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This follows on from earlier questions/answers. My wife and I are now back in the UK after living in Spain (Surinder Singh immigration process). We had been in Spain for 10.5 months and I acquired my residence certificate (it took over 6 months for that). However, due to misinformation/misunderstanding, my wife's residence card was not available at the time of our departure. She had completed all the paperwork, had her NIE number, had a document telling her to pick up the residence card before a date in January, but our flight was booked before that.

She was stopped by the National Police at passport control and it took a long time to convince them that her papers were in order. On arrival in Liverpool we just entered her on a tourist visa and soon we will start the UK residence card process.

I asked this question earlier and was told that there was provision in the EEA regs 2016 to permit this. Does anyone know the exact reference for the regulation? I also have it via legal opinion that such an application is ok but I don't have the reference.

  • "A provision in the EEA regs to permit this": to permit what? Your wife's application after entering the UK without her Spanish residence card? Your wife's application after entering as a tourist? Some other element of your story? For clarity, does she actually have a visa, that is, a sticker in her passport, or was she granted visa-free "leave to enter" with a wet ink stamp? – phoog Jan 13 '18 at 18:18
  • You tell me, you were the one that actually quoted that phrase. Look back at the original post. – Kevin Armstrong Jan 13 '18 at 19:06
  • At that time you said there was no problem with her applying for a UK res card from a tourist visa. i had explained the difficulties she was encountering with obtaining her Spanish residence card. For clarity. She has a 6 month tourist stamp, she is a non-visa national and she has paperwork to show that she was living with me in Spain for 10.5 months whilst I was exercising treaty rights. – Kevin Armstrong Jan 13 '18 at 19:08
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I suspect that the text you're thinking of is the following:

SCHEDULE 3

EFFECT ON OTHER LEGISLATION

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.

Source: 2016 No. 1052, IMMIGRATION: The Immigration (European Economic Area) Regulations 2016.

This means that her rights under the regulations supersede any status she has under the immigration act, such as the visitor status conferred by her leave to enter stamp. This follows from EU law, which holds that her rights under EU law flow directly from her status as your wife and from your right to be treated as an EU citizen by virtue of your having exercised your tray rights in Spain.

Her ability to apply is therefore not dependent on how she entered the country, but the success of the application of course depends on whether the UK accepts that you qualify for Surinder Singh status.

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