Problem

habibcs · Post by **habibcs** » Sat Oct 20, 2012 1:05 pm

Hi,
(I could not decide what topic should I give to my situation..)
I have a complex problem, I am not sure if there is a solution.
I am a visa national (with EE country residence visa) married to EEA national. I am in London on EEA FP and I have got the permanent job.
My wife got pregnant and by fate now she is having complications and tough situations due to which she has to return to her EEA country and going through treatments.
Even though she has mother with her but it is better if her husband is with her (on occasions) as she is hospitalized. My employer can give me off for a week which is enough for now but the problem is when I come back and need to re-enter UK on EEA FP I have to be with my EEA spouse but she cannot travel with me for another 5 months. (since I do not have EEA2 and obviously cannot apply for EEA2 right now)

Is there any legal solution for that? or otherwise I am stuck here.

Englandd · Post by **Englandd** » Sat Oct 20, 2012 1:27 pm

Any absence from uk up to 6 months does not break the mean of residence and based on this concept and the evidences such as marriage certificate and EEA's excercising eu treaty rights then there should not be any problem.

habibcs · Post by **habibcs** » Sat Oct 20, 2012 2:14 pm

Englandd wrote:Any absence from uk up to 6 months does not break the mean of residence and based on this concept and the evidences such as marriage certificate and EEA's excercising eu treaty rights then there should not be any problem.

It is fine, in my case EEA national is exercising Treaty rights based on non-EEA family member's monthly income and I know I am staying in UK legally. But the problem is when I travel outside UK and then re-enter with EEA FP, and the condition for EEA FP is that I either enter in UK accompanying EEA national or EEA national is already living inside UK and I wont be satisfying both conditions. So upon my re-entry alone, Border officer will stop my entry to UK. (Even though I have marriage certificate, job contract with me).

Englandd · Post by **Englandd** » Sat Oct 20, 2012 2:27 pm

Look applying/holding RC is optional because it is just the confirmation of your rights as long as you have relationship with EEA national and EEA national is excercising its treaty rights. Now why not you buy private health insurance and use your employment income to finance your eea national partner and declare it because eea national can be self sufficient with the finance of any of family members. Private health insurance and your employment income can fulfill EEA national's treaty rights by being self sufficient.

habibcs · Post by **habibcs** » Sat Oct 20, 2012 2:58 pm

Englandd wrote:Look applying/holding RC is optional because it is just the confirmation of your rights as long as you have relationship with EEA national and EEA national is excercising its treaty rights. Now why not you buy private health insurance and use your employment income to finance your eea national partner and declare it because eea national can be self sufficient with the finance of any of family members. Private health insurance and your employment income can fulfill EEA national's treaty rights by being self sufficient.

Look, I want to travel out of UK and then re-enter without EEA national on urgent basis. I am on EEA FP currently what am I supposed to do that Border officer allow me to enter in the country without EEA national?

Englandd · Post by **Englandd** » Sat Oct 20, 2012 3:08 pm

your query will be largely replied by this post:

http://www.immigrationboards.com/viewto ... ht=#717887

habibcs · Post by **habibcs** » Sat Oct 20, 2012 3:40 pm

Englandd wrote:your query will be largely replied by this post:
http://www.immigrationboards.com/viewto ... ht=#717887

This does not apply to me. See the six post on the same topic, Questions asked by me as I was preparing ahead.

So my question still remains open.

Englandd · Post by **Englandd** » Sat Oct 20, 2012 3:57 pm

how long is your eea partner is living in uk and what mode of eu treaty she excercising at the moment. 1st clarify it more.

habibcs · Post by **habibcs** » Sat Oct 20, 2012 4:04 pm

Englandd wrote:how long is your eea partner is living in uk and what mode of eu treaty she excercising at the moment. 1st clarify it more.

She lived here for a month and then I am here for a month. She went back due to medical complications.
She is exercising treaty rights (on self-sufficiency) based on the fact that her non-eea national family member is on permanent decent job.
Since it is EEA FP not permanent visa so we both have EHIC covered for this duration. (EHIC can even be valid for long duration though).

Englandd · Post by **Englandd** » Sat Oct 20, 2012 4:10 pm

under your case keep in mind the following points and extract yourself the answer:
1. First three months are free for EEA national to excercise any treaty rights.
2. Applying/holding RC under EEA law is optional but is not necessary because non-eea national does not need any visa as long as his/her EEA national is excercising treaty rights.
3. Any absence up to 6 months does not break residence requirement.
4. non-eu partner can support his/her eea national partner with his job/saving because its treaty rights.

Note:
IN ALL CASES ABOVE A NON-EU PARTNER IS LEGAL EVEN WITH EXPIRED VISA BUT ON RE-ENTERING WITHOUT EEA PARTNER SURELY A BIG CLARIFICATION WILL BE GIVEN TO AIRPORT STAFF AND REST WILL DEPEND ON THEIR DISCRETION BUT ON BETTER CLARIFICATION THERE SHOULD NOT BE A PROBLEM.

Post by **Jambo** » Sat Oct 20, 2012 4:57 pm

What have changed since your last post on the exact same problem?

If nothing has changed, then the advice given there is still valid.

tanabrennan · Post by **tanabrennan** » Sat Oct 20, 2012 5:10 pm

Typically the advice here to the OP is the eea rules and law, the question is, do Home Office see that way? Yes an eea and family member have 3months free that is if the eea and the non eea are travelling together and they are in the country together, OP said eea have only stay in UK for a month, eea has no ties to the UK, its as if eea brought non eea to UK and dump him here. Lets put it the way, if OP fall into problem on way back with HO and they findout eea is not here in UK and non eea was detain which is the power HO has, will the eea be able to come to bail non eea out? If the answer is yes, then OP has no problem. A marriage to an eea is an authomatic residence right by law but HO will make it an authomatic left by calling it a marriage of convinience and OP will have to prove its eea is exercising treaty right in UK not in her homeland but as long as OP eea spouse can show up, OP has no problem but if not HO will make sure they make OP life misrable if he fell into their hands

habibcs · Post by **habibcs** » Sat Oct 20, 2012 5:14 pm

Jambo wrote:What have changed since your last post on the exact same problem?

If nothing has changed, then the advice given there is still valid.

Situation is different here.
I have a valid EEA FP and my non-eea national is out of UK for medical reasons and now cannot travel, I want to visit her and then come back and continue my work (on EEA FP) - not sure about only if valid EEA FP, on job non-eea national can enter without EEA nation spouse or not??

Englandd · Post by **Englandd** » Sat Oct 20, 2012 5:18 pm

as a second option why not you apply EEA2 now and write a covering letter asking for the return of passport and the prompt issuance of your COA too and briefly inform your current circumstances. It may give you a safer ground on your return as because you can argue that your application is already in process and your EEA partner is temporarily out of uk.

Post by **Jambo** » Sat Oct 20, 2012 5:26 pm

habibcs wrote:Situation is different here.

I don't think the situation changed from what you described there and the advice has not changed. Legally what you try to do is possible but not very common and you might face issues if your situation (i.e. your wife not living in the UK) is discovered by the IO.

Post by **Jambo** » Sat Oct 20, 2012 5:27 pm

Englandd wrote:as a second option why not you apply EEA2 now and write a covering letter asking for the return of passport and the prompt issuance of your COA too and briefly inform your current circumstances. It may give you a safer ground on your return as because you can argue that your application is already in process and your EEA partner is temporarily out of uk.

His wife is not in the UK. How can he send her passport?

habibcs · Post by **habibcs** » Sat Oct 20, 2012 5:30 pm

Englandd wrote:as a second option why not you apply EEA2 now and write a covering letter asking for the return of passport and the prompt issuance of your COA too and briefly inform your current circumstances. It may give you a safer ground on your return as because you can argue that your application is already in process and your EEA partner is temporarily out of uk.

Thanks, You are right and I have this in my mind but with this approach we are looking for around 3 months of gap.
Given my wife's condition, In emergency I want to have free hands to be able to travel any day (with my passport of course).

habibcs · Post by **habibcs** » Sat Oct 20, 2012 5:31 pm

Jambo wrote:
Englandd wrote:as a second option why not you apply EEA2 now and write a covering letter asking for the return of passport and the prompt issuance of your COA too and briefly inform your current circumstances. It may give you a safer ground on your return as because you can argue that your application is already in process and your EEA partner is temporarily out of uk.
His wife is not in the UK. How can he send her passport?

By getting her passport via DHL?

Englandd · Post by **Englandd** » Sat Oct 20, 2012 5:37 pm

yes you can so.
I have seen many people whose EEA partner has ID and passport. Either of them can be used to support EEA2 and the other one for travel.

tanabrennan · Post by **tanabrennan** » Sat Oct 20, 2012 5:50 pm

One more thing we have to consider on freemovement.
It is different from living in UK and it is different in absent from UK.
How do you prove you Live in UK and how do you prove your absent from UK is Temporary?
An absent that is not more than 26weeks in 52weeks may be considered.
By law you can be a residence of two places at ones but how do you proof the residency?
OP only has right to resident in UK if the eea spouse is a residence of UK not a visitor.
If they are visitor, they have right for every 3months under freemovement law as long they are traveling together and will be leaving together, but if they leave and the non eea decide to come back to UK alone, how is that a residency right?
The rules and laws are there, you can see it, I can see it but HO don’t want to see it, HO is ready to challenge you on your right to prove to them it is actually your right, they have nothing to lose, they know if the challenge OP, within 2yrs the truth will prevail if it is actually your right.
I don’t pray this happen, let say we advice OP on the Rules and Laws, we are not HO, we are not the one that issue the Permit, lets say on his way back all alone to UK, the IO stop him at the entry and do the normal protocol, to investigate if it is actually his right and find out his wife is not in UK. The IO may go further to detain him at the airport to prove to them his right. If at the end of the day as he has said, his wife cannot show up what do you think his case will be?
HO knows that its an automatic right but you have to prove to them it is and by doing that from appeal to appeal, you may lost your job, lost everything you have at work, (only if you are self employed with your own business you will not feel the pain) and your eea only will have to prove he or she is exercising treaty right not the non eea.

Post by **Obie** » Sat Oct 20, 2012 5:50 pm

You can't have this both ways. EEA free movement rules has objectives, which are to enable EU national to move from one state to another in pursueth of the activities provided for in the treaty. To facilitate this movement, rights are conferred on the non-EEA family member who accompany or join the EEA national.

In your case the EEA national is not in the UK. Therefore it could be argued you are not in the UK in accordance with the objective of the Citizens directive, which is to join or accompany the EEA national in pursueth of her rights under the Treaty.

Yes she is entitle to an absence for 6 months- 12 months (one go), without this affecting her continuity of residence. But you will need to prove that she intends to return to the UK. Without her in the UK, you have very limited rights indeed.

This is not someone who has been living in the UK for a while and then fall ill, or due to pregnancy reasons went overseas. She was in the UK for one months and left.

The 3 months rules does not seem to apply, as you are not in her company at present.

When you make the Residence Card application, you are basically saying you and your wife are in the UK and intended t stay for a period of more than 3 months. But this is not the case.

It really will be nice, if she managed to come to the UK. The healthcare here is not really that bad.

tanabrennan · Post by **tanabrennan** » Sat Oct 20, 2012 6:04 pm

Obie, you said it all, i dont know how to explain it, but you have explained it better. its not about OP, its about the EEA National, OP may have Millions of £ in account, as long as they are not living in accordance with the directive i dont think that will be posible, maybe OP should join the EEA spouse in her own country. this will be another game if they want to use EU law, again the eea spouse will have to prove she has exercise treaty right in another EU member states.
Anyway Op is still save here in the country if he wish to stay but anytime he get to the airport which is considered as an international border, he should be expecting the unexpected and his case leave door open for HO to Argue.

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