Illegally here, how do you become legal?

[cuttingman23]

I'm half English/Italian, I met a Brazilian who is illegal, been together 1 year and just got married.

Having looked on the internet I believe we just need to apply for a EEA Residence Permit? and then my partner is legal.

I've a good job, savings and this isn't a sham marriage, so is this the right way for my partner to become legal?

I've heard if we have enough evidence we are together and I can afford to take of them the application should work?

Thanks for advice

[Lucapooka]

Even though you have Italian citizenship, have you only ever lived in the UK as a British Citizen?

The definition of “EEA national” has been amended in light of the ECJ judgment in McCarthy, which confirmed that the provisions of the Directive are not applicable to an EEA national who has never exercised his right of free movement, who has always resided in a Member State of which he is a national and who is also a national of another Member State. An EEA national is therefore now defined in amended regulation 2(1) as “a national of an EEA State who is not also a United Kingdom national”.

[cuttingman23]

Even though you have Italian citizenship, have you only ever lived in the UK as a British Citizen?

The definition of “EEA national” has been amended in light of the ECJ judgment in McCarthy, which confirmed that the provisions of the Directive are not applicable to an EEA national who has never exercised his right of free movement, who has always resided in a Member State of which he is a national and who is also a national of another Member State. An EEA national is therefore now defined in amended regulation 2(1) as “a national of an EEA State who is not also a United Kingdom national”.

Thanks for the response. I go most years to Italy for a couple of weeks.

Reading up on the ECJ judgment in McCarthy, what does "never exercised right to freedom of movement" mean!?

[Lucapooka]

Worked or studied in Italy.

It appears that your partner doesn't qualify for EU treatment, unless you were to live in another EU country for a period and work there.

As it stands, she has to apply for Entry Clearance (a spouse settlement visa) in Brazil, having met all of the necessary requirements for that type of visa.

[Mr Rusty]

"what does "never exercised right to freedom of movement" mean!?"

It means that a person has never gone to another EEA country to live and work. The fiction was current for many years that a dual Brit/EEA national could use their EEA nationality to bring a family member to live with them in the UK as of right under EEA Regulations even though that person had lived in the UK as a British citizen all their life. The "McCarthy judgement" in the European Court has put a stop to this.

UKBA has now implemented the EC judgement with an update to the 2006 EEA Regulations which came out on 16th July last. However the actual implementation of the revised definition already quoted - “a national of an EEA State who is not also a United Kingdom national” - will not be enforced until 16th October. As best I understand it, Family Member applicants up to that date may still benefit from their spouse's dual nationality.

Edit:- LucaP beat me to it with the explanation. But as a further thought, just in case you were tempted to bang in an application before 16th October, you should also be aware that the EEA Regulations do provide for the refusal of Family Member applications if they are a "marriage of convenience". Given your partner's immigration history and the timing of such an application I would say there would be a high probability of that outcome, so you should be prepared for that.

[cuttingman23]

Worked or studied in Italy.

It appears that your partner doesn't qualify for EU treatment, unless you were to live in another EU country for a period and work there.

As it stands, she has to apply for Entry Clearance (a spouse settlement visa) in Brazil, having met all of the necessary requirements for that type of visa.

How long would I have to work or study to qualify?

She had a tourist visa which ran out last year, what problem if any would we encounter at the airport if we were to go to Brazil and apply for this other visa?

[cuttingman23]

How long would I have to work or study to qualify?

She had a tourist visa which ran out last year, what problem if any would we encounter at the airport if we were to go to Brazil and apply for this other visa?