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?

[meats]

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?

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.

[86ti]

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?

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.

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.

[zab12]

Thank you Meats and 86ti:

86ti, in regard to the link you have provided under Directive, do you refer to Part 1, Continue of residence: 3(2)(a) "Periods of absence from UK which don't exceeds six months in any year"?

In your response to my first question, you have mentioned 'job seeking' for six months issue. However, in this case, the EEA national will be abroad, so not seeking job in UK. In regard to if he exercises his treaty rights during his period abroad as 'self sufficient', yes, he has to certain amount of money in his bank account and both need comprehensive sick insurance. However, there is a same issue as under 'job seeking' category; namely, the EEA national will be abroad. Could EEA national exercise his treaty rights in UK as self sufficient, or as job seeker, while being abroad for 6 months?

The six months absence rule you have mentioned, does it require exercise of treaty rights by EEA national while being abroad, or there is no requirement to exercise treaty rights during this 6 months absence?

Believing the Directive does provide 6 months concession, what will happen if the EEA national needs to live more than 6 months abroad? Would it help if he comes to UK before 6 months have finished, exercise his treaty rights as self sufficient, lets say for a month, and leave again. Would it satisfy the requirement of "no absence more than 6 months"?

His purpose of going back is to stay with his family for some time as being abroad for a long period. So it does not fit under 1 year rule mentioned under Part 3(2)(c) of the link you provided (study, pregnancy, sickness etc). The problem is his spouse cannot accompany him without losing her job which is good.

[zab12]

I Understand it is complicated.

[zab12]

Anymore input on this subject?