Residence card for EEA valid?-Outside the UK for 2.5 years

[goose1]

Hi,

I am a French citizen married to a US citizen. In 2012 my wife got an EEA family permit allowing us to move to the UK together, where I was doing postgraduate studies and she was working. She received her residence card a few days before visiting her family in the the US. The urgency of the visit was due to her mother being ill. The visit became a long one and after quite a few months I had to withdraw from my school and my wife had to quit her job in the UK. I had to fix my immigration in the US so that I could be there legally. Its been 2 and a half years now and we have the opportunity to return to the UK, like we initially planned. I have a good scholarship and my wife wants to take back her previous job.

My wife's residence card is still valid.

A few solicitors have suggested we apply from scratch, with a family permit and then the residence card. However, other solicitors and UKVI phone personnel have mentioned that there is no need to reapply because her card is still valid. The only issue would be a break on the continuous 5 year period of residence if we wanted to apply for permanent residence. So we would have to renew the residence card if we needed to stay longer in the UK.

Does anybody know if we can still return to the UK? My worry is that if we buy a plane ticket to go there, which is expensive, and then my wife gets in trouble, making it harder for us to remain together.

I cannot find any written official information on residence cards losing their validity if one leaves the UK for a few years and then comes back. I can only see this for the continuous 5 year periods that count towards permanent residence.

Once we get to the UK I would be exercising treaty rights, I will be going to school and receiving a scholarship. I would have to get comprehensive sickness insurance to meet all the requirements.

I notice that some people asked similar questions 4 years ago but since immigration rules change continuously I was wondering if anything has changed or how did it work for these people.

http://www.immigrationboards.com/eea-ro ... 74940.html

Any advice?

[Obie]

Even though the residence card is invalidated, she could still enter the UK, as she is an American citizen who is being accompanied by an EEA national, so I do not envisage her experiencing much problem.

[goose1]

Hi Obie,

Thank you for your reply.

If she enters as a non-visa national, given her US citizenship, they would ask her what is the purpose of her visit. If she says that she is moving to the UK with me then she would get in trouble. So, I am curious as to how her non-visa national status could help her come back to the UK with me if the residence card becomes invalid.

I called the home office again and they mentioned she could come in with her residence card as long as it is valid. But then I contacted immigration at two different airports and I got mixed responses: her residence card is invalid after two years out of the UK and another person saying that if we bring documents proving that I will be studying and that we would be insured that it could be possible to come back. I dont know what to believe anymore.

I dont mind applying for a new permit, but then I dont know if I need to be exercising treaty rights immediately or if I would have the three initial months to sort out insurance, housing, etc.

[chaoclive]

Hi Obie,

Thank you for your reply.

If she enters as a non-visa national, given her US citizenship, they would ask her what is the purpose of her visit. If she says that she is moving to the UK with me then she would get in trouble. So, I am curious as to how her non-visa national status could help her come back to the UK with me if the residence card becomes invalid.

I called the home office again and they mentioned she could come in with her residence card as long as it is valid. But then I contacted immigration at two different airports and I got mixed responses: her residence card is invalid after two years out of the UK and another person saying that if we bring documents proving that I will be studying and that we would be insured that it could be possible to come back. I dont know what to believe anymore.

I dont mind applying for a new permit, but then I dont know if I need to be exercising treaty rights immediately or if I would have the three initial months to sort out insurance, housing, etc.

You will have the initial 3 month right to reside to sort out everything: "Please note: because of the initial right of residence, the ECO cannot refuse someone on the basis that that their EEA national family member will not be a qualified person in the UK on arrival. However, if the ECO is satisfied that the EEA national has been in the UK for longer than three months, the ECO must be satisfied that the EEA national is a qualified person."
https://www.gov.uk/government/publicati ... rmit-eun02

There shouldn't be a problem with her entering as she is the family member of an EEA citizen. As long as you can prove this at the border you shouldn't have an issue, although it may take a little longer to clear immigration as I'm sure the officer will have to check with someone else to make sure. You can ask for the new equivalent of a Code 1A; called "‘EEA Dependant’ ink stamp":
"If the officer is satisfied that the passenger is eligible for admission, the passenger’s valid passport will be endorsed at the border using an ‘EEA Dependant’ ink stamp for a period of six months. This stamp has replaced the ‘code 1A’ stamp previously used for this purpose."
https://www.whatdotheyknow.com/request/ ... 8%2019.pdf. This PDF FOI response refers to a British citizen who has undertaken the Surinder Singh route and wants to return to the UK but this is equal to an EEA citizen without British citizenship bringing a non-EEA spouse to the UK.

I don't think you will have any issues.

Of course, you could apply for a new EEA family permit for her and avoid all the hassle. I'm not sure how this would work though as she still has a valid residence card. It may be the case that the residence card might be cancelled at the Embassy? I don't know about this though.

I think you are in quite a good situation and have options open to you. Just need to make a decision as to which one you choose. Perhaps try to phone the UK Embassy to see how the new EEA family permit would work if she has a valid (if possibly invalidated by being away from the UK for so long) residence card.

EDIT: See here for further clarification:
https://dl.dropboxusercontent.com/u/278 ... reeEEA.pdf quoted on: https://eumovement.wordpress.com/2010/0 ... to-travel/
A quote from a letter from Damian Green (Minister for Immigration) back in 2012. Although it is a little out of date, the principles should still stand:
"Under Regulation 11, the family member of an EEA national must be admitted to the UK if he or she produces on arrival a valid passport and an EEA family permit, a UK issued residence card or permanent residence card, or if he or she is able to prove the family relationship by other means. [emphasis added]

It is therefore not compulsory for family members of EEA nationals to obtain an EEA family permit before travelling to the UK, and UK Border Agency officers will consider any evidence presented by passengers arriving at the UK border that they are entitled to be admitted as a family member of an EEA national in accordance with regulation 11 (4) [Ed: This is the paragraph which implements MRAX]. Nevertheless, it is strongly recommended that family members obtain an EEA Family Permit, which are issued free of charge, before travelling in order to facilitate their entry to the UK."

[PrestonLancs]

Hi,

I am a French citizen married to a US citizen. In 2012 my wife got an EEA family permit allowing us to move to the UK together, where I was doing postgraduate studies and she was working. She received her residence card a few days before visiting her family in the the US. The urgency of the visit was due to her mother being ill. The visit became a long one and after quite a few months I had to withdraw from my school and my wife had to quit her job in the UK. I had to fix my immigration in the US so that I could be there legally. Its been 2 and a half years now and we have the opportunity to return to the UK, like we initially planned. I have a good scholarship and my wife wants to take back her previous job.

My wife's residence card is still valid.

A few solicitors have suggested we apply from scratch, with a family permit and then the residence card. However, other solicitors and UKVI phone personnel have mentioned that there is no need to reapply because her card is still valid. The only issue would be a break on the continuous 5 year period of residence if we wanted to apply for permanent residence. So we would have to renew the residence card if we needed to stay longer in the UK.

Does anybody know if we can still return to the UK? My worry is that if we buy a plane ticket to go there, which is expensive, and then my wife gets in trouble, making it harder for us to remain together.

I cannot find any written official information on residence cards losing their validity if one leaves the UK for a few years and then comes back. I can only see this for the continuous 5 year periods that count towards permanent residence.

Once we get to the UK I would be exercising treaty rights, I will be going to school and receiving a scholarship. I would have to get comprehensive sickness insurance to meet all the requirements.

I notice that some people asked similar questions 4 years ago but since immigration rules change continuously I was wondering if anything has changed or how did it work for these people.

http://www.immigrationboards.com/eea-ro ... 74940.html

Any advice?

Straightforward analysis,

Your wife will arrive in UK, accompanied by you, an EU citizen who will be exercising his treaty rights in UK. So, UK immigration will have no option but to land her as family member of EEA citizen.

Now, there is one thing that you should keep in mind. That on your return, immigration might ask you to prove you are a qualified person, to land your wife as your family member. They might ask this because your wife was issued with a residence card before. Simple solution is, carry documentary proof, that you lived in USA for 2 and a half years. So, basically on the date of arrival, you are entering UK afresh, and do not need to be qualified person for 3 months.

In a nutshell, there is no problem with your wife returning to UK with her current documentation. There is no need to worry about applying for a EEA family permit, or doing anything else. There is nothing much to worry about.

As you have mentioned, her 5 years clock for PR will start from when she enters UK next. Previous residence has effectively been wiped off. Six months before the date of expiry of her current residence card, you may apply for another residence card for her. This will help keep a proof of her legal status in her passport.

[goose1]

Hi,

Thank you for all of your comments and information. I guess I would have two last questions:

1) The university where I will be studying at starts classes on September 27. I came to the UK on June 30th to meet with professors, sort out accommodation, re-open a bank account, telephone account, etc. My wife is in the US. So school starts 2 days before the initial 3 month period elapses. So how would this affect the route mentioned here? At the airport, when meeting with immigration, will this be a problem? The thing is that I don't want to be separated from my wife for so long, until the school start date, when I would be exercising fully treaty rights, 2 days before the 3 initial month period elapses. Hence, I want to bring my wife a month or a few weeks earlier and travel, visit friends, get her banking account, telephone number, etc., sorted out before I start school. But then again, I already lived in the UK two and a half years ago. As I asked before, I want to be sure that I either have a new 3 month period or if I have to be exercising treaty rights immediately. I suspect that if I have the initial 3 months I should be able to bring my wife a bit earlier. Otherwise I would have to bring her the day I start school. What do you think about this?

2) I don't want to do anything wrong or get my wife in trouble with immigration. We do not want to make it harder for us to be together. In case an ECO considers her residence permit invalid due to us being out of the UK for a while or refuses her to be allowed in because we need to show full treaty rights immediately -no 3 month period-, or for any other reason, would she get in trouble? Would she have a mark on her immigration and make it harder for us to move together to the UK?

As you can see, I basically want to bring my wife a little earlier so that we don't have to wait months to be together again. I just want to be sure this is safe. Otherwise I think I would perhaps fly back to the US, buying a new ticket to Europe in September, and apply for a new permit and re-do all that and wait till we move towards the school start date.

[chaoclive]

Hi,

Thank you for all of your comments and information. I guess I would have two last questions:

1) The university where I will be studying at starts classes on September 27. I came to the UK on June 30th to meet with professors, sort out accommodation, re-open a bank account, telephone account, etc. My wife is in the US. So school starts 2 days before the initial 3 month period elapses. So how would this affect the route mentioned here? At the airport, when meeting with immigration, will this be a problem? The thing is that I don't want to be separated from my wife for so long, until the school start date, when I would be exercising fully treaty rights, 2 days before the 3 initial month period elapses. Hence, I want to bring my wife a month or a few weeks earlier and travel, visit friends, get her banking account, telephone number, etc., sorted out before I start school. But then again, I already lived in the UK two and a half years ago. As I asked before, I want to be sure that I either have a new 3 month period or if I have to be exercising treaty rights immediately. I suspect that if I have the initial 3 months I should be able to bring my wife a bit earlier. Otherwise I would have to bring her the day I start school. What do you think about this?

2) I don't want to do anything wrong or get my wife in trouble with immigration. We do not want to make it harder for us to be together. In case an ECO considers her residence permit invalid due to us being out of the UK for a while or refuses her to be allowed in because we need to show full treaty rights immediately -no 3 month period-, or for any other reason, would she get in trouble? Would she have a mark on her immigration and make it harder for us to move together to the UK?

As you can see, I basically want to bring my wife a little earlier so that we don't have to wait months to be together again. I just want to be sure this is safe. Otherwise I think I would perhaps fly back to the US, buying a new ticket to Europe in September, and apply for a new permit and re-do all that and wait till we move towards the school start date.

If you're so worried, why not get a part time job for the summer? That way everything would be fine (as long as you have some payslips/a contract of employment or a letter from your employer).

[el patron]

The Residence Card will give her an in-country right of appeal should the Immigration officer have any concerns.

Alternatively route her return via Dublin and enter the Common Travel Area thereby, thus avoiding overt UK Border scrutiny!

[goose1]

Thanks again for your replies.

el patron:

Even if the RC is "invalidated" due to being out of the UK for 2 and half years she would have the right to appeal from the country?

chaoclive:

In that case, would I need to be working for a certain amount of time or making a certain level of income/hours in order to be qualified as exercising treaty rights as a worker?

[chaoclive]

Thanks again for your replies.

el patron:

Even if the RC is "invalidated" due to being out of the UK for 2 and half years she would have the right to appeal from the country?

chaoclive:

In that case, would I need to be working for a certain amount of time or making a certain level of income/hours in order to be qualified as exercising treaty rights as a worker?

There is no requirement in terms of actual income for the EEA route but if you were working about 15 hours per week you should be fine. Case law has shown that 10-12 hours in work seems to be enough. Search for these cases: Kempf (C-139/85) and Megner & Scheffel (C-444/93). There may also be others. If you worked more than this I'm sure you would be fine.

Were you planning to work part-time when you're at uni anyway? If so, that would enable you to be considered as a worker, instead of a student. Of course, you would want to make sure your employment is genuine and stable. That may negate the need to have comprehensive sickness insurance.

I hope someone else will weigh in on this and provide some more opinions. I'm a full-time employee working in the UK so I haven't had to really think about the number of hours/week that I would have to work to ensure that we comply with EEA law.

EDIT: more info here: https://eumovement.wordpress.com/2011/1 ... -a-worker/

You could also apply for a registration certificate which would prove that you are a qualified person. This may bolster your wife's RC application in the future. I applied for this and received it after 29 working days (applied in August 2014).

[el patron]

Thanks again for your replies.

el patron:

Even if the RC is "invalidated" due to being out of the UK for 2 and half years she would have the right to appeal from the country?

chaoclive:

In that case, would I need to be working for a certain amount of time or making a certain level of income/hours in order to be qualified as exercising treaty rights as a worker?

There is no requirement in terms of actual income for the EEA route but if you were working about 15 hours per week you should be fine. Case law has shown that 10-12 hours in work seems to be enough. Search for these cases: Kempf (C-139/85) and Megner & Scheffel (C-444/93). There may also be others. If you worked more than this I'm sure you would be fine.

Were you planning to work part-time when you're at uni anyway? If so, that would enable you to be considered as a worker, instead of a student. Of course, you would want to make sure your employment is genuine and stable. That may negate the need to have comprehensive sickness insurance.

I hope someone else will weigh in on this and provide some more opinions. I'm a full-time employee working in the UK so I haven't had to really think about the number of hours/week that I would have to work to ensure that we comply with EEA law.

EDIT: more info here: https://eumovement.wordpress.com/2011/1 ... -a-worker/

You could also apply for a registration certificate which would prove that you are a qualified person. This may bolster your wife's RC application in the future. I applied for this and received it after 29 working days (applied in August 2014).

Reading Home Office own guidance will answer this. I see no reason to restrict the appeal( to out of country) from the legislation.