EEA4: Query about residence under tier system

[at12]

Hi All,

Sorry if this has been asked before. I have searched the forums and could not find any post describing my exact situation.

I (non-EEA citizen) and my unmarried partner (EEA citizen) moved to the UK in 2011.

As I got a job offer first, I entered the UK with a Tier 2 visa. She joined me about 1 month later and started working (exercising treaty rights) from this time point.

In 2013 my Tier 2 visa expired and I obtained an EEA2 permit as the unmarried partner of an EEA citizen exercising treaty rights in the UK.

In 2016 she will be able to apply for EEA3/ PR. I understand that that Immigration and EU laws do not mix and I have to ignore my Tier2 stay.

However, I have been the unmarried partner of an EU citizen exercising treaty rights since 2011 (i.e. when she started working we were living together and have the documentation to support that). Can that be used towards me applying for an EEA4 in 2016, or do I actually need to hold an EEA2 residence permit for 5 years? I have sometimes read that the residence permit confirm my rights, but that their issue date is not necessarily the reference for the 5 years clock, hence the question. We have both been employed and held the same job for the whole 5 years.

Thanks!

[noajthan]

Hi All,

Sorry if this has been asked before. I have searched the forums and could not find any post describing my exact situation.

I (non-EEA citizen) and my unmarried partner (EEA citizen) moved to the UK in 2011.

As I got a job offer first, I entered the UK with a Tier 2 visa. She joined me about 1 month later and started working (exercising treaty rights) from this time point.

In 2013 my Tier 2 visa expired and I obtained an EEA2 permit as the unmarried partner of an EEA citizen exercising treaty rights in the UK.

In 2016 she will be able to apply for EEA3/ PR. I understand that that Immigration and EU laws do not mix and I have to ignore my Tier2 stay.

However, I have been the unmarried partner of an EU citizen exercising treaty rights since 2011 (i.e. when she started working we were living together and have the documentation to support that). Can that be used towards me applying for an EEA4 in 2016, or do I actually need to hold an EEA2 residence permit for 5 years? I have sometimes read that the residence permit confirm my rights, but that their issue date is not necessarily the reference for the 5 years clock, hence the question. We have both been employed and held the same job for the whole 5 years.

Thanks!

My understanding is that as an unmarried partner you are considered the extended family member of an EEA national & so Regulation 8 of Immigration (European Economic Area) Regulations 2006 applies.

This means you need to hold a valid RC and remain in a durable relationship ('akin to marriage') with an EEA national (who has been continuously exercising treaty rights as a qualified person) in order to acquire PR after 5 years.
(this assumes that continuity of residence in UK has been maintained, by both sponsor and sponsee, with any absences from UK within prescribed limits).

See HO guidance on this topic:
https://www.gov.uk/government/uploads/s ... s_v2_0.pdf
- ref page 32+

On this basis (with your stated timelines) you will be eligible to shoot for a 'confirmation of PR' card sometime in 2018.

[at12]

Thanks noajthan for the quick reply.
I guess the catch is where they say that "Under regulation 8 of the regulations you cannot consider an applicant to be the extended family member of an EEA national until they have been issued a RC", suggesting the 5 years start from the issue of the RC.
Cheers.

[noajthan]

Thanks noajthan for the quick reply.
I guess the catch is where they say that "Under regulation 8 of the regulations you cannot consider an applicant to be the extended family member of an EEA national until they have been issued a RC", suggesting the 5 years start from the issue of the RC.
Cheers.

That would be my interpretation.

As is often the case, the devil is in the detail but at least forewarned is forearmed.

Best of luck.

[achan892]

I have also been wondering about this (see my earlier post here: http://www.immigrationboards.com/eea-ro ... k#p1234609).

I just read this Tribunal decision: https://tribunalsdecisions.service.gov. ... 48835-2013 which I think implies that possession of a residence card can't be considered a prerequisite for gaining PR (even for extended family members).

"Indeed if the Secretary of State were right and the relief sought [i.e., issue of a PR card] were dependant upon possession of the permit or card [i.e., residence card] as contended [by the Home Office] for then there would be an element of arbitrariness since different applicants might apply on the same date, yet not have the documents [i.e., residence cards]... issued to them until different dates because of the different demands on the Secretary of State. That simply cannot be right."

Can any more experienced members comment on this?

[noajthan]

I have also been wondering about this (see my earlier post here: http://www.immigrationboards.com/eea-ro ... k#p1234609).

I just read this Tribunal decision: https://tribunalsdecisions.service.gov. ... 48835-2013 which I think implies that possession of a residence card can't be considered a prerequisite for gaining PR (even for extended family members).

"Indeed if the Secretary of State were right and the relief sought [i.e., issue of a PR card] were dependant upon possession of the permit or card [i.e., residence card] as contended [by the Home Office] for then there would be an element of arbitrariness since different applicants might apply on the same date, yet not have the documents [i.e., residence cards]... issued to them until different dates because of the different demands on the Secretary of State. That simply cannot be right."

Can any more experienced members comment on this?

Good catch.
This appears to be good case law highlighting in the UK's flawed transposition into UK law of EU regulations.

[achan892]

So do you think that if I (or someone else in a similar situation) were to apply for PR on the basis of having lived in the UK as an (extended) family member of a qualified EEA national for continuous period of 5+ years (even though part of that time was prior to the issue of a residence card), and highlight this particular Tribunal case in a cover letter, the application would be likely to succeed!?

[noajthan]

So do you think that if I (or someone else in a similar situation) were to apply for PR on the basis of having lived in the UK as an (extended) family member of a qualified EEA national for continuous period of 5+ years (even though part of that time was prior to the issue of a residence card), and highlight this particular Tribunal case in a cover letter, the application would be likely to succeed!?

I think you need a lawyer to answer that question.

HO may still try to string you along - but it seems you would have an almost irrefutable case if it came to court.

[kamoe]

My two cents here are, I think, the fact that you are unmarried plays against you.

As unmarried partner, you are considered an Extended Family Member of a EU national under EU law only after 2 years of cohabitation, i.e. when your card was issued (or best case scenario, when you applied for it). You are thus the Family Member of a EU national since 2013. Before that, your relationship was not considered 'akin to marriage', and thus, even though you lived together, it makes sense that your Tier 2 years are not valid EEA years.

A different story would be if you were married since 2011. Even with a Tier 2 visa, you would have been indeed the Family member of a EU national since that date, and your case would be easier to defend.

Then again, I am not an expert. Interested to see how this turns out. Keep us posted.

[achan892]

As unmarried partner, you are considered an Extended Family Member of a EU national under EU law only after 2 years of cohabitation, i.e. when your card was issued (or best case scenario, when you applied for it).

Actually, the 2 years of cohabitation is the UK's interpretation of what it considers a 'durable partner'. There's no reference to this criterion in EU law and the UK can't legally apply this criterion uniformly or without reference to individual circumstances.

But even if we accept the 2 years of cohabitation rule/guideline, I would query your "i.e." as these two things (clocking up 2 years of cohabitation and being issued with a residence card) are equivalent. One might have 2 years of cohabitation long before one's residence card is issued. On the basis of the Immigration Tribunal decision I quoted in my earlier post, I think the relevant date is when one became entitled to receive a residence card, not when one actually received it. But I am not an expert either and of course I have a vested interest in my interpretation being right! I really wish I could actually try this out by making an application on the basis of 7 years of cohabitation (2 years to meet the 'durable partner' guideline plus 5 further years towards PR even though I've only held a RC for 4.5 years), but I need to travel in 4 weeks and so can't risk sending off my passport and possibly not getting it back in time.