American Wife with UK Citizen Husband - Free Movement.

[wayki]

I know a UK Citizen and his new American wife.

They live in Spain, on an NIE, and don't seek to be residents (not European Law).

Her 3 month Visa will run out soon.

They looked into Spouse Visa in Spain = not possible as neither Spanish residents.
They looked into Spouse Visa in UK = not possible as they don't live there.

They seek to fly to the UK for a few weeks in a month or two, dressed well, with passports, marriage certificate, background check documents, and a section from the EU Commission website stating border staff would need to prove these people are dodgy before denying them entry.

Is there anything they need to know?

Thank you.

[CR001]

I know a UK Citizen and his new American wife.

They live in Spain, on an NIE, and don't seek to be residents (not European Law).

Her 3 month Visa will run out soon.

They looked into Spouse Visa in Spain = not possible as neither Spanish residents.
They looked into Spouse Visa in UK = not possible as they don't live there.

They seek to fly to the UK for a few weeks in a month or two, dressed well, with passports, marriage certificate, background check documents, and a section from the EU Commission website stating border staff would need to prove these people are dodgy before denying them entry.

Is there anything they need to know?

Thank you.

What is the purpose of coming to the UK?

[wayki]

What is the purpose of coming to the UK?

To visit family and friends.

[wayki]

What is the purpose of coming to the UK?

.....Just 2 or 3 weeks in the UK.

[Classified Machine]

I had a success about 18 months travelling to France from the UK with non-EU wife. I'm a UK citizen. She had just the Biometric Residence Permit. They didn't even ask for the marriage certificate or ask her any questions although they were talking among each other and took quite a while with her. I do wonder if they mistook the Residence Permit for the Residence Card? Either way, I didn't even have to argue the case.

It should be noted that we travelled by coach and were therefore able to get straight to immigration. There is no challenge or checking of visas when travelling on coaches from London.

Additionally, I'm wondering if it is the same with the Eurostar? We are travelling to the Netherlands next month and have the train tickets in hand which say they need to be scanned at the gate. I suspect we'll once again get straight through to immigration. I wonder if we can make it two successes out of two?

[wayki]

This couple want to travel around Europe - mainly staying in Spain - but going to UK, Switzerland, back to Spain etc.....staying in Spain over 14 months, with trips out of Spain and back.

They cannot get a residency in UK (don''t live there).
They cannot get a residency in Spain (not working there or own bank accounts there).
He owns a house in Spain on a Spanish NIE number (which is lawful).

To travel around as the first sentence explains, they are going to at the Airports:

1) Dress well.
2) Provide a folder with:
Marriage Certificates.
Shengen Border Pdf prints with highlighted areas about free movement.
Other prints from EU websites stating free movement.
A criminal record check.
Prints stating it's not able to deny a family member at a border unless proved they are a danger.


What are their chances?
They have no other options available to them.

Is the trip to Switzerland better done with a car over using a plane?

[Casa]

Prints stating it's not able to deny a family member at a border unless proved they are a danger.

You've misunderstood 'Free Movement'. This would be the case if the sponsor (in this case the husband) was an EEA citizen . For the purposes of immigration, the husband is only considered to be a British citizen and his wife is not entering the UK under EEA Regulations, but under the UK Immigration Rules.

Neither can he claim free movement under Surinder Singh as he hasn't been exercising his Treaty rights in Spain and neither he or his wife hold a Spanish residence card.

As an American, his wife is a non-visa national and can enter the UK for a period of no more than 6 months as a visitor. However, she will have to convince the Immigration Officer at the port of entry that she has strong ties to her home country and won't overstay in the UK. This is likely to be a very tough challenge as it appears that she is taking an extended holiday with no set time to return to the US, if at all.

[wayki]

You've misunderstood 'Free Movement'. This would be the case if the sponsor (in this case the husband) was an EEA citizen . For the purposes of immigration, the husband is only considered to be a British citizen and his wife is not entering the UK under EEA Regulations, but under the UK Immigration Rules.

Neither can he claim free movement under Surinder Singh as he hasn't been exercising his Treaty rights in Spain and neither he or his wife hold a Spanish residence card.

As an American, his wife is a non-visa national and can enter the UK for a period of no more than 6 months as a visitor. However, she will have to convince the Immigration Officer at the port of entry that she has strong ties to her home country and won't overstay in the UK. This is likely to be a very tough challenge as it appears that she is taking an extended holiday with no set time to return to the US, if at all.

Thank you so much for your reply.

They only seek to spend 2 weeks in the UK.

The advice/clarity they seek is on actually "leaving" a Spanish Airport for 2 weeks (for this trip to the UK) - and then returning to Spain through a Spanish Airport:
A) Leaving Spain with an overrstayed Shengen Visa. (Claiming free movement).
B) Returning to Spain without a Shengen Visa. (Claiming free movement).

[mgb]

It is maybe a better idea to apply for a residence card for a family member of a eu citizen.
If the husband own a house there he has a address.
Precondition for a self-sufficient eu citizen is sufficient financial resources and health insurance for both.

For the eu citizen
http://europa.eu/youreurope/citizens/re ... dex_en.htm

For the family member
http://europa.eu/youreurope/citizens/re ... dex_en.htm

[wayki]

It is maybe a better idea to apply for a residence card for a family member of a eu citizen.
If the husband own a house there he has a address.
Precondition for a self-sufficient eu citizen is sufficient financial resources and health insurance for both.

For the eu citizen
http://europa.eu/youreurope/citizens/re ... dex_en.htm

For the family member
http://europa.eu/youreurope/citizens/re ... dex_en.htm

Thank you very much for the reply.

The first link you gave is not possible, as he was once refused Spanish residency as didn't have enough savings- his assets are tied up and he earns from the internet, and also he uses accupuncture and other holistic treatments and not "western healthcare."

The 2nd link is not possible as she has now already stayed over 3 months.

Also, they seek to live in America in just 12 months time,.

They just seek for a year to live in Spain until his space is sold, with the odd trip to the UK, and other EU countries....using free movement....they are married, they are family. She is his next-of-kin.

[mgb]

I guess the wife has only a entry stamp in her passport. US citizen are visa exempt.
Leaving the schengen area with a overstayed visa exempt entry create a lot of discussion.
Due to article 4 of the directive family members can leave unhindered. The question is if the border officer understand it.

[wayki]

I guess the wife has only a entry stamp in her passport. US citizen are visa exempt.
Leaving the schengen area with a overstayed visa exempt entry create a lot of discussion.
Due to article 4 of the directive family members can leave unhindered. The question is if the border officer understand it.

Thank you so much.

When convenient, could you please provide a link to the "Article 4 of the directive."

[mgb]

http://eur-lex.europa.eu/legal-content/ ... 16&from=EN

Scroll down.

[wayki]

http://eur-lex.europa.eu/legal-content/ ... 16&from=EN

Scroll down.

Thank you.

Does this article 4 (and free movement print outs) apply to a UK citizen and his American wife going in and out of Zurich airport (from Spain) after her Shengen Visa has expired?


On this page: https://www.tripadvisor.com/Travel-g188 ... order.html

..it says:

"At airports, travellers' passports will only be checked if they are arriving from a non-Schengen member country (the UK, for example). The airports are now divided into "Schengen" and "extra-Schengen" zones so that those who arrive in from a Schengen country simply walk straight to the baggage hall. Passports are not checked at railway stations as all the countries surrounding Switzerland are part of the Schengen area."


Seems that they don't check arrivals in Switzerland if flying from Spain.
And entry and exit from Spain abides by free movement.

[mgb]

Flying via Zurich is maybe not so good. Switzerland is part of Schengen but not a eu member. There is a single contract between Switzerland and the EU about free movement. The content is similar to the directive but not the same.
If you leave the schengen area via Zurich there is a border control.
In Switzerland she would have to argue with fresh 3 month in Switzerland.

[gokulatti]

Swiss is part of Schengen area, all flights/trains etc. departure or arrival from schengen (swiss) to and from non schengen (UK) will be routed to appropriate terminal in the airport so that there is always schengen immigration control. During the immigration control there will be a check on the wife travel history, It depends how the officer considers her case either as tourist or a family member of a EU national exercising rights, if the husband has not exercised his rights for more than 3 months and the wife has also stayed during all this time then they both have overstayed although the consequences of a UK citizen staying more than 3 months without being qualified could be very minimal, maybe a warning. but this cannot be said for the wife-TCN. most probably a travel ban as an overstayed american tourist (she can however come back under EU law but except a lot scrutiny and be ready to document proof that husband is qualified, the first 3 month doesn't apply here since it has already been used and overstayed). Unless the husband falls under one of the category of being a qualified person, except everything to go bad.

[mgb]

It is not so easy. Right of free movement has preference before schengen rules.
EU citizen and family member have 3 month unconditional stay in every eu country. If EU citizen/family member are staying longer than 3 month in one country without registration (if needed) it is a theme for national law in that country and not schengen law. It can only be a small fine in money if any.
The problem is always to find a border officers who understand the whole theme.

[gokulatti]

It is not so easy. Right of free movement has preference before schengen rules.
EU citizen and family member have 3 month unconditional stay in every eu country. If EU citizen/family member are staying longer than 3 month in one country without registration (if needed) it is a theme for national law in that country and not schengen law. It can only be a small fine in money if any.
The problem is always to find a border officers who understand the whole theme.

You are just repeating what I said in a different way! The OP is talking about going to uk and coming back to SPAIN (overstayed by 14 months, without exercising treaty rights) and not any other member state. therefore they have already used up 3 month unconditional stay. As I said wife can however enter under EU law but not as an american with visa exemption.

[mgb]

The number of 3 month periods is not limited.
A family member need only a visa for crossing the border and not for staying.
If a family member is visa exempt this can be used instead of a visa.
Staying longer than 3 month cannot be a offence against schengen law because the right of free movement has preference.

[gokulatti]

The number of 3 month periods is not limited.
A family member need only a visa for crossing the border and not for staying.
If a family member is visa exempt this can be used instead of a visa.
Staying longer than 3 month cannot be a offence against schengen law because the right of free movement has preference.

I think you have misunderstood "right to enter" with "right to remain/right to residence". As a union national, he/she may get away with if not most of the law with a bare fine/warning, this cannot be said for a family member who is not deriving the right from the EU national since the EU national himself isn't exercising treaty rights. You state that the 3 month period is not limited for spain, If it not limited, why is there article 7 in the first place?. What you are essentially saying is that a TCN national gets entry under article 6 to a member state but if they don't switch over to article 7 it cannot be an offence under schengen law because right to free movement has preference. free movement of a TCN over 3 months is only incident on them only by virtue of a EU national exercising exercising rights, if he/she isn't exercising, that right of free movement TCN is no more. By stating you that the 3 month is unlimited and could be used any number of times for a specific member state at a time, is what I would say abusing the system instead of following it. Can you get away with it, perhaps yes, but that is not what we are talking about are we?

[mgb]

The right of free movement and staying is directly given from the directive.
If no official side of the guest country is saying the opposite for a stay longer 3 month the right is still existent.
It is not the business of other member countries to judge about it.
A new entry open the 3 month again. A move to a other member country open the 3 month in that country

[gokulatti]

OP is not asking about going to stay in other member state, is he asking about leaving spain going to uk (own national) and coming back to spain.

[mgb]

As far as I know Spain and Switzerland are different countries.

[gokulatti]

"They only seek to spend 2 weeks in the UK.

The advice/clarity they seek is on actually "leaving" a Spanish Airport for 2 weeks (for this trip to the UK) - and then returning to Spain through a Spanish Airport:
A) Leaving Spain with an overrstayed Shengen Visa. (Claiming free movement).
B) Returning to Spain without a Shengen Visa. (Claiming free movement)."

As far as I know, apples and oranges are completely different, the same way you rhetoric sounds.

[mgb]

Due to post number 9 they are seeking advice to fly via Zurich to the UK.
They are starting a fresh 3 month period in Switzerland and they are starting a fresh 3 month period in Spain on the way back.