UK Spouse Visas and EEA Treaty Rights

[thedaytripper]

Hi everyone, I needed some advise on the new spouse visa requirements and just happened to find this forum.

My wife and I recently got married (14th July) and missed the date of the change in spouse visa requirements by a couple of weeks. My wife is a student and I alone do not earn £18,600.

I met with a few lawyers and they all pretty much threw all my hopes out of the window for applying for the spouse visa. Essentially we are forced to spend some time apart before we meet the financial requirements.

My question to you all is relating to EEA treaty rights as a UK citizen. Being a UK citizen and working in a European country is essentially exercising your EEA treaty rights, which in turn will enable me to apply for the EEA family permit with lesser constraints in comparison to the UK spouse visa.

How long does my wife have to work in Europe for her to effectively exercise her rights permitting me this route of application with minimal problems from the border agency?

Thanks for all insight in advance

[liam85]

I don't think there is a "set time", 6 months seems to be the norm but you have to be living together and working in an EU country I believe.

[thedaytripper]

Do I have to be working as well?

[javierch]

You have to be the one exercising treaty rights for her to qualify that way but you can't exercice treaty rights in your own country ,so you have to work or be self-employed ,etc in another EU country really .

[thedaytripper]

Originally Posted by javierch

You have to be the one exercising treaty rights for her to qualify that way but you can't exercice treaty rights in your own country ,so you have to work or be self-employed ,etc in another EU country really .

I am a bit confused. I am not an EEA nor UK, I can't exercise any treaty rights in an EU member state.

My wife on the other hand is a UK citizen. If she is working in and EU state and I am living with her as well as actively looking for work, would this be sufficient on her part of exercising her rights for me to be able to apply for the EEA family permit upon her return to the UK ?

Thanks

[javierch]

In that case she would be the one having to exercise treaty rights in another EU country and you will qualify to live with her in that country but not in the UK .To qualify in the UK she has to be from an EU country or have a passport from another EU country as well as the UK one..some people qualify to apply for a passport in other eu countries as well depending of family ancestors and countries rules .

[thedaytripper]

Pretty sure treaty rights work both ways. I am just having trouble finding the actual rights set out in the treaty. UK citizens are also EEA once they exercise their rights.

I still can't post links to other sites but here is a case that I have read about this:





FAMILY MEMBERS OF UK NATIONALS EXERCISING TREATY RIGHTS – NO TIME LIMIT APPLIES

10 December 2010

The Immigration (European Economic Area) Regulations 2006 implement in the United Kingdom the rights of "free movement" which are enjoyed by nationals of the countries which make up the European Economic Area (EEA).

The rights are known as "treaty rights" – because they were conferred by the Treaty establishing the European Community. The Regulations provide for the entry into and residence in the UK of all EEA nationals and their family members, reflecting the rights listed in the European Council's Directive 2004/38/EC – the Citizens' Directive.

Family members of EEA nationals working or studying in the UK are entitled to enter the UK with their EEA national family members and to live here for as long as their family members are exercising the right to work or study within any other EEA member state (including the UK). This means that people who aren't themselves EEA nationals but are the family members of people who are - can come to the UK without having to satisfy the requirements of the UK's Immigration Rules.

This creates the phenomenon whereby family members of (non-UK national) EEA nationals have far less challenging rights of entry and residence than the family members of British Citizens. They have to meet the requirements of the Immigration Rules relating to spouses, children and other dependant relatives.

So how can British citizens turn themselves into EEA nationals in the eyes of the UK immigration authorities?

Back in 1992 the European Court of Justice (ECJ) concluded, in R v IAT and Surinder Singh ex parte Secretary of State for the Home Department (Case C 370/90) 7 July 1992, that when a British national travelled to another Member State of the European Union in order to work or in any other way to "exercise treaty rights" – he or she was entitled to re-enter and then to be joined by his or her family members, as if he were an EEA national.

This scenario is covered by Regulation 9 of the EEA Regulations, which enables the family members of a United Kingdom national to be treated as if they were the family members of an EEA national within the meaning of Article 2(1) of the Regulations, if the conditions in Regulation 9(2) are made out.

The Regulation 9(2) conditions are that:-

"a. The United Kingdom national is residing in an EEA State as a worker or self-employed person or was so residing before returning to the United Kingdom; and

b. If the family member of the United Kingdom national is his spouse……..the parties had entered into the marriage…and were living together in that (EEA) State before the United Kingdom national returned to the United Kingdom."

The question to be decided by the Asylum and Immigration Chamber of the Upper Tribunal in OB (Morocco) v Secretary of State for the Home Department [2010] UKUT 420 (IAC) was whether it mattered if there was a gap between the time the UK National spent working in the EEA state and his or her return to the UK.

The Appellant OB, a Moroccan national, resided with his wife in the Republic of Ireland, where she worked from November 2006 to April 2007. Then in July 2008 the Appellant's wife returned to live permanently in Northern Ireland. The Appellant joined her and in September 2008 he applied under the EEA Regulations for a residence card as the spouse of a UK national who had been exercising treaty rights.

His application was refused because the Secretary of State for the Home Department didn't believe that the Appellant's wife had been working in the Republic of Ireland. He appealed, and the Immigration Judge hearing his case accepted that the Appellant's wife had been working in Ireland and exercising treaty rights. However the Immigration Judge nonetheless dismissed the Appellant's appeal because of the gap of 13 months between when the Appellant's wife stopped working in Ireland and her return to the UK.

The Upper Tribunal has found that the Regulations did not contain any requirement that a person exercising treaty rights in another EEA state had to return to the UK within any period of time in order for his or her family members to be able to invoke Regulation 9.

It considered European Union case law, in particular Eind (C-291/05) December 2007 and found that the case law did:

"…establish the principle that the right of entry afforded to the non-national spouse cannot be restrictively interpreted and Community law must be interpreted sufficiently broadly to promote the objective of ensuring protection for the family life of nationals of the Member States".

The Tribunal allowed the Appellant's appeal and directed that he should be granted a residence card pursuant to Regulation 17.

Gherson has a wealth of experience in European Cases and cases under the Association Agreements. Contact our EU lawyers if you need legal assistance with your case.

[javierch]

you seem to be right but it doesnt say how long she has to be exercising treaty rights in another country though....
The Immigration (European Economic Area) Regulations 2006

Family members of United Kingdom nationals

9.—(1) If the conditions in paragraph (2) are satisfied, these Regulations apply to a person who is the family member of a United Kingdom national as if the United Kingdom national were an EEA national.

(2) The conditions are that—

(a)the United Kingdom national is residing in an EEA State as a worker or self-employed person or was so residing before returning to the United Kingdom; and
(b)if the family member of the United Kingdom national is his spouse or civil partner, the parties are living together in the EEA State or had entered into the marriage or civil partnership and were living together in that State before the United Kingdom national returned to the United Kingdom.
(3) Where these Regulations apply to the family member of a United Kingdom national the United Kingdom national shall be treated as holding a valid passport issued by an EEA State for the purpose of the application of regulation 13 to that family member.

[javierch]

you seem to be right but it doesnt say how long she has to be exercising treaty rights in another country though....
The Immigration (European Economic Area) Regulations 2006

Family members of United Kingdom nationals

9.—(1) If the conditions in paragraph (2) are satisfied, these Regulations apply to a person who is the family member of a United Kingdom national as if the United Kingdom national were an EEA national.

(2) The conditions are that—

(a)the United Kingdom national is residing in an EEA State as a worker or self-employed person or was so residing before returning to the United Kingdom; and
(b)if the family member of the United Kingdom national is his spouse or civil partner, the parties are living together in the EEA State or had entered into the marriage or civil partnership and were living together in that State before the United Kingdom national returned to the United Kingdom.
(3) Where these Regulations apply to the family member of a United Kingdom national the United Kingdom national shall be treated as holding a valid passport issued by an EEA State for the purpose of the application of regulation 13 to that family member.

[gbu]

Originally Posted by thedaytripper

I am a bit confused. I am not an EEA nor UK, I can't exercise any treaty rights in an EU member state.

My wife on the other hand is a UK citizen. If she is working in and EU state and I am living with her as well as actively looking for work, would this be sufficient on her part of exercising her rights for me to be able to apply for the EEA family permit upon her return to the UK ?

Thanks

Yes that would be sufficient, provided she was employed or self-employed for 3-6 months minimum.
Your wife in fact exercises her treaty rights, not you.
You do not need to look for work- you are a non-eu dependant of an eu national.
When you arrive in the UK the 'hat' your wife is wearing is that oft an eu national.
If you are a non-visa national you will need to apply for a Family Permit to enter the UK under Singh reg 9.
EEA2 application for 5-year Residence Card is not to be confused with/ the same as, a Family Permit and is applied for once you have arrived in the UK.