EEA3 and EEA4 advice needed please

[bobbysatya4u]

Hi,I am an non EU living in UK since July 2004(Entred on student visa).I met a girl from EEA country while studing and we started living together since november 2004 and still living together.In September 2006 we got married and i was issued RC in March 2007.Till march 2007 i was on a student visa.My wife has been excercising her treaty rights and we have all documents like p60 to prove this.I worked part time whilst on student visa and now full time since recieved my RC.In august 2009 my wife became eligible to apply for PR as she lived in UK and excersied her treaty rights for continuous five years,Iwas wondering as we have been living together since november 2004 will i be eligible to apply for PR in novemeber 2009??.We have all the bills and tenancy agreements in our name(since february 2005) apart from first 6months when we rented a room and all we have a 1 paper tenancy agreement for that period.As all bills were included in rent we don't have any bills in our name for these 6 months.I also have a bank society passbook with this period adress.Please anybody give some advice on this.Is it worth tring or will i have to wait till september 2011 to apply for PR??we are planning to apply together although she is not obliged to but we thought that might help our case.Many thanks

[Ben]

Hi,

You will acquire PR in September 2011, as only by this time will you be a person resident in the UK for 5 years who is described in either Article 2(2) or 3(2) of Directive 2004/38/EC.

Prior to September 2006, you were not a person described in either Article 2(2) or 3(2) of the Directive.

[bobbysatya4u]

Thanks Benifa.
Just clearifying ..as we started living together in november 2004,shouldn't be i counted a family member although i was on a student visa?I called HO today and they said that time livied together prior to marriage can be considred towards 5 years continuous period but it all depends on case worker and they can't guarantee of outcome before the application is made.Many thanks

[Ben]

Thanks Benifa.
Just clearifying ..as we started living together in november 2004,shouldn't be i counted a family member although i was on a student visa?

No, because, in accordance with UK interpretation, you were not in a relationship akin to a marriage for a period of two years or more.

Had you not have got married in September 2006 and, instead, continued your unmarried partnership, you would have been a person described in Article 2(2) or 3(2) of Directive 2004/38/EC (specifically, you would be a person described in Article 3(2)(b)), in November 2006.

[bobbysatya4u]

i see, Thanks for your help Banifa.
Another quick question for my friend.She came in feb2004 on a student visa,started lving together in july 2004,married in june 2006 and divorced in september 2009.When will she be eligeble to apply for PR..same ruling for her or can she apply for PR after recieving absolute decree?

[Ben]

I've been thinking about your case bobbysatya4u.

You may have a case to argue that, in fact, from November 2004 you have been a family member resident in accordance with the Directive, as the partner with whom a Union citizen has a durable relationship, duly attested (Article 3(2)(b) of Directive 2004/38/EC). This is because in September 2006 you got married to the Union citizen. Verily, the relationship which existed from November 2004 until September 2006 was a "durable relationship", and was "duly attested" when it resulted in a marriage.

I know of no case law which backs up this theory, however.

Another quick question for my friend.She came in feb2004 on a student visa,started lving together in july 2004,married in june 2006 and divorced in september 2009.When will she be eligeble to apply for PR..same ruling for her or can she apply for PR after recieving absolute decree?

PR June 2011, unless my thinking above (in relation to your own case) works out.

[bobbysatya4u]

Thanks so much for ypur quick replies Benifa,
I am so confused now as i also recieved an e-mail -
"We confirm that you may apply for permanent residency after completing 5 years living with your wife in the UK, whilst she has been exercising her treaty rights. This may include the period you were living together prior to your marriage.
All applications are decided at the discretion of a caseworker and, therefore, we cannot guarantee the outcome of such an application in advance."

I also tried to contact our local immigration advisor but nobody seems to know the answer.Shall i apply with my wife(PR) as we have same documents to prove both her residing in UK and our cohabiting.Only thing i am worried about is that for 1st 6 months when we rented a room together ,we have only a general tenancy agreement( can buy from WH smith).What would you suggest.I would greatly appreciate your expertise in advising me.Many thanks