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UK_Lawyer
UK_Lawyer, Solicitor
Category: Law
Satisfied Customers: 2452
Experience:  I am a qualified solicitor and an expert in UK law.
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Customer Question

Hi,
I am Brazilian and lived in the UK from 2007 to 2010 on a student visa, while there in 2010 I got married to a British Citizen and got the spouse visa. Last year (2012) in May we came to live in Spain. I currently hold a permit to live in Spain until September 2014. However we are going back to live in the UK in January 2014 - do I need a spouse visa or can I apply for the non EEA family member visa? We came here as expats trough my husbands job and we are returning because of his work as well. He is still working in the same company and paying tax in the UK. We moved here together and are moving back to london together. We own a house in london and have two small daughters (which are both british). Many thanks Marselle
Submitted: 3 years ago.
Category: Law
Expert:  UK_Lawyer replied 3 years ago.

Hi, thank you for your question. Please remember to rate my service.

 

In respect of your husband's employment is he working for a branch of his current company in Spain?

 

Does he have payslips , correspondences in both you and your partners name etc in Spain?

 

Kind regards

Customer: replied 3 years ago.

Hi,


Yes, he works for a british multinational since 2000 and is working in a branch here in Spain and is returning to work for the same company in London.


He have payslips and we have correspondences. Not sure what I have in my name - probably some bills and general mail. But as expats most bills are in the name of the company. We have a joint bank account here in Spain - credit and debit card. Very active account


Thanks

Expert:  UK_Lawyer replied 3 years ago.
Thank you for your reply.

If this is the case then what you need to do is ensure that you take all these documents with you when you arrive to the UK. Upon arrival you should statement to them that you are applying for an EEA family permit and wish to enter the UK under the Surinder Singh ruling. Let me explain this further.

As a general rule, family members of British citizens do not qualify for an EEA family permit. Article 3 of the Directive essentially says that an EEA national cannot be considered as exercising freedom of movement in their own State -

This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of Article 2 who accompany or join them.

However, where an EEA national has exercised a treaty right in another Member State as a worker or self-employed and they wish to return to their own State having exercised that right, certain provisions may apply in order for their non-EEA family members to qualify under the EEA Regulations.

A British national and his non-EEA national family members can only benefit from free movement rights if they meet the criteria established in the ECJ case of Surinder Singh. The case stated that nationals of a Member State who are exercising an economic Treaty right (that is, as a worker or self-employed person) in another Member State will, on return to their home state, be entitled to bring their non-EEA family members, ie you, to join them under EC law.

Example: A British national is exercising an economic Treaty right in Germany and living with his non-EEA national spouse and children. On the British national's return to the UK, his non-EEA national family members can apply for an EEA family permit to join him under EC law.

The Surinder Singh judgment is incorporated into the EEA Regulations in Regulation 9. Family members of British nationals who meet the requirements of Regulation 9 are treated as family members of EEA nationals for the purposes of the EEA Regulations.

Applications for EEA family permits must meet the following criteria:

• The British citizen must be residing in an EEA Member State as a worker or self-employed person or have been doing so before returning to the UK.

• If the family member of the British citizen is their spouse or civil partner, they are living together in the EEA country or must have entered into the marriage or civil partnership and have been living together in the relevant EEA country before the British citizen returned to the UK.

Because EEA nationals have an initial three months right of residence in the UK, there is no requirement for the British national to be a qualified person on arrival. Therefore, an EEA family permit can be issued to the non-EEA national family member of a British national even if they are only visiting the UK with the British national before returning to the Member State where they are resident.

Therefore in your case you can inform the officer of the above and state that you would like to obtain an EEA family permit and not a visit visa stamp upon your arrival to the UK.

If you do not wish to apply for the EEA family permit at the port of entry then you can apply for it beforehand by using from VAF5, please see the following link:

http://www.ukba.homeoffice.gov.uk/eucitizens/eea-family-permit/applying/

These applications can take up to 3 months to process.

I hope this answers your question if so kindly rate my answer positively so I can get credited for my time. If however you feel that the answer does not cover all the points raised in your question please DO NOT rate my answer negatively I will be happy to answer further question until you are satisfied with my answer.

Kind regards
Expert:  UK_Lawyer replied 3 years ago.
I hope this answers your question if so kindly rate my answer positively so I can get credited for my time.

Kind regards

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