EEA Family Permit query (employment contract)

[rafo]

Well, I do have a confirmation that my position can be transferred to the UK from July on and that would not be a problem to prove as the company is willing to help me with this. They could also prepare a letter to prove that.
Also we could explain her visit to the UK is important as she will help me to find a good house to rent, etc...
The only problem is if they deny her application from Dublin due to the pending residence status. I would have spent money with the hotel booking and flight tickets for nothing.
But I still think it is worth the risk.

[Directive/2004/38/EC]

According to the Department of Justice a weekend in the UK is not considered being a resident by the Irish justice Department.

According to them they apply the UK Interpretation of Residency, which is:
"By UK law you are regarded as resident in the UK if you are actually in N. Ireland/UK for 183 days or more in the UK tax year (April to April)."

It is considered residing in the UK by the UK government. The UK transposition of Directive 2004/38/EC is The Immigration (European Economic Area) Regulations 2006 says:

Initial right of residence
13.—(1) An EEA national is entitled to reside in the United Kingdom for a period not exceeding three months beginning on the date on which he is admitted to the United Kingdom provided that he holds a valid national identity card or passport issued by an EEA State.
(2) A family member of an EEA national residing in the United Kingdom under paragraph (1) who is not himself an EEA national is entitled to reside in the United Kingdom provided that he holds a valid passport.
(3) But—
(a) this regulation is subject to regulation 19(3)(b); and
(b) an EEA national or his family member who becomes an unreasonable burden on the social assistance system of the United Kingdom shall cease to have the right to reside under this regulation.

UK law is clear that the EU national and the non-EU family member are residing in the UK for any visit to the UK made on the basis of Directive 2004/38/EC. EU law (in the Directive itself) is also clear that this is residing.

And in fact, the Irish transposition of the Directive says only that the person must be lawfully resident in another member state, and does not specify the number of days. Nobody has pushed back on the Irish Department of Justice on this, and until they do, Justice will not move an inch.

(2) These Regulations shall not apply to a family member unless the family member is lawfully resident in another Member State and is -
(a) seeking to enter the State in the company of a Union citizen in respect of whom he or she is a family member, or
(b) seeking to join a Union citizen, in respect of whom he or she is a family member, who is lawfully present in the State.

[Directive/2004/38/EC]

Well, I do have a confirmation that my position can be transferred to the UK from July on and that would not be a problem to prove as the company is willing to help me with this. They could also prepare a letter to prove that.
Also we could explain her visit to the UK is important as she will help me to find a good house to rent, etc...
The only problem is if they deny her application from Dublin due to the pending residence status. I would have spent money with the hotel booking and flight tickets for nothing.
But I still think it is worth the risk.

You do not need hotel bookings or flight tickets.

You need to be married, be traveling together and have valid passports. That is all for a short visit.

As discussed, the job documentation may be needed for a longer term family permit.

[rafo]

Ok, so just to confirm... I fill up the EEAFP Application form specifying the days we will stay and also include the address of a hotel in the UK, but we do not need to prove that with tickets or the hotel bookings (is this gonna work?). I also bring letters from my company to prove that we are actually visiting the country because we will be moving definitely to the UK shortly. Is that correct?

[Docterror]

[quote="Directive/2004/38/EC"][quote="Docterror"][quote]If you apply from outside the EU, you will likely have to ensure that the embassy uses the “previously resident in EUâ€

[Docterror]

The only problem is if they deny her application from Dublin due to the pending residence status

...therefore she got her residence denied after 10 months waiting.

I am a bit confused. Was your wife's Residence Card application denied or is it still pending?

[rafo]

Sorry about the confusion Docterror.

Here is the letter we received from the Irish Department of Justice after 10 months waiting.

Dear Ms....,
I am directed by the Minister of Justice, Equality and Law Reform to refer to your application for residence under the provisions of the European Communities (Free Movement of persons)(No.2) Regulations, 2006, which was submitted on Form EU1 and which was received in the Irish Naturalisation and Immigration Service on XXX.
The provisions of Regulation 3(2) require in order to avail of residency rights under the regulations, applicants must submit evidence showing lawful residence in another EU Member State prior to arrival in Ireland. Following a thorough examination of your file, it was decided that no evidence was submitted to satisfy the requirement and that therefore, residence can not be granted. In addition Article 8 of the European Convention on Human Rights has been considered in this context.
Judicial Review proceedings relating to a similar decision are currently ongoing in the High Court. Until these proceedings have been decided however, the provisions of Regulation 3(2) continue to have effect and must therefore be complied with in order for residencey to be granted.
In accordance with the provisions of Regulation 8(1), it is not possible to grant residency on a temporary basis.
Regulation 8(1) provides:
Subject to Regulation 20, the period of validity of a residence card shall be equivalent to the envisaged period of residence in the State of the Union citizen of whom the recipient of the card is a family member, or not less then 5 years from from the date of issue of the card, whichever is lesser period.
You application might be elibable for reconsideration pending the outcome of the above mentioned High Court proceedings.

[Docterror]

Ah, rafo! That kind of clears up the matter ...I think.

[rafo]

Hi,
Just to update you regarding this.
I went this morning along with my wife to the British Embassy here in Dublin to apply for the EEAFP.
Well, the conclusion is that she is not entitled to apply for a visa from Ireland as she has no valid stamp in her passport. The letter from the Department of Justice stating the case in the High Court made no difference.
As the Court has just postponed the case once again, she has no choice but apply for the EEAFP from Brazil.
Regards.

[Directive/2004/38/EC]

Hi,
Just to update you regarding this.
I went this morning along with my wife to the British Embassy here in Dublin to apply for the EEAFP.
Well, the conclusion is that she is not entitled to apply for a visa from Ireland as she has no valid stamp in her passport. The letter from the Department of Justice stating the case in the High Court made no difference.

Could I ask on what basis she entered the country? Did she have a visa, but it is now expired?

[Docterror]

Rafo, so sorry to hear about the news. Are they positive that they cannot take the application? Maybe a plea with the ambassador explaining the condition about having to travel all the way to Brazil might make a difference. Also asking in writing the reason for not accepting the application might also make them reconsider. Just a thought.

[Platinum]

the conclusion is that she is not entitled to apply for a visa from Ireland as she has no valid stamp in her passport. The letter from the Department of Justice stating the case in the High Court made no difference.

Oh, talk to. Really? I was planning to do this. I just *knew* that the Irish refusing to stamp our passports was going to be a pain in the mule. Honestly, it's as if we're living illegally in the damn country.

[Directive/2004/38/EC]

Rafo,

Did they turn you down because your passport was not stamped, or because they entry period had expired, or for some other reason?

Did they turn you down or did they not accept the application?

I would strongly encourage you to do two things.

(1) Write to the British Embassy. Request a written explaination of exactly why they have turned you down.
(2) Contact Solvit and ask for their assistance in resolving the matter

[rafo]

Hi all,
I have contacted both Solvit representatives (Ireland and UK) on last Tuesday.
Solvit Ireland said they would be sending a request to the Irish Department of Justice to see if there is anything to be done. But I have not heard any update after that.
Solvit UK said that nothing can be done if my wife's passport does not have a valid stamp. They advised me to apply for the EEAFP from Brazil if we have urgency.
As I have to start my job in the UK on the 9th of July, my deadline is very tight now. Therefore I and my wife have decided to give up applying for the EEAFP from Dublin and we will be after a ticket to Brazil tomorrow unless a "miracle" happens in the meantime. She will apply for the EEAFP from Brazil and under the UK rules I suppose.
I have sent an email to the British Embassy in Brazil one month ago asking if they had any idea on how long it would take to get her application processed, but they never replied. From your experience, would you have any idea?
Best regards.

[dsab85]

My wifes (not in Brazil) was done on the spot. On their website they state that they try to process them within 24 hours. But it might take 3 to 4 days in some cases. Probably depends how busy the embassy is.

BTW... I am one of the Irish "refugees" as well.

[thsths]

Hi Rafo

I am a Portuguese citizen who married to a Brazilian citizen two years ago in Ireland.
Unfortunately my wife is not able to renew her residence here (Ireland) as she has never lived in another EU member State apart of Ireland before and therefore she got her residence denied after 10 months waiting.
My Company is currently moving my Employment contract over to the UK and I should be starting in July. My wife will be returning to Brazil and applying for the "EEA Family Permit" in the meantime.

I just read that you got negative responses from all sides. In my experience, a lot of the national immigration law only deserves the label "cluster f*ck", certainly in Ireland and the UK. So what are your last minute options? I think you have 3:

1. Go to Portugal, and check the national law there. Since you are Portuguese, maybe they treat you better there? If you get a visa for your wife there, you could then apply for the EEA family permit from Portugal, and it should all be a fast process. If this works, it is probably much better than going to Brasil.

2. Just go to the UK anyway. Your wife can say she is just visiting. Since she does not need a visa for coming to the UK, she should get entry clearance on the spot. (This worked for me!)

3. According to the EU law, a spouse visa is not actually necessary for entering the member state, if you can prove your status with other documents. Now obviously this is a rather dangerous thing to do, especially if your status is being contested, but then again I can't imagine that they would refuse here, either.

Once you are in the UK, you should apply for EEA1 and EEA2 as soon as possible.

PS: If you have any expenses, sue the Home Office for compensation. They know that they operate outside of the law, but usually they get away with it!

[rafo]

Hi,
I bought a ticket for my wife to Brazil last Saturday. We are deciding to apply from Brazil, exactly as the British Embassy advised us. This seems to be the most correct way to deal with this situation and we want to be safe in our actions. I want to avoid my wife to run in risk and going to another EU country even being to Portugal would be risky as her visa in Europe is expired.
Hopefully the Embassy in Brazil will issue her visa in a short time and we will be together again legally in the UK.
Regards.

[Platinum]

I e-mailed the British Embassy here in Dublin about applying for an EEAFP or spouse visa without the necessary Irish residency stamp in my passport. This is their reply:

For both visas you would need to a valid status in your passport, however because you do not have this you will need to get a letter from Irish immigration stating that they wont stamp your passport.

Please be advised that it is at the discretion of the Embassy as to whether or not they will accept this.

If you do not want to take this chance then you should return to the US and apply from there

I'm going to the GNIB on Burgh Quay tomorrow to ask-again!- for a stamp. If they say no again, I'll ask for a letter. I don't know what my chances are. I'm pretty sure they'll just say, No, we don't do that. I just can't believe how haphazardly and cavalierly they treat people there. And the total lack of formal immigration processes!

[rafo]

Platinum,
All the best luck for you!
I and my wife tried exactly the same thing, but it did not work for us. Even so I think if you are prepared for the worst, you should try yourself. Best regards.

[Platinum]

Thanks for the thoughts, anyway, rafo.

I'm just back from the GNIB. They said no, of course. But at least they told me no right at the window. They didn't make me take a number and wait two hours to be told no.

Useless.