EEA4 and citizenship (work visa + EEA2 holder)

[kiki2011]

Hello,
I was wondering if someone could help me. Here is a summary of my boyfriend's situation:

1. He was granted a 5-year work permit on the 21st December 2006
2. In August last year, he decided to quit his job and open his own company so he applied for a Tier 1 (general) visa successfully
3. His Tier 1 visa expires in August 2012 but since he now (December 2011) has 5 years of continuous residency, he applied for the permanent residency using the SET(O) form in person today (in Croydon)
4. Although all the documents were fine, he was away from the country for more than 180 days during these 5 years (on business and paid holidays) and therefore he was told by the immigration officer that they could not make a decision today because ‘if the applicant has spent more than 180 days outside the UK during the five-year period preceding the filing of the application, regardless of whether this was for business or pleasure, the application will be referred to a senior caseworker for consideration on a discretionary basis and it could fall for refusal if the absences exceed 180 days.’ – see more info here http://www.kingsleynapley.co.uk/news/ne ... ember_2011
5. This means that he had to leave his passport at the Home Office and it might take weeks before they make a decision; they said they might potentially have an answer next week however we are going on holiday on Friday and cannot change the ticket – it’d actually be more expensive to change or lose both tickets than to lose the application fee
6. The Home Office gave him the option of collecting his passport tomorrow or Friday if he wanted but this would mean that the application is withdrawn if they haven’t made a decision by then
7. We spoke to a solicitor who said it is very unlikely that they will make a decision before the new year
8. So he will most likely collect his passport and withdraw the application tomorrow


So, here is our current plan:

9. I am a Portuguese citizen and have had a permanent resident card (EEA3) for 2 years now (I’ve lived here for 7.5 years)
10. We are considering the following:
o Applying for a EEA2 card for him next year since his current visa will expire in Aug 2012
o We have lived together for 4 years exactly (and have utility bills, rental agreement and mortgage agreement to prove it)
o In December 2012 it will have been 5 years since we are living together
o In December 2012 we’d then apply for a EEA4 card for him, on the basis that we will been living together in the UK for 5 years and we have both been working here all this time
o I will apply for a British citizenship next year – which I am already entitled to
o Once he has his permanent residency (EEA4 card) he can then apply for the British citizenship straightaway considering that he has been living in the UK for more than 3 years and will be married to me and I will be a British citizen (we are not married yet but can get married if needed)


This is all based on a lot of reading done on the internet today but I wanted to check if this is would a valid route for him to get his citizenship in more or less the same time it’d take if he had gotten his permanent residency today. We are also not very keen on paying more Home Office fees since we lost 1k with today’s application which will be withdrawn – thus the idea of trying the EEA cards which are free of charge.

Really appreciate if someone could help.

Many thanks and happy Christmas!

[Kitty]

The fly in the ointment is that unmarried partners are not in quite the same position as spouses when it comes to European-track cases.

An unmarried partner is an "extended family member", and does not have the same standalone right of residence as a spouse. Your boyfriend has only a right to have his application for a Residence Card "facilitated".

The overall effect of this is that technically he cannot backdate his status to take in the 4 years of your cohabitation: his 5-year period qualifying for PR only begins when he applies for the Residence Card. If he is eligible for ILR on his current track, that would be a much quicker route to settlement.

There have been a couple of posts I have spotted here recently from people who say that they were in fact granted PR on just this basis. However, personally, I would not want to switch tracks now, and risk having to wait a further 5 years for settlement.

[Jambo]

One issue which I assume you aware of as you did also post in that relevant thread is that strictly speaking, if not married to you his time under EEA regulations only starts when the HO recognise him as your family member (following an application). There have been cases in which time as unmarried partner without having RC was recognised by the HO for PR but there is no gurantee that you will enjoy a similar lenient view when he apply.

Edit: sorry kitty. You beat me this time.

[kiki2011]

Thanks for your feedback.

We have decided to try the ILR to remain again - from the advise we were given by a solicitor, it won't be refused however we will need to wait for the case to be reviewed by a senior officer.

So we have filled a complaint with UKBA, our local MPs and the Home Secretary, Theresa May, because we cannot wait for a decision now as we have holidays booked.

The issue here is that when applying for this service, it is clear that a decision might not be made on the day, however in this case there was absolutely no chance for a decision to be made on the day and my boyfriend should have been told about that before applying. It is a new rule from the Home Office that says that ALL cases that involve more than 180 days outside the country for whatever reason need to be reviewed by a senior officer and cannot be processed on the same day. So my boyfriend was allowed to pay for a service that he wasn't entitled to in the first place and this should be been made clear when the staff checks the documentation before directing people to the payment counter.

We have filled a complaint so that he can apply again in January without having to pay the fee considering that this time they didn't spend more than 10 minutes reviewing the case - so he basically paid £1,350 only to get an immigration officer to spend 10 minutes going through the documents and say that the application would need to be reviewed by a senior officer and there is no estimate as to when a decision would be made.


So the reason I am posting this here is: if someone is having the same problem, please make sure you file a complaint as I believe the more complaints they receive about the same issue, the more chances we all have to get a better outcome.