can we skip EEA family permit?

[LBB]

Hi all,
Sorry, I feel this should be a very obvious question, but I have read the www.ukvisas.gov.uk website and can't work it out.

I am an Irish national living and working in the UK. My husband-to-be is Canadian, currently staying with me on a visitor's visa (6 months). We intend to get married in Ireland before his visitor's visa expires (will have given the 3 months notice necessary for this marriage).

Once we come back to the UK after the wedding, can we then immediately apply in the UK for the EEA1 and EEA2 permits, or does he need to go back to Canada for the family permit/entry clearance? It is not an insurmountable obstacle if he needs to do so, but we would rather avoid (for finance and childcare reasons) if it is not necessary. Or should we do an online application to the British High Commission in Canada from the UK?

I would appreciate any advice regarding the best option strategically as well as legally (no point having our application questioned unnecessarily if we could avoid this by him returning briefly to Canada).

Thanks in advance!

[vinny]

See also EEA2-Does UK Issue Residence Cards or only stamp the Passp.?

[JAJ]

Hi all,
Sorry, I feel this should be a very obvious question, but I have read the www.ukvisas.gov.uk website and can't work it out.

I am an Irish national living and working in the UK. My husband-to-be is Canadian, currently staying with me on a visitor's visa (6 months). We intend to get married in Ireland before his visitor's visa expires (will have given the 3 months notice necessary for this marriage).

Once we come back to the UK after the wedding, can we then immediately apply in the UK for the EEA1 and EEA2 permits, or does he need to go back to Canada for the family permit/entry clearance? It is not an insurmountable obstacle if he needs to do so, but we would rather avoid (for finance and childcare reasons) if it is not necessary. Or should we do an online application to the British High Commission in Canada from the UK?

Have you considered sponsoring for a spouse visa under the domestic U.K. rules? Irish citizens do not have to use the EEA route and permanent residence comes more quickly on the domestic route.

Also - how long have you lived in the U.K. and have you considered becoming a British citizen? Your future husband will have a quicker pathway to British citizenship if you do naturalise.

[LBB]

Thanks for the replies - much appreciated! Yes, I believe I am entitled to apply for British citizenship (I was born in the UK to Irish parents in 1974). The reason we were planning to take the EEA route was because it would be cheaper. I am not too concerned that waiting times for EEA2 processing and for my husband's naturalisation will be longer given that he will be able to work in the meantime. If this is bad planning, please let me know!

[sakura]

Thanks for the replies - much appreciated! Yes, I believe I am entitled to apply for British citizenship (I was born in the UK to Irish parents in 1974). The reason we were planning to take the EEA route was because it would be cheaper. I am not too concerned that waiting times for EEA2 processing and for my husband's naturalisation will be longer given that he will be able to work in the meantime. If this is bad planning, please let me know!

I think you're already a British citizen by virtue of being born in the UK. You can apply for a passport, or use your birth certificate (do they accept this?), with the spouse visa application.

[JAJ]

Thanks for the replies - much appreciated! Yes, I believe I am entitled to apply for British citizenship (I was born in the UK to Irish parents in 1974).

In that case you are a British citizen (since birth). Your U.K. birth certificate is sufficient proof of your status, although you can apply for a British passport if you wish.

The reason we were planning to take the EEA route was because it would be cheaper. I am not too concerned that waiting times for EEA2 processing and for my husband's naturalisation will be longer given that he will be able to work in the meantime. If this is bad planning, please let me know!

I suspect the most straightforward way will be for your husband to apply for his visa (either spouse or EEA) in Canada.

If he chooses the EEA route, he will not become a Permanent Resident until after 5 years. He can't apply for British citizenship until then. While you say naturalisation isn't a priority now, are you sure it will always be the case? What if he wants a job for which British citizenship is a requirement, or if you decide to leave the U.K. in the 4th or 5th year?

There is a work-around to bypass the need for Permanent Resident status called the "ppron method" of naturalisation but there is no guarantee the loophole will still be open in 3 or so years time.

If he comes in on the spouse visa route, he will be eligible for British citizenship in 3 years because you are a British citizen. He would need to upgrade to Indefinite Leave to Remain at the 2 year mark.

Have you got any children, out of interest?

[vinny]

See also 2. PROCEDURAL COMPARISON.

[JAJ]

See also 2. PROCEDURAL COMPARISON.

There are material errors in that article.

[vinny]

See also 2. PROCEDURAL COMPARISON.

There are material errors in that article.

Thanks, Jaj. That's useful to know. For reference, can you point out what the errors are?

[JAJ]

Thanks, Jaj. That's useful to know. For reference, can you point out what the errors are?

One of the errors is to say that the U.K. spouse visa process "can be slow" as this is not usually the case. If anything, EEA cases are slower.

[vinny]

Thanks JAJ. Are there any errors in procedure or law?

[Directive/2004/38/EC]

So you are both (in one form or another) resident in the UK and going to Ireland for the wedding.

The benefit of applying for an EEA family permit is it gets your spouse into the home office system, and your spouse has documentation to immediately work in the UK when you come back.

If you go the European law route, there is no need to apply from Canada. (I am unsure what the situation is if you apply under UK law). Note that since you will have only been just married, you should submit some evidence of the duration and substance of your relationship - evidence of places you have lived together, joint bank accounts, etc.

[JAJ]

If you go the European law route, there is no need to apply from Canada. (I am unsure what the situation is if you apply under UK law). Note that since you will have only been just married, you should submit some evidence of the duration and substance of your relationship - evidence of places you have lived together, joint bank accounts, etc.

There is no guarantee that the British Embassy in Dublin will accept an application for an EEA permit from a Canadian citizen temporarily in the Republic of Ireland.

And it's never been established whether applying for an EEA permit in the U.K. is subject to the "no-switching" rule. Maybe technically not, but do they want to be the test case?

[thsths]

There is no guarantee that the British Embassy in Dublin will accept an application for an EEA permit from a Canadian citizen temporarily in the Republic of Ireland.

That is true, and I think there were a few similar cases on this forum where that happened. If they follow their rules, though, they should treat it the same way as an application from Canada. (And I am still not sure whether the extra requirements for applications from outside the EU are legal.)

And it's never been established whether applying for an EEA permit in the U.K. is subject to the "no-switching" rule. Maybe technically not, but do they want to be the test case?

I would be surprised if this is a problem. "No switching" is part of the UK immigration work, not part of the European legislation. So it should not be relevant for applications under European rules. The European law is also very clear in this, so any negative decision would be completely unjustified.

[Directive/2004/38/EC]

There is no guarantee that the British Embassy in Dublin will accept an application for an EEA permit from a Canadian citizen temporarily in the Republic of Ireland.

The DSPs are pretty clear that such an application is perfectly in order.

I am not sure what kind of "guarantee" you might expect. I would say there is even less "guarantee" when applying under UK law. And it is a lot more expensive and takes a lot more time.

[Docterror]

There is no guarantee that the British Embassy in Dublin will accept an application for an EEA permit from a Canadian citizen temporarily in the Republic of Ireland.

As already pointed out by thsths and Directive/2004/38/EC, being a permanent resident in the country of application is not a requirement for applying for an EEAFP.

And it's never been established whether applying for an EEA permit in the U.K. is subject to the "no-switching" rule

Firstly, one cannot apply for the EEA family permit whilst in the UK. You only apply for the Residence Card and secondly, the ECIs and the rules makes it crystal clear that there is absolutely no legal basis for an application for the Residence Card to fail just because the applicant was in the UK route.

[VictoriaS]

DSP's are not legally binding, and I have known of several situations whereby an Embassy has refused to accept an EEA application from a national who is not resident in that country.

However, an application will be accepted in the UK...though you won't find out for 6 months whether or not is would be approved!

Just a thought - how long have you been living together?


Victoria

[thsths]

DSP's are not legally binding, and I have known of several situations whereby an Embassy has refused to accept an EEA application from a national who is not resident in that country.

You know, this is the funny thing: I have seen these reports, too, and I can see how you could misread the DSP's. But the law is legally binding (I guess), and it is very clear: you do not have to be in the EU, and you do not have to be a resident either. Being a visit is perfectly fine, and even if you are in a country illegally, that is not immediately a reason for refusal (although I admit that it would warrant a closer examination of the circumstances).

So I would say the law does not make an distinction on where you apply, the DSP's do, and common practice is even worse (by refusing applications that should just be handled according to the national rules).

[Directive/2004/38/EC]

I have known of several situations whereby an Embassy has refused to accept an EEA application from a national who is not resident in that country.

Can you give more details of the situations and which embassy was refusing to accept the application?

EU nationals and their family are legally considered “residentâ€

[yankeegirl]

I'm not sure which ones Vicky is thinking of, but Ireland is one.

There have been a few posters on the Irish boards that had problems with this. They had pending EU1 applications in Ireland, wanted to move to the UK but UK embassy would not accept the application as the applicant could not show proof of residence in Ireland. A visitor visa/visa-waiver wasn't sufficient. I don't have time at the moment to search the threads but there was one poster a while back (Birdy I think?) who was a UK citizen in Ireland and was going to have his wife who had a pending EU1 application apply for the FP under the Singh rule. Application was not accepted so his wife ended up having to return the the US and apply for a UK spousal visa.

[Pasha]

I have contacted UKVisas about being in Ireland on a visitors visa and would this suffice the 'legal residence' requirement in order for a non-EEA spouse to submit and application for the EEA Family Permit. I was told over the phone and in writing that, such applications will be accepted as the applicant is covered by EU Law as the spouse of an EEA National.

By contrast, applications that are/will be considered under UK Law, such as that for a spouse, student visa etc will not be accepted in Ireland if the applicant is there on a visitors visa.

My wife and I are currently in the same situation and would like to apply to the residence card as she is already in the UK on a visitors visa. From the advise received, it is not complusory to apply for the EEA Family Permit but advisable as proof for employment purposes if your husband would like to work straightaway.

Alternatively, he can, along with you, apply using the EEA 1 and EEA 2 forms. Confirmation of these application form will be sent and your husband can use this as proof for employment purposes.

[Docterror]

DSP's are not legally binding, and I have known of several situations whereby an Embassy has refused to accept an EEA application from a national who is not resident in that country.

While DSPs are not legally binding, there is absolutely nothing in the Rules as well that states that the applicant has to be a resident to make an EEAFP application. Their present status has to be legal and be able to prove it. That's all. If an embassy refuses to accept one, well, you should know better than me what to do about it.

yankeegirl, if the British embassy in ROI does not accept applications from applicants awaiting the decision on an EU1, there is no law being broken as the applicant cannot prove legal residence in ROI. But if they are on a visit visa or visa-waiver, if the application is not accepted, the applicant has every right to get the attention of the court into the matter.

[VictoriaS]

Ireland is the one I was thinking of, but it has happened with other countries before - France, I seem to remember. And why this may be technically illegal under EU law, I usually find it better to advise clients to just do the application from their home country, as it is a lot quicker than going through the process of challenging the courts.

Remember, if ECO's only ever made lawful decisions, then appeals would never be won!

Victoria

[Docterror]

So, hypothetically, would that also be your advice be to a Jamaican wife who had to urgently go to France with her German husband while her EEA2 application is being processed and the original EEAFP has since expired?

[VictoriaS]

I can't advise on that, as it is a matter of interpretation by the French Embassy, and I can only advise on the UK stance. However, it is my understanding that the French Embassy will not grant Schengen visas to people in this situation who do not have their leave to remain in the UK valid and endorsed in their passport, so I would doubt that they would help with this.

I am also wary about applicants being refused entry back to the UK in this situation.

Victoria