Applying for a EEA 2 whilst in the UK in some other capacity

[Pasha]

I am an Irish Citizen working and living in the UK. I would be grateful for some advise..My wife, a non-EEA national has entered the UK on a one months visitors visa. Can she apply for her residence card based on the fact that at the time of her EEA2 application, she was/is in the UK in some other capacity?

If so, would her application be frowned upon or penalised in anyway as she did not apply for a EEA FP?

Or would it be an idea to travel out of the UK to submit an application for the EEA FP (which is prooving difficult due to work and financial commitments) before her one month expires?

Cheers!

[thsths]

I am an Irish Citizen working and living in the UK. I would be grateful for some advise..My wife, a non-EEA national has entered the UK on a one months visitors visa. Can she apply for her residence card based on the fact that at the time of her EEA2 application, she was/is in the UK in some other capacity?

Yes, she can.

If so, would her application be frowned upon or penalised in anyway as she did not apply for a EEA FP?

Probably frowned upon, because she is using the visitors visa to settle, which is not what it is meant for. As to penalised, that is hard to say. The Home Office may do some extra checks.

Or would it be an idea to travel out of the UK to submit an application for the EEA FP (which is prooving difficult due to work and financial commitments) before her one month expires?

It is not necessary, but if she stays, she should make sure that she sends the application before the visitor visa expires, and that she does not travel abroad until the Residence Card is granted. Neither is legally necessary, but there is the danger that she might be wrongly classified as over-stayer otherwise.

[Pasha]

Thanks for the reply. We are nearly there preparing the EEA 1 and 2 forms and related docuements. I called the BIA yesterday and they said that we should put a covering letter to explain the reasons for not applying for the family permit which we will do.

I am abit confused on the law relating to ability of my wife to take up employment whilst her EEA 2 application is under consideration...

The EEA 2 application will take approx 6 months to be processed. Does my wife have to wait to hear whether her application has been sucessful in order to legitamately take up employment being that she entered the UK on a visitors visa and not the EEA FP? Her visitors visa says, one month with a'"no work or recourse to public funds'.. does this over ride my treaty rights extending to her by virtue of our marriage?

From our reading, the Home Office will send acknowlegement of her EEA 2 application in approx 3 weeks, which can be used for prospective employers, but given that my wife entered on a visitors visa, would my wife not be able to take up work until a decision is made?

I am not sure if my treaty rights extend to her whilst her application is being considered by the Home Office and would be grateful for some clarification.

[JA13I]

Your wife will not have to wait for the Residence Card to be issued, but rather the 'Certificate of Application' that she will recieve within weeks of application that states that she is entitled to work will suffice to prove that she is entitled to work.

[Pasha]

Thanks for your reply.

Am I right in thinking that once the Certificate of Application is issued, my wife can use this to proove that she is legally entitled to work her irrespective of the fact she entered in on a one months visitors visa or by delays in the BIA issuing her residence card?

Is there any specific EU Legislation we should be reading that covers this point?

[JA13I]

Yes! She should be able to work inspite of all that and the specific EU directive would be the Directive2004/38/EC itself.

[Directive/2004/38/EC]

The EEA family permit is simply an entry clearance. She has already entered and so does not need it.

Your wife has a right of free movement based solely on her relationship with you.

She can have entered the country with the intent of visiting, and now decided to stay. Same goes for EU citizens. That is the lovely thing about the EU law - all that matters is that you are married, and that you are exercising treaty rights if you want to stay longer than 90 days.

I would strongly suggest you read a little about Directive 2004/38/EC

[Pasha]

Thanks, we have been doing our reading and almost there with the EEA 1 and 2 forms and supporting docs.

We are planning to submit my EEA 1 and my wifes EEA 2 together, fingers crossed it may speed up things. On posting the forms to the BIA, to ensure that they are processed together, do we send one registered envelope with both applications and other documents addressed to 'EEA 1 Applications' at the BIA?

[yankeegirl]

do we send one registered envelope with both applications and other documents addressed to 'EEA 1 Applications' at the BIA?

That's what I did. It didn't make sense to put in 2 different envelopes since all documents are needed for both applications.

[Directive/2004/38/EC]

Photocopy EVERYTHING before sending it, and send by special delivery.

[Pasha]

Thanks for the replies, we have sent off for our Residence Cards and it is now a matter of waiting.

We have had some good news, my wife has today got an offer of employment My wife explained that she is the spouse of an EU Citizen and that we have submitted for our residence cards last week. They would like to know if she would be able to take up the post in two weeks time. This is about the same time the BIA would take to acknowledege our applications..

My wife would like to accept and our question is, can she do this without having recieved her EEA 2 certificate of application? Our confusion stems from the fact the she entered the UK on a visitors visa which says *no work* and is limited for one month and we are not sure what our rights are until the BIA has acknowledged her application under EU Law and right to start working in that time.

[Directive/2004/38/EC]

Hard question.

She is your wife, and so she has the same rights as you do in the EU (as long as she is doing it with you). The Residence Card is optional in the UK (and is just a confirmation of rights she already has as your wife).

But practically, most employers are not in a position to appreciate the subtle nature of these legal points. I suspect a confirmation letter from BIA will typically be needed.

[thsths]

We have had some good news, my wife has today got an offer of employment My wife explained that she is the spouse of an EU Citizen and that we have submitted for our residence cards last week. They would like to know if she would be able to take up the post in two weeks time. This is about the same time the BIA would take to acknowledege our applications.

Yes, she can start working right now. The letter from the Home Office is only a confirmation of a right she already has, so you do not need to wait for the letter.