Does family really matter?

March 21 , 2012
March 21 , 2012

Does family really matter?

London has always been a melting pot of different cultures and peoples. In 2004,with the arrival of East European citizens from the so-called “A8” countries – Latvia, Lithuania, Estonia, Poland, Hungary, Czech Republic, Slovenia and Slovakia – the “mix” got richer and yet again more complex.

Eight years down the road with the growth of large Eastern European communities in and around London, family members of EEA (European Economic Area) nationals – spouses, children, parents and relatives – have also arrived into the U.K. to work, visit, study, live and receive medical treatment bringing with them specific immigration issues.

As an immigration practitioner, I have witnessed the steady increase in EEA-related immigration work. I discuss below two quite common problems faced by many of my client’s as well as the solutions available to them. But before I get into that, I take a brief look at the unforeseen consequences of family life in the context of European immigration law.

When the EU Treaty was being drafted, the focus was encouragement of a steady flow of EU citizens moving freely around the Union to take up jobs and/or do business – the necessary part of the free market, the overall goal of the Treaty. The rights of the family members of the EEA nationals, who themselves were not EEA, were added almost as an afterthought – a nod to the inescapable fact of mingling of cultures and ethnicities with the Member States of the Union. An automatic right of residence leading to a permanent right to reside in the member countries was thus not only granted to EEA nationals but also to the non EEA family members of EEA nationals.

Is this the brave new world that was envisaged by EU lawmakers?

Well, not really – families break up, people die or leave. It soon became clear that provisions had to be made for such occurrences and this meant adding new provisions to the existing Treaty. And, as any lawyer would tell you, this meant loopholes and inconsistencies. It is interesting how in the mind of general public a loophole is something people can benefit from – in European immigration law, a loophole means people being stuck in limbo, unable to  obtain access to jobs, benefits and support. The right legal advice and representation is vital here.

What of the two examples? Well, they deal with two most common problems faced with non-EEA nationals – going through a divorce where the EEA spouse refuses to co-operate on an immigration issue and starting a new family and bringing them into the EU. With an appropriate legal advice and representation, the first issue can be resolved. The second, for now remains a complex one.

Divorcing an EEA National – Sergei’s example

Sergei, (not his real name), a Ukrainian citizen, was married to a Latvian national living in the UK for three years. Things did not work out between the couple and the marriage ended bitterly. Sergei has not seen or spoken to his ex-wife since the divorce. The UK immigration regulations required Sergei to produce documents confirming his ex-wife’s status at the time of their divorce in order for him to be able to continue to reside in the UK. However, with no contact with his ex-wife, Sergei is not in a position to ask her for those documents and even if he was, Sergei is quite sure that she would refuse to provide these in any case.

Fortunately, there is a procedure which would allow Sergei (and people in similar situations) to require the UK Government to obtain the necessary information on his behalf – this is only fair as all the documents required for the Home Office (relating to the employment status and residence of an EEA National) are readily available from HM Revenue & Customs (HMRC), the UK tax authority. Sergei’s solicitors thus simply made two government departments (Home Office and HMRC) talk to one another and the relevant information was made available and used to help Sergei achieve permanent residence in the U.K.

Even in cases where the UK Government does not comply with similar requests, an independent judicial avenue is available to force compliance. You should make sure that your lawyer is diligent and well versed in this area of law to ensure he/she can get the job done right for you.

Getting married again – Nina’s example – Between the rock and a hard place

Nina, (not her real name), a Russian citizen, was married to an abusive ex husband of Estonian origin. Having stayed in the UK following her divorce, she met Vasily (also a Russian citizen) via the Internet. The couple fell in love and married in Moscow some time thereafter. However, this is where their troubles began – neither the EU Treaty nor the UK immigrations rules cater for such a situation.

Basically, Vasily cannot join Nina in the UK until she obtains permanent residency, which is still a few years away. Until then, the couple is forced to live their married life on a long-distance basis, with all the stress and pressure that this entails.

Nina’s solicitors have had to submit an individually-tailored application for Vasily to enter the UK on a discretionary basis. The application was granted and this has enabled the couple to be reunited far sooner than the immigration rules for non EEA nationals would ordinarily allow.

I would never recommend that Nina or Vasily try to make such an application on their own. It is highly likely that it would fail without the right legal advice and representation. Sergei and Nina have both benefited greatly from having a specialist immigration solicitor help them with their cases. Sergei has been able to put his immigration issues behind him and move on with his life, whilst Nina and Vasily have everything, except for immigration issues, to look forward to as they embark on their new life together here in London.

Dare I say it… Happily ever after?

Igor Ryabchuk

Head of Immigration at Saracens


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