steps (either bring the UK before the Court ofJustice or close the case).



Press release http://europa.eu/rapid/pressReleasesAct ... anguage=EN
As provided in Article 3(1) of the Directive and confirmed by the Court of Justice of the European Union, this Directive only applies to EU citizens who move to or reside in a Member State other than that of which they are a national, and to their family members who accompany or join them.
EU citizens residing in the Member State of their nationality cannot benefit from the rights granted to EU citizens who exercised the above right and moved to another Member State. However, the Court of Justice of the European Union extended this favourable treatment also to those EU citizens who return to their home Member State after having exercised their right and resided in another Member State2 and also to those EU citizens who have exercised their rights protected by the Treaty in another Member State without residing there3 (for example by providing services in another Member State without residing there).
In relation to the right of returning UK nationals, the applicable UK rules are to be found in The Immigration (European Economic Area) Regulations 2006, as amended. Regulation 9 of the 2006 Regulations extends the rights granted in the UK to non-UK EU citizens and also to UK nationals on the condition that the UK national is residing in an EEA State as a worker or self-employed person or was so residing before returning to the UK.
We contacted the UK authorities in 2011 regarding the compatibility of Regulation 9 of the 2006 Regulations with EU law. The UK authorities maintained that the UK rules are in line with EU law as the two judgments of the Court in cases Singh and Eind refer to EU citizens who were working in the host Member State before returning to the Member State of their nationality.
The Commission is of the view that the case law of the Court covers all EU citizens, regardless of the capacity in which they resided in the host Member State before the retun and the capacity in which they will reside in the Member State of their nationality upon retun.
We are now considering our options which also include launching infringement proceedings against the UK in accordance with Article 258 TFEU. We will keep you informed about the developments.

Yours sincerely,

[Jambo]

Nothing new. I suspect they use a standard format by now...

The response details some of the disagreements between the UK and the EU Commission. This has been there for ages and although there is currently a discussion between the two parties, I don't expect it to help you before Christmas next year...

[onlineamiga]

Agreed. I just hope my case can provide them with more evidence to use.

[Lucapooka]

Doesn't matter where are you working, the UKBA is ignoring the european laws

Because he is British and can only use EU laws to bring his partner to the UK if he was working in another EU state. Are you actually reading this thread? He was working in a territory that is not another member state.