EEA2 application unmarried: visa expiring, travel

[scooterjinx]

Hi all,

we are an unmarried couple with the following conditions:
EEA citizen: 3 year employment contract running since 2010 until end of 2013
non-EEA citizen: Australian, currently on a Tier5 Youth Mobility visa. This will expire in November ie very soon!

The EEA2 residence card application was sent in early August. We think we supplied pretty solid evidence:
EEA national: employment contract + payslips
Cohabitation: contracts + utility bills in both of our names. We have lived together for two years in the UK now.
Bonus material (for "durable relationship"): lots of flight bookings to and from Aus for the time before being able to live together. This dates back to 2009.

The Certificate of Application didn't come until just a few weeks ago and we had big trouble getting the passports back for some travel plans (they fell through..). The COA does however state the right to work while the application is under consideration, so despite the hick-ups I guess so far so good.

We have a few questions which we can't find conclusive answers to:
1. Is there a risk that the non-EEA partner will be considered to have overstayed when the visa expires?

2. Will the COA convince the border control to let the non-EEA person into the country? From the 2006 regulations it does look like they need to let family members in, and give us a reasonable chance to produce evidence of our relationship when entering, but all evidence except the COA is with the UKBA. Also, I am worried that they apply different standards for unmarried partners. This is gonna be a quite important issue as Christmas approaches and we would like to spend it with family.

3. Re:travel we are less concerned about the airlines since Australians can enter for three months as tourists normally. However, they will see that the Youth Mobility visa has expired recently. Can this be a problem? Any experience? I am afraid that airlines will not necessarily care about COAs.

4. General thoughts about our chances to get the residence card? As I said I think our case is very clear and solid, but unfortunately we have learned the hard way that common sense does not always rule in the UKBA.

Looking forward to your replies!

[Englandd]

Under european law previous immigration history is not important so you won't be considered as overstayer. Moreover, your basic right of free entry as tourist should not be affected under this scenario.

[Jambo]

1. The non-EEA national would be considered overstayer by the domestic immigration rules but it will have no affect on the application under EEA regulations.

2. The CoA should be good enough to allow entry.

3. The airline won't care about the CoA but would probably not be concerned about the expired visa as well. You can always tell them you are going to a short visit. Some airlines allow you to check online so your passport is only checked at the gate and then they are only concerned in the bio data page (to match to the passenger name).

4. Can't help here I'm afraid. If you lived together for 2 years in the UK, it should be fine.

[Directive/2004/38/EC]

Call me conservative, but if you are not married I would tend not to travel outside of the UK until the RC application is resolved.

Strange that your COA states you can work. That is unusual!

[Englandd]

Call me conservative, but if you are not married I would tend not to travel outside of the UK until the RC application is resolved.

Strange that your COA states you can work. That is unusual!

Scooterjinx says:
travel we are less concerned about the airlines since Australians can enter for three months as tourists normally.

[Directive/2004/38/EC]

I am not concerned about the Airlines. I am concerned about UKBA. If you are not married, I think it is prudent to reduce the number of times UKBA evaluates you, as each has a probability of a "NO" refusal. So even if the couple has an ongoing genuine relationship of many years, but are not married, I think it is not worth the risk.

This does not matter at all if the couple is married, as EU free movement law has very strong protections for married couples (who can prove it with a marriage certificate).

[scooterjinx]

Thank you all for your replies! This is a jungle. Your answers regarding travel are diverging a bit, we don't know what to do about that if the RC still hasn't arrived by Christmas time.

1. The non-EEA national would be considered overstayer by the domestic immigration rules but it will have no affect on the application under EEA regulations.

(which is was Englandd says too)

That is good to hear, I think. Where can we read the regulations about this?

[Jambo]

1. The non-EEA national would be considered overstayer by the domestic immigration rules but it will have no affect on the application under EEA regulations.

(which is was Englandd says too)

That is good to hear, I think. Where can we read the regulations about this?

You won't find it. The regulations don't state that past immigration is not relevant but on the other hand don't state it is relevant. The requirements under EEA regulations are quite simple. If you meet them, you under the EEA regulations no matter what your history is.

[Englandd]

Apart of the EEA regulations and its implications, your basic right of free entry as tourist as you said earlier cannot be affected with this application.

[Directive/2004/38/EC]

Apart of the EEA regulations and its implications, your basic right of free entry as tourist as you said earlier cannot be affected with this application.

There is no such thing that I am aware of.

We would all hope and wish that because you make an application for something EEA relevant, it would not impact your existing ability to come and go (either with a visa or without).

But the reality is some applicants' existing (non-EEA) visa is revoked when they have done an EEA application which has been rejected. The general ground is that the applicant has signalled that they intend to change their grounds for being in the UK, and that new intent does not agree with the basis of the original application (for the thing they already have).

In this case the applicant is on a "Tier 5 Youth Mobility visa".