Preparing for travel with pending EEA(FM) application

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Accepted answer

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.

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