Its called freedom of movement,which you "activated",being Irish passport holder.

The Union has adopted a Directive on the right of citizens of the Union to move and reside freely within the Member States, which brings together the piecemeal measures found in the complex body of legislation that has governed this matter to date. The new measures are designed, among other things, to encourage Union citizens to exercise their right to move and reside freely within Member States, to cut back administrative formalities to the bare essentials, to provide a better definition of the status of family members and to limit the scope for refusing entry or terminating the right of residence

http://europa.eu.int/scadplus/leg/en/lvb/l33152.htm

 

I know that it comes from the freedom of movement end of things. However, it doesn't state that a UK national can't apply in the UK for an EU residence permit. As I say, UK law would have applied to me because 1) I was in the UK at the time and 2) I presented a British passport. Once I said I was British, UK law would have been applied to me as per standard international (not just European) law for those with dual nationalities.

Given the actual wording of the EU legislation, I'd be interested to know how the UK authorities could turn down an application from a UK citizen for an EU residence permit for his/her partner.

To quote from your own reference "Union citizen: any person having the nationality of a Member State.". It does not distinguish between a union citizen who is British living in the UK and one that is French living in the UK.


Arnold

 

Being a dual national myself (British and French) I was rather worried that the EEA FAmily Permit wouldn't apply to my spouse seeing as I am in the UK and we intend for him to come and join me, and that as a result we would have to follow the British immigration route. My lawyer, who gave me duff advice concerning another matter which I discovered to my detriment later, told me that I could exercise my rights under EU Law no problem. I phoned the IND to double check this when my lawyer's short-comings came to light, and they told me that I could use my EU right under my French passport but that once I exercised this right, I could not later turn to British immigration rules - my spouse and myself would have to adhere to the EU rules for the duration.
However, I'm not sure about a British person exercising their EU rights in Britain, although I can see that if this was allowed, the Home Office would want to keep it very quiet. Sounds somewhat dubious though...

 

I think you are wrong on this point.

 

This law applies only to people who have moved to another EU country,to work and live.If you are UK citizen and live in UK, you have not moved anywhere,therefore you can be treated as such.

Community law on free movement of workers applies whenever a national of an EU Member State exercises his right to mobility, even if he has returned to his Member State of origin after exercising his right to free movement of workers.

The family members * of an EU citizen who is a migrant worker, irrespective of their nationality - i.e. including third country nationals - are entitled to reside with him. In addition, children of migrant workers are entitled to access to education in the host Member State, irrespective of their nationality.

The right of residence is an integral part of free movement of workers. Under current Community law, Member States must issue a residence permit to a migrant worker on the basis of his identity card or passport and proof of employment alone. Under no circumstances may an EU citizen's access to employment be made conditional upon obtaining a residence permit.

It follows from the Community principle of non-discrimination on the grounds of nationality that migrant workers must be treated in the same way as national workers with regard to access to employment, conditions of employment and work and social and fiscal advantages.

 

I fully accept what you're saying about the law being a "freedom of movement" thing. However, there is nowhere in the EU references that have been quoted that I can see anything that would preclude a UK citizen from obtaining an EU residence permit in the UK without moving countries.

Without wanting to get into a big argument about it, what I'm asking is where in the EU law it says that EU nationals living in their own country can't use the EU law to get an EU residence permit?


Arnold

 

Arnold,on this forum we have just friendly discussions, no big arguments.
Simple reason is, this law is for people that moved to UK,exrcise the traety,not for UK nationals. It is maybe unfair, e.g, dutch person bringing Chinese wife to UK, its in more favourable position than UK person, but thats the way it is. If you tried to exercise this law as UK citizen, your application would be refused,no question about that.

Regards

Triple H

BORROWED FROM ANOTHER FORUM:

"European law states that a citizen of either a European Union (EU) or European Economic Area (EEA) country may exercise various rights in the other member countries. One of these rights is to work and/or reside in the member country of choice. Additionally, an individual exercising such rights is free to be accompanied by any immediate dependants, even if the dependant is not a citizen of a member country. In such a situation, the dependant is issued with a family permit which is free and is, generally, given with the minimum of enquiry. The applicant merely has to establish that they are related as claimed to the EU principal, and to show that they can be maintained without claiming benefits in the host country. The irony of this is that it is therefore easier, for example, for a German to take his/her spouse to the UK than it is for a British citizen."

 

Hi
monkey monkey,
Where about you live?
Do you have a job in Spain?
Do you have enough money to support your wife?
Where is she?

If you give me some info I may be able to guide you!

Regards

Triple H

 

HI Triple H,

I have a thread going already on the issue of Schengen visas- 'Please HELP! Married to EU citizen & can't get Schengen'- www.easyexpat.com/forums/ftopic_7030.htm

Correct me if I am wrong, if I can prove that my husband is coming to live in the UK as an EU citizen, then can I apply for an EEA Family Permit, or its equavalent.

After all, an EU citizen has the right to settle in another EU country, and when this is for periods shorter than three months, all they need is a valid identity card or passport.

So in effect if my husband decides to settle here for let's say a week, UK immigration has to grant me a permit to stay with him.

Please correct me if I am wrong

 

Although this subject started about six years ago,i know that many will still be finding it and reading it, so there is a comment i want to make. They say that a little knowledge is dangereous, and that applies to arnold's postings here, because he is not only wrong, but keeps repeating his errors, which may mislead or confuse others.i will explain.
Arnold has dual uk/irish cirtizenship, and (unnecessarily) sent off both his passports to support a uk residence card for his non eaa dependent to the uk home office.(now it would be sent to the border agency.just because he got the residence card ,he is claiming that a uk citizen can get one from the uk authority, on behalf of his dependent. That is utter nonesense, because an eaa citizen cannot exercise eu treaty freedom of movement rights when in his/her own country.the fact he sent both his passports means nothing. The home office ignored his uk passport, and issued the permit due to his treaty rights as an irish citizen already in, or moving to the uk.
Arnold can't accept that, and asks others to prove it by quoting the relevant part of eu law.why should others do that? We are not lawyers. However, the law is in fact written up in great detail elswhere on the site, and the contributor is legal group of immigration lawyers, base in northern ireland. I am also a dual irish/uk citizen, and applied for my wife's residence card, here in the uk, using my irish citizenship. When it was only obvious that i am british as well, because i was born in the uk at the time birth here conferred automatic citizenship.not only that, but at the time of her application, my wife's passport had three uk visit visas in it, which showed they had been issued as spouse of a uk citizen. Why? Because i did not bother to get an irish passport until i found out they were cheaper that the uk , and not only that, but free for those who are aged 60 and above. The point is, the fact that i held dual citrizenship was irrelevant.eu law is quite clear about family permits and residence cards. An eaa citizen,( except for those of the recent 'accession' states), can exercise treaty right to free movent of himself and his family in any eaa state except his/her own! Is that clear enough?

 

My UK passport needed to be sent in as it was part of the proof that myself and Wendy had been together for over two years at that time. Other than that, it wasn't relevant to the application for an EEA residence permit. It did seem a little odd to be using a citizenship document that wouldn't entitle me to the permit to prove that I was entitled to it though!

UK citizens CAN get the EEA residence permit too but only if the couple have been living together in another EU country prior to coming to the UK. Thus, since we have been living in France for five years and are now back in Northern Ireland I will in due course be applying for the EEA residence permit as a British citizen this time.

Incidently, in the years since the last post (2005) the laws have changed yet again. It is no longer necessary to get an EEA family permit (ie the visa) since you can use the "proof by alternate means" rule which we've been using for a couple of years with no problems. Using this you, in principle, need to prove that you are entitled to the visa each time you enter the UK but, so far, the immigration people have been incredibly laid back about it.

Similarly, you don't actually need the residence permit as the "alternate means" rule works there too in effect (it actually says that you can't be denied any right that you would be entitled to had you actually got the residence permit). This can create some administrative hassles in practice (notably the NHS registration) so we'll get around to getting the permit itself in due course but can't right now as I gather there's a 9 month or so wait on it during which time you can't travel as they hang on to your passports.

 

Arnold, sorry, there you go again. You are incorrect. Your experiences are personal and not relevant to others. They do not reflect eithjer UK law or EU law. Once again you seem to have chosen unusual ways to achieve your objectives Once again you are claiming vertain but apparently think , and as a result are interpreting them as being nomal. Once again you misinterpreting both UK and EU law. I do hope others are not rushing to follow your lead, because I just don't know how you get into such comlicated situations.

For most non EAA dependents of EAA citizens, entry into or travel between EU countries is a simple and speedy process, and there is a minimum of supporting documentation required. The UK may be a little less simple that some of the other EU countries. In my opinion, that is because the UK does not really agree with the part of EU law that allows free movement INTO the UK. However, the UK still comples with EU law, and it is up to the individual applicant for entry into the UK, to apply correctly, and supply the correct documents to ensure speedy processing.
Referring specifically to you and your latest comments,your UK passport was certainly not NEEDED as you state, but was chosen by you to prove you and your partner had been together for over two years, and a poor choice at that, because how a passport can show that, without some other supporting documentation, I can't imagine. In fact I struggle to see how a person's passport can show how that person had been together with another at all! I would be interested to hear your explanation of that.
For the benefit of others, there are numerous other documents that can be used to show togetherness with another person. Simple examples are a joint bank account, a joint rental agreement, joint car insurance, etc.. Photographs taken together over a period and dated have been accepted, and of course, so has a marriage certificate.Also, to exercise free movement within the EU, it is not a legal necessity to prove 'togetherness' for two years. It is always better to go for simple documentary evidence that is clear to immigration authorities, and thus enables them to act with speed. Surely you could have come up with one of them?
My next point is that you refer more than once to YOUR application, and what YOU are entitled too. In fact, it is not you that is entitled to either a family permit or a residence certificate in the UK at all. The applicant is your dependent, and your documents are merely supporting her application. You need to get that clear in your head too. Therefore YOU will not be applying for anything. That is for your partner to do.
You don't seem to understand the purpose of two documents.The purpose of the Family Permit is to confirm the right of an entitled dependent person to enter an EAA country, and is valid for entry within 6 months. In other words, it is similar to a visa, except once, for example, in the UK, it is not NECESSARY to renew it at all. The Residence CERTIFICATE, which you wrongly named Residence Permit, is not at all necessary at all and is not a permit. It does not give permission to do anything or to be anywhere. Its purpose is to enable the holder to easily prove to others, such as employers, banks, travel agents, Embassies or anyone that may have reason to know, that he/she is a legal resident. In the UK, the the Border Agency website explains quite clearly that Residence Certificates are not compulsory, but were inroduced for the convenience of applicants.
Once again, you are in error when you say YOU will be applying for a Residence 'permit'(sic).Because you cannot., only your partner can.Neither is your passport needde because there is no requirement for any UK citizen to even have a passport at all, and many don't have one. To show that you are still together, she will just need to provide what is given in the application guidance notes. Onece again, such things as joint bank accounts, and joint tenancy agreements, mortgages etc. are the easist and the best. Neither can your UK passport influence your partners application, except where used as eveidence of identity, but a UK driving licence and several other documents can be used for that too.
About the Residence Certificate application.It is completely untrue that a passport is held until issue. You should read the guidelines more carefully. It is distictly written that if the applicants may need the passport for travel, it can be returned on request.
I don't know where you got the story that Family Permits are no longer needed, but that is simply not true, and I hope nobody else follows your advice. Each EAA country has its own procedures, and in particular, the UK and the Republic of Ireland have retained control of their own Immigration. A family permit should get the holder back into the UK, because it is merely proof of an entitlement. It is nothing to do with any changes in EU or UK law,and certainly not due 'immigration being incredibly laid back'!
You are also wrong about NHS registration, because that is simple for a holder of a Family Permit, and should be done as soon as possible after arrival in the UK. However, even before NHS number is received, a Family Permit issued by the UK is sufficinet to het NHS treatment.To wait for issue of a Residence Certificate is just silly.
While comments about your personal experiences are welcome because they may serve as guidance(or warnings!), to others, please don't claim that certain procedures NEED to be followed, or that things are legal requirments when they are not. You have only dealt with your own dependent. Before my retiral I dealt with many applicants from around the world, including my own wife and stepdaughter, and not a single entitled applicant to be cleared for entry.
Remember what I wrote earlier. Stick to simple documentation so that your entitlement is clear to our entry clearance officers at overseas diplomatic posts, or to our Border Agency staff in the UK. They are not in the business of denying UK entry to entitled persons. By helping to make their job easier, applications can be processed faster.

 

Apologies for rehashing an old thread but I would appreciate joneeboy74's or someone else knowledgable's view on something.......

Out of curiosity, assuming I (a British Citizen) did not want to use the Settlement Visa route for bringing my Australian wife to the UK could I in theory do the following:

1) Go to Spain and rent a villa for a few months.
2) Have my Australian wife join me in Spain via an Schengen Visa.
3) After taking in some sun, travel back to the UK with my Wife via the EEA Family Permit route

Is it that simple or am I missing something? I appreciate she would be at a disadvantage on the EEA FP rather than the Settlement visa... but I would be interested to hear if the above is a workable approach.

Cheers!

 

I'm just letting you know that I have seen your post. You write your question 'out of curiosity'. If that is your only interest, and you don't have a problem, it is hardly worth someone's time to investigate and then answer your question, is it? If it is something you are considering, that is a different matter, and requires you answer a question.
As bringing an Australian citizen wife into the UK for settlement is not difficult, do you have any particular reason for not following that route? The reason for the question is simply that even if you could use it, there are disadvatages to the family permit scheme if you both had the intention to remain in the UK. The disadvantage relates to the UK residence time required before the non EEA citizen becomes entitled to stay permanently in the UK. Without checking, I don't know off-hand exactly how long it is,but it's a lot longer than via settlement. Also, if you were to split up, your EEA wife's residence entitlement under free movement would be cancelled.
The present UK government is likely to propose amendments to EU law in the near future, to restrict free movement of non-EAA family members, and it has the support of several EU countries including France, Germany, Italy and Ireland at least.
At first sight it seems you would have to be employed for a 'reasonable period' in Spain to take advantage of EEA law to bring your wife 'back' with you. The UK could refuse her if there is evidence your purpose in Spain is merely to try to circumvent UK immigration laws. Remember, the UK has retained control of its own immigration and it still applies.Neither could you use the Schenghen visa in such a way.It is for visitors, and could not be used to support a claim that your wife had been resident in Spain prior to her application for a family permit. I suggest you have a good look at the family permit application form and its guidance notes.
As has already been mentioned in another post, once you use the EAA route, you cannot just revert to another route towards indefinite leave to remain and'or citizenship.That can be a considerable disadvantage. The UK can deny that to anyone it likes. It is not covered by EU law, but by our own immigration law.
Are you aware that if you, as British citizen, have been married overseas for at least 4 years, your wife can apply directly for 'indefinite leave to remain' instead of having to stay in the UK for a probationary period.
I will look out for your reply, but if I don't see it within a week, will assume you have lost interest.
For anyone else that is interested,arnie7's claim that it takes months to get a residence permit is totally incorrect. It depends entirely on the applicant's individual circumstances.If it is straight forward, it can be quite quick. My wife's took less than 3 weeks.As has been stated on a previous post, an applicant can request passport to be returned early, in which case they will issue a letter instead of the vignette in passport. However, it is much better to get the vignette, as several EU countries will allow entry as a vistor with it, but will not accept the letter.For example, check out the French Embassy for their rules on that.

 

Thanks for your response Joneeboy74, much appreciated.

The reason for my interest in an alternative route to the settlement visa is that we both wish to remain residents of Australia. I work in the UK still for periods at a time and my (soon to be) wife comes with me. This has been achieved successfully over the last year or so via the youth mobility scheme but that visa runs out soon leaving her no apparent temporary route into the UK that lets her undertake work also (note, it is unlikely she can be sponsored for a work visa and would not get a highly skilled one).

So I thought if the method in my previous post had be viable, she could have been issued a visa which meant we could travel together into and out of the UK for another period of time.

There just doesnt seem to be a visa available for her which suits our needs; spouse multiple entry with work rights which does not require the intention to settle permanently.

Thank you for taking the time to reply in your last post, as you have highlighted with the need to show one 'settled' in another EEA country, this is not really a practical solution.

 

If those are your circumstances, I would agree with you that there is no visa avaiable that would allow your wife multiple entry to the UK for work purposes, other than the settlement visa. This is deliberate. Were it not so, the UK would be flooded with would-be workers from all over the world. The present UK government is committed to further limit entry to the UK of non-EEA citizens for work, and is under severe criticism for not doing enough to preserve jobs for UK citizens in this present economic climate.As it is powerless to stop the entry of EEA citizens and their dependents, pressure will be felt elsewhere, and the youth mobilty scheme is an example. In fact, the only justification for your youth mobility scheme is that Ausralia offers a reciprocal facility to the UK. As it has a much lower take up by UK citizens,it will probably go. As far as permanent entry entry is concerned, Australia severely restricted immigration from the UK many years ago, and the UK is only now catching up.

 

Hi Everyone,

Wow, what a great thread with all the info. It has helped us on some questions, and I am so pleased to see members whom actualy seem to have their head around this.

I come to you all heart in hand hoping you can guide us a bit. Our woes have been non stop this entire year and all revolves around our darling 11 month old daughter.

Mrs and I both live in France, I have been here over 10 years already, Mrs coming up to 4. We were both born in South Africa, however parents on both our side are British. In fact, my wife and I are the first generation in our family to be born outside of the UK. We both have dual nationality, South African and British. Our British nationality is however, British by decent. We learnt the rules of this, as after the birth of our Daughter in December last year, we applied to get her a Britih Passport, as we had planned to all move to the UK this year to settle down roots. Unfortunately she was not entitled to a British passport as with my wife been British by decent, we do not have the right to automaticaly transfer British Nationality to our children.

French Nationality, as our Daughter was born in France, was refused as well, as the Nationality rules here work on decendancy and not if you are born in the country. So in the end, all we could get for our little one is a South African passport.

We were happy about this, as we spent months and months trying to figure this all out. So now the plans are back on to move to the UK indefinately. I was pleased to see the EEA family visa, however there are some elements I am troubled about:

As we are moving to the UK, we will apply online at the UK website while we are still in France for our daughters EEA Family Permit. From my understanding, this will then allow our daughter to travel with us to the UK and start our lives there. Once there, I believe we should then apply for a resident permit for our daughter.

My question is. At this time, our daughter only has a passport, and no french resident permit. Are we able to apply for her EEA Family permit even if she does not have a french resident permit?

Once she has her EEA Family Permit and we are in the UK, would she be able to travel with us outside of the UK? For example, a week holiday in France, or even, a holiday to visit family in South Africa? Would the EEA Permit allow for this, to waiver our daughter having to get a Schengen Visa for Europe? She will be ok going to South Africa as she has a SA Passport, but would she be allowed back into the UK with only the EEA Family permit when returning from South Africa?

On another issue...I do apologise, this must be quite a heavy read so early in the morning...

We have SA passport and we planned to go to South Africa for christmas to visit out families, she is turning 1 soon and most of my family have yet to see our darling angel. Yesterday we went to the French officials to request documents that would allow her to come back in France when we return from SA. Aparantly she requires a "Document de Circulation" which is basicaly a resident permit for minors. This is the only document available which will allow our daughter to come back into France if she leaves, as she only has a South African Passport. The problem is...the french administrative system been as it is... The earliest date we could get, to only submit our application, is the 5th Januray 2012, never minf how long it will take to process. We wanted to cry, really we did.

So last night we were thinking, well, what if we just go, our Daughter could go in South Africa with her SA passport, and when we are there in South Africa, we could then get our daughter a visitors visa for France? Would this work? Or alternatively, if our Daughter had her EEA Family Permit, would this allow her back into France? Has anyone tried something like this? Has anyone been in this situation? Or should we just resign to the fact that we are stuck in France until such time we get that document

Well, this is a lot to digest, and we do appreciate the time any of you may spend in helping us out. Im sure you have seen endless stories already.

Take care to all

The Barker Family

 

Here is one quick bit of information. An EEA family permit will not just let your daughter travel to France or other EU countries. She will need to get the usual visa. The only advantage is that it will be free of charge for an EEA family member.
What you should know, is that after you arrive in the UK and are established there, with a residence and an income, you can apply to the UK border Agency for a Residence Certificate, on behalf of your daughter, but make sure you youo have the time to do it, without needing her passport back. We got one within a month, but I have heard of it taking several. Yours seems simple, and SHOULD be quick too, but one can never tell when dealing with the Border Agency. Also, the UKBA is about to have a big staff cutback! The reason whgy you NEED to allow the time, is because if you do, there will be a 5 year validity 'vignette' put in the passport, and that DOES allow visa free entry into France and some other EEA countries.On the other hand, if you have to ask for the passport back earfly, you will still eventually get the Residence Certificate, but it will be in letter form, which is NOT accepted for visa free entry to EEA countries.
As far as British citizenship is concerened,your parents are citizens ' other than by descent at the time of the birth'.
As you have said, you and your wife are both British citizens 'by descent', and at present your child cannot gain British Nationality. However, if you move to the UK, with the passage of time, there is an easy way in which your child CAN gain British Nationality(British citizen.

In accordance with clause 43, Borders, Citizenship and Immigration Act 2009, effective from 13 January 2010,if the parent has lived in the UK for three consecutive years, application can be made for registration of a child as a British citizen as long as the child is still a minor at ther time of registration.( that means under 18 in the UK). So, after 3 years back in the UK, that can apply to you. Note this refers to the parent's time in the UK, not that of the child, which is irrelevant. In fact, if either of you had lived in the uk for 3 consecutive years at any time in your life, you could apply for your child's registration while overseas. The law is much easier now, because before 2010, registration had to be before the child was 12 months old, and we just made that with another child.
Back on the EEA Family Permit. That is valid for 6 months, and for multiple entries to the UK.
In France, it should not be neccessary for you to get a residence permit for your child. If you have French redidence and go overseas, you should be able to apply at any French embassy for an French EEA family permit to get her back in (and out) of France as often as you like for 6 months. The French are much better at those than the British are. They have a simple form, and most French diplomatic posts can issue them on the spot. They favour EEA citizens, and many have set aside a special time for dealing with their applications quickly. Quite unlike the UK, which tries to do exactly the opposite!
Pity you got the South African Nationality for your daughter, because there is another little known rule that allows British citizenship to be granted to the child of a British citizen by descent in certain cumstances....One is where the child can't get citizenship in the country of birth!
Good luck!