Where to start...at the beginning. I was born in Spain to a British mother and American father. I took nationality of my father [american] since in 1962 children born to British mothers outside of the UK could only be the nationality of the father or place of birth. I went to live in the UK when I was 2 and lived in the UK as an American citizen for 25 years. In 1990 I went to America and married my American husband where we lived and had two children. In 2003 we went to live in Spain having acquired the correct visas. In 2005 I was sworn in as a British citizen since children born between 1961 and X date because of the place of their birth could apply to become British, after which my husband and children applied for Spanish Residence cards, which were recieved in 2007, valid for 5 years with the right to live and work in Spain. My husband then started a company.

For family reaons we then decided to relocate to Edinburgh, I phoned the UK Embassy in Madrid and was told they no longer took phone calls and I was to call another number, at a cost of $20 per call, and to check on the website for visa details. I did this and figured out we were to apply for a Family Permit, I did however have some questions and paid the $20, sadly the person knew less than I did, had difficulty understanding me since English was not her first language, promised to phone back and never did. One main outstanding question was the fact that I had been out of the UK for more than 4 years and the Family Permit required me to show I had worked, even though I explained our income came from savings, and my husbands business to which I was told she did not know what we were to do...I therefore became nervous and not filled with confidence in the Embassies abilities to help me.

For better or worse we decided to come to the UK without visas. We are now in Edinburgh and my husband and childrens passports have been stamped with a visitor stamp allowing them to stay 6 months but not be able to work. I have done some research on applying in-country for my husband and children but have been told they have to go back to the US and apply for a spouse visa or back to Spain which is not a favourable option since no one has answered my questions. We visited our local MP who said that if I was french/german or any other european nationality my husband and children would be able to live and work here through the free movement treaty but because I am English it did not apply-ridicolous and discriminating is all I can say if in fact this is true. He is trying to help us too.

My questions are,

1. Can my husband and children who are aged 9 and 11 apply from within the UK to live and work here.
2. Does the fact they already have a residence card from another european country stand for anything in the UK.
3. If they do have to go back to the US what type of visa do they need to apply for, what evidence do we need to show and how much will it cost [I have been to the UK Embassy site in Chicago and again have to pay $2.57 per minute to phone them] and would like some advise first.
4. Depending on the scenario that needs to be taken and they have to leave the country in 6 months can they just fly to say Ireland and back, or will Immigration be suspicious.


Can someone out there help me figure this out. It does not take much to stump me but this one sure is......

Thanks you all in advance.

 

Thank you for your swift reply. Which has raised some more questions.

Before I get to those my husband received a reply from our MP via the Border and Immigration Agency today and I quote..... 'In view of the fact Mr X. and the children are American and Mrs. X is British we are not able to treat them under any of the EEA rules. Mr X and the children were given leave to enter as visitors for 6 months and as such they are not permitted to switch into any other category to extend this leave. They will therefore be expected to return to Spain at the end of this time. Once back in Spain, if they wish to return to the UK they will have to apply for the requisite clearance from our Embassy in Madrid'...unquote.

1. I have reviewed the 'Surinder Singh' case, and it states that the British national was to have been eployeed in the member state not on a transient or casual basis...this is where it falls down since our business was my husbands and we also lived from savings,......

2. I also called the Immigration office regarding the EEA2 form and they said it was for non-EEA national family members of eea nationals ie french, german etc and not UK nationals...this really makes no sense to me.

3. I then went back to the Family Permit application in Spain and it keeps asking for YOU and the EEA nationals pay slips, bank statements etc...we can show some of this but since we have been living off savings which I tried to explain when I called last time and that I as the UK citizen have had no income leaves this in a very gray area....please someone help me.

4. I then went to the British Embassy site in Chicago and I do think we can provide all documentation to apply for the spouse settlement visa..but do we have to pay the $1050 each for my husband and two children? Yikes seems like a small fortune.

Or is there some other ways of trying to get this sorted out.

I am going back to our MP this week so any advise or evidence you can throw my way would be helpful.

 

Again, thank you for all your advise, which is invaluable.

I have been back to our local MP and taken all your findings and he is going to take it to the MP in charge of Immigration, so we shall see.

I am also going to go to Solvit.

I will let you know what the next outcome will be, lets hope it will be positive.

 

I wanted to give you an update.

After several calls I managed to get a real live person at the UK Embassy in Madrid and explained our problem and the fact we were in this problem because of their new outsouced visa application process, she did admit they have been having some teething problems. So this is what they have told me,

They do not recognize the fact that my husband had his own construction company in Spain, employing spanish people, paying social security and tax. Really crazy. But hey, nothing surprises me anymore.

I have also received a letter from our local MP who has sent our case to the Head of Border and Immigration Agency, we await a reply.

Do you have any advise on the reply from the British Emabssy and what the process is for the settlement visa.

Again, thanking you in advance.
Mozie

 

We have received a reply from the Border and Immigration Agency via our MP. After your advice of mentioning that we were exercising our treaty rights in Spain, this did help and they apologized for not making this clear in their first letter. They have now stated that we can make an application using a EEA2 form. but of course cannot gurantee the outcome. I have a couple of question which have arisen from their letter,

1. Can you actually explain what 'exercising our treaty rights' means, does it mean that we had our residence cards from Spain, that we have to show I the UK cistizen was working?
2. They have also said that my husband and children do not have to embark in order to make such an appliation, however, as I have already mentioned their passports are stampled with a visitors stamp which is valid for 6 months and will expire in early March '08 if the application takes longer than that to process what do we do?
3. If my husband and children get the 5 year residence stamp when can they apply for UK citizenship, and if something awful happend and I died as the Uk spouse are they still eligible to remain in the UK? I now this sounds doom and gloom but I need to evaulate whether to go this route or fly back to Madrid and get the settlement visa - which would be the most secure for all our futures since we do not wish to leave the UK.

Thank you again for your assistance.

Mozie