EEA national going abroad: dependant non-EEA national remedy

[zab12]

A friend of mine is non EEA national living in UK. She is direct family member of an EEA national. The EEA national exercise his treaty rights in UK. They have been in relationship for couple of years but legally married in UK few months ago. Non EEA national's immigration status is based on EEA national exercising his treaty rights in UK.

Now, the EEA national needs to go back to his home country for some essential reasons. It is likely he would not be able to come back to UK for some months. Therefore he will be resigning from his job before leaving. The non-EEA national cannot leave UK because of her employment. Below are my 3 questions:

1: Could someone explain me that according to EU law, how long the EEA national can stay abroad without it affecting on his spouse's immigration status in UK? Somebody has told me the time-frame in this situation is six months maximum, but no source has been provided.

2: What about the EEA national, once has left the UK, would not be exercising his treaty rights in UK (would have left the job). Therefore, non-EEA national lose her right to stay in UK immediately?

3: I understand if EEA national leaves UK permanently, the non-EEA national will lose her Immigration status in UK immediately. However, what determine whether the EEA national has left the UK permanently or has intention to come back?

This question was initially put under Family Members category (http://www.immigrationboards.com/viewtopic.php?t=45863), but I believe EU category is more suitable for this question.



I received 2 replies, I put here for commentators advantage.

Formist meat has given his opinion by saying:
"The non-EEA's rights to be in the UK are based on the EEA partner. If the EEA partner is no longer in the UK then the non-EEA partner loses the right to be in the UK legally. The EEA citizen leaving the UK and having resigned from the job means that they are no longer exercising treaty rights in the UK."

Another forumist 86ti has given his opinion by saying:
zab12 wrote:
1: Could someone explain me that according to EU law, how long the EEA national can stay abroad without it affecting on his spouse's immigration status in UK? Somebody has told me the time-frame in this situation is six months maximum, but no source has been provided.


The UK implementation of Directive 2004/38/EC is the source you need. It mentions the six months rule and also allowed longer absences in special circumstances. Are the reasons of your friend of private nature?[/b]

zab12 wrote:
2: What about the EEA national, once has left the UK, would not be exercising his treaty rights in UK (would have left the job). Therefore, non-EEA national lose her right to stay in UK immediately?


The EEA national can be a jobseeker up to six months or become self-sufficient (but will need separate comprehensive sickness insurance). But check whether voluntary unemployement would be covered as well. In any case, your friend should register his unemployment.

zab12 wrote:
3: I understand if EEA national leaves UK permanently, the non-EEA national will lose her Immigration status in UK immediately. However, what determine whether the EEA national has left the UK permanently or has intention to come back?


Good question! I think it is pretty much of a grey area but quitting a job in itself, I would think not.

[Obie]

1: Could someone explain me that according to EU law, how long the EEA national can stay abroad without it affecting on his spouse's immigration status in UK? Somebody has told me the time-frame in this situation is six months maximum, but no source has been provided.

3.—(1) This regulation applies for the purpose of calculating periods of continuous residence in
the United Kingdom under regulation 5(1) and regulation 15.
(2) Continuity of residence is not affected by —
(a) periods of absence from the United Kingdom which do not exceed six months in total in
any year;
(b) periods of absence from the United Kingdom on military service; or
(c) any one absence from the United Kingdom not exceeding twelve months for an important
reason such as pregnancy and childbirth, serious illness, study or vocational training or an
overseas posting.
(3) But continuity of residence is broken if a person is removed from the United Kingdom under
regulation 19(3).

2: What about the EEA national, once has left the UK, would not be exercising his treaty rights in UK (would have left the job). Therefore, non-EEA national lose her right to stay in UK immediately?

Provided the EEA national hasn't left for more than 6 months the residency will not be considered broken, save for other cases where the period is extended for 12 months. The UK border agency will not usually know if they are not told, however , situation might arise in which they will want to ascertain or require an evidence to be shown that the EEA national is still exercising treaty rights in the UK.

3: I understand if EEA national leaves UK permanently, the non-EEA national will lose her Immigration status in UK immediately. However, what determine whether the EEA national has left the UK permanently or has intention to come back?

What determines whether the EEA national has left the UK permanently, is when their residency is broken, or when it is brought to the attention of UKBA that the EEA national has left the UK permanently, in relation to the set rules. In most cases this information comes to light when thenon-EEA national applies for permanent resident, for which evidence of exercising treaty is required for the 5 years period save for 6 months in a year for the 5 years period, or where the non-EEA national is seeking admission to the UK, and checks carried out by Immigration officers indicate, the EEA nation has left the UK for more than 6 months.

[Directive/2004/38/EC]

zab12,

You are asking very abstract questions. Better to be more detailed about your friend's plans.

So EEA goes home for a while. How long are they going and for what reason? Do they plan to return to the UK? Is the relationship ongoing or is it dead?

2: What about the EEA national, once has left the UK, would not be exercising his treaty rights in UK (would have left the job). Therefore, non-EEA national lose her right to stay in UK immediately?

3: I understand if EEA national leaves UK permanently, the non-EEA national will lose her Immigration status in UK immediately. However, what determine whether the EEA national has left the UK permanently or has intention to come back?

Why do you say the non-EEA immediately looses residence rights?

[zab12]

Thank you very much obie and Directive 2004/38/EC for your replies.

Firstly an update: EEA national has left finally for good, but only for 6 months and has intention to come back to the UK after 6 months (a day less of 6 months to be on safe side)

Obie, I understand that if EEA national goes for 6 months, the residency in UK is not broken, EEA national's or non-EEA national's permanent residency probably wouldn't be affected by this. However, does this means that non-EEA national spouse’s stay in UK is not affected by this 6 months period? Even though EEA national is abroad for 6 months and not exercising his treaty rights in the UK? I understand it seems logical that if EEA national’s residency is not affected by going abroad for 6 months in a year, this means he is continued resident in UK for immigration purpose even though not being here physically. However, the issue here is, he will not be exercising his treaty rights while being abroad, does this affect the non-EEA national who is in UK?

I understand HO wouldn't know until they are told. But what is the legal position here? I mean if the non-EEA national is not affected by her husband being abroad for 6 months in a year, then the non-EEA national does not have to care whether she travel abroad during this period, or if HO becomes aware that her EEA national spouse is abroad for 6 months.

Directive/2004/38/EC, the EEA national will stay abroad for 6 months. The reason EEA national leaving UK is not education, pregnancy, sickness or other reasons which extend the period to one year. This is pre-planned by both of them as EEA national has some family issues to sort out. Initially they planned to go together, but non-EEA national’s employer refused to give her such a long leave and she does not want to lose her job in current economic conditions. Their relationship has not broken down and there is nothing such as. The EEA national will come back after 6 months. They planned to see each other during those 6 months period. However, EEA national will be residing abroad for 6 months, and non-EEA national in the UK.

In regard to how it will be determined that he has not left the UK permanently, the EEA national can verify this over the phone, should such need arise, or he even come to the UK specially to certify this. He has left his personal luggage at home in UK and some of the household bills are still on his name by Direct Debits.

The non EEA national is not in any danger of being asked to leave UK while her EEA national is being abroad for 6 months. Because her EEA national Spouse will rush back to the UK if such a situation arises. In such a situation, all he has to do is to find immediately comprehensive sickness insurance (if NHS registration is not accepted) and he has sufficient money in his bank account to exercise his treaty rights as self sufficient. So non-EEA national will become protected with immediate effect (if she is not currently).

But the issue here is, currently, where the non-EEA national stands? Should she keep her head down as she has no right to stay in UK anymore as her husband is not exercising his treaty rights anymore in the UK? Or she definitely has legal right to stay in UK, as in her case, EU law provides concession for 6 months, even though her EEA national husband is not be exercising his treaty rights in UK as being abroad for 6 months?

[Directive/2004/38/EC]

Firstly an update: EEA national has left finally for good, but only for 6 months and has intention to come back to the UK after 6 months (a day less of 6 months to be on safe side)

You are saying two opposite things here. If the EEA national is only going for 6 months, then it is not “for goodâ€

[zab12]

Thank you Directive/2004/EC for your reply.

EEA national has left for 6 months only and will come back. I probably have used the word "for good" wrongly.

I did not understand your sayinmg about bills. When EEA national was in UK, most of the bills were on his name. That remained the case even after he left the UK. The bills arrangement has not changed. The reason I stated bills was it proves the EEA national has not left permanently as still pay bills in UK. Yes, EEA national has left most of his luggage in UK. Whether it is 90%, probably it is, even more, but Ihave not sen it. Again the purpose I mentioned the luggage was it prove EEA national has not left the UK permamnently.

Lets deal with the main issue here. Just to make it clear. Are you saying non-EEA national has not been affected by EEA national has left the UK for 6 months, and obviously EEA national would not be exercising his treaty rights during those 6 months?

[Directive/2004/38/EC]

Lets deal with the main issue here. Just to make it clear. Are you saying non-EEA national has not been affected by EEA national has left the UK for 6 months, and obviously EEA national would not be exercising his treaty rights during those 6 months?

I think I already addressed that. See below. I am sorry but there are no guarantees, and this is not advice for your friend. But I do not personally see what there would be an issue given what I understand of the situation.

First: EEA nationals do not need to continuously be working. They are also allowed to take time off (thank god!). If they are self sufficient, then can even avoid work entirely.

Second: Imagine a weekend in the life of a couple. Imagine the non-EEA stays in UK while the EEA national goes for the weekend to Paris. Do you think that the non-EEA looses their residency as soon as the EEA person gets on the Eurostar? Not likely! They would then all be living in fear that their EEA national might have to make a short trip outside of the UK. But the time away is limited. It can not be more than 6 months in a year.

[zab12]

I understand generally if EEA national is going abroad, it does not affect on non-EEA national's status. In most cases, when EEA national go abroad, he usually go for holidays/vavcation or short period, so in most cases he is still exercising his treaty rights in UK under one of the prescribed category. Even exercising treaty rights as a job seeker.

However, in courrent case, EEA national is not exercising treaty rights at all under any of the prescribed category.

When we read the requirements which give non-EEA nationals rights in a member state, one of them is that EEA national should be exercising his treaty rights in UK. And that includes when EEA national is unemployed and seeking job. That is why such an issue does not usully arise when EEA national is in UK.

I was hoping to give clear answer to my friend in yes or no, namely what her status is currently. I have alraedy advised her not to tarvel abroad until we get answer to this question.

I am grateful and apprciate all who have relied.

[ihossain]

Hey

I am Non-EU citizen and family member(Husband) of a EEA national.

I was on my student visa from July 2009 to December 2015, then I got my EEA family Permit until December 2020.

I am married since March 2015 and we are still living together but my wife will leave UK and go to China for a job she got there and our marriage might end anytime soon. My wife worked in the UK from September 2014 to December 2016.

I am worried now if she leave UK will I have any problem to get my ILR when I complete my 10 Years in July 2019 or ask for permanent residency after 5 years of marriage.
Also I would like to know am I entitled to apply for retained right of residence now?


Thank You.

[Casa]

Hey

I am Non-EU citizen and family member(Husband) of a EEA national.

I was on my student visa from July 2009 to December 2015, then I got my EEA family Permit until December 2020.

I am married since March 2015 and we are still living together but my wife will leave UK and go to China for a job she got there and our marriage might end anytime soon. My wife worked in the UK from September 2014 to December 2016.

I am worried now if she leave UK will I have any problem to get my ILR when I complete my 10 Years in July 2019 or ask for permanent residency after 5 years of marriage.
Also I would like to know am I entitled to apply for retained right of residence now?


Thank You.

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