Immigration history of non EEA national

[Pablito]

Can anyone direct me to relevant Directive law covering the issue of past immigration history of non EEA national who then married EEA national? In particular where it says that immigration history after the marriage is irrelevant in exercising freedom of movement of EEA national and their non EEA family member.

I would greatly appreciate your shared knowledge.

Thank You

[Jambo]

This is a tricky question. The law normally specify what is required. Not what is not required.

The regulations don't refer to previous immigration history. The regulations also don't specify you need to wear a red shirt when applying or that you should be able to run 10Km under 1 hour. How can you prove you don't need to meet those requirements?

[Pablito]

This is a tricky question. The law normally specify what is required. Not what is not required.

The regulations don't refer to previous immigration history. The regulations also don't specify you need to wear a red shirt when applying or that you should be able to run 10Km under 1 hour. How can you prove you don't need to meet those requirements?

Yeah i am still studying the subject, however i am sure that it has something to do with the fact that once non EEA national becomes a family member of EEA national, the Directive laws apply rather than national immigration law. Am I getting closer now?

[Pablito]

I mean from the point of view of a newbie it seems to me that in case you described there is always possible to make task impossible. Because everything what is not requirement in law may become requirement anyway? It seems that way

[Jambo]

Your statement is correct.

You were asking for the directive that will state that past immigration history is not relevant to the application. You won't find such directive.

[Pablito]

So from experience it seems that people who prior to marrying EEA national had immigration history, still were able to stay in the country because national immigration law didn't apply anymore. How would you argue this case with British authorities who refuse your right of residence due to your past immigration history? I know these cases already took place at least in cases of people applying for family permit. I mean is the fact that national immigration law no longer applies sufficient argument to make your case and if yes, how to prove this argument to be true in case of what you Jambo described as not required to actually becoming required?

[Jambo]

Is this a hypothetical discussion or do you seek advice in a particular case?

If you scan the forum, you can read many examples of overstayers marrying a EEA national and obtaining RC. With regards to Family Permit, adverse immigration history can't be a reason for refusal but might trigger a suspicion of marriage of convenience. If you have an example of such a refusal, feel free to share it and provide the wording of the refusal. If a decision is not according to the law, you can appeal the decision.

[Pablito]

Jambo

Yes hypothetical but not only. Me and my wife are still awaiting decision for family permit where she already been removed from UK in the past. At the same time i would like to study my understanding of law rather than just find out from people what is applicable in my case. I hope this is fair enough. By the way i do quite a lot of research on my own but i think its sometimes hard to cover all the points in which case i am requesting for some advise, that's all.

[Obie]

Will Article 35 of directive 2004/38EC confers on the Secretary of State a discretion in measure which they could implement to prevent abuse of rights or prevent sham marriages.

The UKBA uses indicative factors such as someones immigration status at the time of application to determine if a marriage can be described as sham.
Even though those factors are rubuttable, the UKBA uses them as presumption that in those circumstances, the marriage is not genuine.

They cannot and should not refuse on the bases of past immigration history
if the marriage is genuine.

[Pablito]

Will Article 35 of directive 2004/38EC confers on the Secretary of State a discretion in measure which they could implement to prevent abuse of rights or prevent sham marriages.

The UKBA uses indicative factors such as someones immigration status at the time of application to determine if a marriage can be described as sham.
Even though those factors are rubuttable, the UKBA uses them as presumption that in those circumstances, the marriage is not genuine.

They cannot and should not refuse on the bases of past immigration history
if the marriage is genuine.

I actually did some research on marriages of convenience, and yet i got into this Article 35 i actually printed out entire directive. I also was able to find document called "com 313" which was great explanation to how to understand Directive, but i have this problem with how am i actually to understand that document "com 313"? is it something like lawful document that can be used by me when proving my rights? I am bit unsure about it.

[EUsmileWEallsmile]

@ Pablito, Read case law Metock, it might shed some light for you.

[Jambo]

Jambo

Yes hypothetical but not only. Me and my wife are still awaiting decision for family permit where she already been removed from UK in the past. At the same time i would like to study my understanding of law rather than just find out from people what is applicable in my case. I hope this is fair enough. By the way i do quite a lot of research on my own but i think its sometimes hard to cover all the points in which case i am requesting for some advise, that's all.

Well it would depend on the circumstances.

If your wife was removed from the UK last month, got married within 2 weeks and applied the next day for a Family Permit, most likely the HO would claim sham marriage. If she was removed from the UK 10 years ago, got married 5 years ago and has 3 children, probably not be considered sham marriage. Gender might also play a role here. Sham marriages seem more common between non EEA man and EEA female than vice versa.

The removal itself should not be counted against her.

[Pablito]

Ok thanks guys and by the way I've just finished reading Metock i found it very educating and yes i feel enlightened by this case so thank you very much.

Jambo In our case we married last August but i followed her to The Philippines on June 23 after her removal in April, ever since we lived together. I added a certification from local office to our application that we've lived here since June. We have some photos from UK but i decided not to attach them as i had read on UKBA website that in case of evidence of cohabitation it is hard to prove marriage of convenience. Let's hope i was right about it.

[Obie]

Your relationship seems pretty committed. They probably might not refuse on grounds of marriage of convenience.