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I am a passport-holding UK national by descent, but I have never lived in the UK or anywhere in the EU. I am also an American citizen and have lived only in the USA.

Two things happened at around the same time this year. During my travels in Austria earlier this year, I met someone (non-UK). I also had a mid-life crisis epiphany that I wanted to study law in London, and then go on to practice law there upon graduation (live in the UK).

Law School starts at the end of September.

My non-EU fiance and I have been cleared to marry on September 26th, around the time of the start of school.

A lawyer I communicated with (non-retained lawyer) said that after marriage, I should be able to have an EEA Family Permit in hand for my husband within 5 - 10 days.

I did a little research on the EEA Family permit, and it says that in order for my husband to qualify under that route, that I have to first be registered as a "worker" or "self-employed" person in Austria.

I am neither. I have been here since July 25, 2012, and have no intention of staying longer than is necessary to get my husband a permit to travel and work in the UK.

Can anyone advise me on the route I must follow?

If I register as a "job seeker" (I don't have a job offer), would that qualify me as a "worker" for permit purposes?

If not, can someone help me with some good advice?

I can't stay here very long after the marriage, just a week or so at the most.

It's not a question of registration but one of being effectively a worker or being self-employed. Otherwise you would have to chose the UK immigration route.

So you are saying it is not possible?

Is a JOB SEEKER classified as a WORKER for treaty rights purposes?

Clearly I don't have a job offer, but if I can register as a job seeker and this would classify me as a "worker" I would meet the requirement for my husband to apply for the EEA FP.

No?

I am asking because I don't see anywhere in the paperwork sent to me by the Austria authorities that there is a classification for a JOB SEEKER, but I have read elsewhere that it is possible to register as that initially, if you can prove that you are genuinely looking for a job.

Anyone?

Please help me.

If I can't resolve this quickly enough I will not get married. I don't want to go through the immigration route. As a student, I won't have money for that (GBP 1000). The reason we are getting married is so my husband can come to London with me, work, and help with expenses so I can attend school. Waiting 3 or 6 months after paying GBP1000+ for a visa is not going to cut it.

What category you register under is between you and the Austrian authorities.

But eventually you want to convince a UK visa office that you are a Surinder Singh (Eind actually) case. And they will want to see if you have really been active in either of those two categories and that your activity was "genuine and effective". Sorry, but I do not think that you will be able to resolve this by the end of this month.

In the guidance notes (EUN 2.14), the link which I will post below because it's quite long, it says:

"It does not matter if the only reason the British national went to another Member State was to exercise an economic Treaty right was so that he / she could come back to the UK with his / her family members under EC law."

So, if there is a way I could exercise this "worker" or "self employment" rights, the permit should be a given, at least from my understanding of it?

So, does anyone know if a JOB SEEKER is classified as a WORKER for treaty rights purposes (in Austria)?

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EUN 2.14


EUN2.14 Can family members of British citizens qualify for an EEA family permit? ('Surinder Singh' cases)
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 / her 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 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 judgement 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.

It does not matter if the only reason the British national went to another Member State was to exercise an economic Treaty right was so that he / she could come back to the UK with his / her family members under EC law.

The ECO should seek advice from ECCCAT where unsure about the decision to be taken in applying the Surinder Singh judgement.

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Link:

http://www.ukba.homeoffice.gov.uk/polic ... /eun/eun2/

Yes, that's the relevant part in th EUNs and explains what conditions must be met (just as discussed above) to issue an EEA FP to the spouse of a UK national.

But a worker is someone who actually works while a jobseeker doesn't yet but seeks to do so (quite obvious isn't it). Again, it doesn't matter what Austria thinks (the NAG does not even mention jobseekers) as that won't help you for the EEA FP. You will have to show the UK visa office documents that you have actually been working or have been self-employed. Merely presenting them the 'Anmeldebescheinigung' (registration certificate) won't be enough.

"You will have to show the UK visa office documents that you have actually been working or have been self-employed. Merely presenting them the 'Anmeldebescheinigung' (registration certificate) won't be enough."

Ugh!

Not what I wanted to hear, but it makes sense. Thank you.

So, if I get a job washing dishes at a restaurant, for example, over the next two weeks, would that work?

No, the employment needs to be genuine and effective and they would expect it to last longer than two weeks.

If that is a job with 'regular' working hours and with 'decent' payment that may be ok (there are no hard and fast rules for that). But I do not think that two weeks will suffice, probably more like two months or longer. But I do not know what the visa officer that will eventually see your spouse's application will expect to see.

Sigh!

Thanks for the info.

I guess I will not be getting married after all.

I checked the requirements for a spousal visa using the immigration route, and some of the requirements are beyond outrageous.

Check out the requirements to prove your marriage is a "genuine and subsisting" relationship. The requirements make no provisions for newlyweds. And to have to have visited each other's home country? That's a pretty harsh requirement.

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If your relationship is genuine and subsisting we would expect you to be able to show evidence that you:

are in a current, long-term relationship;
are living together with your partner;
share responsibility with your partner for any children;
share financial responsibilities with your partner, such as a joint mortgage or tenancy agreement, a joint bank account or joint savings, and utility bills in both your names;
and your partner have visited one another's home country and family; and
you have made plans about living together in the UK with your partner.

Marriage is a big step. Once you do it, it is hard to later unwind.

About work, you may find the description in this blog post useful: http://eumovement.wordpress.com/2011/12 ... -a-worker/

Even if you were already married for a long time (but had never worked), I doubt you could find a job and work sufficiently in the next two months to qualify.

Maybe you should consider law school in Austria, or somewhere else in Europe?

Thank you.

I do have passive income from some rental properties I have overseas which are sufficient to cover my daily expenses most anywhere in the world.

It's just these few months of transition that are expensive -- moving, airline tickets, the waiting, etc., and the fact that I don't know how to incorporate my passive income into the application process.

I much prefer to live in the UK where I speak the language and have a higher probability of finding gainful employment of one kind or another, not to mention the allure of law school and eventually becoming a barrister, but se la vee. Sometimes the universe conspires to rid you of all that you take comfort in, and there is nothing you can do about it. It is what it is.

As a British citizen working in a different member state, your income and savings are irrelevant.

Are you in Vienna? It is a lovely city! And some amazing vineyards nearby! Harvest time is now or coming. Maybe you could work on the harvest? E.g. http://www.wineanorak.com/kracher.htm makes excellent wines!

Find a job. Any job! Learn a bit of weird Austrian German. Enjoy the beauty which is that area.

Can you tell me when the "permission to work" becomes effective for a non-EU spouse of an EU national? If I go ahead with the marriage, would my husband have permission to work effective the date of the marriage (spouse of UK national resident in Vienna), or does this come AFTER registration or recepit of a residence card or work permit of some kind?

EEA law makes it clear that the rights of the non-EEA national family member do not derive from proper documentation but only from the family relationship. The Austrian work law appears to be less clear on that issue. In practice you will have to convince a prospective employer that you do have working right. They may want to have confirmation from the AMS (jobcentre) but quite likely the AMS will refuse because the ministry of work appears to believe that a residence card must be held first.

Anyway, since this is not a UK related problem you better use the 'Europe immigration forum' or http://www.auslaender.at/forum/ for Austria specific questions (no problem to post in English).

Apologies, and thank you.

No need to apologize. I just think you will get more eye balls if you use those forums. I recommend to use the latter because it's run by a lawyer working for an NGO with many years of experience in the matter.

Get married, move to ireland with your hobby, there is no different between ireland and UK both speak english, ireland law school is the same as UK. By going to ireland you do not need to worry about working in austria, apply for eea permit for ireland or if the plane will allow you to board without permit i dont know but may be possible. This will be the very only simple and fast way for you. As a british when you get to ireland you are regarded as a permanent resident on your first day and you get same benefits as a student in ireland same as UK. The only thing i find different between ireland and UK is the money. Ireland use euro Uk use pounds. Culture and any other things are the same. Only few things that make no meaning you can find between ireland and UK

What would happen if we just showed up at the UK order with no visa or a short stay shengen visa?

Sorry, I meant "border".

What would you want to achieve with this? The Schengen visa is irrelevant to the UK. How can you support a claim under EEA rules?

I was asking, because I read somewhere that a UK national and his non-EU wife showed up at an entry port and were allowed to enter under a "Code 1A" stamp, which allowed the spouse to live and work for 6 months.

For me, this would be ideal, as my husband would be able to accompany me into the UK immediately. We would then have 6 months while he is in-country (together) to resolve his status using the immigration rules, which we would have no problem doing.

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"How does this work in practice in the UK?

The UK gives the following guidance to its border guards in Border Force Operations Manual - EEA Nationals & their Dependents. Note that the following quoted section is about family members of EEA citizens who do not have a required UK issued EEA family permit (the UKBA name for a visa for family members of an EU citizen), or a Residence Card, or even possibly have no passport:


5.5 Procedures when no EEA family permit or residence card is held

5.5.1 Admission of family members who are unable to produce a valid passport, family permit or residence card

Border Force officers will need to assess whether or not a person qualifies for admission under the EEA Regulations in the above situations. Ports should take particular note of the guidance on those who seek admission under the extended family member provisions as dependents relatives and as family members of an EEA national with whom they have a “durable relationship” (unmarried partner); the relevant criteria in Part 8 of the Rules (excluding entry clearance) should be used to make a decision on whether or not to admit under EEA Regulations. Unlike immediate family members the EEA Regulations allow for an “extensive examination of the personal circumstances” of extended family members.

5.5.2 Seeking admission at port

Applicants at port should be treated as persons seeking admission unless reference is made to applying for a residence card. Admission will fall into one of the following:

•Produces satisfactory evidence on arrival — The person should be admitted for 6 months on a Code 1A [Ed: Code 1A apparently allows passport holder to work and get social assistance. A document from Department of Works and Pensions provides a fuzzy photo]. Complete landing card.
•Is unable to produce satisfactory evidence on arrival — The person should be given “every reasonable opportunity” to prove by other means that he is the family member of an EEA national; a person should not automatically be refused admission as a result of not being able to produce adequate evidence. As a guide within a week of arriving at port should be adequate; ports can consider refusing admission at this point, unless the situation suggests more time is needed.
•Submits an application for admission post arrival

http://eumovement.wordpress.com/2010/08 ... to-travel/

I guess my question is: Would they allow my husband into the country and allow him time to resolve his immigration status, or would they turn him back at the border and not let him enter?

I am asking for a realistic scenario of what would happen in this case.

I understand the rules for the EEA FP and the immigration rules. This is not about that.

Why would you think that the rules are suddenly different just because you show up directly at the border? You as a British citizen have the burden of proof that you can claim EEA rights within the UK.

I get that one would have to prove EEA rights or immigration rights (at some point). That is a given.

I am asking specifically what would happen if my husband and I chose to ignore the rules and we showed up at the border without a visa, as the poster a few posts above suggested we should do in Ireland? Would they let us in under a Code1A as I have read elsewhere (the link which I posted in the last thread) and give us time to sort it out in country?

I mean, LEGALLY, my husband would be the spouse of a UK citizen. That has to be worth something at the border, isn´t it? Why would Ireland let my husband in without a visa but not the UK, the land of my passport?

Sure they will demand this and that, but would they let him into the country temporarily while it´s sorted out?