EEA Visa Refusal

[stuts]

Hi folks, hoping some of you on here can help with this.

Yesterday, an EEA application I made with my wife was rejected on the basis of me holding a British passport.

I was born in Belfast, used British passport for years, now I have Irish passport and basically use the British passport as an emergency document, kept seperately from my Irish passport in case I lose/damage it etc. My wife is Philipino, we've known each other for more than 3 and a half years, been dating since Jan 2011 and married since February 2013.

I'll post up a picture of the rejection letter in a bit, they quote the McCarthy case and claim that the provisions of the directive do not apply to me as I've never exercised my right of free movement within the EU. However, in the past I've lived and worked in France (on a work placement) and also worked for 5 or 6 months in Holland where I had a SOFI (national insurance ) number. I don't have any documentation to prove this however, short of phoning the tax office in Lieden as I believe your Sofi number does you for life.

I've got the appeal forms here, been to see the Irish embassy in London this morning (who were none too pleased when I explained the situation but said they couldn't intervene) and I'm going to see my local MP on Friday morning.

Better to appeal and attend hearing in person, explaining everything, reapply for EEA visa including information about previously working abroad or bite the bullet and start applying for spouse visa?

[stuts]

Sorry, can't work out how to post a picture from my computer on here, duh.

[vinny]

Was your wife living with you while you were working in another EEA country apart from UK/Ireland?

[stuts]

No Vinny, I hadn't even met her at that time. I lived in France almost 21 years ago and in Holland around 1998.

[Obie]

Notwithstanding what the EEA regulation says, i don't think McCarthy precludes EEA national who has exercised treaty rights in another member state from relying on Article 3(1), so that their family is covered by the directive also, irrespective of whether they resided together in another memberstate.

The court in McCarthy was most concerned with whether Mrs McCarthy had moved from one member state to another, and not whether she had moved with her husband from one state to another.

Had it been established that Mrs McCarthy had resided in another memberstate, then her Irish Citizenship would have been recognised. The effect of this is that her husband would have then qualified under the directive.

I believe it is arguable that OP should be able to use his Irish Citizenship, and argue his case is not a Regulation 9 case, as he is not seeking to use his British Citizenship, but rather his Irish Citizenship, and that he has resided in another memberstate other than the UK.

This is quite an interesting case, and may enable the law to be reviewed and clarified.

[vinny]

The refusal may be correct, under the UK's current interpretation. But, as Obie pointed out, this interpretation may be flawed.

One option is to work in other EEA country apart from UK/Ireland while living with your wife.

Another option is to satisfy the spouse UK immigration rules.

Another option is to renounce UK citizenship.

[Obie]

I have edited your post by removing the link.

Could you please redact the link, to preserve your personal details and that of your wife.

Once you have done that, feel free to re-post.

[Obie]

I accept without hesitation that the refusal may be justified by national law standard, but the national law on which it is based, is in itself flawed.

An EEA national is entitled to rely directly on the content of the McCarthy Judgement and treaty rights, if the national legislation is considerably more restrictive than the judgement it sought to give effect to.

Which in my view, appears to be the case here.

Provided the OP can show he resided as worker in another memberstate, then his position cannot be assimilated to McCarthy, such that McCarthy does not apply to him in its entirety.

[vinny]

Do appeal.

[stuts]

I've edited the picture Obie, hopefully this is better, just realised myself as I posted the link.



Moving back to Ireland is an option, would mean a heap of hassle but wouldn't fancy my chances of finding a decent job in the current economic climate.

Rescinding my British citizenship I'm reserving as the nuclear option, I've got the form printed in front of me, can't believe they actually charge you £170 something pounds to tell them you no longer wish to be a citizen. Maybe I could just get away with cancelling my passport, ironically obtained only because the Irish embassy in London weren't going to be able to provide the certificate of freedom to marry in time before my departure last christmas.

I think I would just about satisfy the spouse visa requirements, but thought I'd try the EEA route, after all 850 quid is better in my pocket than the Border Agencies.

The working abroad thing is the angle I was hoping to exploit as they seem to have based their refusal on the fact that I'd never exercised my rights of freedom of movement, despite not knowing my work/travel history, its not even a question on the application. However, due to the time involved and several house moves I no longer have any documentation relating to the 2 periods when I worked abroad.

The 1st period in France was actually a work placement/exchange scheme when I was on a YTS scheme in Belfast. It was actually arranged as an Irish reconciliation project whereby 15 students from Belfast, and 15 from Dublin were sent to work in French companies for 3 months, but we were still paid by the Belfast based YTS company in French Francs.

The 2nd period was a summer working on Dutch tulip farms, packing factories etc. I actually only left as I had a cycling holiday booked in the states and my then girlfriend had to leave to return to nursing college. I was paid directly by a Belfast based employment agency until my 3 month contract ended, then I obtained a SOFI number (now BSN) and worked for Dutch agencies for a couple of months.

[Directive/2004/38/EC]

When you worked in France and the Netherlands, which passport were you using? That is the key question.

If you were using Irish, then you should be able to get your refusal overturned. See http://eumovement.wordpress.com/2012/07 ... y-british/

If you were using British, then you are likely not going to be able to get around McCarthy.

[stuts]

When I worked in France and Holland, I was using a British passport.

Rather bizarrely, as far as I remember, those of us who didn't have passports before the work placement to France were asked to provide birth certificates and they provided passports by putting in the applications on our behalf to the passport office in Belfast, we weren't given the option of Irish or British. In fact, only being 17 at the time I wasn't even aware I had the right to an Irish passport and certainly wasn't aware of the implications and that it could cause problems 20 years later. I certainly remember several people with strong Nationalist links were very unhappy about being provided with a British passport.

The funny thing is, I think they actually paid for the passports using money provided by the European Union as funding for the reconciliation project. I assume British passports were chosen for convenience and cost reasons as at the time there was no Irish passport office in Belfast (presumably because of risk of attack) and in order to obtain an Irish passport you had to make a 200 mile round trip to Dublin and appear personally, it was also significantly more expensive.

At the time, we were on YTS wages which was about £35 a week, which was probably the approximate cost of the passport, hence them offering to pay the application fees. This was my 1st full British passport, though I think my mum got me a visitors passport before to go on a school trip to France.

As for the McCarthy thing, surely the directive applies if you have exercised the right of freedom of movement, regardless of which passport you used. If you've exercised the right, the directive applies, if you haven't it doesn't, there's no distinction or proviso which dictates the circumstances in which it was exercised, only that it was.

McCarthy in my eyes is also very different as she was born in England, always held a British passport, had never even visited Ireland (as far as I'm aware) and specifically only sought Irish citizenship after her marriage as a means to circumvent the regulations as she couldn't meet the requirements.

I was born in Ireland to Irish parents, have Irish grandparents and in fact other than my American brother in law, my family is entirely Irish.

There's also the wording of the Good Friday agreement which specifically and categorically states:

"(vi) recognise the birthright of all the people of Northern Ireland to
identify themselves and be accepted as Irish or British, or both, as they
may so choose, and accordingly confirm that their right to hold both
British and Irish citizenship is accepted by both Governments and would
not be affected by any future change in the status of Northern Ireland."

Surely they can't say that, then a few years later renege on the treaty and say they consider me British. I've always considered myself Irish, I'm proud to be Irish, in all honesty holding a British passport was only as a matter of convenience, and certainly cost to my parents. Even now, my British passport is only held as an emergency document.

[Directive/2004/38/EC]

I do not think you have a clearcut case, but at the very least it is more clearcut than Ms. McCarthy

[stuts]

Just a quick update to this, I went to see my MP on Friday morning, think he was shocked to discover it cost £851 for a British citizen to get a visa for their spouse and nothing for someone from Europe. I think I had both him and his two assistants heads twisted with the complexity of it, he says he's never came across a similar situation in almost 20 years.

He was very helpful, I've dealt with him once before, genuinely good guy. Due to the timescales involved and the fact that my wife was supposed to travel this Friday night, he (or his assistant) directly phoned the private secretary to the Home Secretary to ask for reconsideration. They said they still required something in writing, so he drafted this letter for me.



He emailed the letter to me, which I forwarded to my wife, he's asked her to deliver it personally to the British embassy in Manila. I called them this morning, they tried to fob me off by saying go to the visa centre, when I explained that a Member of Parliament (now actually a secretary of state) had personally requested her to hand deliver it, they relented and said they would accept it.

By the time she got done with work today, she got caught in traffic and couldn't make it, so she's going to the embassy first thing in the morning to drop it off. Unfortunately the MP put the wrong dates in the letter for the times I worked, but I added a covering letter explaining this error.

Nothing to lose, so fingers crossed, hope we can get a result, otherwise I'll be starting the appeal process.