Spouse visa: Must the British spouse be resident in the UK?

[Tamandua]

My husband is British living in Spain and working in Gibraltar. He earns £45.000 a year.
I am a non-EEA national living in the UK with a tier-4 visa and I have just graduated.

We met in the UK but he got this job offer in Gibraltar a few months later and moved to Spain. I stayed in the UK living at his house because of my studies, but he visited me once a month. He also worked in the office in Leeds during this time and we stayed together. And I went to Spain to live with him during the term breaks.

He now wants to go back to the UK, but I would like to apply for a spouse visa before my tier-4 visa expires. We have his payslips; he works for a British company and earns in pound sterling. Also, Gibraltar is a British territory.

Do you guys know if it is possible for me to apply for a family visa?

[Casa]

I assume he would be considered to be a Frontier Worker . I believe the main issue is that in order to submit a FLR(M) spouse visa application, you are required to submit documented evidence that you're living together, which at present isn't the case. How long has he been living in Spain? In which country does he pay tax on his earnings?

[CR001]

When does your student visa expire?

When does he plan to move back to the UK?

Difficult to apply within the UK for a spouse visa when your BC spouse is not actually living in the UK with you, i.e. being present and settled.

Edit : #Casa

[Tamandua]

Thank you for your reply, guys. We are living together in Spain at the moment as I have finished my studies. I don't need a visa to stay in Spain for 90 days. My spouse has been living here for 3 years now. He pays taxes in Gibraltar only and owns a house in the UK. The reason he doesn't pay taxes in Spain is because he did not apply for the residency as he kept his residency in the UK. The company he works for has an office in Leeds and London so he basically works in the UK AND Gibraltar but the UK gambling companies are all based in Gibraltar for tax purposes.

So, technically, his residency is in the UK, not in Spain or Gibraltar. However, he would like to go back to actually live in the UK.

Also, my tier-4 visa expires in the end of October.

What do you guys think? Is there any hope for my case?

[Wanderer]

Thank you for your reply, guys. We are living together in Spain at the moment as I have finished my studies. I don't need a visa to stay in Spain for 90 days. My spouse has been living here for 3 years now. He pays taxes in Gibraltar only and owns a house in the UK. The reason he doesn't pay taxes in Spain is because he did not apply for the residency as he kept his residency in the UK. The company he works for has an office in Leeds and London so he basically works in the UK AND Gibraltar but the UK gambling companies are all based in Gibraltar for tax purposes.

So, technically, his residency is in the UK, not in Spain or Gibraltar. However, he would like to go back to actually live in the UK.

Also, my tier-4 visa expires in the end of October.

What do you guys think? Is there any hope for my case?

Needs to be careful, you can be tax resident in more than one country and need to satisfy both tax regimes that the tax obligation has been fulfiled - usually by some sort of Double Taxation Agreement. What you shouldn't do is assume you don't have to pay local tax.

[Casa]

It's a complex situation and although I'll give my opinion, I'll leave it open to others to comment. I believe that you won't qualify for FLR(M) as your husband isn't resident in the UK. You can't apply through the EEA Regulations under Surinder Singh as although you are living in Spain, your husband is working in Gibraltar and isn't exercising his Treaty rights in Spain. I'm not convinced that he's considered to be resident in the UK on the strength of owning a house here and the employer having a UK office.
In order to apply for a spouse settlement visa from outside of the UK, your husband would have to show that he has been earning the equivalent of £18,600 in Gibraltar for 12 months prior to submitting the application and have a confirmed job offer to start within 3 months in the UK, again with a minimum annual salary of £18,600. However, I don't believe that you can submit your spouse settlement visa application from Spain as you are only there as a visitor. This would have to be submitted from your home country.
Stand by for other opinions in the event that I've missed something.

Edit: Good advice tax from Wanderer.

[Tamandua]

Thanks again. Tax is another subject. But to be fair, the Spanish city across Gibraltar border is just a so-called "dormitory" city. It's hard to rent a flat in that little British territory full of council apartments. So, he had to rent in Spain just like all the other British workers and none of them applied for the residency in Spain as they just sleep there.

Also, he gets paid in his UK bank account and his branch is in Manchester. His money goes to the UK, but obviously the tax is paid in Gibraltar. I don't know if they money belongs to the UK.

We were unaware of all these rules for British citizens as we know Europeans who live in the UK with their non-EEA national spouses and they don't even have a visa just a residency permit.

Casa: my husband earns £45.000 a year. The currency in Gibraltar is the pound as well. Gibraltarians are British and have the British passport. Even the post code in Gibraltar is part of the UK.

Just a hypothesis, if we move to Gibraltar, will the situation change?

[Casa]

As far as I'm aware, if you move to Gibralter and then want to relocate to the UK the conditions will remain the same as they are at present regarding applying for a spouse visa.

[noajthan]

Interesting to note that UK SS rules have just been changed (as of November) to now recognise selfsufficiency as a valid SS category into UK.

The change came in in November, you were evidently living in Spain last year, not sure if you are still there.
Its unclear if HO would accept a RC application based on a selfsufficient sponsor (financed by work in Gibraltar whilst residing in Spain) dating from before this change in UK EEA Regs came in.
Sponsor would have had to have had CSI in place for both parties too.

However it may just be worth a punt (£65 fee plus biometrics) to see if you now qualify under the SS route.
But do consider this to be a longshot - one from way out on left-field.
You would ofcourse still have to satisfy the UK's somewhat controversial centre of life requirements.

[Tamandua]

Update:

Application to remain in the UK was sent in the end of October while my student visa was still valid. My spouse received a job offer in the UK (regarded by the HO as an unofficial offer). In section 8B of my application, I mentioned that, meanwhile, the company he is working for (UK company) would transfer his employment to the UK. However, the process took some time and the Home Office made the decision based on the evidence I provided at the time of my application.
Reason given: British citizen was not settled in the UK at the time of the application. He was "present" (we enclosed his boarding pass) but not settled.

My spouse is now working in the UK. I was given the chance to make a new application if my circumstances changed and I have new reasons or grounds to remain in the UK.


Concerning the EEA family permit:
The HO said I cannot benefit from the SS route because for the purposes of EU law, Gibraltar is considered as part of the UK because Gibraltar is an European territory for whose external relations the UK is responsible (Article 355 of the Treaty on the Functioning of the EU applies).
Therefore, if a British citizen works and/or resides in Gibraltar, under the EU law, this is considered the same as if they were working/residing in the UK.

[Tamandua]

Interesting to note that UK SS rules have just been changed (as of November) to now recognise selfsufficiency as a valid SS category into UK.

The change came in in November, you were evidently living in Spain last year, not sure if you are still there.
Its unclear if HO would accept a RC application based on a selfsufficient sponsor (financed by work in Gibraltar whilst residing in Spain) dating from before this change in UK EEA Regs came in.
Sponsor would have had to have had CSI in place for both parties too.

However it may just be worth a punt (£65 fee plus biometrics) to see if you now qualify under the SS route.
But do consider this to be a longshot - one from way out on left-field.
You would ofcourse still have to satisfy the UK's somewhat controversial centre of life requirements.

Apparently, a health insurance is required. Do you know if that is accurate? In fact, the 'centre of life' requirements are quite controversial.

[noajthan]

Concerning the EEA family permit:
The HO said I cannot benefit from the SS route because for the purposes of EU law, Gibraltar is considered as part of the UK because Gibraltar is an European territory for whose external relations the UK is responsible (Article 355 of the Treaty on the Functioning of the EU applies).
Therefore, if a British citizen works and/or resides in Gibraltar, under the EU law, this is considered the same as if they were working/residing in the UK.

Obviously a claim based on living/working in Gibraltar itself is doomed.

But you have also explained hubby lives/lived in Spain. And you are or were in Spain for a time.

If hubby can claim to have been selfsufficient in Spain (based on income earned, as it happened, in Gibraltar but that made him selfsufficient in Spain) then maybe a SS application will fly.

Ofcourse you still have the problem of a UK house (that you didn't sell or let out) and your (as I understand it) short stay in Spain. So there are still those centre of life issues to wrestle with.

[noajthan]

Apparently, a health insurance is required. Do you know if that is accurate? In fact, the 'centre of life' requirements are quite controversial.

Yes, health insurance = CSI.

Yes, centre of life is not compliant with either the spirit or letter of EU law.

[Tamandua]

Concerning the EEA family permit:
The HO said I cannot benefit from the SS route because for the purposes of EU law, Gibraltar is considered as part of the UK because Gibraltar is an European territory for whose external relations the UK is responsible (Article 355 of the Treaty on the Functioning of the EU applies).
Therefore, if a British citizen works and/or resides in Gibraltar, under the EU law, this is considered the same as if they were working/residing in the UK.

Obviously a claim based on living/working in Gibraltar itself is doomed.

But you have also explained hubby lives/lived in Spain. And you are or were in Spain for a time.

If hubby can claim to have been selfsufficient in Spain (based on income earned, as it happened, in Gibraltar but that made him selfsufficient in Spain) then maybe a SS application will fly.

Ofcourse you still have the problem of a UK house (that you didn't sell or let out) and your (as I understand it) short stay in Spain. So there are still those centre of life issues to wrestle with.

Yes... the 'centre of life' issue. I don't think I can claim I was living in Spain with my husband because I was obviously residing in the UK (I had to go to university). He is now settled and employed in the UK, so I will reapply as I was given the chance to.