I am no expert, but I guess unless can you find some EU ancestors it will be difficult. Read this example case (Paragraph 6, Case of Margaret Deasy):

http://www.ncadc.org.uk/archives/filed% ... riage.html

Good Luck

 

You certainly can. Under Section 8 of the European Human Rights Convention based on the Right and respect for a Family Life. You cannot take advantage of a Freedom of Movement Rights since you are still in the UK and haven't absolved yourself of that opportuinity.

Going down the Section 8 Route will take a while though. You looking at another 1.5-2yrs with legal dealings and the authorities.

 

Hello,

On the 25th of July 2002, the Court of Justice of the European Communities ruled that according to "article 4 of Directive 68/360 and Article 6 of Directive 73/148, a Member State is not permitted to refuse issue of a residence permit and to issue an expulsion order against a third country national who is able to furnish proof of his identity and of his marriage to a national of a Member State on the sole ground that he has entered the territory of the Member State concerned unlawfully".

The complete ruling is available at http://europa.eu.int/eur-lex/pri/en/oj/ ... 030003.pdf

Hope this can help.

Best regards.

Martin
MediaVisa.net (http://www.mediavisa.net)

 

EU Freedom of Movement Treaty Directives ONLY applies to EU Nationals who have moved from their countries of origin to other EU countries and taken advantage of their Treaty Rights.

Individual who haven,t moved from their countries cannot take advantage of a Freedom of Movement Treaty Rights whilst in their countries of origin.

 

Dear Coyan,

The ruling quoted in my former message is general as it does not concern EU citizens who have "moved" from one EU country to another.

Best regards.

Martin
MediaVisa.net (www.mediavisa.net)

 

Hi Martin,

EU Directives (64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC. ) are all rooted in Directive 2004/38/EC of the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States. The determining factor here is ´to move`.

These Directives are not ´general´. As an EU Citizen you first need to move to another State to take advantage of the Directive and its benefits.
If they were general and applicable to all EU citizens and sundry , there wouldn,t be any need for National Immigration Laws and Authorities because then all illegal immigrants and failed asylum seekers can get married to nationals of their host countries and derive benefits from such a Directive and over 95% of the cases handled by national immigration authorities would,nt arise in the first place.

On the Contrary Section 8 Right to a Family is a ´General´ Human Right. You only qualification to that Right is for your country to be a Signatory to the Convention. Even so a Section 8 Right is subject to the ´reasonable test` for National authorities to control Immigration. The reasonable test differs from one EU country to another. Whereas on the other hand Directive 2004/38/EC Freedom of Movement Rights is Standard across board.

 

Hi Ciyan,

Your legal opinion was the one sustained by the belgian State in the above referred case C-459/99 (see point 39 of ruling : http://curia.eu.int/).

Yet the Court rejected it.

Best regards.

Martin
MediaVisa.net (www.mediavisa.net)

 

The Preamble to the case and its judgement was about:

Third country nationals who are the spouse of a Member State national — Requirement for a visa — Right of entry for spouses not in possession of identity documents or a visa — Right of residence for spouses who have entered unlawfully — Right of residence for spouses who have entered lawfully but whose visa has expired when they apply for a residence permit — Directives 64/221/EEC, 68/360/ EEC and 73/148/EEC and Regulation (EC) No 2317/95)

The Member State National may have had to moved from his or her country to another EU country to exercise a Freedom of Movement Treaty Rights. A British National living in Scotland and married to an illegal immigrant/asylum seeker will have their application dealt with under UK Immigration Law subject to the IND,s own discretion.

The Freedom of Movement Treaty Rights cannot be taken advantage of by Member State Nationals who have not moved. Member State Nationals would be subject to their own National Immigration Laws. If citizens could take advantage of Freedom of Movement Rights, when they haven,t moved of what relevance would National Immigration rules have. Because then everybody will just take advantage of the more favourable EU Laws within their own home countries.

The above preliminary judgement was a 2002 case brought by a Charitable organisation against the Belgian authrities for an Administrative decision it made. Point 39 was not a question so the court did not answer that. It only helped establish the Case Law and the facts.

If Scotland44 was a non-British EU citizen living in Scotland, then she wouldn,t have any problem because she could then take advantage of Movement Rights and her husband would be subject to the protection of EU Law. The reason why the husband is being asked to go back to Iran is because UK Law applies here and not EU. And this is the standard procedure for dealing with Home Nationals married to failed applicants.

Alternatively if she can provide any new evidence of the threat to the life of her husband she can then appeal under a Section 3 Rights (i.e The Right to Life).

Best Regards

 

Hello again Cyan,

I disagree, at least partly, with your legal opinion. If EU law was merely not applicable in MRAX case C-459 (which was a purely belgian case), no doubt the Court would have said it. In my opnion, following the opinion of the Advocate General (see point 97 of http://curia.eu.int/), which is based on a combination of EU law and article 8 of the ECHR, the Court ruled, in the light of the principle of proportionality and the right to respect for family life, that a Member State could not refuse a residence permit and to issue an expulsion order against a third country national who is able to furnish proof of his identity and of his marriage to a national of a Member State on the sole ground that he has entered the territory of the Member State concerned unlawfully or that his visa expired before he applied for a residence permit.

In its ruling the Court did not make any distinction as to know if the concerned national of a Member State had or not exercized its right to freedom of movement. The reason being, in my view, is that the Court has interpreted the EU law in the light of article 8 of the EHCR, which happens to be at the core of your opinion.

As to article 3 of the ECHR, it is tradionnally understood that the issuance of an expulsion order is not per se a threat to the person's life.

To best assist Scotland44, as our personal controversy is certainly not the most important issue in her eyes, i believe that this couple should base their case on both the EU law and article 8 of ECHR as they have been jointly interpreted by the Court in its C-459 ruling.

Best regards.

Martin
MedaiVisa.net (www.mediavisa.net)

 

Hi - I am married to an asylum seeker who was given exceptional leave to remain. But I know of a couple where the husband is iraqi and the woman, british. He was refused. But now he has to leave the country and go to Lebonon (as iraq is too dangerous for him) apply for entry clearance as a family member and then come back. I cant see why you cant do that. Go to a different place and come back in. I dont know whether it is worth appealing. the home office are a nightmare. have you got a good lawyer?

 

From experience its not worth the uncertainties to go through a rejected Asylum Appeal case. Home Office statistics shows that over 85% of such Appeals fail anyway. Most likely the husband may have exhausted domestic grounds of Appeal.

Going through the EU Human Rights route is a possibility but may take another 2+years with no certainty that it will be successful. The best advise in this case is for the husband to reapply from outside the UK to join the wife.

Should there be circumstances that makes such a prospect daunting (i.e criminal records, etc) they can always make the application through another EU country where the Freedom of Movement Treaty will provide them with much better protection when reentering the UK.

 

Indeed it may well be simpler for you to exceercise your EU rights to have him live with you buy taking him outside the UK.

But in theory he should have the sme right in both places.

I think its just a simpler execution of it by going elsewhere in the EU.

 

Hi Scotland44,
what if you get him a visa to move to another EU country, lets say Ireland. Then he could get a visa to live there. And then he can travel there of course, and once he is there and has a visa, then he is able to apply for a visa (entry clearance) to come to the United Kingdom.
So his life would not be in fear and he could apply for a EC as he, having the residence permit for another ec country, then he is considered legal resident, and then he can apply with no fear!

 

Glauco,
It may not be so easy to move over to Ireland.How is he going to get a visa to get there.He has to be Legal there in Ireland before he can apply for marriage.the Wife has to be resident/working or seeking job there for the Treaty Right to exist.It is some times a nightmare to have what you want in this complex Europe we find ourselves.Tied up with all sorts of laws and regulations.

 

Hello scotland44,

Just want to find out if you have been able to get through with the situation and a possible feed back on your success will help others in similar situation.It will bring knowledge to people(knowledge is power).
Wish you all the best.

 

Moving to Ireland

She can move to Ireland as a job seeker. She has the right to take her husband with her as a job seeker. Also, she can take him there as a tourist. She has a right to take her husband to another EU counry as a tourist, because tourist are in a way recepient of services. Check SOLVIT,
they have resolved cases like that

 

Re: Moving to Ireland

Thanks Petkanov for your contribution.If you can provide a link or more information on the SOLVIT resolved cases related to this issue,will be most helpful to this forum.
The MRAX Vs Belgium case can be found in:http://www.curia.eu.int/en/actu/communiques/cp01/aff/cp0138en.htm.

 

Re: Moving to Ireland

http://curia.eu.int/jurisp/cgi-bin/form ... resmax=100