Transfer from T5 YMS to EAA Family Permit, within the UK?

[moosepants]

Hi

Me and my girlfriend have been living/travelling together for coming up to 4 years now. We both entered the UK about the same time, almost 2 years ago and have been working full time since we got here.

My girlfriend is on a NZ passport with a T5 YMS Visa, due to run out in 5 or 6 months. We do plan to leave the UK some time next year, but are looking for the best way to keep her in the UK with me for a few months after her visa expires, so that I can finish off a project I have at work.

I have dual nationalities, NZ and Dutch, and have been working/residing on my Dutch passport which is pretty pain free.

My girlfriend is wanting to know what the best option is to stay in the UK (working or not) whilst I finish off my work.

From what we understand, you are not allowed to change your visa to any other visa when on the T5 YMS, which seems to rule out switching to a tourist (non-working) visa to keep her with me.

I have recently discovered that she could probably apply for an EEA Family Permit which would offer the most benefits to her for staying here. Is she allowed to apply for this from within the UK whilst on the YMS visa?

Cheers,

[vinny]

She may apply for a Residence card on form EEA2. Provide evidence of a durable relationship with you.

[moosepants]

Thanks very much for the concise, succinct reply.

I'm quite happy I have discovered this forum; formerly we have spent a lot of time and money trying to get answers out of local embassies and the home office, who tend to give extremely unhelpful answers which makes it all feel like a gamble when applying for things.

We'll give this a go and hopefully all goes to plan.

Thanks again.

[moosepants]

We applied as per the note above for the EEA2 residence card. The processing time is approximately 3 months, and if this time is accurate, we should be OK.

However, if a decision is not reached by the time her current YMS visa expires, what are our options?

From what I understand, have read, and have been told, once the YMS visa runs out, she is required to leave the country and may not enter again under any other visa (particularly Tourist/Visit visas) for a set period of time. Does this mean she will have to go camp under a tree in Calais (i.e. vacate the UK) until I hear back about her EEA2 application?

Is there any chance of an overstay being condoned/accepted by the border officials if she is waiting for the outcome of the EEA2 application (even if it is declined).

Thoughts/info would be appreciated.

Cheers,
Seamus

[moosepants]

A follow up for those interested.

We were successful in obtaining the residency permit, which is really good news.

Prior to receiving the permit, and with her visa running out, we rang the Home Office and asked whether she would have to leave the country. The reply was:

By applying for a residency card (under EEA2) you automatically void your existing (in our case Tier 5) visa. Until a decision is reached, your right to remain and work in the UK is maintained. If the application is declined, there is a 28 day window to exit the country, or appeal the decision, during which time you are still allowed to live and work in the UK.

Either way, our application was accepted with what seems to be minimal effort. Thanks very much for the information and direction provided here.

[Obie]

What is your application timeline. When did you apply and received the permit.

[fysicus]

By applying for a residency card (under EEA2) you automatically void your existing (in our case Tier 5) visa. Until a decision is reached, your right to remain and work in the UK is maintained. If the application is declined, there is a 28 day window to exit the country, or appeal the decision, during which time you are still allowed to live and work in the UK.

First of all congratulations with your Residence Card, which no doubt will make your life a lot easier.

Although it is no longer relevant for you personally, I would like to comment out of general interest that I find this statement of UKBA completely incomprehensible and without any logical basis. My thoughts are as follows:

Rights under the EEA regulations are acquired automatically. They are not granted by UKBA, but they can give you a confirmation (in the form of a Residence Card) if you ask them by sending in an application form and evidence supporting your claim. If they give you this confirmation, then it is of course no problem to cancel your previous immigration status (like the T5 visa). If they reject your application, it means that in their opinion you never had these EEA rights, and then I see no reason why it should affect your existing visa. Can they cancel a visa as punishment for wasting a bit of their time??

[moosepants]

What is your application timeline. When did you apply and received the permit.

We lodged the application late November last year. Then in Feb we made a general enquiry about what to do when her current visa expires and they let on that the EEA2 was due to be processed in early April, however it arrived a month early. So it took 3-4 months. Apparently the current average time is 3 months, and no application is supposed to take longer than 6.

Rights under the EEA regulations are acquired automatically. They are not granted by UKBA

I don't know this for sure, but as we were applying as an unmarried couple, it is a tenuous connection whether she is eligible for these rights, and they have to assess whether we are in a relationship akin to marriage. If it doesn't look like that's the case, then she has no rights under any European law, I don't think.

Can they cancel a visa as punishment for wasting a bit of their time??

I'm not sure how this works, although the Tier 5 visa is a bit of a funny one; you cannot apply for any other visa etc when you're on the T5, so maybe it's a formality that they cancel the T5 so not to break any rules? We were just going by what the lady on the phone told us.
Further, when we asked if we could travel outside the UK while we waited, she said that we could (if we got the passport back), but getting back in the country would be difficult, and we'd have to go to a British embassy and apply for something to get back into the UK on the basis that we were waiting for the residency card. Basically, unless the trip was going to be for a decent amount of time, it wasn't worth it, and just wait for the application to be processed.

Strange times, but we were successful.
Then I read about the Schengen visa and started to worry about the complications that it involved (as we're about to spend a few months travelling Europe), but as we both hold NZ passports, we don't really have to worry about it that much. In fact, loads of the Schengen countries actually have separate rules for New Zealanders that are outside the general Schengen rules which is great.

Seamus

[Greenie]

I'm not sure how this works, although the Tier 5 visa is a bit of a funny one; you cannot apply for any other visa etc when you're on the T5, so maybe it's a formality that they cancel the T5 so not to break any rules? We were just going by what the lady on the phone told us.

It is a myth that Tier 5 YMS visa holders can't switch into another category within the UK. They cannot switch to other parts of the points based system however they can apply for applications under other parts of the rules, and indeed, as you have discovered, for confirmation of EEA rights.

It is not correct that the Tier 5 visa would have been cancelled if the EEA residence card application had been rejected, unless she no longer met the requirements of the Tier 5 visa. If the application had been rejected then she would have been able to remain in the UK until the expiry of her Tier 5 visa. I know this is not relevent for you anymore but i think it is important to clarify in case others in similar situations come across this thread.

[moosepants]

Hahaha. Sigh.

Why is almost every countries border agency like this? Every time you ring them (in Australia, a call to the UK Embassy costs something like $2 a minute or $10 flat rate!) or read up their website, you get a different story that either doesn't quite answer the vital questions, or contradicts something else they have said...

It is a myth that Tier 5 YMS visa holders can't switch into another category within the UK.

Well, after T5 (YMS), you can't shift to another points based visa, and you normally will struggle to get a Tourist/Visit visa unless you have a ticket back home, as some of our mates are going through now. What fun.

[CattyB]

Hi,

Thank very much for the above posts. Just wondering if anyone could please offer any advice on a similar situation.

I am an Australian here on a Tier 5 visa which expired this year. My partner of four years is an Irish Citizen (self employed). I have applied for the EEA1&2 Registration and am just wondering if that fact that we have a 10 month old son with British citizenship will have any bearing on our case?

Sorry to be a pain, I've just been reading about the apparent high rate of EEA2 rejections and am worried about having to leave the UK (and my partner his business) with a baby!

[Jambo]

Are you married?

[CattyB]

No, we're defacto, we sent it proof of an enduring relationship since 2008 (in the form of tax returns to the same address) with our application.
Thanks for your reply!

[Jambo]

I don't have the impression that there is a high rate of unsuccessful EEA2 application.

Any way, if the HO is not happy with the application, you are likely to get "refusal to accept the application as evidence is missing" rather than anything else. In that case, just provide the evidence they ask for and apply again.

Don't worry - the HO won't knock on your door to deport you.

[CattyB]

Thanks Jambo, you've made my day!

[vinny]

See also latest interesting case involving unmarried partners.

[bdgross54]

hi people

i am in a slightly similar situation

i am an australian citizen and have been in the uk on a tier 5 yms since the 25th Sept 2013 with it finishing on the 25th Spt 2015.

i came to the uk on that visa as i beleived it was the best option for me and my irish partner (born in england but holds irish passport) who i met whilst she was doing her working holiday. we have now been a couple for just over 2yrs and have been living with each other pretty much since day dot.

i am looking to stay in the uk as i really love this woman.

is the uk residence card the right way forward.

just need some help on what would be the best option for us as good advice on these topics is very hard to find.

Thank you