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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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My wife is a non-EU Israeli citizen. I am an EU citizen living

Resolved Question:

My wife is a non-EU Israeli citizen. I am an EU citizen living in the UK since 2012.
We recently got married and had immigration officers come to interrogate us at the registers office in which the ceremony . They were happy the weeding was indeed in good faith, but claimed she overstayed her visa.
On my wife's last entry to the UK (May 2014) her passport was not stamped and unrecorded as the immigration officer saw my passport (EU) and just let us through. My wife's previous entry was on 23/12/2013. As no records of the most recent entry could not be found by the Home Office, they presumed she is overstaying her visa.
Currently the situations is:
1. She has been issued notification of temporary admission to a person who is liable to be detained
2. She is due to appear to officer at Eaton House, TW4 5DL next week, and then every week/fortnight/month
3. Her passport has been confiscated until further notice.
What would you advise as our course of action?
Many thanks!
Submitted: 2 years ago.
Category: Law
Expert:  UK_Lawyer replied 2 years ago.
Hi, thank you for your question, I will be happy to help you today.
Did you and your wife obtain a marriage certificate from the registry office?
Kind regards
Customer: replied 2 years ago.

Sure

Expert:  UK_Lawyer replied 2 years ago.
Thank you for your reply.
First of all the immigration officer at the port of entry made a mistake and should have issued your wife with a 6 months EEA stamp to enter the UK. This would have meant that she had a valid visa to enter the UK and thus no issues with her being an overstayer would have arisen.
There are two way which you can approach this:
1. As the home office now have custody of her passport, they would most likely , detain her , maybe not on her first signing in visit but subsequent ones, and explain to her that she can either return to her home country voluntarily or she will be deported back.
If she then states that she is marriage and should not be sent back, the home office can state that there is nothing preventing her from returning to her home country and applying for and EEA family permit to return to the UK. The home office can impose a 12 months ban on her from applying for a UK visa upon her return to her home country, due to the fact that she overstayed in the UK.
2. You submit an application to the home office for an EEA residence card using form EEA 2, please see the following link:
https://www.gov.uk/government/publications/application-for-residence-card-form-eea2
Although she does not have her passport, provided that you are able to provide evidence of your marriage, evidence residing together, evidence that you are exercising treaty rights in the UK ( ie working in the UK) then you can state in the application form that the passport of your wife is currently with the home office, they will then need to consider your application and will not be able to detain your wife back to her home country until a decision is pending on the application. Obviously she would need to keep going to sign up so she does not breach her immigration conditions.
If the application is granted then her passport will be returned and she will be able to continue residing in the UK. If the application is refused she should then request that the home office do not ban her from apply as soon as she returns to her home country. If they give her this is writing then she will be able to apply as soon as she returns home.
I hope this answers your question if however you feel that the answer does not cover all the points raised in your question please do not hesitate to ask further questions until you are satisfied with my answer.
Kind regards
Customer: replied 2 years ago.

OK -

1.how long would it take usually to process the EEA2?

2. Would it make it easier if I get an EEA1 also with her application?

3. Is there any legal possibility to demand the passport back as she is currently the spouse of me, exercising treaty rights?

4. Would you recommend doing the EEA2 with a solicitor or would you say it is quite straight forward and using a solicitor does not really add value?

5. Many thanks!

Expert:  UK_Lawyer replied 2 years ago.
Thank you for your reply.
1. The home office state that it can take up to 6 months to be issued with an EEA residence permit, however, on average it can take around 3-4 months.
2. No it would not make any difference at all, provided you submit evidence of you exercising treaty rights in the UK, that is all the home office will require to issue her with a residency permit.
3. No, the home office do not have any obligation to return your passport due to the fact that she is an overstayer. The two ways on getting the passport back is a) if she leave the UK voluntarily , the passport will be given to her at the airport or b) if she is issued with an EEA residency permit, then her passport will be returned with the visa endorsed.
4. Due to your situation I would recommend that you obtain the services of a solicitor. You can of course review the form yourself and if you feel you can submit the application without assistance from a solicitor then you can do so.
I hope this clarifies the matter.
Kind regards
UK_Lawyer, Solicitor
Category: Law
Satisfied Customers: 2452
Experience: I am a qualified solicitor and an expert in UK law.
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