4

My spouse (US national) and I (German national) have both been living and working in the UK permanently for a number of years. She's currently working here on a Tier 2 visa and I'm exercising treaty rights. After our recent marriage (in the UK) we filed a shared EEA(FM) and EEA(QP) application, which is pending, and will most likely remain that for a prolonged amount of time (judging that it does seemingly take up to 6 months for others).

As part of the EEA(FM) and EEA(QP) applications we submitted the following (original) documents:

  • my spouse's US passport
  • my spouse's BRP (Biometric Residency Permit for the Tier 2 visa in the UK)
  • my German ID card
  • our marriage certificate (the handwritten one you get on the day)

Because we knew that we will want to travel we took a few precautions and got my spouse a second US passport from the US embassy. That was a pretty straightforward process as she told them that the UK government will keep her first passport for a prolonged amount of time. We also got an official copy of the marriage certificate and I retained my German passport.

We'll only be traveling to Germany (returning from either Switzerland or France if that makes any difference) and I don't believe there should be any problems to travel there. It'll be only a short trip to Germany over Christmas. She'll just enter the Schengen area as a tourist as she always did, now with her second passport.

The way back to the UK seems slightly more tricky. She'll be able to board the aeroplane as US nationals don't require visas to come to the UK (as tourists) so she'll surely be able to board the plane back. After that we will need to re-enter the UK and usually she presents her passport and BRP and after a few questions, she's back. This time however we won't have the BRP (as it's with the Home Office for the EEA(FM) application).

As far as I understand she has (in theory) three different ways of entering the UK:

  1. As a tourist (bad idea I believe).
  2. As the spouse of an EEA national (me), travelling together.
  3. Under her own Tier 2 visa (lacking the BRP).

I believe entering as a tourist is a really bad idea as that would invalidate her Tier 2 visa that her current job is on. Entering as the spouse of an EEA national might come with the same problems (unsure) and we would probably need to prove our marriage at the border. Our plan was to bring the official marriage certificate copy and a proof of employment from my employer (which should show that I'm a 'qualified person').

The third option is of course for her to enter the UK under her Tier 2 visa, which I believe would be preferable as it clearly can't have any impact on her current job. The issue will be that she won't have a BRP and also she'll be travelling on a different passport than usually (as her usual passport is with the Home Office). I know you can enter the UK without your BRP, it'll just be less convenient.

Now the questions are: Which way would be the best and most convenient to re-enter the UK? What documents should we bring and did we forget anything crucial?

PS: Just to be clear: On both flights and throughout the whole trip to Europe we will be travelling together. We will also both queue together at UK immigration. Needless to say, we want UK immigration to go as quickly and smoothly as possible but we won't be under time pressure.

closed as off-topic by phoog, Giorgio, Ali Awan, Kate Gregory, CGCampbell Nov 27 '17 at 13:54

This question appears to be off-topic. The users who voted to close gave this specific reason:

If this question can be reworded to fit the rules in the help center, please edit the question.

  • Since the main issue here is your wife's status in the UK, it is probably better suited to Expatriates. – phoog Nov 26 '17 at 5:37
1

Background

This answer will be easier to understand if we clarify some terms, because immigration in the United Kingdom is controlled by a few different legal instruments. European Union freedom of movement is codified in Directive 2004/38/EC ("the Directive"), which is implemented in the UK by The Immigration (European Economic Area) Regulations 2016 ("the Regulations"). Most other immigration falls under the Immigration Rules ("the Rules"), which are issued under the Immigration Act 1971 ("the Act").

Citizens of EU and EEA member states and of Switzerland generally do not fall under the Rules. They fall instead under the Regulations and the Directive, as do certain of their family members.

Someone who enters as a visitor (including as a tourist) falls under the Rules, and particularly under Appendix V; someone who enters as a Tier 2 migrant falls under one of a range of several paragraphs of part 6a of the Rules. Someone admitted under the rules has "leave to enter" as provided in the Act.

Analysis

One question to consider is whether entering under the Rules (as a visitor or as a Tier 2 migrant) would have an adverse effect on your wife's claim to rights under the Regulations. The answer is that it will not.

Schedule 3 of the Regulations concerns "effect on other legislation." One of its provisions is relevant to your wife:

Leave under the 1971 Act

1.  Where a person has leave to enter or remain under the 1971 Act which is subject to conditions and that person also has a right to reside under these Regulations, those conditions do not have effect for as long as the person has that right to reside.

This means that if your wife enters under the Rules as a visitor (that is, as a tourist), the stamp saying that employment and recourse to public funds are prohibited will have no legal effect as long as she is entitled to reside in the UK under the Regulations. The same would be true if she entered in her Tier 2 status.

It also means that any restrictions on her conditions of entry as a visitor or a Tier 2 worker do not apply, so she cannot be required to have her BRP with her.

There is a problem, however, which is the UK's looming departure from the EU. The future status of EU citizens and their family members is far from certain. It is conceivable that she may lose her "right to reside" under the Regulations because of this, and you should consider what would happen in that case.

In particular, if her rights under the Regulations were to cease, she would want to revert to her Tier 2 status. For that reason it's probably a good idea to avoid entering as a visitor, as you note in the question. But I have no idea whether entering under freedom of movement would affect her ability to revert to Tier 2. I doubt it would, but you may want to ask an immigration lawyer about it.

As an aside, with regard to your trip to the Schengen area, she also enjoys freedom of movement there when traveling with you, and the Schengen Borders Code explicitly states that she can use the "EU/EEA/CH" passport desk. You may therefore want to show your marriage certificate when you enter and leave the Schengen area as well, especially if lines are very long at the "all passports" desks.

If you are interested in reading more about European Union freedom of movement in the UK, and more generally about UK immigration law, you may want to look at Colin Yeo's Free Movement blog.

Not the answer you're looking for? Browse other questions tagged or ask your own question.