So I spoke with a solicitor at IAS the other day...

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So I spoke with a solicitor at IAS the other day...

Post  Snowbird on Sun Oct 07, 2012 2:10 am

and learned the following about my case:

1. That the border agency is so strict about the 18.6K that my app would be denied even though it's not legally possible for me to sponsor my partner to come to the US because of DOMA. There are no exceptions. If I want to file an appeal and battle the courts, it would cost a fortune and take forever.

2. That if my partner renounced her UK citizenship and tried to sponsor me under an EEA family permit using her Irish citizenship, the border agency could potentially make life miserable for us, and there's no guarantee that it would work, or what the ultimate consequences would be for either of us. It might work, it might not; big unknown

Suggested solutions:

Partner should go and live/work in Ireland for 6 months, sponsor me there on EEA permit, and then take me back to UK with her at the end of the 6 months under Surinder Singh. Not an option because she cannot afford to pack up and move to another country.

Partner should pick up a second job for 6-8 months to bring her salary to the 18.6 K. Not an option because my partner doesn't have a car and her current commute is an hour and a half each way. She'd have to do the second job entirely on the weekend and would burn out.

We also talked about the new rules and how likely it would be that they'd be overturned. He said that it's likely it would take many many years for that to happen, because even after they're voted down, it could take several years after the fact for the overturn to "kick in."

Feel very very upset and discouraged. No

How old will we all be by the time we get to be with our partners and spouses? Will some of us be too old to really enjoy the time we'd have left with our partners? How is it fair for this government to rob us of our lives like this?

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Re: So I spoke with a solicitor at IAS the other day...

Post  Ros Payne on Mon Oct 08, 2012 2:05 pm

Are you sure the EEA route will not work for you? It might mean that your partner has to give up her job but perhaps it will be worth it - that upheaval will be a temporary struggle compared to the misery of being apart indefinitely. That is the route we are going to try for - but it is less of an upheaval for us as we would be returning to the UK /Europe from Asia and moving to Europe first is not that big a sacrifice (in fact it might be fun!). What profession is your partner in? could you move to a European city and look for bar work? as long as it were sustained for the required time of 3-6 months, that would be good enough... and maybe a refreshing break, a chance to learn a new language...? Returning to the UK together you would have to start again from nothing, which could be tough, but remember, you WOULD be entitled to jobseeker's allownace if you came in via this route -AND - remember not to feel bad about taking it, seeing as it was the government who forced you into that position!
Have you added your story and your partner's MP to the pile at Britcits@gmail.com? Please write your painful tale to them as they will be trying to use a collection of stories to lobby various places. The strength of the stories is their number - we want to be able to send a large number of testimonials which cannot be ignored, so please add your info into that pot if you haven't already done so.
Don't give up hope - these laws are awful, and I think they will be overturned, but I think it will take time for their effects to permeate to the public's consciousness. Only then will they be overturned.

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Your solicitor is talking rubbish

Post  alandamper on Mon Oct 08, 2012 11:22 pm


Hi,

Theresa May may take a long time to relent, that's agreed, but if she decided to scrap the FM rules she can 'lay' new rules before Parliament any time she chooses and place a commencement date on them of the very next day! In practice she'd need to arrange new app forms etc beforehand, but as Home Secretary she's in effect a Dictator. The Immigration Act 1971 gives her total power over the rules, unless objected to by peers/MPs within 40 days of 'laying' before Parliament.

What the May gives, the May can taketh away - and as soon as possible I hope.

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:-(

Post  Snowbird on Tue Oct 09, 2012 3:02 am

Neither my partner nor I have the financial means for her to up and move to Ireland or another European country and support her (rent, food, etc) for however long it would take for her to find a job there. Additionally, my partner is a very shy, anxious and nervous person and is having issues just finding a permanent job in UK, never mind in another country....it's not a matter of not being willing to sacrifice - it's just not possible. She is a uni graduate in Sociology, but is doing admin work via an agency at the moment.

We could only use the EEA route (as per my original idea) if my partner gives up her UK citizenship (currently, she is Irish/UK dual national). However, nobody has apparently attempted this yet, and since Irish citizens have virtually the same rights in UK as UK citizens, including the ability to sponsor a non EEA spouse using the UK visa system, my understanding is that the UKBA will see it as a deliberate attempt to circumvent the system and just tell us to piss off, in which case my partner had given up her UK citizenship for nothing.

Yes, I've sent my story to Britcits@gmail.com. My partner has also emailed her MP, and received a very generic and uninformative reply which seemed to indicate that she either had no idea what the rules were, or didn't care. Meanwhile, I never received a reply from Chris Bryant. No

It just seems so wrong and undemocratic to allow any single person (Theresa May) that much power over the immigration system. No If that is true, then any successor to her position could overturn the rules just as easily? I don't know a lot about British politics - is the Home Secretary voted into office, and if so, how long is the term?

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There's always a way....

Post  alandamper on Tue Oct 09, 2012 8:02 am


Ok, firstly how long have you been together? Can you show you have been in a relationship for a couple of years?

Secondly I can't see why she needs to give up her UK passport. She has dual citizenship and so although she is a British citizen she is ALSO an EEA citizen and using that status to bring her non-EEA partner into the UK is not in any way an attempt to circumvent anything. They can't tell you to piss off.

She is entitled to receive all the benefits of being an EEA citizen. The UK government cannot take that away from her. "Do you hold an Irish passport?" - "Yes" - "Is this your partner?" - "Yes, and she needs you to issue a Family Member certificate so that I as a national of the Irish Republic can exercise my treaty rights and enter the UK with my partner".

That's the law. They can't force her to ONLY be a UK citizen and they can't force her to give up her UK passport.

Meet her in Dublin and get the plane to Bristol or Exeter or somewhere. I know it sounds simple but in law it is simple. Your partner has rights as an Irish citizen and they can't remove them!


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:(

Post  Snowbird on Tue Oct 09, 2012 10:16 am

alandamper wrote:
Ok, firstly how long have you been together? Can you show you have been in a relationship for a couple of years?

About two and a half years. Yes, we can prove it, but since we're not married (yet), she cannot sponsor me as an unmarried partner via either route because we have not been able to live together for that time.

Secondly I can't see why she needs to give up her UK passport. She has dual citizenship and so although she is a British citizen she is ALSO an EEA citizen and using that status to bring her non-EEA partner into the UK is not in any way an attempt to circumvent anything. They can't tell you to piss off.

She is entitled to receive all the benefits of being an EEA citizen. The UK government cannot take that away from her. "Do you hold an Irish passport?" - "Yes" - "Is this your partner?" - "Yes, and she needs you to issue a Family Member certificate so that I as a national of the Irish Republic can exercise my treaty rights and enter the UK with my partner"..

The reason why (I believe) she'd have to give up her UK citizenship is because of the very recent change made to the European Economic Area Immigration Regulations of 2006. Specifically, section B:

B. Restrictions on Free Movement Rights
McCarthy
The definition of “EEA national” has been amended in light of the ECJ judgment in McCarthy, which confirmed that the provisions of the Directive are not applicable to an EEA national who has never exercised his right of free movement, who has always resided in a Member State of which he is a national and who is also a national of another Member State.
An EEA national is therefore now defined in amended regulation 2(1) as “a national of an EEA State who is not also a United Kingdom national”.


That's the law. They can't force her to ONLY be a UK citizen and they can't force her to give up her UK passport.

No, but if she wants to bring me in with an EEA permit, it looks like she has no choice because Britain has decided that if you're British + anything other than British, you're ONLY British. :-(

From what I understand of the referenced Mc Carthy case, Mrs. Mc Carthy was a dual UK/Irish citizen who tried to get her Jamaican husband into the UK on an EEA permit, citiing her Irish nationality. She was denied because she had not performed any economic activity in UK (she'd been on benefits all her life and had never worked). However, her case exposed what UKBA apparently interpreted as a loophole whereby UK/other EEA citizen dual nationals could more easily get their non EEA partners into the country.

So if I'm reading this amendment correctly, my partner would only be able to sponsor me under EEA after having worked and lived in Ireland for a period of time, but unless she gives up her UK citizenship, she would have to sponsor me under the UK family immigration system if she wants to move into the UK and take me with. But, as I said, picking up and moving to Ireland is not a financial option. If we had the kind of savings needed to do that, she'd be able to sponsor me in her current circumstance. No

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Complicated......

Post  alandamper on Tue Oct 09, 2012 11:14 am


Hi,

The problem is that the UK in amending the Regulations didn't interpret the McCarthy judgment in the way the ECJ intended (as I read it).

I'm going through this and write tomorrow.




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I forgot

Post  alandamper on Tue Oct 09, 2012 11:17 am


Hi,

I forgot to say that the Surinder Singh route of exercising your treaty rights in another member state and then returning to the UK is not affected by these changes. That one is cast iron.

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My eyes hurt from reading Directives

Post  alandamper on Tue Oct 09, 2012 10:44 pm


Hi,

Ok, having read McCarthy and Singh ECJ decisions I think you only have two options.

Both options will require you to enter a Civil Partnership.

You can apply for a Marriage Visit visa to come to the UK and enter a Civil Partnership with your partner who is a British citizen. You will need to show that you intend to return home before the 6 months visa expires. If you have a job to return to and a return airline ticket it should be fine. The visa costs around £80 and is applied for through the UKBA Agency service in your country.

After you register your Civil Partnership you go home. You can stay just long enough to satisfy the Registry Office waiting times after notification of intention to enter a partnership before you do the ceremony. Treat it as a short holiday. It will cost you a plane ticket plus the £80 visa fee.

Now there's two choices. The first you have already ruled out on financial grounds. You both go to any EU country other than Ireland (because she's a citizen there too) and wait 90+ days until you can return to the UK under the Surinder Singh rule. You can go there too under the EEA family member rules because you have a Civil Partnership.

The second option is for your partner to renounce her British citizenship (£229). She will then be in the UK as an EEA national and can get you to join her here as her family member.

Is there some reason she won't give up her British citizenship? As an EU citizen she can live/work in the UK permanently and after 5 years get permanent residence instead. I don't know her circumstances but giving up the British citizenship won't have downsides given her Irish citizenship.

Ok, so now to your concern that because an Irish citizen has very liberal rights to enter and live in the UK under Common Travel Area rules the UKBA will cause problems.

Unless your partner was born before 1949 she has a 'de facto' right to live in the UK under the Common Travel Area agreement, but it is not citizenship rights and the UK can throw her out if they wish (If she is not a UK citizen as well of course).

I believe that if she gave up her British citizenship she would have the right under EU law to reside in the UK and take you there as a family member of an EEA citizen provided you were in a Civil Partnership.

I don't think the provisions of the Common Travel Area agreement can affect in any way your partners rights as an EEA citizen exercising her right to live/work in another Member State (in this case the UK after she renounces citizenship) and bringing with her a non-EEA partner under the Family Member rules. The CTA agreement does not make an Irish citizen a British citizen under the UK immigration rules.

In summary, I think you should come here on a short holiday and register a Civil Partnership. Go home and then come back to the UK as a Family Member once your partner 'renounces' her British citizenship. Otherwise it's Civil Partnership ceremony followed by 3+ months in another EEA state (not Ireland or UK) and a return to UK under Surider Singh.


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:(

Post  Snowbird on Tue Oct 09, 2012 11:54 pm

We do plan on getting married, but in the US state of New Hampshire. We haven't made concrete plans yet because I recently lost my job and am trying to find another. We cannot enter a civil partnership in England because they require a 15 day waiting period. Most jobs in this country give you five days of paid holiday per year to start, and in many cases, it accrues per pay period. New Hampshire doesn't have a waiting period, so she could come here, stay as long as she can, and we can go up there for a couple days and get it done.

It's not that she is not willing to give up her citizenship, it's just that we have no idea if the EEA application will succeed even if she does, and once she gives up the UK citizenship, she cannot get it back - I read that UK will only let you take it back if you initially gave it up to assume nationality in a country that does not permit dual citizenship. Although she would then be exclusively an EEA citizen, she has never lived or worked in Ireland, and as an Irish citizen specifically, she still has the right to use the UK family immigration system. Given that, the UKBA could certainly view it as a deliberate attempt to "cheat" the UK family immigration system and turn us down? I wouldn't care so much if we could apply for the EEA permit and just see what happens, but as it involves an irrevocable act (renouncing UK citizenship), we're a bit scared. I have yet to find any example of anyone else attempting that.

alandamper wrote:
Hi,

Ok, having read McCarthy and Singh ECJ decisions I think you only have two options.

Both options will require you to enter a Civil Partnership.

You can apply for a Marriage Visit visa to come to the UK and enter a Civil Partnership with your partner who is a British citizen. You will need to show that you intend to return home before the 6 months visa expires. If you have a job to return to and a return airline ticket it should be fine. The visa costs around £80 and is applied for through the UKBA Agency service in your country.

After you register your Civil Partnership you go home. You can stay just long enough to satisfy the Registry Office waiting times after notification of intention to enter a partnership before you do the ceremony. Treat it as a short holiday. It will cost you a plane ticket plus the £80 visa fee.

Now there's two choices. The first you have already ruled out on financial grounds. You both go to any EU country other than Ireland (because she's a citizen there too) and wait 90+ days until you can return to the UK under the Surinder Singh rule. You can go there too under the EEA family member rules because you have a Civil Partnership.

The second option is for your partner to renounce her British citizenship (£229). She will then be in the UK as an EEA national and can get you to join her here as her family member.

Is there some reason she won't give up her British citizenship? As an EU citizen she can live/work in the UK permanently and after 5 years get permanent residence instead. I don't know her circumstances but giving up the British citizenship won't have downsides given her Irish citizenship.

Ok, so now to your concern that because an Irish citizen has very liberal rights to enter and live in the UK under Common Travel Area rules the UKBA will cause problems.

Unless your partner was born before 1949 she has a 'de facto' right to live in the UK under the Common Travel Area agreement, but it is not citizenship rights and the UK can throw her out if they wish (If she is not a UK citizen as well of course).

I believe that if she gave up her British citizenship she would have the right under EU law to reside in the UK and take you there as a family member of an EEA citizen provided you were in a Civil Partnership.

I don't think the provisions of the Common Travel Area agreement can affect in any way your partners rights as an EEA citizen exercising her right to live/work in another Member State (in this case the UK after she renounces citizenship) and bringing with her a non-EEA partner under the Family Member rules. The CTA agreement does not make an Irish citizen a British citizen under the UK immigration rules.

In summary, I think you should come here on a short holiday and register a Civil Partnership. Go home and then come back to the UK as a Family Member once your partner 'renounces' her British citizenship. Otherwise it's Civil Partnership ceremony followed by 3+ months in another EEA state (not Ireland or UK) and a return to UK under Surider Singh.


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