EEA FM "No basis of stay"

[Jess42]

I am the spouse of an EEA national exercising his treaty rights by working in the UK. I submitted my application for a residence card a week before the referendum, and after 10 working days, submitted an online request for both our passports to be returned so that we could travel. Today, I received my husband's passport and a letter telling me in regards to my own:

As you currently have no basis of stay in the United Kingdom, we are unable to return this document at the present time. Section 17 of the Asylum and Immigration Act 2004 gives the Secretary of State powers to retain this passport as you have no valid leave to remain in the United Kingdom and may therefore be liable to removal. Your basis of stay...depends on the conclusion of your application for a residence card.

WHAT? How am I subject to possible removal? The Home Office website itself says that it is not *necessary* to apply for a residence card, just recommended. The above is really alarming wording, and I have no idea how long they're planning to withhold my passport. Anyone have any insight or advice?

[member]

What was your immigration/visa status in the UK before you applied for the EEA RC?

[Jess42]

What was your immigration/visa status in the UK before you applied for the EEA RC?

Do you mean whether I'm a national of a visa or non-visa required country? I'm a US citizen but moved here with my husband from Ireland. There is no passport control going from Ireland into the UK, so I was never allotted a status by immigration authorities.

[vinny]

What is your husband's nationality?

[Jess42]

What is your husband's nationality?

Irish (and only Irish)

[vinny]

If your husband is a qualified person, then they may be wrong as

15. The United Kingdom, the Channel Islands, the Isle of Man and the Republic of Ireland collectively form a common travel area. A person who has been examined for the purpose of immigration control at the point at which he entered the area does not normally require leave to enter any other part of it. However certain persons subject to the Immigration (Control of Entry through the Republic of Ireland) Order 1972 (as amended) who enter the United Kingdom through the Republic of Ireland do require leave to enter. This includes:

(i) those who merely passed through the Republic of Ireland;
(ii)persons requiring visas;
(iii)persons who entered the Republic of Ireland unlawfully;
(iv)persons who are subject to directions given by the Secretary of State for their exclusion from the United Kingdom on the ground that their exclusion is conducive to the public good;
(v)persons who entered the Republic from the United Kingdom and Islands after entering there unlawfully or overstaying their leave.

may not be applicable, due to:

5. Save where expressly indicated, these Rules do not apply to those persons who are entitled to enter or remain in the United Kingdom by virtue of the provisions of the 2006 EEA Regulations. But any person who is not entitled to rely on the provisions of those Regulations is covered by these Rules.

See also reply: 14 onwards.

[noajthan]

I am the spouse of an EEA national exercising his treaty rights by working in the UK. I submitted my application for a residence card a week before the referendum, and after 10 working days, submitted an online request for both our passports to be returned so that we could travel. Today, I received my husband's passport and a letter telling me in regards to my own:

...

WHAT? How am I subject to possible removal? The Home Office website itself says that it is not *necessary* to apply for a residence card, just recommended. The above is really alarming wording, and I have no idea how long they're planning to withhold my passport. Anyone have any insight or advice?

Other members have reported a similar experience - it appears to be the case that some (or perhaps all?? - not sure) non-EEA nationals do not get their passport returned.
And you get a poorly or inappropriately worded boilerplate letter to add insult to injury.

If hubby is exercising treaty rights then you do ofcourse have the full power and weight of EU law behind you.

[Jess42]

Other members have reported a similar experience - it appears to be the case that some (or perhaps all?? - not sure) non-EEA nationals do not get their passport returned.
And you get a poorly or inappropriately worded boilerplate letter to add insult to injury.

If hubby is exercising treaty rights then you do ofcourse have the full power and weight of EU law behind you.

It's some comfort to know it's not just me I guess. We have a holiday booked next month, though, and I'd really like to find a way to get it back. They included a few email addresses to contact in the case of 'voluntary departure', so the only thing I know to do is email them and ask for their help. I've already missed my grandmother's funeral and a weekend trip because I don't have my passport in my possession.

[GMB]

While it may not be of use for a trip next month, you can apply for a second U.S. passport at the U.S. embassy in London. They list "primary passport held for processing my British Home Office" as a valid reason to apply for a second one. Cost is the same as a first passport even though validity is only two years, but I got mine in just a few weeks. Note that this is not an emergency passport, which the embassy can issue itself on the spot. It is a fully valid second passport.

[Richard W]

How am I subject to possible removal?

You are subject to possible removal in exactly the same way as in other family member whose right to reside depends on their spouse being a 'qualified person'. If your husband were not a qualified person, and you arrived in the UK together, you yourself would have no right to be in the UK once you had completed your initial 3 months. The Home Office has not yet admitted that your husband is a qualified person.

There is some doubt as to whether the HO has the right to retain your passport. One poster reported that her solicitor would challenge the retention, which certainly looks like an abuse of powers, but I have seen no further report. The key point to the argument would be that your removal is actually unlikely (the HO has no reason to believe your husband is not a qualified person or that your marriage is a marriage of convenience), and therefore the passport should not be retained.

It ought to be possible to receive your passport from the Home Office as you leave the UK. I am not sure how easy that is to arrange. You would get back to the UK border using your US passport, and then re-enter on the basis that your husband was a qualified person residing in the UK. Some documentary evidence would be required. (Husbands are a handy part of a substitute for a visa.)