EEA family permit / husband not in the UK

[miko77]

Hello,

I am still struggling with this requirement that the EEA national has to be in the UK, when a holder of an EEA family permit wants to enter the UK.

Basically here's the situation:
* My wife (Venezuelan) and I (German) used to live in the UK for more than four years
* Right now we live in Germany
* But my wife has been made a very good job offer, so we are thinking of moving back.
* Right now she's commuting, staying the week in the UK, and the weekends with me in Germany
* We successfully got her a EEA family permit

I now read the "Border Force Operations Manual Categories of Passenger: EEA Nationals & their Dependents", http://dl.dropbox.com/u/27885818/UK/Bor ... ndents.pdf

It says:
5.4: "When a person‟s admission is based on the EEA national being in the UK the onus is on the passenger to provide this evidence. It‟s reasonable to expect the family member to provide evidence on the day of arrival. If not, one further interview represents adequate opportunity. When considering the location of the EEA national ports must take account of the fact that an EEA national can be absent for up to 6 months per year without affecting the family members right of residence. Paragraph 6.5, below, explains."

and then
6.5: "Continuity of residence under the EEA Regulations for the family member of a qualified person is not affected by the EEA national being absent from the UK for periods which are under six months in any year, periods of absence on military service or any one absence not exceeding 12 months for an important reason such as pregnancy and childbirth, serious illness, study or vocational training or an overseas posting."

So, do I have to be in the UK or not??? I don't quite understand.

When my wife says that we plan to move to the UK, but right now I am in Germany we should be fine, shouldn't we? Right now, we have the situation that whenever she enters I am flying with her, and leave the next day.

Thanks!
Miko

[EUsmileWEallsmile]

When my wife says that we plan to move to the UK, but right now I am in Germany we should be fine, shouldn't we? Right now, we have the situation that whenever she enters I am flying with her, and leave the next day.

That's a little extreme.

In order to benefit from the European rules, you need to be exercising treaty rights in the UK (worker, student, self-sufficient). Generally, you need to live in the UK. Your family members can then join you in the UK.

Is your wife working?

[Jambo]

How long is her job for? If I recall your previous posts from last year, this was a short term contract. You might pull this trick for a few more times even if she travels alone but basically you need to live in the UK and not Germany even though the definition of your residence can be a bit vague.

[miko77]

Yeah, she was doing this for a while, then stopped. She looked for jobs in Germany, but her German isn't too great, so no luck. Then her boss from the UK called again.

So the job in the UK is good and well-paid, she cannot find a job in Germany. I can work either in the UK or in Germany. That's why we are thinking about moving there (once again).

[Jambo]

Where does she stay in the UK? Why won't you both move to the UK and rent a small place. You are still allowed to be on "long business trip" to Germany and still argue you resident in the UK.

You can apply for a RC using your national ID so you can keep traveling during the application period.

[EUsmileWEallsmile]

In principal, you need to be resident in the UK in order for you and therefore your wife to benefit from the terms of the directive.

[Directive/2004/38/EC]

miko77,

Interesting situation!

It mostly matters where you (the EU citizen) are, and what you are doing.

When you go together to the UK, a 90 day period begins in which you do not need to do anything particular. During this period you can come and go temporarily and your wife can come and go.

If you leave the UK permanently or if you leave for more than 6 months per year, then you loose your residence in the UK and so does your wife.

After 90 days, you either need to be working in the UK, or be considered self sufficient, or commuting back and forth to Germany but coming home to the UK at least once per week.

Lots of people do a weekly commute from Germany to London, and vis versa, but it can be a bit tiring and it means a lot of time away from your family members. If you do it, you will see the same people waiting for their regular Monday morning and Friday evening flights!

[miko77]

Well, yes. I still have a job in Germany. But I also have quite a bit of flexibility. I am a software engineer. Wherever there's a good Internet connection, I can work. And I might quit and move soon anyhow. However, I though to take the self sufficency route, because that German work contract might make people suspicious

Anyway: one can safely assume that I will be spending lots of time in the Uk and in Germany. My wife's company rented an appartment in an apart hotel, which is big enough for two, I already stayed there with her.

In the end, if I think about it, border agency etc. probably just have to believe me. We have an address (in an apart hotel, okay. But if your spouses company pays for that, why not take it? Otherwise we would have to rent a flat and pay for it ourselves.) I can prove that I am self sufficent. I am in the UK often. I don't know how often it will be yet, but even if technically someone is supposed to count the days, nobody is going to do it in practice, I guess. How would that work? My ID card does not get stamped, and I doubt that someone will go through all the flight records...

So we should be fine... I hope...

[miko77]

After 90 days, you either need to be working in the UK, or be considered self sufficient, or commuting back and forth to Germany but coming home to the UK at least once per week.

That's interesting.

Two questions here:

1) I know that I have to be working in the UK or be self sufficient after 90 days. But who determines if I really am in one of these categories? In the case of self sufficency, do I need to carry a bank statement with me at all times? And my wife as well, because I will not be the one who will have any problems, but she?

2) who says that I have to come home to the UK once a week? Where does that come from? (I just recognized the "or" in your sentence. So you are saying I need to be self sufficient OR be in the UK once a week, which means I actually don't have to be in the UK once a week.)

Tannks!

[Directive/2004/38/EC]

You should read carefully the requirements for your residence (http://eumovement.wordpress.com/2011/09 ... eed-to-do/) and for your non-EU family members (http://eumovement.wordpress.com/2011/09 ... eed-to-do/)

And even better read the original requirements in Directive 2004/38/EC

In the end the law has to be your friend. And if you are doing something that legally makes sense but that UKBA is not familiar with, then you should be fine. But you should expect to and be prepared to fight for your rights. Learn lots now so that if you ever get challenged, you have very strong ground to defend.

Do not try to do anything stupid.

And I would encourage you to travel together with your wife when you are doing legal but different things. See http://eumovement.wordpress.com/2010/08 ... to-travel/

[simple_shoes]

Hi, my wife and I have a similar problem.

I am italian, my wife is russian, I have been working in UK for five years (no interruption)
she lived here with me and worked for 3 yrs with resident permit for non-EEA family member of an EEA citizen.

I now received a job offer to work as a contractor of a UK recruitment agency, to work for a French company.
Work will be performed at the company headquarters in France so I'm required to pay my income taxes there. Employment is temporary (~1yr) but it's very good money so if I accept I would commute on a weekly basis and
come back to the UK every weekend. My wife would remain here as she would like to keep her employment.
Our life is here, and at end of this job I will return working back to UK (where all our life, friends and investments are). Basically it would be as any 'normal' weekly commuter within the country.

What I can't understand is if there are any limitations to my wife's right to reside here if I start this contractor job in France and, if this is the case, how long can she continue to reside in the UK while I will commence the employment overseas.

I've called the home office help desk three times and, surprise surprise, I got three different answers

thanks!

[EUsmileWEallsmile]

Hi, my wife and I have a similar problem.

I am italian, my wife is russian, I have been working in UK for five years (no interruption)
she lived here with me and worked for 3 yrs with resident permit for non-EEA family member of an EEA citizen.

I now received a job offer to work as a contractor of a UK recruitment agency, to work for a French company.
Work will be performed at the company headquarters in France so I'm required to pay my income taxes there. Employment is temporary (~1yr) but it's very good money so if I accept I would commute on a weekly basis and
come back to the UK every weekend. My wife would remain here as she would like to keep her employment.
Our life is here, and at end of this job I will return working back to UK (where all our life, friends and investments are). Basically it would be as any 'normal' weekly commuter within the country.

What I can't understand is if there are any limitations to my wife's right to reside here if I start this contractor job in France and, if this is the case, how long can she continue to reside in the UK while I will commence the employment overseas.

I've called the home office help desk three times and, surprise surprise, I got three different answers :lol:

thanks!

I don't think your situation is similar to the op's.

You appear to have permanent residence. (Did you apply for confirmation of that EEA4?) if this is the case you can be out of the UK for up to two years without breaking your residence.

The fact that you plan to return weekly helps your situation. You would be what's considered to be a frontier worker.

What answers did HO give you?

[simple_shoes]

Hi, my wife and I have a similar problem.

I am italian, my wife is russian, I have been working in UK for five years (no interruption)
she lived here with me and worked for 3 yrs with resident permit for non-EEA family member of an EEA citizen.

I now received a job offer to work as a contractor of a UK recruitment agency, to work for a French company.
Work will be performed at the company headquarters in France so I'm required to pay my income taxes there. Employment is temporary (~1yr) but it's very good money so if I accept I would commute on a weekly basis and
come back to the UK every weekend. My wife would remain here as she would like to keep her employment.
Our life is here, and at end of this job I will return working back to UK (where all our life, friends and investments are). Basically it would be as any 'normal' weekly commuter within the country.

What I can't understand is if there are any limitations to my wife's right to reside here if I start this contractor job in France and, if this is the case, how long can she continue to reside in the UK while I will commence the employment overseas.

I've called the home office help desk three times and, surprise surprise, I got three different answers

thanks!

I don't think your situation is similar to the op's.

You appear to have permanent residence. (Did you apply for confirmation of that EEA4?) if this is the case you can be out of the UK for up to two years without breaking your residence.

The fact that you plan to return weekly helps your situation. You would be what's considered to be a frontier worker.

What answers did HO give you?

Hi thanx for your reply.
I'm in the process for applying for EEA3 now (5 years completed 3 weeks ago!). My wife has lived for less than for 5yrs (only 3), so she can't apply for EEA4 yet.

HO answered the following:
call 1: "she can't stay, don't know if she must leave immediately, please check on the website" where? "I can't be more specific"
call 2: "she can stay as long as her non EEA family member permit is valid, whatever you do"
call 3: initially "she can stay", then "i checked with my colleague, she has to leave, and do it immediately as you leave"

I must say they didn't help much, and they don't seem to know much about the subject, with some of them you get the feeling you know more....

[EUsmileWEallsmile]

Your wife's residence is legal as long as yours is. In the situation you described, your won't lose your residence by taking up the job in France.

[el patron]

Hello,

I am still struggling with this requirement that the EEA national has to be in the UK, when a holder of an EEA family permit wants to enter the UK.

Basically here's the situation:
* My wife (Venezuelan) and I (German) used to live in the UK for more than four years
* Right now we live in Germany
* But my wife has been made a very good job offer, so we are thinking of moving back.
* Right now she's commuting, staying the week in the UK, and the weekends with me in Germany
* We successfully got her a EEA family permit

I now read the "Border Force Operations Manual Categories of Passenger: EEA Nationals & their Dependents", http://dl.dropbox.com/u/27885818/UK/Bor ... ndents.pdf

It says:
5.4: "When a person‟s admission is based on the EEA national being in the UK the onus is on the passenger to provide this evidence. It‟s reasonable to expect the family member to provide evidence on the day of arrival. If not, one further interview represents adequate opportunity. When considering the location of the EEA national ports must take account of the fact that an EEA national can be absent for up to 6 months per year without affecting the family members right of residence. Paragraph 6.5, below, explains."

and then
6.5: "Continuity of residence under the EEA Regulations for the family member of a qualified person is not affected by the EEA national being absent from the UK for periods which are under six months in any year, periods of absence on military service or any one absence not exceeding 12 months for an important reason such as pregnancy and childbirth, serious illness, study or vocational training or an overseas posting."

So, do I have to be in the UK or not??? I don't quite understand.

When my wife says that we plan to move to the UK, but right now I am in Germany we should be fine, shouldn't we? Right now, we have the situation that whenever she enters I am flying with her, and leave the next day.

Thanks!
Miko

Another thought, if your wife obtains a bio-metric Venezuelan passport she would no-longer be a 'visa-national' which may have advantages in itself.

[EUsmileWEallsmile]

Miko77 posted this almost a year ago so suspect things have moved on for them.

[simple_shoes]

Your wife's residence is legal as long as yours is. In the situation you described, your won't lose your residence by taking up the job in France.

Hi EUsmileWEallsmile,
you mean if I get my permanent residence she won't have problems staying?

given that I always worked for these 5 yrs, all bank accounts are fine, also I'm a PhD so I'm technically a highly skilled migrant, no criminal offence, can I assume I won't have problems getting it?

[Obie]

Also see TC (Kenya) v Secretary of State for the Home Department [2008] EWCA Civ 543 (17 April 2008)

[simple_shoes]

Your wife's residence is legal as long as yours is. In the situation you described, your won't lose your residence by taking up the job in France.

I found this document on the UKBA website, which looks like an operation manual for border agents http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary

point 5.3 says "Once permanent residence has been acquired there is no requirement for the EEA national to be in the UK in order for the family member to be admitted and to reside."
So from this it looks like we should be fine, provided that I will get the residence card (whose application I sent some time ago but haven't heard from them yet). Would they bother that I don't have the card yet?

anyway, I'm still surprised that I could find this on a border force manual but could not find the exact law or rule anywhere else.

[EUsmileWEallsmile]

It would be well worth your while studying directive 2004/38/EC. It will give you the legal basis for some of your questions.

http://europa.eu/legislation_summaries/ ... 152_en.htm