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Discussion Starter · #1 ·
Hello there

I'm both Italian and British National, living in UK. I have never worked in a EU state. Now married to my non - EU wife, and I'm trying to bring her over here to UK under EU rules using EEA family permit.

I read the new rules about the Surinder Singh judgement and McCarthy.

questions;

- Is the change implemented at the moment? anyone refused EEA permit due to the new changes?

- I see no release of new application for EEA family permit nor questions or guidance reflecting the new rules.

- the application for EEA FAMILY PERMIT (VAF5 DEC 2008) still old, can I try applying?

Please help and advice, many thanks.
 

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Hi,
Hello there

I'm both Italian and British National, living in UK. I have never worked in a EU state. Now married to my non - EU wife, and I'm trying to bring her over here to UK under EU rules using EEA family permit.

I read the new rules about the Surinder Singh judgement and McCarthy.

questions;

1 - Is the change implemented at the moment? anyone refused EEA permit due to the new changes?

2- I see no release of new application for EEA family permit nor questions or guidance reflecting the new rules.

3- the application for EEA FAMILY PERMIT (VAF5 DEC 2008) still old, can I try applying?

Please help and advice, many thanks.
1- Yes, and in full enforcement.
2- http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62009CJ0434:EN:HTML-
Also read EUN2.16 UK Border Agency | EUN02 - EEA Family permits
And the guidance: http://www.ukba.homeoffice.gov.uk/sitecontent/documents/news/changes-imm-eea-regs.pdf.

3- Most applications are now made on-line. However, printing and "mocking" that version helps you to provide accurate facts.

Similarities? http://www.expatforum.com/expats/britain-expat-forum-expats-living-uk/199898-eea-family-permit.html

Your available options are:

* Move to another State an exercise treaty rights for a period of 3-6 months, and then pursue entry to UK for your non-EU spouse under Surinder Singh.
* Sponsor our non-EU spouse under UK immigration rules.

Animo
(Cheers)
 

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Discussion Starter · #3 ·
Ok ... Thanks Jrge - can they apply new rules whilst using the old version application (VAF5 DEC 2008) ? I read a thread saying since the new application not being released you must hurry and try to apply ...

I'm really lost in what to do, cos if I try to follow UK immigration rules, I don't meet the financial requirements, I left my 21k job just recently (1 month ago) due to health reasons ( bad back ) now doing part time job and getting housing benefit.

Many thanks
 

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Despite the old form still being used, the new rules are now in force and your application under EEA rules will be rejected because of dual nationality.

See:

EUN2.16

Until 16 July 2012 persons who held British citizenship and who were also nationals of another EEA member state could rely on that EEA nationality to benefit from the terms of the Directive. This was because Regulation 2 of the 2006 Regulations did not preclude such dual national British citizens from benefitting from free right movements.

The definition of EEA national in Regulation 2 was amended on 16 July 2012 to preclude dual British citizens/EEA nationals from benefitting from the Directive and therefore also to preclude their family members from relying upon free movement rights.


The McCarthy judgment determined that a person who holds the nationality of the host Member State (in our case British nationality) and has never exercised their right of free movement and residence does not benefit from the terms of the Free Movement Directive. This is regardless of whether or not they hold dual nationality with another member state. This means that family members are also unable to derive a right of residence under the Directive on their basis of their relationship to such a national. British citizens can only acquire free movement rights in certain scenarios and so are in general prevented from circumventing the requirements of the Immigration Rules when sponsoring entry to the UK of family members.

http://www.ukba.homeoffice.gov.uk/policyandlaw/guidance/ecg/eun/eun2/#header15
 

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Discussion Starter · #5 ·
Thanks Joppa and Jrge,
Ok ... so clearly no point in applying and risking the rejection.

I'm really lost in what to do, cos if I try to follow UK immigration rules, I don't meet the financial requirements, I left my 21k job just recently (1 month ago) due to health reasons ( bad back ) now doing part time job and getting housing benefit.

Can my wife apply for a tourist visa or even a student visa ... ? any other solutions
 

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Hi,
Thanks Joppa and Jrge,
Ok ... so clearly no point in applying and risking the rejection.

I'm really lost in what to do, cos if I try to follow UK immigration rules, I don't meet the financial requirements, I left my 21k job just recently (1 month ago) due to health reasons ( bad back ) now doing part time job and getting housing benefit.

Can my wife apply for a tourist visa or even a student visa ... ? any other solutions
The "old form" is mainly use to provide some sort of guidance, as nearly all applications must be done on-line. The enforcement of the McCarthy ruling has been in effect form some time now, hence there's no point on trying to beat the system.

I've given you my only logic suggestion -besides following UK immigration rules, and that is to move to another State (Think of Spain) and exercise treaty rights (part-time as: security guard, bartender, cook, chef, manager) there for a short period of time (3-6 months) and ensuring the job is legit (legal payslips or legal contract of employment). Also making sure you have plenty of evidence that you and your spouse lived together in the same State and household/residence (tenancy agreement, utility bills, Insurance coverage)

Animo
(Cheers)
 

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Discussion Starter · #7 ·
Many Thanks, Do you think we stand a chance for a Family visitor visa for the spouse?

I understand that ukba are wary about "spouse visitor" visas due to overstaying and am looking for advice on applying for a"family visitor" visa for my spouse instead at least she can come here or travel back and forth while we sort out the settlement visa either way EEA or UK settlement. these new rules are so unjust that are tearing families apart let alone the stress and finances to go through it all.

What are the chances of my spouse getting a visitor visa?? How can I prove that my spouse will return before 6 months and then apply for a "spouse visa" from home country??

Thank you
 

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Well, she needs strong ties in her home country such as a job, family responsibility or educational course to return to (with documentary evidence), she needs adequate source of finance or you sponsor her (6-month banks statement required) and suitable accommodation. If she has no strong ties in her country, that will raise a serious question about whether she will ever return home and not overstay.
 

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Discussion Starter · #9 ·
Thank you,

we will look into this, any financial acquirements for the visa?

when is it best to buy a return ticket? when applying / lodging the application or after the grant of visa?
 

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No fixed figure, as it depends on a number of factors such as area of the country you live in, what she will be doing, your standard of living.
Don't pay for a flight until visa is issued.
 

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Discussion Starter · #11 · (Edited)
Joppa

I want to clarify few things please.

As Im dual national, both Italian and British. And was naturalised Italian citizen way before British. So does that mean I have now already exercised my treaty rights by working as an Italian citizen in UK? I have always used my Italian passport in UK for work and so on ...

Does that mean I have exercised my treaty rights as an EU citizen living and working in an EU country ( UK ) which I wasn't a citizen of ( living and working here as an Italian )
 

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Joppa

I want to clarify few things please.

As Im dual national, both Italian and British. And was naturalised Italian citizen way before British. So does that mean I have now already exercised my treaty rights by working as an Italian citizen in UK? I have always used my Italian passport in UK for work and so on ...

Does that mean I have exercised my treaty rights as an EU citizen living and working in an EU country ( UK ) which I wasn't a citizen of ( living and working here as an Italian )
No. You're a UK citizen. You can't exercise treaty rights in your own country. It doesn't matter that you have EU citizenship in another country.
 

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If you were born outside UK, and came to UK using your Italian passport (the only passport you held then), it may be argued that you have exercised your treaty rights. But I don't know how ECO will look at your situation - it may be a grey area.
 

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Discussion Starter · #14 ·
Joppa

I have travelled to the UK on my Algerian passport.
Gained my Italian citizenship through marriage to an Italian.
Gained my British citizenship through my permanent residency in uk.didnt need my British citizenship or passport for any reason as I was living as an Italian citizen since the day i got the passport.

Hope that helps.
Thanks Joppa great help
 

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Hi,
Joppa

I have travelled to the UK on my Algerian passport.
Gained my Italian citizenship through marriage to an Italian.
Gained my British citizenship through my permanent residency in uk.didnt need my British citizenship or passport for any reason as I was living as an Italian citizen since the day i got the passport.

Hope that helps.
Thanks Joppa great help
The day you became a British Citizen you stopped exercising treaty rights as an Italian, hence now you must obey and follow British Law.

You could -however, challenge the application and send it in as an Italian Citizen to see what happens, but in my humble opinion once they carry out corresponding checks they'll find out you are a dual citizen.

Animo
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Discussion Starter · #16 ·
Is confusing ... because even I'm now British and Dual national, I had already exercised my treaty rights in UK ... as Italian in a country where I was not a citizen of .... and clearly that's what the new law requires. Surely they cant now just ask me to exercise more treaty rights in a different EU country because I'm now British ... ?!

Thanks Jorge and Joppa
 

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Discussion Starter · #17 ·
Is confusing ... because even I'm now British and Dual national, I had already exercised my treaty rights in UK ... as Italian in a country where I was not a citizen of .... and clearly that's what the new law requires. Surely they cant now just ask me to exercise more treaty rights in a different EU country because I'm now British ... ?!

Thanks Jorge and Joppa
 

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But that's how a change in regulations normally works. If you partner had applied for EEA family permit before you became British citizen and is now on 5-year residence card, the change following the McCarthy judgment is of no effect, as your partner would already be here under the EU rules. But the fact is your partner didn't, and since then the rules have changed, so the fact you had exercised EU treaty rights as Italian national before the rules change is no longer of relevance. The only thing that matters is what your status is NOW under the EU rules as your partner goes for EEA family permit. The only ***** in the armour is that you have lived and worked in an EU country (UK) other than the one you are a citizen of (Italy), but Jrge thinks your application will still fail.
 

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Hi
But that's how a change in regulations normally works. If you partner had applied for EEA family permit before you became British citizen and is now on 5-year residence card, the change following the McCarthy judgment is of no effect, as your partner would already be here under the EU rules. But the fact is your partner didn't, and since then the rules have changed, so the fact you had exercised EU treaty rights as Italian national before the rules change is no longer of relevance. The only thing that matters is 1- what your status is NOW under the EU rules as your partner goes for EEA family permit. The only ***** in the armour is that you have lived and worked in an 2-EU country (UK) other than the one you are a citizen of (Italy), but Jrge thinks your application will still fail.
1- This is what would support this application.
2- This is what his current status is: British Citizen living in UK, hence must follow immigration rules.

Animo
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Joppa and Jrge

I've decided not to go ahead with the EEA family permit application. Not worth the risks as it could be rejected and the refusal will delay any further applications we might make.

Now - I Don't meet the financial requirements for UK spouse visa. We are thinking on applying for a Tourist, Visitors or even a student visa .... while we get the financial requirements ready for the souse visa, at-least so wife cant travel ... back and forth ...

What visa is most suitable for us please? bearing in mind I live in UK and we are married ... the ECO might suspect her not coming back and overstaying ...

Wife asked, what about a student visa to prepare for the the tests required to apply for the UK settlement? as from this October 26th new rules will be in place for UK spouse Visa. 2 tests required, English Language test B1 or equivalent and life in the UK I think ... So would a student visa work for this reason?

Many thanks guys!
 
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