Spouse Visa - currently student

[Brunel]

I am a non-EU PhD student living in the UK since September/2004 (with a Student Visa). I will defend my PhD thesis in May/2007. The Visa expires in February/2008.
Me and my fiancee decided to get married. She's an EU citizen living in the UK since March/2005 and working since April/2005.

I've applied to get the CoA. We are intending to marry in April/2007 and move together. After that, I'll apply to the spouse visa using the FLR(M) form. I will apply in person.

Some doubts:
1) Income. My fiancee earns around £1000 net per month, we are intending to rent a one bedroom flat for £850 per month. It is not too much income, but we have around £20,000 in savings. Is this ok? I will have proof that I will defend my thesis in May, so I will be able to start working if I get the visa.

2) My current visa/status. I've got a grant by an overseas agency. I read that if I wanted to switch from student to working visa I would need a written permission from my sponsor. But when switching from student to spouse visa I think this is not necessary. Could this be asked in the interview? What should I answer if they asked about how I supported myself in the last two years? Should I tell them about the overseas grant?

3) Is the time of residence of my fiancee in the UK long enough? Around two years.

4) Suppose that I get the Visa. By May/2009, when the Visa expires, I will have lived in the UK from Sep/2004 to May/2007 as a Student and from May/2007 to May/2009 as a Spouse. If I get the ILR, can I apply to Britizen Citizenship automatically or would I need to wait more time?

Many thanks in advance!

[John]

After that, I'll apply to the spouse visa using the FLR(M) form. I will apply in person.

Is your intended spouse Irish? If not, I don't think you can apply for a standard 2-year spouse visa using UK immigration law.

Instead you will need to use form EEA2 to apply for a 5-year Residence Card. The good news is that such application will be free.

[Brunel]

Dear John,

Thank you for the quick reply.

She is Italian...
I thought the FLR(M) was for any sponsor "present and settled" in the UK. She is working in the UK for two 2 years.

After we get married here in the UK in April what should I do then? Apply using the EEA2 form?? In the Home Office website they say that they are processing Residence Cards from August 2006 now, should I expect this big delay?

Would it be an alternative returning to my home country and asking from an spouse visa from there?

Thanks
Helder

[John]

Heider, but as an Italian she will not be "settled" in the UK until she gets Permanent Residence status after Treaty Rights have been exercised in the UK for 5 years.

After we get married here in the UK in April what should I do then? Apply using the EEA2 form?? In the Home Office website they say that they are processing Residence Cards from August 2006 now, should I expect this big delay?

Yes, apply for Residence Card using form EEA2. Can you expect a delay in the Residence Card being issued? Yes you can ... as you have realised currently a 5 month delay.

Would it be an alternative returning to my home country and asking from an spouse visa from there?

You cannot apply for a Spouse visa. However you could apply for an EEA Family Permit in your country. That would be for 6 months, after which you would need to apply in the UK for a Residence Card ... with all that delay. So no benefit of going down that path. Just apply in the UK on form EEA2.

[Brunel]

Thanks John...

We will marry as soon as possible, probably March.... After that I will apply for Residence Card using the EEA2 form... If the process takes 6 months, for example, would I be able to work full-time between March and September?? I have currently a student visa.

Thanks,
Helder

[John]

That is an interesting point. You actually acquire your EU/EEA Treaty Rights as soon as you become a family member of an EEA citizen ... so as soon as the marriage happens. The problem is proving that ... for which purpose you need the Residence Card.

In other words, yes you can work unlimited hours as from the date of the marriage, but an employer might question that. However you will be able to provide at least a copy of the marriage certificate, and a copy of your wife's (as she will be) Italian passport ... so undoubtedly would have a very good defence to any suggestion that you are working too many hours.

As your wife (to be) is Italian, do appreciate that as soon as the two of you have been married for three years, you will be able to apply for Italian citizenship. Whilst the reputation of the Italian government is not good as regards the speed of dealing with such applications ... you could undoubtedly be an Italian Citizen before you have rights to apply to be a British Citizen.

If the two of you were living together in Italy then you would have the right to apply for Italian Citizenship after just 6 months of marriage, but living outside Italy a 3-year rule applies.

[JAJ]

As your wife (to be) is Italian, do appreciate that as soon as the two of you have been married for three years, you will be able to apply for Italian citizenship. Whilst the reputation of the Italian government is not good as regards the speed of dealing with such applications ... you could undoubtedly be an Italian Citizen before you have rights to apply to be a British Citizen.

And you can acquire both : Italian and British, in due course. What's your existing nationality?

Your wife will become a Permanent Resident after living in the UK for 5 years "exercising Treaty Rights". She could apply for naturalisation 1 year after that. Is she planning to become a British citizen in due course?

And do you have plans to have children (born in the UK)?

[Brunel]

John : Thank you very much, this was very helpful... If I can work just showing the marriage certificate and my wife's passport then the long delay to obtain the Residence Card is not a big problem anymore....

JAJ : I am Brazilian.
I am not sure if she will apply for permanent residence after 5 years, but I think so....
No children planned for some years. ehhehee

[John]

I am not sure if she will apply for permanent residence after 5 years, but I think so....

Whilst she can still fill in an EEA3 if she wishes, on the 5th anniversary of her exercising Treaty Rights in the UK she will automatically have Permanent Residence status in the UK.

Look upon it this way, the filling in of the EEA3 is a voluntary additional extra, yes providing documentary proof of her status, but not actually adding to her status at all.

The EU regulation relating to this came into force on 30.04.06, so lots of people who had already got to the 5-year mark, but never bothered to complete an EEA3 (or one of the earlier forms leading to PR), automatically got PR on 30.04.06.

[Brunel]

Thanks John! This is the last question:

After getting married in the beginning of April, I'll need to travel in May to my home country, I'll stay there for 2 or 3 weeks. Which option do you think is the best one?
a) Apply to EEA2 in April, sending everything original except my passport (providing a photocopy instead). Then I can use my passport to travel to my home country and return to the UK (my student visa expires only in February/2008). After that, I can send the passport to the Home Office.
b) Apply to EEA2 after I return from my home country, so I can send all the original documents at the same time.

[John]

Given that we are only talking about 2 or 3 weeks, if I were you I would do your (b).