Moving to EEA country with non EEA wife to use treaty rights

[sebstewart]

Hello,

My name is Sebastian and I am a british citizen. I met my wife, who is from Peru, when she was studying in Manchester, we married in Wales.
We are currently in Peru and because of the new family inmigration rules, we are struggling to move back to the UK.
We are thinking about moving to Europe so I can excercise my treaty rights to make it easier for us to return to the UK but there are some things that I am not sure about:

- If we went to an EEA country am I right in thinking the only way I could get my wife into that country if I dont have employment there yet or have never been there is on a Schengen Visa?
If so, do I have to wait until I have work in that EEA country before she can get a Residency card and Can she apply for a residency card if she is there on a Schengen Visa?

- I have been looking at applying for work in the South of France but the company that would potentially employ me is british, does any one know if would affect me or does it not matter who employs me and how the contract works as long I have been working full time in anothee EEA country over a period of time?

- Because my wife is from a spanish speaking country, the ideal EEA country would be Spain but it is in a bad economical situation at the moment and I belive it would be difficult for me, a non spanish speaking person, to find work there but potentially me and my wife could start an english teaching service to people in there own houses but I am not sure how to the self employment route works and what I would have to prove to show I am using my treaty rights.

Thank you very much!!!

[EUsmileWEallsmile]

You can move to any country in the EU (except the UK). The UK will expect you to have worked and lived with your wife in another EU country before they will consider a Singh application (for your return to the UK).

It does not matter which EU country you pick. It doesn't matter who employs you, but you will need to demonstrate that you both lived and that you worked in an EU country.

[Directive/2004/38/EC]

Your wife has the right to be with you when you are exercising your right of free movement to another EU member state. If she is with you, she also has the right to work.

She will be issued with an entry visa, which in this case is pretty much a simple tourist Schengen visa.

Key thing is that you work in the host member state. Netherlands and Germany seem to be doing well for job options right now.

[sebstewart]

Thanks for the replies

Going back to the work i have read that the job must be "effective" employment. I have had a UK based travel company in the south if France interested in employing me but i think it would be like an aprentaship. My wage each month would only be 372 pounds and i will be working 6 days at 42 hours a week would it count as affective if i make less than enough to survive. Or will the fact that it is some kind of an aprentiship where I learn whilst I earn mean it is not classed as work by the UKBA?
Sebastian

[EUsmileWEallsmile]

Thanks for the replies

Going back to the work i have read that the job must be "effective" employment. I have had a UK based travel company in the south if France interested in employing me but i think it would be like an aprentaship. My wage each month would only be 372 pounds and i will be working 6 days at 42 hours a week would it count as affective if i make less than enough to survive. Or will the fact that it is some kind of an aprentiship where I learn whilst I earn mean it is not classed as work by the UKBA?
Sebastian

Ask yourself, how would you propose to support yourself with that level of income? Is accomodation included perhaps?

[sebstewart]

Accommodation is included as well as food but only for one person, spending more money than I earn isn’t a problem for me personally as I have savings, it’s just whether it ticks the right box when it comes to apply for my family permit. I know I will have to see if the company can supply me a room to stay with my wife or I will have to rent other accommodation where the both of us can live

[sebstewart]

I’m still confused with this as i have been Reading who is deemed a worker under EU law http://eumovement.wordpress.com/2011/12 ... -a-worker/ it mentions contract lengths and how many hours a week but nothing on income.

And the UKBA sight just mentions this
"The ECJ case of SURINDER SINGH ruled that where a national of a Member State
goes with his/her non-EEA national spouse to another Member State to exercise an
economic Treaty right, on return to his/her own Member State the non-EEA national
spouse is entitled to join the EEA national under EC law.
Under regulation 9 of the 2006 Regulations, the family members of a British national
returning to the UK will be treated as if they were the family members of an EEA
national under the following conditions:
• After leaving the United Kingdom, the British national resided in an EEA
state and –
o Was employed there (other than on a transient or casual basis); or
o Established him/herself there as a self-employed person; and
• If the family member is his/her spouse, the marriage took place, and the
parties lived together in an EEA state, before the British national returned to
the United Kingdom"

To comply with exercising my treaty rights do the incomes of my job have to be enough to support me or me and my wife?
Any information is much appreciated
Thankg agen

[EUsmileWEallsmile]

Accommodation is included as well as food but only for one person, spending more money than I earn isn’t a problem for me personally as I have savings, it’s just whether it ticks the right box when it comes to apply for my family permit. I know I will have to see if the company can supply me a room to stay with my wife or I will have to rent other accommodation where the both of us can live

Suggest you do an internet search "genuine and effective employmnent".

Eg of a document that might shed some light for you.

http://www.dwp.gov.uk/docs/dmgch0703.pdf

[sebstewart]

Thanks for the document it was very helpful and put my mind to rest. I would say the work is poorly paid but genuine and effective employment
Thanks
Sebastian

[sebstewart]

Hello, I sent some emails to differents European embassies in Peru testing the water, explaining our circumstances and seeing what they think is require for a Schengen visa, saying we are applying under "Directive 2004/38/EC". We got quite a quick reply from the Netherlands embassy:

This response was to my wife

"Dear Mrs. Vela,

In response to your inquiry, we inform you that:

To apply at our embassy, we need a prove / backup of your reason / travel destination. The requirements (in your case) are these:

- Hotel booking
- Air tickets booking
- Copy of your marriage certificate
- Copy of passport of your spouse
- Travel insurance
- Photo, passport size
- Completed visa application
- The process for you have no cost"

This is less than they officialy ask in their web site, but still not correct. I will be typing a response this evening.
[/u]

[EUsmileWEallsmile]

Hotel, air tickets and insurance are not required.

They do expect evidence that you would be entering the Netherlands though (and not sneaking off to another EU country instead)

[Directive/2004/38/EC]

A letter from the EU citizen saying you will be travelling with him/her should suffice. You can mention that border guards are free to check that you are actually travelling together as you enter the Netherlands.

[sebstewart]

I wrote back

"Hello,

I am writing to you regarding an email my wife sent to your embassy for information on applying for Schengen Visa. I have been reading the DIRECTIVE 2004/38/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States. I believe some of the information you gave her contradicts this directive and, in fact, we do not have to supply bookings for air tickets and hotels or have valid health insurance, although I will be traveling with it.
For a visa to be issued on the basis of Directive 2004/38/EC, only the following requirements need to be satisfied:

1. The visa applicant is a direct “family member” of an EU citizen and has proof (marriage or birth certificate or some combination) of the relationship.
2. The visa applicant will be travelling with, or joining, the EU citizen for a visit or permanent move to an EU member state.
3. All travellers require a passport (or a national ID card for the EU citizen)

Me and my wife have the right of free movement in the EU, so why are we asked to give this information as it has no bearing on the outcome of the visa application?

Yours sincerely,"

and the reply

"Regarding your message, please be advised that these documents usually ask 'additional' to determine the validity dates of the visa and to show that Holland is your main travel destination.
Being married to an EU citizen does not give automatic right to receive a Schengen visa by the Embassy of the Netherlands. It is always necessary to determine that the Netherlands is the main travel destination. EU laws provide many facilities for the procedures, but does not change the general conditions for issuing visas. I mention this, because our diplomatic mission works with a regional office in Santiago de Chile. It is they who review visa applications of Lima and are always free to request additional documents. You may submit a visa application with only some of the documents requested by us, if they wish.
From experience we asked for some documents, as may be requested by the regional office and want to avoid wasting time in formalities. The visa process takes two weeks now.
 
I also wish to report that a Schengen visa does not confer an automatic right of entry. It is possible that in border control and other controls should provide the information again on eg the duration of your stay and the purpose of the trip. Unable to submit the request in some extreme cases, this can result in a person not admitted to the Netherlands or Schengen territory. We always want to avoid these situations and provide information in the clearest way possible. It is our goal prejudice proceedings.
 
We hope to have informed you sufficiently. If you have any additional questions, please contact us.
 
 
attentively"

I will forward information to the office in Chilly

“A letter from the EU citizen saying you will be travelling with him/her should suffice. You can mention that border guards are free to check that you are actually travelling together as you enter the Netherlands.” I will also mention this.

As far as I can see having to provide evidence of travel bookings just impinges on our right of free movement and doesn’t actually prove what’s mentioned. I’m also thinking they will use it as a reason of refusal

from what I understand I only have to state I want a 3 month visa and they should give me 3 months, Because in theory it doesn’t matter how long the visa lasts as it is only for entry clearance and once we are in the country it’s not actually needed?

Thanks for your advice I’m actually quite enjoying the emails
Seb

[EUsmileWEallsmile]

Please study this document and pay particular attention to part III

http://ec.europa.eu/home-affairs/polici ... 620_en.pdf

[sebstewart]

thanks
agen anouther intresting document whitch led me to the COM (2009) 313 final
34

"As provided in Article 5(2), Member States may require third country family members
moving with or joining an EU citizen to whom the Directive applies to have an entry visa.
Such family members have not only the right to enter the territory of the Member State, but
also the right to obtain an entry visa
18
. This distinguishes them from other third country
nationals, who have no such right."

[sebstewart]

more messages

Hello,

"My name is Sebastian Alban Ap-Stewart, I am a british citizen married with a peruvian citizen. We want to travel to Netherlans, and I understand that my wife will not simply be granted a visa and there is a process, but the paperwork you ask for such as insurance and booking or reservations of tickets or hotels are completely unecesary to apply for the visa schengen, so I don not understand how without this information the process could be slowed down.

A written and signed letter from me that we are traveling together to the Netherlands should prove we intent to travel together and the border guards can check when we enter the country."

respons from Chile


"Dear Mr. Alban
 
In response to your email, confirm the information provided by our office in Lima and the reasons why we need the full documentation, all of the above requirements must be submitted at the time of the interview, with the exception of travel insurance, however is your obligation to have purchased for the time of travel. Failure to submit the remaining documents, the office officially Santiago asked the other requirements, which will delay, if not send us the rest of the documentation required by this office, the application will be denied.
 
Sincerely,"

Which worries me because we applied for the visa this morning without insurance but we supplied a flight reservations for me and my wife.

Any ideas on the best place to contact for back up such as EU departments as Im hoping on beeing in the Netherlands by the middle of Feb

thanks

[sebstewart]

So we got the visa in the end without providing any of the extra information they wanted. My wife and I ended up in France, although, the airline didn’t want to let her board the plane without a return ticket, long and boring story but with a lot of arguing we got on the flight.
We have now been in France for 4 months and in that time I have been working and my wife has a carte de sejour (residency card). The local prefecture where you apply for this weren’t very helpful and were sure that we had the wrong visa, they said that my wife would have to go back to her country and apply for a different visa, but in the end we were issued on the spot with a temporary paper visa.

Now we are up to date, I am gathering documentation to do the VAF5 Surinder Singh application and any information on filling it out as there seems to be a lot of questions for something that should be quite simple, handy links will be greatly appreciated.

Documents we have so far
• We are not renting but we have a written letter from the house owner saying we are living there with a copy of his passport and a utility bill.
• Residency permit for my wife with the address of where we live in France but not for me as I don’t need one.
• Certificates of residence from our local hall saying we have lived at our current address since the 3rd of June 2013 for me and my wife.
• Wedding certificate
• Work contract.

My employer has problems with his accountant so I have had problems sorting out paying tax and my tax number as your employer normally gets your tax number for you in France but hopefully it will come together soon. I don’t have a bank account in France; could this cause me problems when applying?


Thank you

[Directive/2004/38/EC]

Sounds like it is well sorted. Should be a straight forward application.

Note that you do not need to answer any questions on the form about your wife's assets or work, either past or future. You also do not need to answer any questions about your assets or future work. You probably should answer the question about your present work in France.

[sebstewart]

Sounds like it is well sorted. Should be a straight forward application.

Note that you do not need to answer any questions on the form about your wife's assets or work, either past or future. You also do not need to answer any questions about your assets or future work. You probably should answer the question about your present work in France.

Thanks for the reply,
So i fill out most of section 8.10
Is it necessary to answer question 8.10.15 (how much does the EEA national spend each month on living costs?)

[Directive/2004/38/EC]

I would leave it blank

[sebstewart]

Hello,
Thanks for your reply Directive!
Probably more stupid questions but I hate filling in paperwork!
I have been trying to fill out an online application on the new application website. Really frustrating lots of fields that they make you fill in before you can submit it.
Like:
- What is the EEA National Registration Certificate number for the EEA National? In the vaf5 document they ask for the EEA nationals Registration Certificate number if they have one? I do not hold one of these. As I do not have one I’m thinking about putting non held
- On the new online application process they have different sections for the sponsor and the EEA national and on the vaf5 the sponsor is the EEA national so on the online application am I right in putting my details in both EEA nationals and sponsor sections or just the EEA national section and click that there is no sponsor?

Thank you for your time any help is much appreciated!

[Directive/2004/38/EC]

I am not sure if I understand your questions

[sebstewart]

Hello,
I am a little bit confuse because in the new online application you have to fill all the fields, for example they ask me for my EEA National Registration Certificate number, and I don't hold this , is it obligatory to have one now?
They ask details about me, the EEA national, and if my wife has a sponsor, in this case, am I also the sponsor?


Thank you

[sebstewart]

Hello,

My wife has been refused the visa and I am bit confused if she has been refused because of our accommodation, my work or both (“Due to these reasons, I am not satisfied that your British national spouse has transferred his centre of life to another EEA Member State.”)
My contract has a minimum duration of 20 days, although I worked more than 20 days and my employer told me is a 3 months contract. We live in a cottage, I do work in kind to stay here, I don't have any utility bills as the electric and water go through the property owners meters.We have been living in France since the 2nd of May of 2013 and in the cottage we are currently living since the 3rd of June of 2013. We also provided to the embassy a certificates of residence for me and my wife from our town hall.

This is the answer of the British Embassy in Paris:

Your application
You have applied for admission to the United Kingdom by virtue of European Community Law as the family member of a British national who is exercising, or wishes to exercise, rights of free movement under the Treaty of Rome in the United Kingdom.

The decision

- Regulation 9 of the Immigration (European Economic Area) Regulations 2006, as amended by the Immigration (EEA) (Amendment) (No.2) Regulations 2013, states:
9. (1) If the conditions in paragraph (2) are satisfied, these Regulations apply to a person who is the family member of a British citizen (“P”) were an EEA national.
(2) The conditions are that –
[…]
(c ) the centre of P’s life has transferred to the EEA State where P resided as a worker or self-employed person.
(3) Factors relevant to whether the centre of P’s life has transferred to another EEA State include –
(a) the period of residence in the EEA State as a worker or self-employed person;
(b) the location of P’s principal residence;
(c ) the degree of integration of P in the EEA State

- You have stated that you wish to visit the United Kingdom with your British spouse, Mr. S. I acknowledge that you have provided a photocopy of your spouse´s British passport, and your original British marriage certificate, as evidence that you are related as claimed to a British national. I note that your spouse has provided evidence of his employment in France, in the form of an employer’s letter, a contract of employment, and three payslips. The letter from Mr. S’s employer states that your spouse is working fifteen hours per week, which is confirmed in the payslips showing sixty hours per month. This contract is a fixed-term contract (“contra a duree determine”) and was only made for twenty days with no further contractual indication of how long this has been extended. I note that you state in your application form that your spouses’s employment ended on the 31 December 2013, and you now wish to visit the United Kingdom for a period of 4 months. You have provided a document from “Credit Agricole du Morbihan”, a bank, which shows that your accounts have been open since 02 October 2013, a period of only three months. You have provided a letter from Mr. xxxxx, a British national living in France, who states that he provides accommodation for you and your spouse, with no tenancy agreement, seemingly no rent, and no utilities in your or Mr. S’s name. Due to these reasons, I am not satisfied that your British national spouse has transferred his centre of life to another EEA Member State.
- I therefore refuse your EEA Family Permit application because I am not satisfied that you meet all of the requirements of regulation 12 of the Immigration (EEA) Regulations 2006

[357mag]

I hope this is going to be appealed. It looks like the first one to be refused under the new rules.

3 months is a bit thin, 6 months would be safer, but I would love to see this one go to ECJ.

Good luck.