Residence card cancelled, entry refused when travelled alone

[elixya]

Please help in clarifying if British immigration officer at the border can cancel British residence card of the non-eu spouse of EEA national and refuse entry on the ground that the EEA national was not in UK?? After circa 2 hours - is this sufficient time given to produce other evidents? The holder of this card had a proof of marriage and was coming back to the UK alone. The EEA spouse was then however outside of the UK (planning to go there 3 days later). Holder of RC used to travel like that before through the same route and there was no problem. Has the law changed recently? What can be done in this case? Appeal - on which grounds? Apply for Family Permit? I cannot believe the amount of questions they ask there. Is this conform with EU law? In case of EEA national being self-sufficient - is there a requirement to be present in UK at least 6 months in the year? I know that for the first 3 months there is no requirement to exercise treaty rights. Can you recommend a good immigration lawyer familiar with EEA law?
thanks

[rachellynn1972]

Yes they can, that is the law from the start, if he is really married, the spouse should comeout and say, this is were i live and i am still exercising my treaty right here in uk. THe UKBA knows all trick, if your spouse is in the country, it will only take a phone call and the spouse will be there at the airport or talk with the immigration officer with all information they need. Councelling Residence card give right of appeal, They should appel it, the RC holder and the spouse with ecidence they are living together in UK.

[rachellynn1972]

check 5.2.8 of this link

http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary

[Obie]

Except the non-EEA national signs a disclaimer or confess to having obtained the residence card fraudulently, the card cannot be revoked at port, until all in country right of appeal has been exhausted. A residence card holder has an in country right of appeal under regulation 26 of the EEA Regulation, which means he or she should be granted some form of leave to enter until appeal is concluded.
The starting point in this case is a judicial review, to get the person back to the UK, as she cannot appeal this decision out of country. You should try and get her flight fare reinbursed or paid for as well.

I wish you all the best. I just hope this person did not sign a disclaimer by being tricked /deceived by the immigration officer. I know of a case were this has happened. If that is the case then applying for an EEA PERMIT might be the only option.

[Directive/2004/38/EC]

Please help in clarifying if British immigration officer at the border can cancel British residence card of the non-eu spouse of EEA national and refuse entry on the ground that the EEA national was not in UK?? After circa 2 hours - is this sufficient time given to produce other evidents? The holder of this card had a proof of marriage and was coming back to the UK alone. The EEA spouse was then however outside of the UK (planning to go there 3 days later). Holder of RC used to travel like that before through the same route and there was no problem. Has the law changed recently? What can be done in this case? Appeal - on which grounds? Apply for Family Permit? I cannot believe the amount of questions they ask there. Is this conform with EU law? In case of EEA national being self-sufficient - is there a requirement to be present in UK at least 6 months in the year? I know that for the first 3 months there is no requirement to exercise treaty rights. Can you recommend a good immigration lawyer familiar with EEA law?
thanks

If the EU citizen was not resident in the UK, then it is indeed allowable for UKBA to challenge the spouse.

It sounds like the EU citizen is self sufficient, so they would need to (1) not be absent for more than 6 continuous months in a year and (2) continue to be self sufficient and hold adequate comprehensive medical insurance. If they did these, then they would likely retain their residence.

Once they have Permanent Residence then they could then be away for up to two years without loosing their residence.

What is the citizenship of the person turned away? They could certainly reenter the UK with their EU spouse...

[Nimitta]

THe UKBA knows all trick,

The UKBA sometimes does not even know what is written on its own website, let alone "tricks".

[elixya]

Except the non-EEA national signs a disclaimer or confess to having obtained the residence card fraudulently, the card cannot be revoked at port, until all in country right of appeal has been exhausted. A residence card holder has an in country right of appeal under regulation 26 of the EEA Regulation, which means he or she should be granted some form of leave to enter until appeal is concluded.

The starting point in this case is a judicial review, to get the person back to the UK, as she cannot appeal this decision out of country. You should try and get her flight fare reinbursed or paid for as well.

I wish you all the best. I just hope this person did not sign a disclaimer by being tricked /deceived by the immigration officer. I know of a case were this has happened. If that is the case then applying for an EEA PERMIT might be the only option.

Where should we ask for this leave? in the embassy or can they give it at the border (I rather doubt it - the same guy ;o)? He did not sign anything thanks God. The officer gave him no instructions whatsoever which proof to produce, contact me etc. He quickly checked some regulations, asked no questions apart from where he lives and works. My husband showed him his payslip and UK driver licence and the officer said he COULD NOT RECOGNIZE HIS FACE BECAUSE IT WAS TOO DARK! My husband is African. On this day he had family permit and RC since 5 years and a week. Does it change anything? My husband could now apply for indefinite RC, if the one he had was not cancelled. Is it true that cancellation of RC interrupts the period of residence and the clock starts from the beginning? But what about if this decision was unlawful?
Me and my husband thought the situation would not be that serious as the officer did not require any more proof and I did not make it to the station on time. I was shocked that the officer can cancel visa after short consideration, not even asking to contact me. He gave him form IAFT-3 - Appeal to the FIRST-TIER TRIBUNAL (Immigration and Asylum Chamber) with no further explanation that he can appeal from inside and get entry clearence for that! Of course! It says on the form that you can appeal from outside as well, maybe it is the wrong form? On the standard letter he got it says that he does not believe that I am in the UK and my husband is not seeking to join an EEA national who has the right to reside in the UK and my husband has no right to be admitted under regulation 11. It is true I was not on this day in UK but I thought that RC holder can go back to host country - UK even alone, am I right? He cannot only travel alone between other countries. I intended to go 3 days later, had a ticket already. What shall I do - try to get him through with the marriage certificate and council tax bill and the child (born in the UK)? Since I came to the UK I was never absent for 6 continuos months. The thing is I now work in another country and go to UK almost every month for at least a week. I pay all the bills myself, receive no benefits there and me and my child have insurance which is valid also in the UK. But I am not over 6 months in the year in UK because I do not get so much holiday. Do I still have right to reside? I was working in UK for 3.5 years with WRS after I got work abroad. My husband was working during the 5 years with some breaks and never applied for Jobseeker Allowance etc. What do I have to do it in order to get judicial review? Can my husband appeal from inside if his RC was cancelled? I was always thinking that refuse of entry would mean not letting somebody in but not straight away cancelling the visa without checking well first. Now the house we are renting there is empty and the car is there as well. Not the safest option.
My husband was totally shattered after this experience, wanted to kill himself. Any advice would be appreciated. Thanks

[elixya]

[/quote]If the EU citizen was not resident in the UK, then it is indeed allowable for UKBA to challenge the spouse.

It sounds like the EU citizen is self sufficient, so they would need to (1) not be absent for more than 6 continuous months in a year and (2) continue to be self sufficient and hold adequate comprehensive medical insurance. If they did these, then they would likely retain their residence.

Once they have Permanent Residence then they could then be away for up to two years without loosing their residence.

What is the citizenship of the person turned away? They could certainly reenter the UK with their EU spouse...[/quote]



How can he reenter UK with me? Which documents do I need? What conditions do I have to fullfill in order to be resident? The only thing my husband made he said that I had permanent contract of employment but this is only temporary until next year. Thanks for info

[elixya]

check 5.2.8 of this link

http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary

My husband admitted I was then not in UK but important is the status in UK and not the presence on the day? I intended to go there 3 days later and the officer did not ask my husband for any other proof. He said also something about that we do not live together but now I found out about Diatta judgement. I am sure this officer has no idea about it.

I just found in 4.5 of this link:
"For the first three months of any time spent in the UK an EEA national is considered to be
resident by virtue of his nationality and does not need to be a “qualified personâ€

[elixya]

He also took fingerprints of my husband. Is this lawful?

[Directive/2004/38/EC]

elixya,

Are you the EU citizen?

Your husband's rights in the UK depend 100% on your status in the UK. He can be with you if you are legally resident in the UK.

You need to describe actually what you were doing in the UK. Were you working there? Did you stop working there, and if so when? After you stopped working there, in what way did you continue your relationship with the UK?

[86ti]

On this day he had family permit and RC since 5 years and a week. Does it change anything?

If the previous five years were spent in the UK in accordance with the EEA regulations and you were married for that whole period your husband was (and still is) a permanent resident on that day. This is a right obtained automatically and he would now have a status independent of yours. In other words what you are doing, where you are or even if you are still married is irrelevant from that day on the five years are reached. PR can be only lost under very specific circumstances.

The thing is I now work in another country and go to UK almost every month for at least a week

What country is that?

[hilarious]

HI there, a quick question, sorry if I missed this -- was this your FIRST entry into the UK or were you traveling after you had already received a family permit?

[elixya]

HI there, a quick question, sorry if I missed this -- was this your FIRST entry into the UK or were you traveling after you had already received a family permit?

my husband was already travelling with RC, several times alone and there was no problem.

[Directive/2004/38/EC]

my husband was already travelling with RC, several times alone and there was no problem.

You need to understand that this is not about your husband. His RC is only valid if you are resident in the UK. If you stop being resident in the UK, then his RC becomes invalid.

You have not really discussed your residence. But that is the core of the issue.

[elixya]

On this day he had family permit and RC since 5 years and a week. Does it change anything?

If the previous five years were spent in the UK in accordance with the EEA regulations and you were married for that whole period your husband was (and still is) a permanent resident on that day. This is a right obtained automatically and he would now have a status independent of yours. In other words what you are doing, where you are or even if you are still married is irrelevant from that day on the five years are reached. PR can be only lost under very specific circumstances.

The thing is I now work in another country and go to UK almost every month for at least a week

What country is that?

Old Member State, we are still married. I was for 3.5 years as a worker in the UK und later as self-sufficient keeping personal ties with UK. Due to the specific status of my work I shall be considered as having maintaned my domicile in the UK for tax purposes. e. g. I should pay tax to UK on my income other than the salary meaning UK profits from this as well. If I have obligations in UK I should also have some rights, shouldn't I? I wonder if the same rule can be applied to the residency for immigration purposes especially because I go often there, spend as much time as I can there and kept my accomodation?

[elixya]

elixya,

Are you the EU citizen?

Your husband's rights in the UK depend 100% on your status in the UK. He can be with you if you are legally resident in the UK.

You need to describe actually what you were doing in the UK. Were you working there? Did you stop working there, and if so when? After you stopped working there, in what way did you continue your relationship with the UK?

I described it in the posts above and underneath.

[elixya]

does anybody know ho to obtain entry clearence in order to make "in country" appeal? on the form it says "I revoke... and refuse you admission to the UK" but all residence cards revocations attract a full 'in country' appeal under Regulation 26 of the 2006 Regulations.

[Obie]

The have acted unlawfully in revoking his residence card and then removing him without an in country right of appeal. The only remedy available to you, is seeking a Judicial review, and a declaration that the action of the immigration officer is unlawful.

Through that, the court would make an order for him to be returned. I cant see them issuing another permit, without the unlawful action first being resolved in your favour

[Directive/2004/38/EC]

Old Member State, we are still married. I was for 3.5 years as a worker in the UK und later as self-sufficient keeping personal ties with UK. Due to the specific status of my work I shall be considered as having maintaned my domicile in the UK for tax purposes. e. g. I should pay tax to UK on my income other than the salary meaning UK profits from this as well. If I have obligations in UK I should also have some rights, shouldn't I? I wonder if the same rule can be applied to the residency for immigration purposes especially because I go often there, spend as much time as I can there and kept my accomodation?

So you are employed with a UK employer? Do you do any work in the UK, or is it all outside the UK?

[Directive/2004/38/EC]

The have acted unlawfully in revoking his residence card and then removing him without an in country right of appeal. The only remedy available to you, is seeking a Judicial review, and a declaration that the action of the immigration officer is unlawful.

Through that, the court would make an order for him to be returned. I cant see them issuing another permit, without the unlawful action first being resolved in your favour

Obie,

I am not sure why you are saying this.

It seems like his RC was revoked because his wife was deemed to not be a qualified resident person. That may or may not have been the right assessment of the wife's status, and how they handled the RC holder may not be proper.

But lets imagine the wife does not have resident status any more. It is then (hopefully) a simple matter of the two of them driving to the ferry terminal in Calais together, and entering the UK TOGETHER! There would then be no need to put life on hold until an appeal happens....

[Obie]

On the basis of UK EEA REGULATION and casework and immigration officers instructions and guidance, an immigration officer is not allowed to revoke a valid resident card at port. Further more, unlike an EEA FAMILY PERMIT which has conditions that you should be joining or accompanying a family member at the material time of your entry, there is no such requirement for a resident card holder. By law you cannot remove a person who has an in country right of appeal against a decision, until that appeal has been disposed. They could have kept him in detention, kept his passport and established fact, but removing him is wrong.
Although the OP says she worked in the UK FOR 3.5 years before she moved to another member state, and continued coming to the UK, I am not sure she would be classified as a frontier worker resident in the Uk, which in turn will confer on her the status of a qualified person. She mentioned having a business and paying taxes.

The only body qualified to examine all the circumstances is the court and not an immigration officer.
He may well fail to qualify, which i am not disputing. However on this occasion proper procedures were not undertaken.

[Directive/2004/38/EC]

On the standard letter he got it says that he does not believe that I am in the UK and my husband is not seeking to join an EEA national who has the right to reside in the UK and my husband has no right to be admitted under regulation 11.

Obie,
I agree with you that the IO probably went against the UKBA procedures in revoking the RC at the border. And I would agree that that should be followed up with UKBA, and possibly with the European Commission. [A separate issue is that I am still not clear from the narrative that the EU citizen had in fact retained the right of residence in the UK, but that is separate from the procedural complaint.].

But do the couple want to reenter the UK together as soon as possible? If so I do not see why they need to wait for the conclusion of any appeal or complaint. I see no reason for them not to be admitted at the border if they are traveling together...

[elixya]

On the standard letter he got it says that he does not believe that I am in the UK and my husband is not seeking to join an EEA national who has the right to reside in the UK and my husband has no right to be admitted under regulation 11.

Obie,
I agree with you that the IO probably went against the UKBA procedures in revoking the RC at the border. And I would agree that that should be followed up with UKBA, and possibly with the European Commission. [A separate issue is that I am still not clear from the narrative that the EU citizen had in fact retained the right of residence in the UK, but that is separate from the procedural complaint.].

But do the couple want to reenter the UK together as soon as possible? If so I do not see why they need to wait for the conclusion of any appeal or complaint. I see no reason for them not to be admitted at the border if they are traveling together...

The problem is - with cancelled RC my husband has little chances to find work as well as he might get problem travelling. Do you think if we travel together we will have no problem at all even if one date stamp in the passport is crossed out and no RC inside? They always put a stamp even if it is against the Regulations 2006. Officer did it on purpose in order to make a trace in the new passport. RC was luckily in the old passport which had expired so it does not look that bad.

My husband has a trauma now after this experience. He just told me even if he gets to the UK he might have difficulty to get out and prove at the border that he is legally in UK. He wants to wait for appeal but it will take months. It would have to be done on his behalf only. Actually non-EU spouses of EEA nationals do not need (in theory) RCs but they are useful when changing work and to prove right to residence.

I have seen somewhere the the revocation of the RC interrupts the residence in UK. Even if it was unlawful? The clock would then start from the beginning only on the day when he arrives again to UK?

I spoke to these people today as I was travelling and I told them he has the right to enter the country to appeal. One said to contact Croydon and he could appeal by post or online! In country appeal, yeah. The other said all he has to do is to travel with me and prove that he is my spouse. But then it will take again half a year to get a new RC. Especially after this story. Do you think there might an accelerate procedure to get it back if it was unlawful or if I prove that I exercise Treaty rights in UK?

[elixya]

On the basis of UK EEA REGULATION and casework and immigration officers instructions and guidance, an immigration officer is not allowed to revoke a valid resident card at port. Further more, unlike an EEA FAMILY PERMIT which has conditions that you should be joining or accompanying a family member at the material time of your entry, there is no such requirement for a resident card holder. By law you cannot remove a person who has an in country right of appeal against a decision, until that appeal has been disposed. They could have kept him in detention, kept his passport and established fact, but removing him is wrong.

The only body qualified to examine all the circumstances is the court and not an immigration officer.
He may well fail to qualify, which i am not disputing. However on this occasion proper procedures were not undertaken.

Are you sure that I do not need to accompany him? Can you give me some legal source? It would be great if it was true! After the talk at the border I had today it seems that they are not aware of that! Or they do not want to know. I studied law and see that according to the regulation 11 (1) and (2) he must be admitted but point 5 says that is subject to regulations 19(1) and (2) which require spouse to accompany or join the EEA spouse and the EEA spouse has to have a right to reside in UK.

He also received a piece of paper saying "I am detaining you" and after that they let him go.