Entering UK without EEA FP

newbieholland · Post by **newbieholland** » Fri Mar 16, 2012 5:56 pm

Hi Forum,

What will be the legal status of a non EU national of EU family meber (UK) entering UK with a residence permit from another member states. As per the Directive 2004 the non EU family has rights to enter UK with a residence card issued by another member state however what is the position in practise?

Could they be treated as an illegal entrant under section 33(1) of the Immigration act?
Would they be sent back /refuse entry on arrival in the UK paragraph 8 to 10 A of schedule 2 of the immigration Act 1971?
Could they be held in the detention for removal/deportation?
Could they be arrested for entering UK illegally?
What are their rights to get a lawyer before getting arrested?

Thanks for the help in advance.

Post by **Jambo** » Fri Mar 16, 2012 6:25 pm

The UK doesn't allow visa free travel for holders of RC as a family member in another member state. An infringement procedure against the UK was launched by the commission a while back but nothing happened since.

There is no requirement to hold EEA Family Permit. If you are British exercising treaty rights in another member state, your family member can seek entry at the port under the EEA regulations if you can produce the relevant evidence. The tricky part is to get to the port. Calais is probably the best option if your family member is a visa national. See MelC story.

newbieholland · Post by **newbieholland** » Fri Mar 16, 2012 6:34 pm

Jambo wrote:The UK doesn't allow visa free travel for holders of RC as a family member in another member state. An infringement procedure against the UK was launched by the commission a while back but nothing happened since.

There is no requirement to hold EEA Family Permit. If you are British exercising treaty rights in another member state, your family member can seek entry at the port under the EEA regulations if you can produce the relevant evidence. The tricky part is to get to the port. Calais is probably the best option.

Thanks for a quick reply Jambo. I understand that UK doesnt allow a visa free travel however where does one stand in a given scenario if they enter UK and get caught(even if they have the right to enter UK as a family of EU national)? What should they expect and what will be lawfully allowed. I know the border police would try and scare the S*** out of a person however I want to know what is allowed as per the law.

I feel the person would have a right to appeal and probably a tribunal however what actions are allowed by the border police? Arrest, detention, removal against the EU rights of a family of EU citizen? What could be the worst situation?

Post by **EUsmileWEallsmile** » Fri Mar 16, 2012 6:50 pm

newbieholland wrote:Hi Forum,

What will be the legal status of a non EU national of EU family meber (UK) entering UK with a residence permit from another member states. As per the Directive 2004 the non EU family has rights to enter UK with a residence card issued by another member state however what is the position in practise?

Could they be treated as an illegal entrant under section 33(1) of the Immigration act?
Would they be sent back /refuse entry on arrival in the UK paragraph 8 to 10 A of schedule 2 of the immigration Act 1971?
Could they be held in the detention for removal/deportation?
Could they be arrested for entering UK illegally?
What are their rights to get a lawyer before getting arrested?

Thanks for the help in advance.

In the scenario you describe and if in addition the family member was traveling with the EU national, the person would be able to prove that they were a family member of the EU national and would be admitted under the regulations. The residence card issued by another member state would demonstrate the familial ties.

Their problem in practice would be getting on a plane as the airline would most likely not allow them to board.

Post by **EUsmileWEallsmile** » Fri Mar 16, 2012 6:52 pm

I should have said above, if they were holding an article 10 residence CARD (not permit).

newbieholland · Post by **newbieholland** » Fri Mar 16, 2012 7:00 pm

EUsmileWEallsmile wrote:I should have said above, if they were holding an article 10 residence CARD (not permit).

Sorry the card issued by another member state has a print saying Residence Permit however it is as article 10 Residence card.

EUsmileWEallsmile wrote:In the scenario you describe and if in addition the family member was traveling with the EU national, the person would be able to prove that they were a family member of the EU national and would be admitted under the regulations. The residence card issued by another member state would demonstrate the familial ties.

Their problem in practice would be getting on a plane as the airline would most likely not allow them to board.

The non EU national would be travelling alone to join the EU national who would already be in the UK. And there is no getting on a plane scenario in this case so that will be least of the worries. The only worry is what to expect from the border agency and until what limit they can go.

The residence card clearly states EU Family member which is enough to prove the family ties. Also the directive states that the member state should give every opportunity to the non EU family to provide any such documents before sending them back from the border.

Post by **Jambo** » Fri Mar 16, 2012 7:07 pm

If Regularion 9 condition are met and evidence is shown at the port, then the family member should allow entry. He will be legal in the UK.

newbieholland · Post by **newbieholland** » Fri Mar 16, 2012 7:17 pm

Jambo wrote:If Regularion 9 condition are met and evidence is shown at the port, then the family member should allow entry. He will be legal in the UK.

Sorry for posting back and forth as my initial post was a bit unclrear I guess.

If the conditions in Regulation 9 are met however the IO at the border is not convinced that the non EU national meets the requirements (rejected EEA FP) what would be expected? What is the person manager to enter UK and then got caught by immigration? Would there be an in country appeal allowed for this or they are allowed to practice removal or arrest?

Post by **Jambo** » Fri Mar 16, 2012 8:27 pm

See 5.5.2.

newbieholland · Post by **newbieholland** » Fri Mar 16, 2012 8:45 pm

Jambo wrote:See 5.5.2.

Thank you so much Jumbo, I have a couple of questions though. Would this be applicable to the family of UK national after a recent EEA FP rejection? What argument can be put to support the rights?

Post by **Jambo** » Fri Mar 16, 2012 8:49 pm

What were the reasons for the FP refusal? You will need to address those issues.

newbieholland · Post by **newbieholland** » Fri Mar 16, 2012 9:03 pm

Jambo wrote:What were the reasons for the FP refusal? You will need to address those issues.

The ECO was not satisfied that the UK national was self employed before moving back to UK. A combination of Surinder Singh & carpentar.

Post by **Jambo** » Fri Mar 16, 2012 9:59 pm

Did you apeal? You might end up with in country appeal if IO is not convinced.

Alternatively, you might consider going for a spouse visa under the immigration rules.

newbieholland · Post by **newbieholland** » Fri Mar 16, 2012 10:06 pm

Jambo wrote:Did you apeal? You might end up with in country appeal if IO is not convinced.

Alternatively, you might consider going for a spouse visa under the immigration rules.

They havent appealed yet and currently trying to determine the available options. What exactly do you mean by you might end up with an in country appeal where the non EU family member is not in the UK?

How is the in country appeal possible?

Post by **Jambo** » Fri Mar 16, 2012 10:21 pm

I meant appeal to the Asylum and Immigration Tribunal (which sits in the UK) which will hear the appeal for refusal of FP or refusal at the port.

newbieholland · Post by **newbieholland** » Fri Mar 16, 2012 10:34 pm

Jambo wrote:I meant appeal to the Asylum and Immigration Tribunal (which sits in the UK) which will hear the appeal for refusal of FP or refusal at the port.

Does that mean they can refuse the entry at the port? If the non EEA national refuses to go back what can they do? Back to my original question - removal, detention etc? Does paragraph 16(2) OF Schedule 2 of Immigration Act 1971 apply?

Post by **Jambo** » Fri Mar 16, 2012 10:55 pm

Read 5.5.2 again. Most likely they will grant temporary admission to prove the case. See also EEA refusals.

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