Civil partner of EU-British citizen - FLR(M), EEA2, ILR

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[mcovet]

for him to take advantage of EU law, YOU must have been exercising treaty rights (notwithstanding some claims that dual Brits/EU citizens don't even need to do that as their residence does not depend on exercising rights) for the purposes of the Directive 2004/38.

Thus, for him to get PR in 5 years you would need to show that he has been living in accordance with Regulations 2006 for 5 years- and this would involve showing you continuously exercising treaty rights in the 5 years. Otherwise, the internal regime applies, through my interpretation.

I would strongly urge to try collecting the necessary documents and other informatino to successfully apply for an ILR or its possible equivalent should govt change the rules, otherwise EU route would take MUUUCH longer.

I have dual British and EU citizenship, following our civil partnership registration, my non-EU civil partner applied and was granted FLR based on my British citizenship in June 2010.

My civil partner needs to apply for ILR in May next year, if his ILR is refused, can he switch to the EU regime? If so, does he have to apply for residence permit on EEA2, I was told that he does not need to apply for EEA2, since he automatically qualified as soon as he registered a civil partnership with me.

Would he qualify for permanent residence 5 years after our civil partnership registration or 5 years from the date the residence permit (EEA2) is granted?

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[mcovet]

There is no such thing as on "both regimes". The bottom line is that if the ILR is refused, then he would still be able to remain in the UK by using the EU law. It is not an alternative, the EU law runs concurrently. For the EEA2 application you would provide your EU passport and proof of exercising treaty rights.

This would only be used if the ILR application is refused, and as opposed to only British nationals' partners who would have to either leave the country or apply for another FLR(M), he could still remain here.

Once, however, you get that EEA2 card in your partner's passport, he would be classed as "free of immigration control" and couldn't go back tot the ILR route.

Let's wait and see first what grounds, if any, the ILR would be refused. Once you know the grounds, it may be worth persisting with the national route, while costly, would lead to settlement quicker! So, do persist with that route!

Thank you for your kind reply.

We have already started collecting evidence for the ILR application next year and my civil partner will sit Life in UK Test next month.

Does this mean that I (British/EU citizen) and my non-UK/EU civil partner have to apply for residency permit? We apply on form EEA2 for my civil partner and EEA3 for myself?

This is to enable us to be on both UK and EU immigration regimes should one fail.

[mcovet]

I should have probably first asked if you actually MOVED to the UK from another EU country, or have always resided in the UK!

It is important as if you never exercised rights of free movement in a real sense, i.e. Surinder Singh ruling, or resided as a EU citizen in another Member State, you may be prevented from relying on the Directive

There is an opinion of AG given on 25/11/2010 and the ruling should follow soon. Case C-434/09.


56. If a Union citizen in Mrs McCarthy's position, who has never exercised her right of free movement, were to be allowed to rely on Directive 2004/38, that would ultimately result in 'cherry-picking': (60) the Union citizen could then enjoy the advantages of Directive 2004/38 as regards family unification in respect of her spouse without meeting the objectives of the directive - namely to give effect to and facilitate free movement - and without being subject to any of the directive's conditions, for example the requirement of economic self-sufficiency under Article 7(1) of the directive. As several of the governments which have participated in the proceedings have rightly pointed out, that does not accord with the spirit and purpose of the provisions of EU law on free movement and the right of residence

Therefore, should the ILR application not succeed, I don't know if you could then rely on the Directive 2004/38 !

see also the case which led to the AG reference!

McCarthy v Secretary of State for the Home Department
[2008] EWCA Civ 641

http://www.bailii.org/ew/cases/EWCA/Civ/2008/641.html

This is exactly what I said before, have you lived all your life in Britain?

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Thank you for your prompt reply.

In my case if my civil partner is refused ILR next year, will he be able to remain in the UK by using the EU law?

[mcovet]

Then Lassal ruling would apply to u and u r safe!!!
I will get the link to u later. U would benefit from pre-2004 directive through transitional provisions even though they literally state the predecessor 2000 regs.

Anyway, nothing stops u from just showing ur eu passport and applying for a new passport for ur passport not to show the flr(m) stamp

Thank you for your prompt reply.

My UK immigration history:

1980 I moved from an EU country and settled in the UK.
1991 I was granted ILR.
1992 I acquired British naturalization.

In my case if my civil partner is refused ILR next year, will he be able to remain in the UK by using the EU law?

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[mcovet]

Should my civil partner apply for residency permit on EEA2 before he applies for ILR next year or should he apply for EEA2 after his application for ILR, if it is refused?

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The EEA2 form is optional, the 5 year period towards Permanent Residence starts to tick from the moment you registered your Civil Partnership in the UK and not from the moment of issue of a Residence Card.

i would suggest to apply for ILR and then depending on the outcome go for a european route, even though he already is automatically on that route! If anything the national route is not applicable if he claims rights under the european route. sorry if sounds confusing.

So, just apply and try the ilr first as this would be the best outcome for him! If that gets refused, you would then make an EEA2 application by providing your civ partnership certif, your EU passport and the fact that you are exercising treaty rights in the UK as a worker or self-sufficient. if you don't have a job, then you must have enough resources to support yourself and your partner without recourse to public funds. I know it sounds stupid especially that you are British, but if you wanted to rely on the EU route, you have to show all the above for your CP to get a RC.

One thing is possible, if you can prove 5 years' continuous and uninterrupted work in the UK at any stage before now, you would send your EU passport together with your CP and you will apply for a Document Certifying Permanent Residence. This would make it easier for your CP to obtain a RC himself as he wouldn't then need to show that you are working, just the Doc certifying PR for your EU passport.

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[mcovet]

Spot on, EEA3 and your eu passport. I appreciate that u r being asked to provide 5 years' uninterrupted work etc when u probably never thought u could need it back then. But yes, if u have any period even not the very last 5 years, u would have automatically acquired PR under EU law. No need to mention british passport or ur civil partner. Good luck and it's great u grasp whats what

May I please confirm that I (British-EU citizen) should now apply for permanent residence on Form EEA3?

Form EEA3 does not ask me for details of my civil partner, so I should not mention my martial status. This form is merely to regularise my stay in the UK as a EU citizen.

I understand the 5 years of continuous and uninterrupted work in the UK which I have demonstrate could be any period, not necessarily the last 5 years.

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[mcovet]

Your case isnt straightforward at all and I would seek professional advice, even though it'll be hard. Contact ur local CAB they may well help u if u r on low income. But again, dot try the EEA route until u r done witht he ILR application.

Sorry but u need specialist advice here as the time before ur country joined eu wouldnt count as qualifying time. There was a case where a hungarian national on a working visa didnt have his time before 2004(when hingary joined eu) count towards five years. Pls seek specialis advice in relation to ur PR application. But if u r workig now, get a registration certificate on eea1 and ur partner would apply on form eea3 once the ilr app is decided

Form EEA3 Section 3.1 states: Please tick one or more of the boxes below to show the way(s) in which you have exercised Treaty rights for the past 5 years
and give the relevant dates.


In the past 10 years I have been on and off work on benefits, so providing evidence will be very laborious and there may be unaccountable gaps. I have a pension forecast from DWP dated 2009 stating that I qualify for full state pension since I completed the 31 years qualifying period for full state pension, would this letter by itself be sufficient as evidence?

[mcovet]

the letter from DWP, does it mention anyth about your nationality? Logically this letter should suffice in proving you exercised treaty rights as a worker for 5 years, but you never know. You have quite a unique case imho.




This is the case I was referring to
GN (EEA Regulations: Five years Residence) Hungary [2007] UKAIT 00073

and have a read of this case Carussi v Secretary of State: IA/22008/2010

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[Kitty]

Any new rules are highly unlikely to be applied to people already in the country on the spouse route.

Is there a particular reason you are concerned about your partner's application for ILR? (apart from its being ruinously expensive of course )

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[Directive/2004/38/EC]

May I please confirm that I (British-EU citizen) should now apply for permanent residence on Form EEA3?

I am willing to be argued with, but I do not think you should apply for PR. I do not think it would be useful and I am not sure how they would handle it since you are also British and they will know that. If, however, you do apply for PR (on the basis of your non-UK citizenship) PLEASE PLEASE let us know the results - I would be VERY curious.

Form EEA3 does not ask me for details of my civil partner, so I should not mention my martial status. This form is merely to regularise my stay in the UK as a EU citizen.

You either have PR or you don't. The PR card is just a physical confirmation of the permanent residence that you already have (or not). No such thing as "regularizing" in this case.

I understand the 5 years of continuous and uninterrupted work in the UK which I have demonstrate could be any period, not necessarily the last 5 years.

The rules changed in April 2006. So slightly different rules applied for periods before 2006.

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[Directive/2004/38/EC]

Assumption: you are working and you are an EU citizen.

Your partner has a right to be in the UK right now based on their UK law application.

In parallel with that, right now they also have a right to be in the UK based on EU law. This is an intrinsic right that is based on your partnership. You can, but do not need to, apply for a Residence Card which will confirm the existing right.

So you COULD if you wanted, ignore the rest of the UK immigration process. Your partner would continue to be covered, as they are today, by EU law. As long as you are working here or have PR, they will not for a day ever be "illegally" in the UK.