American ex-student marrying EU bf - will there be problems?

[chomsky]

Hello,

I'm planning on applying for an EEA FP (and then a RC) soon, but I was recently detained at the border and am concerned that this will cause problems with my application.

I'm an American citizen who was on a 3-year student visa for my undergraduate degree. After graduation, I applied for another student visa for a 1-year teacher training course (PGCE). Unfortunately, I didn't end up liking the course or my placement, and I could tell that I didn't want to be a teacher after all, so I withdrew from the course at the end of January. I got half of my tuition back since I withdrew early in the second term.

I was informed that I would have 60 days curtailment leave to remain in the country. My boyfriend and I had been planning on visiting the US together over my spring break (near the end of March), and we'd purchased the tickets long before I decided to withdraw from my course. Since my flight was within the period of curtailment leave, I decided to save money by not switching to an earlier flight.

My boyfriend is Italian, and since I wasn't in school anymore I decided to come with him to visit his hometown in February when he went to renew his driving license. On our way back to the UK, I was detained for six hours. I was locked in a room without my bags and they wouldn't contact my boyfriend to tell him what had happened to me (he was waiting on the other side of the border, worried sick). They wouldn't let me eat even though I hadn't had any food all day, and they made me wait at least half an hour for an officer to escort me to the bathroom. I was terrified.

They reluctantly let me go after a long interview because I showed them proof of my flight home in March. I was forthcoming about the whole situation and the reason I wasn't flying home for another month, and they acknowledged that I hadn't done anything illegal, but they kept saying that it was really suspicious that I had re-entered the UK so soon after withdrawing from my course. I now have a stamp in my passport saying that I am allowed to be here until my flight date, which is frustrating since I received an email from the Home Office weeks later saying that my leave would expire on May 6.

My boyfriend and I are devastated at the thought of being separated. He first moved here over two years ago, and I met him soon after. We've been officially together for a year and a half, and we've been living together since August (both of our names are on the contract). We've taken several vacations together, and I've been to his hometown twice and met all of his family. He's exercising treaty rights and has worked for the same company ever since he moved to the UK.

We are thinking of getting married during our trip to the US, and after that he would return to the UK on his own while I stay behind to apply for an EEA Family Permit. I would then join him and apply for a Residence Card. However, we're worried about this for a few reasons:

- Will my immigration history/applying so soon after marriage result in a refusal? I've already had two student visas, and we're planning on getting married very soon after my visa expires. When I was detained, I was not given the benefit of the doubt at all even though I was technically not doing anything wrong. If they detained me just because they thought I was "suspicious," could they refuse my application for the same reason?

- The company that my boyfriend works for used to issue paper payslips, but several months ago they switched to a new system that has online payslips instead. Would it be sufficient to just print these out as proof of him exercising treaty rights?

- We are planning on applying for the EEA FP using my boyfriend's Italian identity card, because he will need his passport to fly back to the UK. I've read that identity cards are acceptable, but I'm not sure if this is always the case in practice, especially if they are looking for a reason to refuse an application. Also, my boyfriend's passport expires in October 2016, although I don't think this is a problem since we can request it back after applying for a Residence Card.

- I'm also very concerned about the EU referendum. Our plan is to apply for the EEA FP as soon as possible in April (after we get the marriage certificate) and to have our Residence Card application received before June 23. We're hoping that applications that are already being considered won't be affected by any new legislation. Is this timeline realistic?

Sorry for the length of my post, but I'd be very grateful for any advice anyone could give on our plan and whether we should anticipate any problems.

[noajthan]

I have been just as naive in the past and treated just as 'harshly' by US immigration. I could not believe it at the time (circa 2000) after all "I'm from the UK".
That cuts no ice with these people.

So don't expect special treatment, meet the requirements, supply adequate documentary supporting evidence and the FP should be issued.

Under EU law you would only face refusal due to a sham marriage or due to any concerns over public security/safety, public health, public policy etc.

Ref https://eumovement.wordpress.com/2007/0 ... u-citizen/

[chomsky]

Thanks very much for the reply.

I'm not expecting special treatment, but what worries me is that my detainment wasn't actually based on anything concrete. The Home Office has confirmed that I have a right to remain here until May, and I had proof of a flight home within that period, so (regardless of my nationality) I shouldn't have been detained at all.

My marriage would be genuine, as the primary purpose isn't for me to remain in the UK but for us to remain together. We've also been living together since August, which should be solid evidence of a genuine relationship. I'll include photos and flight tickets as well.

I suppose I'm just worried that if I was unreasonably detained, then my application could also be unreasonably refused even if I provide all necessary evidence.

Does anyone know whether printed online-only payslips would be sufficient evidence of exercising treaty rights?

[noajthan]

If marriage is genuine you will get the FP then.

Those IOs were doing their job applying UK immigration rules.

Applying as spouse of EEA national puts you on a completely different trajectory, the EU route.

Online payslips are probably not enough. If he's already a qp then fiance must have access to more documentary supporting evidence than that.

Get into the mindset of providing too much rather than just enough or too little - don't give HO any 'wriggle room' whatsoever.

You can get up to speed on what a qualified person is (& needs to show) here:
https://www.gov.uk/government/uploads/s ... _clean.pdf

[chomsky]

Great, that link was really helpful - so we'll print out his payslips but also include his employment contract and get a letter from his manager confirming employment.

As far as providing "too much" evidence of a genuine relationship, in addition to our housing contract with both names on it, some photos of us together, and proof of vacations/visiting his family, is there anything else you would suggest we include? I can print out old texts and Skype/Facebook messages, but I'm not sure if they'd want to see that...

[Richard W]

Could not the now-married Chomsky simply fly back to the UK from the US with her new, Italian husband? The return flight may already have been booked! Immigration (EEA) Regulation 11(4) allows it. Is there a risk of someone who is not an immigration officer (e.g. back in the UK) denying boarding when it is discovered that Chomsky is about to fly to the UK? (There was a proposal to enable HO staff in the UK to prevent dangerous people coming to the UK, such as terrorists and, I now realise, presumably also family members without family permits).

As to applying for a family permit just after marriage, I would imagine that that is extremely common.

If the Italian boyfriend has permanent residence in the UK (most simply by having worked there consecutively for 5 years) and earns at least £18,600, the family reunification route will be open to them if the UK leaves the EU and the British economy does not collapse.

[noajthan]

Great, that link was really helpful - so we'll print out his payslips but also include his employment contract and get a letter from his manager confirming employment.

As far as providing "too much" evidence of a genuine relationship, in addition to our housing contract with both names on it, some photos of us together, and proof of vacations/visiting his family, is there anything else you would suggest we include? I can print out old texts and Skype/Facebook messages, but I'm not sure if they'd want to see that...

Sounds like you're on track.

Not sure if FB will help but a few tasteful couple-related / family-related photos should help.

[chomsky]

I did look into the Code 1A stamp, as my return flight was booked a long time ago, but after being detained I think it would be too risky! I've read on here that immigration officials don't like it when people try to enter without applying for a permit. Would there be any difference as to when I would have a right to work?

My boyfriend still has 2.5 years left before acquiring PR - I hope that won't be a problem for us.

[Casa]

One point on the income level. Under EEA Regulations your Italian partner isn't required to show £18,600 annual earnings. He will however be expected to pass the MET test (minimum earnings test). This link explains it well:
https://www.freemovement.org.uk/using-m ... ne-worker/

[Richard W]

I did look into the Code 1A stamp, as my return flight was booked a long time ago, but after being detained I think it would be too risky! I've read on here that immigration officials don't like it when people try to enter without applying for a permit. Would there be any difference as to when I would have a right to work?

Either way, you would have a right to work as soon as you entered the UK as a married woman. I suspect a stamp on entry would last a few days longer than a family permit. Either way, you should immediately apply for a residence card.

Are there any examples of what sort of stamp should be received when arriving without a family permit? There seems to be a good chance that an immigration officer at Heathrow won't know!

[noajthan]

I did look into the Code 1A stamp, as my return flight was booked a long time ago, but after being detained I think it would be too risky! I've read on here that immigration officials don't like it when people try to enter without applying for a permit. Would there be any difference as to when I would have a right to work?

Either way, you would have a right to work as soon as you entered the UK as a married woman. I suspect a stamp on entry would last a few days longer than a family permit. Either way, you should immediately apply for a residence card.

Are there any examples of what sort of stamp should be received when arriving without a family permit? There seems to be a good chance that an immigration officer at Heathrow won't know!

An entrant to UK under EU route has right to work once sponsor is exercising treaty rights (or else has settled status).

Ofcourse IO knows what stamps to use (or not use; they have complete BF Operations Manual to tell them.

[chomsky]

I did look into the Code 1A stamp, as my return flight was booked a long time ago, but after being detained I think it would be too risky! I've read on here that immigration officials don't like it when people try to enter without applying for a permit. Would there be any difference as to when I would have a right to work?

Either way, you would have a right to work as soon as you entered the UK as a married woman. I suspect a stamp on entry would last a few days longer than a family permit. Either way, you should immediately apply for a residence card.

Are there any examples of what sort of stamp should be received when arriving without a family permit? There seems to be a good chance that an immigration officer at Heathrow won't know!

An entrant to UK under EU route has right to work once sponsor is exercising treaty rights (or else has settled status).

Ofcourse IO knows what stamps to use (or not use; they have complete BF Operations Manual to tell them.

Since my partner is already exercising treaty rights (and will continue to do so), I think that I'll technically have the right to work when I arrive. However, I've heard that this is hard to prove to an employer, so I might have to wait until I receive a CoA for a residence card - is this correct?

[LilyLalilu]

Yes, as far as I am aware, employers won't let you work without the long CoA confirming your right to work as the spouse of an EEA national.

[Richard W]

An entrant to UK under EU route has right to work once sponsor is exercising treaty rights (or else has settled status).

Where does this restriction come from? I can find it in neither the directive nor the regulations. Of course, if a non-settled sponsor does not exercise treaty rights, they can only be in the UK for 3 months (or possibly 6 months if the family member's pseudo-leave cannot be curtailed).

Ofcourse IO knows what stamps to use (or not use; they have complete BF Operations Manual to tell them.

That doesn't mean they read it - see Kyanfar's tale. There are also reports of holders of UK resident cards being effectively admitted as tourists. Still, the message seems to be that the correct stamp has something like "EEA Regulations" on it. I believe the stamp should always be checked - it's rare enough that it is all too easy for humans to get wrong.

[noajthan]

An entrant to UK under EU route has right to work once sponsor is exercising treaty rights (or else has settled status).

Where does this restriction come from? I can find it in neither the directive nor the regulations. Of course, if a non-settled sponsor does not exercise treaty rights, they can only be in the UK for 3 months (or possibly 6 months if the family member's pseudo-leave cannot be curtailed).

Ofcourse IO knows what stamps to use (or not use; they have complete BF Operations Manual to tell them.

That doesn't mean they read it - see Kyanfar's tale. There are also reports of holders of UK resident cards being effectively admitted as tourists. Still, the message seems to be that the correct stamp has something like "EEA Regulations" on it. I believe the stamp should always be checked - it's rare enough that it is all too easy for humans to get wrong.

Suggest you start with basics:
http://ec.europa.eu/justice/citizen/doc ... 013_en.pdf

And its nonsense to suggest IOs disregard procedure and make it up as they go along.

[Richard W]

An entrant to UK under EU route has right to work once sponsor is exercising treaty rights (or else has settled status).

Where does this restriction come from? I can find it in neither the directive nor the regulations. Of course, if a non-settled sponsor does not exercise treaty rights, they can only be in the UK for 3 months (or possibly 6 months if the family member's pseudo-leave cannot be curtailed).

Suggest you start with basics:
http://ec.europa.eu/justice/citizen/doc ... 013_en.pdf

On p28 it says:

Access to the labour market
Your family members, irrespective of their nationality, are entitled to take up employment or self-employment in the host EU country. It does not matter whether you work, study or just reside there, your family members can start their economic activity with the same paperwork as nationals.

There's nothing there about having to exercise treaty rights or have settled status.

But perhaps one shouldn't believe the reference you quoted. It also claims, on p27

The Directive extends this right to family members, which means that EU citizens and their family members residing in the territory of the host EU country enjoy equal treatment with the nationals of that EU country within the scope of the Treaty.

That ain't so. EU nationals who can present a valid passport don't have their employers worrying about a £20,000 fine if the employee turns out to be an impostor. Non-EEA family members have no such right - it's not even enough to prove they are what they claim beyond a reasonable doubt, let alone on the balance of probabilities.

(At least they can't stop you doing a paper round - that's not employment!)

There's also the mandatory (or has been this disproved?) homelessness if a tenancy ends while an adult non-EEA family member has neither unexpired entry documentation nor a residence card. Or is it possible to indemnify a landlord?

[Richard W]

And its nonsense to suggest IOs disregard procedure and make it up as they go along.

See Wrong passport stamp given to me at Heathrow!.

[noajthan]

On p28 it says:

Access to the labour market
Your family members, irrespective of their nationality, are entitled to take up employment or self-employment in the host EU country. It does not matter whether you work, study or just reside there, your family members can start their economic activity with the same paperwork as nationals.

There's nothing there about having to exercise treaty rights or have settled status.

...

The whole document is explaining how free movement and treaty rights works.
That is what you have just read
Suggest you take another look.