EEA4 topic

[pawelecze]

Hi Guys,

I have a query regarding EEA4 document.

The EEA4 application form (8.2) states as follows:

"If your EEA national family member has a document certifying permanent residence you only need to mention any absences they have had of more than 2 consecutive years since they received the document."

If the EEA family member acquires permanent residence and moves overseas for 18 months while Non-EEA national has been in the Uk for 4 years, can the Non-EEA national still stay in the UK to complete her 5 years period of residence and be eligible to obtain EEA4 document?

[Obie]

That may be possible, although questions may arise as to the exact nature of your relationship, and whether community law is been abused.

[pawelecze]

First of all it is a hypothetical situation.

It seems to me that staying apart for 18 months and visiting each other does not constitute breaking of relationship. In addition a couple living apart meets residential requirements for EEA4.

Why are you suggesting this might be an abuse of EU regulations?

[Pablito]

First of all it is a hypothetical situation.

It seems to me that staying apart for 18 months and visiting each other does not constitute breaking of relationship. In addition a couple living apart meets residential requirements for EEA4.

Why are you suggesting this might be an abuse of EU regulations?

Pawel, I think assuming you are both married , your spouse will have residence there but only because you are resident yourself. Your wife's rights are derivative rights not independent rights.

I think in practice it means that you should be living in UK with your wife, during her 5 yrs residency, before she acquires permanent residency. I may be wrong here, but I am almost sure it works that way.

In regards to your quoted text, it only states what you don't have to mention to them, not whether it is ok for you to be apart in different country. Be careful about that, there is a difference in my opinion.

[Obie]

First of all it is a hypothetical situation.

It seems to me that staying apart for 18 months and visiting each other does not constitute breaking of relationship. In addition a couple living apart meets residential requirements for EEA4.

Why are you suggesting this might be an abuse of EU regulations?

I am not suggesting anything. I am very open minded and liberal in regards to immigration matter.

I am only saying what the authorities may suggest, if you are able to overcome all the hurdles. Clearly you will not overcome the regulation 15(1B) hurdle and the case law hurdle, which are firmly of the view that you should have resided in the UK with the EEA national. Not necessarily in the same household, i have to emphasise. Even if you were to succeed in overcoming the Reg 15(1b) hurdle by seeking to rely directly on the directive, they may want to make the suggestion i suggesed you address.

[pawelecze]

Thank you for your response. It seems, indeed, that "a family member of an EEA national who is not himself an EEA national but who has resided in the United Kingdom with the EEA national in accordance with these Regulations for a continuous period of five years" "shall acquire the right to reside in the United Kingdom permanently". The fact that the EEA national is already a permanent resident does not change the matter of fact. Cheers!!

[pawelecze]

Hi Guys,

One more question. With regard to EEA4 does staying in Gibraltar count as staying in the UK?

[EUsmileWEallsmile]

Hi Guys,

One more question. With regard to EEA4 does staying in Gibraltar count as staying in the UK?

It ought to. Gibraltar is a territory that the UK is responsible for and is covered by article 22 of directive 2004/38/ec.

[Obie]

Hi Guys,

One more question. With regard to EEA4 does staying in Gibraltar count as staying in the UK?

No, Gibraltar is not part of the United Kingdom. Therefore the criteria in regulation 15(1b) will not be met.

[dalebutt]

Gibraltar is not part of the UK, although a UK territory it has it's own immigration rules which is distinct from the UK. Residence is Gibraltar would not count towards residence in the United Kingdom.

[EUsmileWEallsmile]

Gibraltar is a bit of an odd-ball. While it is not part of the UK politically and has its own immigration rules, it is part of the EU, though it is not a member state. It is a territory for for whom external relations a Member State is responsible (the UK).

Article 22 of directive 2004/38/EC states the following.

The right of residence and the right of permanent residence shall cover the whole territory of the host Member State. Member States may impose territorial restrictions on the right of residence and the right of permanent residence only where the same restrictions apply to their own nationals.

I am not aware of any case law on this and suspect that both the UK and Gibraltar consider residence in one to be independent of the other.

[Obie]

I am afraid I find it difficult to read Gibraltar as part of the UK. Article 22 cannot be read, in my view, as extending the scope of the UK to Gibraltar. Gibraltar acceded to the EU in its own rights. There are slight restriction in its accession to the EU on fisheries, that does not apply to the UK.

One can use the analogy of Greenland. Notwithstanding the fact that it is a Danish Territory, it is not an EU state, and therefore someone cannot claim PR in Denmark on the basis of Residence in Greenland.

There is a case of Kaur . I am not convinced it help a lot, if any, in dealing with the territorial scope of UK. But I am incline to believe, the UK is confine to Great Britain and Norther Ireland, it does not rextend to Gibraltar in my view, such that the OP may fail in an EEA application for want of Regulation 15 (1b)

[EUsmileWEallsmile]

I'm not convinced either way. I agree that certain parts of the treaties do not apply to Gibraltar. Gibraltar is not a member state, so what is it and how does it relate to the parts of treaties by which the UK is bound? In the event of non compliance with an aspect of EU law pertaining to Gibraltar, the UK would face infringement proceedings.

Greenland is different. It was part of the EU, but left.

[dalebutt]

Gibraltar is part of the European Union for whose external relation a member state is responsible ( UK). It is not part of the UK and residence acquired in Gibraltar would not count as residence in the UK.

It is a straight forward issue, The UK would mean GB & NI which does not included it's territories.

[Obie]

I concur. Gibraltar is a British Overseas territory, which has total autonomy over its internal affair. Its foreign and defence affairs is govern by the British government.

I thing thats where it dependency on the UK ends.

It is part of the EU, but not part of the UK, and hence cannot be considered as UK.

[Directive/2004/38/EC]

Gibraltar: It is not clear-cut how Gibraltar should be considered. There are 27 member states, of which Gibraltar is not one. But it is part of the EU. The UK and Gibraltar definitely see themselves as separate, but it is not clear how that would hold up in court.

pawelecze, would the EU citizen continue to maintain the relationship and have their possessions in the UK, and continue to visit their spouse (either in the UK or elsewhere) during their time working outside the UK?