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frantzgregory
frantzgregory, Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 506
Experience:  Over 5 years dealing with EEA Law, Nationality, Immigration and Asylum Law.
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Dear UK Immigration Lawyer I am a Portuguese/British citizen

Resolved Question:

Dear UK Immigration Lawyer
I am a Portuguese/British citizen (dual nationality) and my wife is a Russian citizen and we have a 7 months baby who is a British citizen. We currently live all together in the UK.
My wife was living in Portugal up until Feb 2015, when she applied for a EEA Family Permit Visa. She was accepted, and she moved into the UK in Mar 2015. Although the visa was only for 6 months, ending in Sep 2015. Before the visa ended, and whilst she was in the UK, she applied for a UK Resident Card and this week we got a letter refusing her the card on the basis that I have dual nationality so cannot exercise the EU treaty laws in the UK.
Question 1
I need help to assess if I fall or not into the scope of the transitional arrangements as I hold a UK Permanent Resident Card issued on 24/07/2007, pursuant to Directive 2004/38/EC, so prior to the Immigration (EEA) Regulations 2006 amendment on 16th July 2012, and I have also exercised the right of free movement and residence, since I studied, lived and worked in Portugal from 1975 until 1998 year I moved to the UK. I lived in the UK between Oct 1998 and Nov 2012. I left in Nov 2012 when I have signed a contract to work in Spain for a small Spanish company. I worked in Spain between Nov 2012 and Jan 2013. Since the job did not require me to stay physically in Spain I moved to Portugal in Jan 2013 to stay closer to my Family but continue to work for the same Spanish company remotely from Portugal.
I decide to come back to the UK in Nov 2013 and I started working for a company here in the UK in the same month. I've been here since, and like I said my wife joined me in Mar 2015 and she is still here.
The letter of refusal says I don't fall into the scope of the transitional arrangements since no application has been made under the European Regulations 2006 prior to 16th July 2012. However, I hold a UK Permanent Resident Card which I believe was issued under the 2006 Regulations.
Question 2
The refusal letter we received says that "where a person has applied on the the basis that they are a dual British citizen/EEA national on or after 16th July 2012 then your application needs to qualify under the Regulation 9 of the Immigration (EEA) Regulations 2006. They must be able to demonstrate:
a) the British citizen is residing in a EEA State as a worker or self-employed person or was so residing before returning to the UK
b)...
c)..."
I believe that I can demonstrate that has a British citizen I was residing and working in a EEA state as an employer person before returning to the UK because I lived in the UK between Oct 1998 and Nov 2012. I left in 2012 to work for a small Spanish company for a few months. I have the contract that demonstrates this, I also have emails proving that I have shipped my belonging from London to Marbella in Spain. I can also provide work exchanged emails and even emails with my flight details.
Question 3
They have retained my wife's passport and on the refusal letter say that she needs to prepare to leave the UK. What can we do for her to stay until we appeal?
We are considering taking the following steps:
1- appeal on the basis that between Nov 2012 and Nov 2013 I was living and working in a EEA country before returning to the UK.
2-If the appeal is not accepted, can we apply for a UK Derivative Resident Card on the basis that she is the primary carer of our 7n months baby who holds a British passport?
3- if the Derivative Resident Card is not accepted can we apply for a Spouse VISA?
Please let me know if this makes sense, let me also know the answers to those questions and if those steps we are considering taking are reasonable.
Also, how can I keep my wife in the UK with me and my baby son during the whole process?
I can provide copies of the refusal letter and other documentation if needed.
Thanks
Submitted: 1 year ago.
Category: Immigration Law
Expert:  frantzgregory replied 1 year ago.
Hello
Thank you for your enquiry.
Your questions are quite involved and I would need a bit more time to help answer them. If you wish I will respond before the end of the day.
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This is a simple question and answer platform. Answers expressed by the author in this platform are solely base upon the information provided by you. Under no circumstances should answers be relied up as immigration advice. Please note that the author accepts no responsibility for any reliance and it is your responsibility to seek independent legal advice before making any immigration application.
Customer: replied 1 year ago.

Hi

Thanks for looking into this.

I look forward to hearing from you soon.

Customer: replied 1 year ago.

Hi

I can attach 3 pictures with the refusal letter if you need to read it.

Thanks

Expert:  frantzgregory replied 1 year ago.
Hello
Yes that will be helpful
Customer: replied 1 year ago.

Customer: replied 1 year ago.

Hi

I have attached 3 pictures for the 3 first pages of the refusal letter.

Let me know if they are readable.

Customer: replied 1 year ago.

Customer: replied 1 year ago.

Hi

sorry I have resent the 3 pics but in portrait layout rather than landscape for easy read.

You might have to zoom in or out on the pic to read it.

Thanks

Expert:  frantzgregory replied 1 year ago.
Hello
Thank you for your patience.
I have reviewed your questions within the time permitted. I havent been able to review the decision letter as hasnt come across very clear on here. But I have the gist of the issues as I see these cases regularly in practice.
In the leading case (McCarthy) which dealt with the issue of dual nationality, dual nationals living in either country of their nationality who have never exercised treaty rights could not rely on Citizens' Directive or Article 21. But it seems that in your case you may have exercised treaty rights but perhaps, the evidence you submitted to the Home Office was not sufficiently obvious - I dont know. The option available to you is either to resubmit a new application or appeal. But whatever the case is, you ought to seek legal advice as soon as possible as we cant provide any advice on here.
It is standard practice for the Home Office to withhold passports pending the decision of a re-application or an appeal. Once appeal or reapplication has been made and done so in the time given to act, your wife shouldnt be removed until a decision is made.
Derivative rights are very restrictive and wouldnt be the best first option if your wife qualifies but it would seem problematic to obtain anyway since you are a parent with shared responsibility and who is an exempted person as defined by Reg 15A(6)(c).
In any event you will need all the evidence to prove you have exercised treaty rights. I would suggest you seek legal advice asap. This is as far as I can go here as your case seems urgent and requires advice, which we cannot provide on here.
I hope this gets resolved and before I forget here is a list of OISC registered advisers you can contact to help you.
http://home.oisc.gov.uk/register_of_regulated_immigration_advisers/register.aspx
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This is a simple question and answer platform. Answers expressed by the author in this platform are solely base upon the information provided by you. Under no circumstances should answers be relied up as immigration advice. Please note that the author accepts no responsibility for any reliance and it is your responsibility to seek independent legal advice before making any immigration application.
frantzgregory and other Immigration Law Specialists are ready to help you
Customer: replied 1 year ago.

Hi

Thanks for your help.

when you say: "But it seems that in your case you may have exercised treaty rights but perhaps, the evidence you submitted to the Home Office was not sufficiently obvious - I dont know."

Do you mean I have exercised treaty rights when I left the UK in Nov 2012 to work in Spain and Portugal and came back in Nov 2013?

When you say "The option available to you is either to resubmit a new application or appeal."

Do you mean resubmit a new application for UK Resident Card or for another visa?

Thanks

Expert:  frantzgregory replied 1 year ago.
Hello
Yes and yes - resubmit a new application for a residence card But please seek legal advice as an adviser needs to look at the whole picture.
I hope this helps and you are able rate.
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This is a simple question and answer platform. Answers expressed by the author in this platform are solely base upon the information provided by you. Under no circumstances should answers be relied up as immigration advice. Please note that the author accepts no responsibility for any reliance and it is your responsibility to seek independent legal advice before making any immigration application.
Customer: replied 1 year ago.

Thank you for your time.

Since my case is complicated and I need to resubmit another application or appeal in the next 2/3 days I don't have time to book appointment with a Legal adviser I might not even get an appointment for next week so If you don't mind I am considering seeking another opinion within this site, so I might resubmit the same question to another Lawyer within Justanswer.com site.

Regards

Expert:  frantzgregory replied 1 year ago.
Hello
Thats a matter for you to decide. I would be very surprised if anyone on here says anything other than you need legal advice. In any event JA's terms are clear on urgent cases like yours.
I wish you well.