getting married after ILR through EEA4

[gauk]

I am non-EEA national currently holding ILR after 5 yrs of continuous residence as an extended family member of an EEA national.

Can my wife (non-EEA national) now apply for a Residence Card using EEA2 application and list me as her sponsor?

Thanks

[Ben]

No. She must apply for a Spouse Visa as the spouse of a person present and settled in the UK.

In other words, UK national law applies, not the EEA regs.

[gauk]

Thank you for your reply benifa.

I thought that ILR after 5 yrs for non-EEA nationals takes a different shape to distinguish it from ILR in the form of a stamp for other applicants.

Do you have any useful links to read about this topic.

[aceadl]

Since u got ur permanent residence thru eea route , ur spouse can definitely apply for eea residence card if already in d uk or eea family permit if outside the uk. British settlement law will apply if u become a britsh citizen.

[kashyme]

Since u got ur permanent residence thru eea route , ur spouse can definitely apply for eea residence card if already in d uk or eea family permit if outside the uk. British settlement law will apply if u become a britsh citizen.

Benifa is right . Gauk is now settled in UK and his status is the same as of a person with ILR.
EEA route is not applicable here. EEA forms asks nationality of the EEA national married to non EEA who is exercising treaty rights and he can not mention his sponsors nationality in EEA2 form to apply for his partner as he is not himself an EEA national.

[aceadl]

ILR and Permanent residence card mean the same thing in theory only. As you do know Ilr is issued under uk domestic law while Permanent residence card is under EEA Law.

[Ben]

ILR and Permanent residence card mean the same thing in theory only. As you do know Ilr is issued under uk domestic law while Permanent residence card is under EEA Law.

You are correct aceadl, in this point alone.

[Wanderer]

I agree with Benifa et al. OP cannot be exercising a treaty right so cannot use EEA route.

Simples!

[gauk]

I wrote to the HO European Enquiries asking about this.

I see the logic in Benifa's and Wanderer's arguements but there must be a guidance on this some where. Any idea where to search.

Have any one of the senior members had any similar situation.

Thanks all for the useful debate.

[Ben]

gauk, it's actually very simple.

EU Directive 2004/38/EC provides that EU nationals and their family members may move and reside feely among the Member States. This is the primary basis on which EEA2 (etc.) applications are made.

As your spouse is not a family member described in either Article 2(2) or Article 3(2) of the Directive, the provisions of the Directive do not apply to her.

[aceadl]

I understand that either route could be used from another immigration forum, as he is deemed to be settled in the UK, and thus can use UK immigration law for his wife to apply for a spouse visa. Alternatively use EEA law, and thus initially apply for an EEA Family Permit, to get her to the UK, and then form EEA2 to apply for a Residence Card.

There are significant cost differences between the two routes. A phone call to ukba can easily confirm this.

[Ben]

I understand that either route could be used from another immigration forum, as he is deemed to be settled in the UK, and thus can use UK immigration law for his wife to apply for a spouse visa. Alternatively use EEA law, and thus initially apply for an EEA Family Permit, to get her to the UK, and then form EEA2 to apply for a Residence Card.

aceadl - please explain why you feel this to be true.

[Obie]

Aceadl, i am compelled to agree with you on this. The individual in question, has permanent resident under EU rule, which essentially means, he is covered by EU law, in the country of resident, and hence should have the right of family reunification under EU rule, albeit, this might not be explicitly stated on directive 2004/38EC.

He can alternatively use UK national rules, as he would be deemed a settled person.

If he had got married, whiles a dependant on EEA national with just a Resident card, it would have been a bit more tricky, as this could have indicated he is living an independent life, which could have potentially jeopordise his residency.

I am open to constructive correction, but I suspect he will be covered by both jurisdiction.

If the directive states that there should not be any discrimination, and that family member with a right to Permanent resident don't need to be dependant on the EEA family member, as they have acquired permanent residency, then all the provisions of the directive should be applied to them, anything short will be considered discrimination on grounds of nationality.

Even EEA 4 makes provision for dependant family member, and people with the right of permanent resident, who have retained the right of residence prior to acquiring the right of Permanent resident, will be entitled to add their non-EEA family member on their application.

[Ben]

Aceadl, i am compelled to agree with you on this. The individual in question, has permanent resident under EU rule, which essentially means, he is covered by EU law, in the country of resident, and hence should have the right of family reunification under EU rule, albeit, this might not be explicitly stated on directive 2004/38EC.

This may be your opinion, but in reality it is not the case.

Directive 2004/38/EC lays down the provision for EU nationals and their family members to move freely among the Member States.

It does not make provision for, nor is it insinuated in any way, shape or form, that a non-EU national family member of a non-EU national family member of an EU national may reside with the non-EU national family member of an EU national in the Member State in which the non-EU national family member of an EU national has acquired the right of Permanent Residence.

Once again. The OP's wife may apply for a Spouse Visa, in accordance with the UK Immigration Rules, as the spouse of a person present and settled in the UK.

[gauk]

Thanks all,

I did not know that my case was unique and that it would be bring such an intelliqual controversry.

I agree form EEA2 does not accommodate for non-EEA with PR to sponsor a non-EEA national, but in the same time it would be unfair and illogical to be treated under the uk immigration rules as someone who was settled via employment or previous marriage..etc.

I am still waiting from an email reply from the UKBA on this and will update u.

To give you more idea about my circumstances - I obtained my PR after 5 years of dependency on my sister-in-law (French national exercising treaty rights). I have not never been married before. My prospective wife is now in the UK visiting for 6 months and it would be alot hard for us to return home to apply for entry clearance under uk law, this is why I need to establish whether I qualify as a sponsor under EU law.

[John]

It does not make provision for, nor is it insinuated in any way, shape or form, that a non-EU national family member of a non-EU national family member of an EU national may reside with the non-EU national family member of an EU national in the Member State in which the non-EU national family member of an EU national has acquired the right of Permanent Residence.

I have to say that I find that argument totally compelling. To me what you post is totally logical.

[gauk]

Thanks John.

Benifa, have you come accross any case similar to this. Or have you got case law or guidance to support your argument that I do not qualify under EU as a sponsor.

Obie, I am inclined to apply under EU regardless of the outcome, because the maximum the UKBA can is to refuse the application.. but again they hold my fiancee's passport and may ask her to leave the UK.

She is only a visitor and I do not complicate things for her or myself.

Any thoughts from other people with knowledge on this?

[Ben]

Benifa, have you come accross any case similar to this. Or have you got case law or guidance to support your argument that I do not qualify under EU as a sponsor.

Yes, it is Directive 2004/38/EC.

Frankly speaking, I am now bored of this thread.

[Wanderer]

Benifa, have you come accross any case similar to this. Or have you got case law or guidance to support your argument that I do not qualify under EU as a sponsor.

Yes, it is Directive 2004/38/EC.

Frankly speaking, I am now bored of this thread.

Come on Benifa - u doing well, against the 'EEA rules can solve any problem' sect!

[Obie]

Obie, I am inclined to apply under EU regardless of the outcome, because the maximum the UKBA can is to refuse the application.. but again they hold my fiancee's passport and may ask her to leave the UK.

By all means do so. They cannot hold your fiance's passport, the worst case scenario is, they will decline the application and return her passport.

Directive 2004/38EC is not absolute, there are several aspect of community law, which are a not covered in it. It doesn't mean those category of people not mentioned in it, don't have a right under community law.

The most important thing is, you are someone who is covered under community law, and has a Permanent Resident card issued under Directive 2004/38EC, which entitles you to right of family reunification, regardless of whether or not, nation rules provide for this.

This is provided you are employed or self-employed and you have enough resource to support your dependent and they will not be a burden on the state. It will be interesting to see what they say.

[Ben]

a Permanent Resident card issued under Directive 2004/38EC, which entitles you to right of family reunification, regardless of whether or not, nation rules provide for this.

This is provided you are employed or self-employed and you have enough resource to support your dependent and they will not be a burden on the state. It will be interesting to see what they say.

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