EEA Family Permit for US Citizen with prior coded landing

Question

I am an American woman in the process of gathering documents and filling in the Visa4UK form for the EEA family permit, to join my Italian husband who has been living and working fulltime in London for the last five years.

We met in London last summer while I was there on holiday, and married in Italy in July. I freelance and have a flexible schedule, so I was in and out of the UK for short holiday visits, one in March 2017 (1 week), one in April (10 days), one in June (3 weeks, when he and I first connected), one in August (one month, spending time with my then-boyfriend) and one from November-early December (staying with my then-boyfriend).

In January of this year while we were re-entering the UK from a month-long holiday in Italy, the IO flagged my entry and had me give her the account of all my visits over the last year. She said I was spending too much time outside of the US, and I got a coded landing stamp with (what looks to be) a circled "W" on it, and she verbally informed me she was giving me a warning. She asked me how long I was intending to stay in the UK (as I was honest and told her I didn't have a return ticket to the US), and I told her I was visiting my (then-boyfriend) and would probably be returning to the US in a month or so - but that I really didn't have fixed plans at the time. My entry stamp at that time said 'leave to enter for/until six months,' so (naively?) assuming it wasn't an issue I ended up staying three months, until April when I went to India for a month, and afterwards to Italy for two months. I saw my (then-fiance) in Italy over a few visits during that time, last during the week of our wedding. Since the end of July I have been back in the US with my family, while we've been getting all our documents and EEA family permit application in order.

From my research on this forum and others and in talking with friends who have been through this process recently, it's my understanding that as a non-visa citizen I should be able to forego the EEA family permit and enter the UK (alongside my husband), showing documents to substantiate our marriage and his QP status as a full-time employee in the UK. However, I'm concerned about the possibility that my entry situation in January could raise issues while we attempt to cross the border together.

I'm not sure if they have any grounds to deny me entry as we're married and he'd be exercising his treaty rights to bring me into the country? I did have to apply for a new passport as my previous one was almost full, so my passport number is now different and the coded landing stamp (obviously) isn't present in it. However, assuming that last warning could still pop up in the electronic records, I'm not sure if they could raise some issue about possible overstay on my previous visit?

It is definitely much easier to cross the border directly rather than apply for the EEA permit in advance, and it would be my preference to do that if possible. However, I'm trying to weigh the likelihood of some issue actually coming up and if it's overall safer to just go ahead with applying for the EEA permit to avoid any problems in advance. I am also going to have a consultation with an immigration lawyer on the same, but would appreciate any opinions, insights or advice!

Thanks so much!

Answer 1

It seems to me that the two shouldn't be connected. The coded landing means that the border officer suspected that you are settling in the UK. When you enter the UK on the basis that you're the family member of a UK resident, you're declaring "yes, I am settling in the UK", so the previous suspicion is irrelevant .

You're right that changing passport will have zero impact on whether the information about your previous warning is available to the border officer, but you're also right that there's no grounds to deny you entry.

As phoog notes here EU rules for grounds under which a spouse can be denied entry are very narrow. Even if you had broken immigration rules and overstayed on previous visits, the UK would not be able to deny you entry (indeed, even the spouses of UK citizens who aren't covered by EU freedom of movement legislation can't be denied entry for overstaying alone, proving that UK authorities treat situations like this relatively sympathetically).

In short, I don't think your previous warning will have any bearing on whether you are successful in gaining entry to the UK as the spouse of a UK resident EEA citizen.

Answer 2

This was to have been a comment, but it's a bit too long for that. I will start by recommending MJeffryes's answer, to which I want to add just a couple of points.

First, regarding an immigration officer's assertion that you were spending "too much time outside the US": any time you spend outside the UK is not really any of their business, other than as a red flag for potential illegal immigration to the UK. As the family member of an EU citizen who lives in the UK, you have a legal right to reside in the UK, so you cannot immigrate illegally.

Second, you are correct that you do not need an EEA family permit; you can just show up at the border with the same evidence you'd use to apply for the permit. But it might be more stressful to do that than to await the result of an EEA FP application in the comfort of your home.

A stressful entry is perhaps unlikely, but the worst-case scenario in which it would occur is not at all implausible. Consider: you received a coded landing, whereafter you married an EU citizen resident in the UK. This could lead to a suspicion that the purpose of your marriage was to get around UK immigration restrictions (that is, that it is a "marriage of convenience"). However, a recent marriage is usually, by itself, sufficient to raise a suspicion of marriage of convenience; the coded landing may make that suspicion only slightly more likely or slightly stronger.

If such a suspicion does arise with the immigration officer handling your application for entry, they will want to see evidence that your marriage is genuine. This could lead to some time in detention while they examine the evidence, as well as the possibility that they find the evidence insufficient and send you back.

It might be better instead to present the evidence to an entry clearance officer in the US by way of an EEA family permit application. This would allow you to pass the time while they examine the evidence in the comfort of your own home, even though the amount of time required would be measured in days or weeks rather than hours.

Of course, the relative weight of these considerations is a matter for you to decide. If you're very eager to get to the UK as quickly as possible, and the evidence supporting the genuine nature of your relationship is strong, you may want just to fly to the UK and present it at the border.

Another option would be to fly to France and enter the UK by train or ferry. In that case, a refusal of entry would leave you in France, and you would not waste a transatlantic air ticket.

You could also perhaps fly to Ireland and enter the UK without passing through a passport checkpoint. I don't know what the possible risks are in that case (that is, how would the Irish border guards evaluate you, and what legal liabilities would arise if your subsequent application for a UK residence card were denied?).

Your husband need not accompany you. It's fine if he's already in the UK when you arrive.