Tag Archives: lawyers

Here, but not here

If you’ve seen me in person over the past 2 – 3 months, you will have gotten a detailed explanation of the difficulties I’ve been having with my visa application(s) to the UK. It’s long and boring and I’ve told it a million times, but as the story continues to twist and turn and inhibit my ability to live a normal life in the UK, it’s difficult to stop thinking about it.

So, let’s get you all up to speed.

I’m married to a British man. The usual way of gaining entry to the UK if you’re a non-EEA citizen and married to a British person is to apply for a spousal visa (the EEA is the European Economic Area, which is slightly different to the EU, for an entertaining look at the differences, see this video here). There are a few problems with the UK spousal visa. First of all, it costs approximately £1200. And that’s not for the visa, that’s for the application – if you’re rejected, you don’t get that money back. If you’re in the UK and you want to get an on-the-day service (you go into the office in-person and get your visa that day) it costs an extra £400. My initial reaction is that on-the-day service doesn’t add much value. Except for the fact that most people seem to get approved if they pay for the on-the-day service and people who apply by post seem to have a lot of problems. Obviously I haven’t done any proper research on this, but anecdotal evidence from friends and reading migrant forums seems to support this basic breakdown. So, it sux to be you if you’re not already in the UK, not able to get to the UK to apply for a spousal visa and not able to afford the extra fee to see someone on-the-day (though, with the pound in free fall, the on-the-day service seems to becoming a bargain for many potential migrants). Furthermore, this visa lasts for just under 3 years, which is not long enough to apply for permanent residence. If you’ve been on a Tier 4 Youth Migrant visa (like many Australian migrants to the UK are), you cannot use the years that you spent on that visa towards your permanent residence application. So, after you’ve paid £1200 – £1600 on the first spousal visa, you have to do it all again 33 months later. After that, you can spend however much money on permanent residence and then, if it hasn’t broken your spirit and your bank account, you can then apply for citizenship a few years down the track.

So, that is the first issue. The second issue is that the British partner or spouse must prove that they earn over £18,600 a year. If you don’t earn above this amount on a salary, life gets harder. Not impossible, but harder. If you do not have an income or do not meet the income requirements, you can make up the shortfall with cash savings in the bank (property and other assets do not apply, much to the chagrin of London property holders). To be eligible, you need to have cash savings of over £65,000 in the bank for the past 6 months. Furthermore, the potential (or real) earning power of the non-EEA spouse or their savings does not matter – the British partner is the only person taken into consideration. This doesn’t really affect me, but the policy has unfairly affected British women, who are more likely to be in part-time work, low-paid work or be unpaid carers of elderly relatives or children. Explaining all of this to a Russian friend of mine, she thought it must contravene human rights law. I don’t know if that could be proved, but the policy certainly is pretty heartless and has been used to separate partners from each other at very significant times, like, for example, at the birth of their first child (see here).

That’s the story from the British side. Now, if you are an EU citizen and you want to bring your non-EEA partner/spouse to the UK, because of freedom of movement laws, there is nothing the UK can do to stop you. They charge a £65 administrative fee to issue you with a residence card for 5 years.

Obviously, a few British people got together and went, hang on. I am also an EU citizen. Why can’t I bring my non-EEA partner to the UK under freedom of movement laws? It was challenged in court and we now have what is known as the ‘Surinder Singh judgement’. So, if you’re a British citizen and you move to an EU country to work (thereby exercising your right to freedom of movement), live there with your non-EEA partner, when you return to the UK, you will be treated as an EU citizen and be allowed to bring your partner back under freedom of movement laws.

SO, A. and I obviously fit into the above category having spent 2 years living and working in Germany. In light of the price difference between the two visas and the fact that I would gain the right to live in the UK for 5 years on the EU permit (even after Brexit happened, as long as I get the visa before the UK actually leaves the EU), we decided to go for the Surinder Singh route.

However, what with the fact that Surinder Singh is a loophole that the Home Office is super unhappy about and also, in light of Brexit, this permit and residence card is getting harder and harder to come by. Processing times have increased on the residence card even for EU citizens and their non-EEA partners, from 3 -4 months right up to the legal limit of 6 months. Originally, British people could move to an EU country for 3 – 6 months and bring their non-EEA partner back easily. However, a later judgement specified that the British citizen must move the ‘centre of their life’ to the EU country (a conveniently slippery and hard-to-define term), meaning that it was unlikely for British citizens to be able to use the route unless they had spent at least 6 – 12 months in an EU country.

So, we applied for the initial 6 month permit when we were still in Germany, knowing that once I got to the UK I would have to apply for the 5 year residence card. As anyone who follows me on social media will know, that initial application was rejected. The reason given was that we had not proven A.’s identity. At the time of the application, A. was travelling from Berlin to London every week for work. We couldn’t provide his passport, so we provided a certified copy of this passport. On the visa application website, it said that a certified copy of the passport was acceptable if the passport couldn’t be provided. Our certified copy was certified by a German lawyer suggested by the UK embassy in Germany. However, the Home Office obviously decided it was not good enough.

Looking at our options in a panic-induced haze after this rejection, we were informed by an immigration lawyer that the permit could be granted on the UK border. Obviously, this was not a possibility if you were the citizen of a country that was not visa-free to visit the UK (say, if you’re from Afghanistan or Belarus or Iran), because the airline would most likely not allow you to board their craft in the first place without a visa. However, coming from a visa-free country like Australia meant that I could literally turn up at Stansted, Heathrow or Gatwick and demand the permit there. I don’t think the Home Office likes to advertise it, because I found out about this route via forums and lawyers, not through the Home Office’s website, but the option is there.

So, on the 31st of August, we arrived at Stansted Airport, documents in hand, shaking in our goddamn boots. If I was rejected for the permit, there was no likelihood that I could just enter as a tourist, because the border agent would have ‘reasonable grounds to believe that I would overstay my visa’. If I was rejected, I would be sent back to Germany  as my port of last call and as I had stopped working there, my sponsored work visa was potentially no longer valid. If I turned up on the German border alone, they might not let me in and, consequently, send me back to Australia. So, A. and I booked emergency flights back to Berlin on the day we arrived in the UK, in case he had to accompany me back to Berlin to get me back into the country (as the non-EEA spouse of an EU citizen, travelling with that EU citizen, we don’t think the German border agents could really have rejected me).

Anyway, the border agent we met at Stansted was… less than friendly. He took our documents (refused to look at our immigration lawyer’s letter) and made us wait in the ‘bad immigrant pen’ (this is my affectionate name for the little guarded seated area they make you wait in so all the other people in the passport queue can stare at and judge you. I think this name makes it slightly less intimidating). When he returned to us, he informed us that we’d ‘certainly done our homework’ and that he’d be letting us into the country today because there was ‘nothing he could do to stop us.’ However, he informed us that there’d been another recent decision (the McCarthy decision – ominous) that meant that he wasn’t going to stamp my passport.  So, if I was picked up by the police, it would look like I had just overstayed my visa. More importantly, I would be unable to prove to employers or the NHS that I was here legally, meaning I could not work and I could not access health care. He advised us to apply for the residence card asap.

We entered the country. I assumed that I would be able to get potential employers to employ me if I had a letter from my immigration lawyer and the documents that proved I was eligible to be here (marriage certificate, evidence that A. and I lived together in Germany, evidence that A. had worked in Germany). After a conversation with our lawyer, it became obvious that was not the case. So, I spent a few weeks sitting around the house, getting certificates in Google Ads and doing MOOC courses, trying to ‘up-skill’ so that when I was finally allowed to apply for jobs, I’d look like I’d been doing something useful.

We didn’t apply for the residence card straight away and I bet you’re wondering why. Well, in July, we’d booked a late summer holiday to Croatia at the end of September, back when we’d foolishly thought all of this would be over by September. The holiday was pretty much non-refundable and both of us were worn out from 4 – 5 months stress of sudden job loss for A., wedding stress, moving stress and visa stress. We were going to the goddamn Adriatic and we were finding a goddamn beach and we were going to lie on it and we were going to de-stress. Goddamn it.

But, there was no guarantee that, on our return, we would be granted entry. We kind of assumed that there would be a record of our original entry into the country and that it created a precedent for us to be allowed back in. However, we weren’t certain.

At Gatwick, we met a border officer who was, I think it’s fair to say, the complete opposite of the man we met at Stansted. He was friendly, kind, understanding, empathetic, helpful. He looked up my name but could not find any evidence of any residence permit or any previous entry on the 31st of August. He took my documents and we were put in the bad immigrant pen again. When he returned, he handed me my passport and said, ‘There you go. I’ve put the stamp in it that you should have gotten in the first place. We would have given it to you if you’d just provided the passport.’

AMAZING! Suddenly the whole of the UK seemed open to me. I had a passport with a stamp, I could look for work, I could register with a doctor. I started immediately looking for jobs and putting my residence card application together.

As stated previously, the residence card application takes 3 – 6 months, but what with Brexit uncertainty, things have slowed down. The application requires my passport and A.’s passport. My passport, the one that has the proof in it that I’m allowed to work and allowed to access a doctor etc. But, as that permit is only 6 months long and the application can take up to 6 months (I’ve recently seen forums and blog posts that suggest the UK has no right to kick out anyone on that visa after 6 months, but I don’t particularly fancy testing their keenness to do it), I need to apply for the residence card asap. The application is currently being looked over by our immigration lawyer before being sent off.

Today, I had a job interview. It was for a temp service, so nothing exciting, but as I’ve been going out of my brain with boredom and lack of money for the past 6 weeks, it was definitely making me feel happy. As I couldn’t bring my passport, I brought a certified copy of the passport and the visa stamp. Not good enough. I have to wait for the letter from the Home Office saying that I’ve applied and that I’m eligible to work. This is what the lawyer advised me back in September when the first border agent refused to stamp my passport. Employers have a list of acceptable documents that prove someone is eligible to work (it is provided by the Home Office). If you don’t have one of those documents, you’re not eligible to work. I kind of thought a certified copy of a recognised permit would be enough, but, no. As far as I know, the letter that proves I’m eligible to work could take at least 2 – 3 weeks to be sent to me. Providing everything goes well. They have to collect my biometric information before the application actually gets going and I know of one person who tried 3 times to give their biometric information to the Home Office and the system failed every time (not through any fault of this applicant). I don’t know if my acknowledgement letter gets sent before the biometric info gets taken or after.

I’ve applied for a quite a few interesting jobs in the last 2 weeks. I’ve been offered some interesting opportunities. But there may be no way of starting any of these jobs before I get this goddamn letter. So, I might lose the opportunities I’ve been offered because I can’t get evidence I’m allowed to work together in time. I’m in an enforced period of stasis, I’m in the country, but have no way of taking advantage of being in the country. It’s hugely difficult to get my life here off the ground without the ability to find work. If I can work I can earn money, I can meet new people, I can get out of the house. Without money, everything becomes harder – there’s a limit to how much I can enjoy here in terms of going to the theatre, using facilities, even going to cafes and having a pot of tea. But, because I’m not at work, I have endless idle hours to try and fill. Sure, Alex is earning. Sure, I have some savings. But not earning your own money makes you feel powerless, anxious and vulnerable.

On top of all this, the Tories had their party conference a few weeks ago and the level of vitriol levelled at migrants who ‘take our jobs’ was astounding. Even if I was able to prove that I’m eligible to work here (because I AM eligible to work here, I just have no acceptable way of PROVING that I’m eligible to work here), I’d be terrified that an employer would look at my passport, shrug and say, ‘seems more trouble than it’s worth, really.’ What if the government puts in place quotas of how many foreign-workers are allowed to be employed by a particular entity? What if the government takes away my EU visa? What if, what if, what if? Sure, it’s not that likely, sure they’re just trying to make the racists who voted for Brexit feel happy and safe and listened to, sure I’m a white Australian and even the Conservatives like us (to pull their beer), if only to have someone to make convict jokes at and feel superior to, but… I am a migrant. I don’t really ‘belong’ here. I’m not ‘British’. Therefore, those anti-migrant speeches were directed at me, along with all the other migrants.

My ‘welcome’ to this country has been so cold and so hostile. I didn’t really expect them to roll out the mat, but the fact that it has been so stressful, that it has been ongoing, that just when we think something has been sorted out, something else comes along to frustrate it, has been so disheartening. I have been working to get status here since July. And it will not end completely until next April. At some point soon (I hope) I will be allowed to work. People are probably thinking that if I didn’t go for this particular route, maybe things would have been easier. But a friend of mine has only just had her spousal visa application approved after a year of fighting a rejection. She was lucky because she was able to stay in the UK with her partner with a different visa. Who knows how long it could have taken if A. and I had tried that route and who knows where in the world I would have had to wait and whether or not A. would be allowed to join me.

There’s always a difficult adjustment period when you move somewhere new. Even if everything had gone right with my visa application, there would have been a period of unemployment, a period of loneliness, a period of idleness. But all of this has been exacerbated by the visa difficulties.

The distressing thing is that this is not a ‘bug’ of the system, or something that people want to fix. This is the system. It’s this difficult and painful and long-winded because it’s meant as a deterrent. It’s this complicated to try and stop people applying in the first place. It’s not meant to be easy for you. I thought, initially, that I could get through this without an immigration lawyer. I really, really, really didn’t want to pay for an immigration lawyer. I can’t explain to you just how annoyed it made me feel that I (or any person) couldn’t do it on my (or their) own. But, looking at all the paperwork for the residence card sitting on my table earlier in the week, I just couldn’t bear to be rejected again. I couldn’t bear to wait 6 months for a rejection. Sure it wouldn’t cost much money if I was rejected, but I couldn’t go through the inconvenience and stress of it all again. Having to figure out my rights (again), having to make new plans (again), having to make a new application (again).

And the fact that the system is so complicated for people who WILL NOT be deterred is ridiculous. It’s not like A. and I are about to turn around and say, ‘oh actually, this is all too hard, let’s just get divorced.’ And it’s not like we considered this system before we got married and it’s attempt at deterrence was in anyway relevant to us (‘Will you marry me?’ ‘Won’t that be really difficult visa-wise?’ ‘Oh, yeah, you’re right, I take it back’). I’m sure people (the government) would tell me that it’s about making sure the system is ‘not abused’ by people who are not in ‘genuine’ relationships. Well, I call bullshit. I want to see the numbers of people who have ‘abused’ the system vs. the number of genuine couples who have had their lives broken (far worse than what A. and I have experienced) because of the system’s unnecessary complexity and harshness.

Do you want to hear something funny? It was easier and less stressful to apply and receive my two visas in Germany, even though those applications took place in GERMAN, which I did not speak beyond a beginner level than it has been to get my UK visa. That, I think, should be a pretty massive indictment.

 

 

 

Leave a comment

Filed under UK