PR query with British spouse

[softy monster]

Dear Noajthan,

I have query and if you are able to help me that will be great please, basically my oldest brother who’s an EEA national as well as he became British national married to an EEA national, and they have been married in UK for 17 years! However she doesn’t have PR yet, she’s about to apply but the problem:
• She’s never worked in UK (House wife)
• He worked in the past, however he has never completed 5 years work at any period during all these years due to long term illness
So my questions now:
• Could she apply as EEA national family member of an EEA national, and he’s also British, perhaps as his carer (obviously he’s claiming for quiet long time due to his long term illness, and I guess she does claims too)
• Also by him being dual EEA & British national can he sponsor his EEA national wife

PS: As he came to UK as non-eea national till:
• He had his indefinite leave to remain in 1997 before he was married
• He has got married in 1999
• He became an EEA French national in 2003 based on his French wife
• He became British national in 2013/2014 (based on his old ILR + proof of claiming for the last few years)


Thanks in advance,

Softy M

[noajthan]

To avoid confusion & jumbled responses, I have moved your question to its own thread (this one).

[noajthan]

Complicated. I'm not sure about this.
Suggest bro engages appropriate professional advice.

Wife cannot apply for DCPR in own right if she's never exercised treaty rights as she is clearly not a qualified person.

A BC (brother/hubby) cannot normally sponsor an EEA family member.

Two options I can think of:
1) Did wife have a RC issued during or before 2012?
If so the McCarthy transitional may apply; hubby has no need to exercise treaty rights if he has settled status so lack of economic activity may not be a showstopper.

2) It may be that wife can apply for confirmation of PR based on a period of residence in UK in the past, that is dating from before the time hubby/sponsor was naturalised.

If this is a valid approach then the McCarthy transitional (supported by RC) may not be required.
(As hubby has ILR then proof of exercise of treaty rights is not required).

Still suggest seeking legal advice though.

Alternately, as hubby has ILR he could perhaps sponsor spouse on UK domestic route.

[softy monster]

Would the European nationals married to British citizens have their permanent residence processed faster? or it is irrelevant?

I guess it's irrelevant, as you will be queuing as everybody else!

In my experience, BCs invariably get the fuzzy end of the lollipop. There is no obvious benefit of being connected to a BC in an EU-related application.

Thanks for your reply, still not sure! could you please clarify a bit more if you don't mind
Just to be clear my brother's wife is the one who wants to apply for her PR, and she's going to asked to proof if she was exercising treaty right for 5 years, however she has never worked in UK!
Basically do you think the below information will help my brother's wife case to get her PR approved?

EEA national is permanently incapacitated
*A letter from a doctor/consultant confirming your/your sponsor’s incapacity and that it’s expected to be permanent
Temporary incapacity
 *A letter from a registered medical practitioner (general practitioner or consultant) confirming the nature of the illness or accident and how long the incapacity lasted or is likely to last

Section 14: Dependent relative or member of EEA national’s household
Evidence of any medical condition you have and the care required (if relevant)
 Letter from a registered medical practitioner confirming your condition and what care you require.
Section 15: Relative who strictly requires personal care
 A detailed medical report from a registered medical consultant giving details of your medical condition and the type of care you require
 A letter or statement from your EEA national sponsor (or from their spouse or civil partner) confirming what care they provide you with and how often
 If you also receive medical care from anyone else or another organisation, a letter from that person or organisation giving details of this

Section 16: Public funds / state benefits
 Your or your sponsor’s bank statements showing receipt of the relevant benefit(s)
 Letter(s) from Jobcentre Plus, Department for Work and Pensions, Her Majesty’s Revenue and Customs, or the local authority, confirming receipt of the relevant benefit(s).

[noajthan]

Maybe. But its complex.

As you say your brother is already settled in UK (with ILR) and thus free from immigration time restrictions.
So brother's wife may have already acquired PR by simply residing in UK at same time as hubby who is a settled person (that is, in some 5 year period since he became an EEA national). If settled bro had no need to exercise treaty rights.

If none of the above options (I suggested) do apply then yes you could dig into the option you have found.

[softy monster]

1) Did wife have a RC issued during or before 2012?
my brother's wife is an EEA national (born as French national) so she never had to apply for RC (for McCarthy TA rules to be applied to her like in my case if you remember when asked you about it a while ago, or you can see from my time line, as i am the one who's on that case)

2) It may be that wife can apply for confirmation of PR based on a period of residence in UK in the past, that is dating from before the time hubby/sponsor was naturalised

what's the best 5 year period need to use under EU routes?

*My brother had his ILR in 1997 before he met this wife and got married in 1998/1999
* Few years later (around 2003) he became French national based by being her spouse!
* Then few years later (around 2014 ) he became British national

[noajthan]

1) Did wife have a RC issued during or before 2012?
my brother's wife is an EEA national (born as French national) so she never had to apply for RC (for McCarthy TA rules to be applied to her like in my case if you remember when asked you about it a while ago, or you can see from my time line, as i am the one who's on that case)

2) It may be that wife can apply for confirmation of PR based on a period of residence in UK in the past, that is dating from before the time hubby/sponsor was naturalised

what's the best 5 year period need to use under EU routes?

*My brother had his ILR in 1997 before he met this wife and got married in 1998/1999
* Few years later (around 2003) he became French national based by being her spouse!
* Then few years later (around 2014 ) he became British national

1) A Union citizen could have still had a RC - they are always optional.

2) Suggest any 5 years with good evidence of residence (in UK) after getting married (to bro) and hubby/bro became French.

Have you consulted an appropriate legal advisor to validate this approach yet?

[softy monster]

Any 5 years period with good evidence between when he became French (why exactly from this time?) and before when he became British (McCarthy TA) before the new rules applied in 2012? Also does he really have to mention and stress about the TA in his application like I have done in my case, or as long as to choose any period before that time will be fine without have to worry about the TA)

When you say evidence like the same listed in the application form and I guess he could use the easy old EEA3 form and that to include the payment section page and the new address?

Btw he hasn't approached any legal advise as I told him that he can do it alone and I try to help him I guess! This how we learn in this life I guess! A push and gamble!

[noajthan]

Because sponsor has to be Union citizen to uae EU route and EEA Regs.

If its correct bro is settled then ta may not have to be used as bro wasn't a BC back in the day.

But thus is not a simple case - so suggest get some advice.

[softy monster]

Correct as he became BC just few years ago around 2013/2014, so for him to be a qualified sponsor, the 5th year of his 5 yrs period must be before when he became BC
For example any 5yrs between 2003/2011?

[noajthan]

Correct as he became BC just few years ago around 2013/2014, so for him to be a qualified sponsor, the 5th year of his 5 yrs period must be before when he became BC
For example any 5yrs between 2003/2
011?

Yes, assuming sponsor can also rely on having ILR, instead of PR, as you explained he was never a qualified person able to exercise treaty rights for a continuous 5 year period.

If the ILR holds good then only residence needs to be proven.

[softy monster]

i guess being claiming on the ground of his long term illness/incapacity, that also can be part of/or similar to exercising treaty right??

Yes that's correct he had his ILR and that was based on his own rights, and few years later he then got married!
*sponsor can also rely on having ILR, instead of PR...so i assume that still under EEA routes (EU law)??
*If the ILR holds good then only residence needs to be proven...you mean bills, proof of the relationship,absences,ect.. So no need for them to be worried about being qualified (excercing treaty rights) especially for the sponsor (bro) due to his ILR being there in the first place?
*But could he mention that he can also sponsor her, by him being in long term illness/incapacity??

[noajthan]

i guess being claiming on the ground of his long term illness/incapacity, that also can be part of/or similar to exercising treaty right??

Yes that's correct he had his ILR and that was based on his own rights, and few years later he then got married!
*sponsor can also rely on having ILR, instead of PR...so i assume that still under EEA routes (EU law)??
*If the ILR holds good then only residence needs to be proven...you mean bills, proof of the relationship,absences,ect.. So no need for them to be worried about being qualified (excercing treaty rights) especially for the sponsor (bro) due to his ILR being there in the first place?
*But could he mention that he can also sponsor her, by him being in long term illness/incapacity??

Incapacity is not the same as treaty rights. I have no knowledge of that.

And exchanging ILR for PR is not in EU law which is why I suggest you take advice.

[softy monster]

ah i see, shame

so that means he can't include his ILR to his EEA PR application (under eea routes)? Or swap his application and applies under UK law! yeah i see now for sure he needs to seek more legal advise! I better off worry about my TA case first

[softy monster]

Hi noajthan,

Hope you are well, do you think if my brother apply for his wife under eea routes on the grounds of she's his carer, with all the document that prove and show the evidence of his long term illness, and when it comes to prove his residence in UK can use ILR instead, I know they are different! as if he wants to use eea routes that the only evidence can show about his illness

EEA national is permanently incapacitated
*A letter from a doctor/consultant confirming your/your sponsor’s incapacity and that it’s expected to be permanent
Temporary incapacity
 *A letter from a registered medical practitioner (general practitioner or consultant) confirming the nature of the illness or accident and how long the incapacity lasted or is likely to last

Or like you said earlier:
about my brother who's already settled in UK (with ILR) and thus free from immigration time restrictions.
So brother's wife may have already acquired PR by simply residing in UK at same time as hubby who is a settled person (that is, in some 5 year period since he became an EEA national). If settled bro had no need to exercise treaty rights


I assume this is under UK law rather than EU law (EEA routes)?
I assume EEA PR form in under eu law, and if he decide to apply under UK law which application is to be used for his case?
and what happened if he takes the gamble and take eea routes instead when then they see his ILR?

[noajthan]

Hi noajthan,

Hope you are well, do you think if my brother apply for his wife under eea routes on the grounds of she's his carer, with all the document that prove and show the evidence of his long term illness, and when it comes to prove his residence in UK can use ILR instead, I know they are different! as if he wants to use eea routes that the only evidence can show about his illness
...

Or like you said earlier:
about my brother who's already settled in UK (with ILR) and thus free from immigration time restrictions.
So brother's wife may have already acquired PR by simply residing in UK at same time as hubby who is a settled person (that is, in some 5 year period since he became an EEA national). If settled bro had no need to exercise treaty rights


I assume this is under UK law rather than EU law (EEA routes)?
I assume EEA PR form in under eu law, and if he decide to apply under UK law which application is to be used for his case?
and what happened if he takes the gamble and take eea routes instead when then they see his ILR?

Its complex as you say bro was settled (ilR) then became French. So he was instantly a settled EEA national.
Its not clear if he can sponsor spouse on that basis under EU route.
That's a question for you to dig into.

Otherwise, if relying on EEA Regulations, Regulation 5 - had bro worked for 12 months in UK before ceasing activity? (after 3 years in UK)
http://www.eearegulations.co.uk/Latest/ByPage/part1_5

An application based on Reg 5 may be more clearcut.

[softy monster]

(after 3 years in UK) or more like (after 3 years in UK and also being EEA national) as he became French around 2003 and came to UK in 1995/96

*if bro had worked for 12 months in UK before ceasing activity? (after 3 years in UK) Will have to ask him

An application based on Reg 5 may be more clearcut? you mean to mention about it when applying under eea routes?
btw the link doesn't work, found similar page 6/7
http://www.legislation.gov.uk/uksi/2006 ... 003_en.pdf

“Worker or self-employed person who has ceased activity”
In these Regulations, “worker or self-employed person who has ceased activity” means
an EEA national who satisfies the conditions in paragraph (2), (3), (4) or (5).
.. (2) A person satisfies the conditions in this paragraph if he—
..
(b) pursued his activity as a worker or self-employed person in the United Kingdom for at
least twelve months prior to the termination; and
.. (c) resided in the United Kingdom continuously for more than three years prior to the
Termination
(3) A person satisfies the conditions in this paragraph if—

(a) he terminates his activity in the United Kingdom as a worker or self-employed person as
a result of a permanent incapacity to work; and
(b) Either—

(i) he resided in the United Kingdom continuously for more than two years prior to the
termination; or

(ii) the incapacity is the result of an accident at work or an occupational disease that
entitles him to a pension payable in full or in part by an institution in the United
Kingdom.

[Wise]

The options you have is worth going for, but depend on the age of the wife I would have suggested to start all over again on her own right by choosing any convenient treaty right , if that doesn't work you may apply on UK route as a carer of BC and the length of being together as a couple can make the case strong, But this could be last option because of the application fees. Or wait for the Brexit negotiation which am sure in my own opinion both parties cannot send people back home in this 21th century. There will be a compromise at the end.


I had a woman on LBC radio of a German woman crying who have live in UK for 40 years, her husband has died and has never think of applying for anything her life and because of Brexit she was so devastated and confused of what to do. Pointing on this to show you that many people out there is in the same boat likewise many BC living in the EU and that is the reason why I strongly believed in my first paragraph.


Good Luck.

[softy monster]

The options you have is worth going for, but depend on the age of the wife I would have suggested to start all over again on her own right by choosing any convenient treaty right , if that doesn't work you may apply on UK route as a carer of BC and the length of being together as a couple can make the case strong, But this could be last option because of the application fees. Or wait for the Brexit negotiation which am sure in my own opinion both parties cannot send people back home in this 21th century. There will be a compromise at the end.


I had a woman on LBC radio of a German woman crying who have live in UK for 40 years, her husband has died and has never think of applying for anything her life and because of Brexit she was so devastated and confused of what to do. Pointing on this to show you that many people out there is in the same boat likewise many BC living in the EU and that is the reason why I strongly believed in my first paragraph.


Good Luck.

Hi, and thanks for your email! My bro wife is 48yrs old and I guess she could be also as carer on EEA route!
start all over again on her own right by choosing any convenient treaty right? She hasn't work in UK so her husband has to be her sponsor but if read the posts from earlier you will get an idea!

[Wise]

Hello,

If she is 48 years old she can be her spouse carer and get paid from Government for doing that and apply as qualify person in her own right now as an EU national under EU route. The earlier the better. And beside that the partner has now become BC. I think this should be your first option.

It has nothing to do whether they are married or not as she was qualify to in her own right to be in UK anyway under EU law, forget about the sponsor. I know some people who look after their own personal disable child as a carer and get paid as a worker from Government.

[softy monster]

Hello,

If she is 48 years old she can be her spouse carer and get paid from Government for doing that and apply as qualify person in her own right now as an EU national under EU route. The earlier the better. And beside that the partner has now become BC. I think this should be your first option.

It has nothing to do whether they are married or not as she was qualify to in her own right to be in UK anyway under EU law, forget about the sponsor. I know some people who look after their own personal disable child as a carer and get paid as a worker from Government.

will take that inboard and will try to explain to him, and take it from there! i just want to thank both of you!