Quick Question on timing of EEA4 residence application

[dpap]

Dear All,

Hopefully someone can help me with a quick question:

I have a resident permit as a family member of an EEA national (spouse) valid until 2009. However, as I we have been living together for the past 5 years (although only married for 2 of them), am I able to apply for permanant residence (EEA 4) by proving that, rather than have to wait until 2009 when the visa expires?

Thanks in advance.

[magata]

When was you residence permit granted? Please See the endorsement on your passport

[John]

Magata, I don't think that always answers the question.

Dpap, can you detail your UK immigration history please. In particular, when did you first have an EEA Family Permit (if ever) or a Residence Permit or Card issued using EU/EEA legislation?

[dpap]

Thanks for the quick reply guys,

John,

to clarify:

1. I applied for a residence permit in 2004 on the grounds of having lived with my unmarried partner for 3 years. Although my partner was given a residence permit, I was turned down, reason given they were not convinced we had lived for over 2 years in a relationship akin to marriage. My status at that tine was international student.
2. As we were planning to get married anyway, we did so (at the end of 2004), and in 2005, I was given a residence stamp on my passport until 2009 as a family member of an EEA national.
3. Although I have a visa until 2009, I find that some companies and banks are concerned about the short length remaining, i.e when moving jobs, and applying for credit, and as such we would like to to apply for indefinite leave to remain as soon as is possible.

That brings me back to the question, can we make an application on the grounds that;

Although we have been married for only 2.5 years, we had lived together as a couple for over 3 years before that, in a relationship akin to marriage, and will the fact that I still have sometime on my current resident permit be an issue?

Please advise,

Dpap

[John]

Dpap, I suspect that you will not like the following but as they say, don't shoot the messenger!

You switched to the EU/EEA route in 2005, following your marriage. You then got issued with a 4-year Permit, that being the length of time that such permits were issued for at that time.

Such permits, or rather now a Residence Card, are now issued for 5 years. Towards the end of your current 4-year permit you will need to apply on form EEA2 for a Residence Card, so that you can stay legal during the 5-year qualifying period.

Then shortly before the 5th anniversary of you getting your Permit in 2005 ... sometime in 2010 ... you can apply on form EEA4 for Permanent Residence ... the EU/EEA route equivalent of ILR.

Your spouse has a Residence Permit issued in 2004. In fact under EEA regulations that came into force on 30.04.06 he/she do longer needs to hold such a document. No problem that he/she does, but no longer compulsory. That means that when his/her Permit expires in 2008 he/she is no longer obliged to apply for an extension.

But once he/she has been exercising his Treaty Rights in the UK for 5 years he/she automatically gets Permanent Residence ... even without applying for it! He/She can apply for it ... on form EEA3 .... but lack of such application does not detract from the fact that, in accordance with the regulations that came into force on 30.04.06, he gets Permanent Residence status on the 5th anniversary of starting to exercise Treaty Rights (or on 30.04.06, if later).

So the question is, when did he/she start exercising Treaty Rights in the UK?

Once Permanent Residence has been held for one year he/she will be eligible to apply for Naturalisation as a British Citizen. Is that the plan? What nationality is held by them at the moment? Is dual nationality a problem?

I mention all this because if they are then a British Citizen, once you get your Permanent Residence status some time in 2010, you would immediately be eligible to apply for your own Naturalisation as British. But if your spouse is not a British Citizen, you would need to wait for a further one year.

Hope this helps .... and suspect that the news about you and PR not being until 2010 is not what you had hoped for.

[dpap]

Hello John,

Again thanks for your very informative reply.

Yes, you are right, not what I was looking for, but, really glad that I now know all the facts. Thanks a lot for the advise, we will be looking into the naturalisation route in around 2010.

Please keep up all the good work on this site.

Thanks,

Dpap

[John]

we will be looking into the naturalisation route in around 2010.

2010? But only if your spouse has become a British Citizen in the meantime ..... otherwise it will be 2011 before you can apply for Naturalisation as British.

[thsths]

1. I applied for a residence permit in 2004 on the grounds of having lived with my unmarried partner for 3 years. Although my partner was given a residence permit, I was turned down, reason given they were not convinced we had lived for over 2 years in a relationship akin to marriage. My status at that tine was international student.

I like to go with the letter of the law. EC/2004/38 says about permanent residency in article 16:

2. Paragraph 1 shall apply also to family members who are not nationals of a Member State and
have legally resided with the Union citizen in the host Member State for a continuous period of
five years.

So there are only three requirements:

1. Your EEA spouse has been working in the UK for 5 years (this is implied from Paragraph 1).
2. You are married at the time of application.
3. You have been legally in the UK for 5 years.

The wording very clearly shows that you do not have to be married for 5 years. And I don't think it matters that you took the national immigration path before. It only requires "legal" presence (same for your husband). And the word legal does include the national immigration legislation.

Of course it may be difficult to convince the Home Office. But someone has to try, otherwise they will continue to cut our freedom wherever they like. I would however consult with SOLVIT first about the correct interpretation of the law, and maybe you should ask the European Commission whether they would support you if necessary. That could be very helpful.

[John]

OK, you are showing that the EU regulations say a particular thing. But the UK regulations say something rather different :-

Permanent right of residence
15.—(1) The following persons shall acquire the right to reside in the United Kingdom permanently—
(a) an EEA national who has resided in the United Kingdom in accordance with these Regulations for a continuous period of five years;
(b) 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;

(my emphasis)

So there appears to be a difference between the two sets of legislation. Nevertheless your list of 3, your no. 3 is clearly not in accordance with the EU regulations as you are not taking into account "legally resided with the Union citizen in the host Member State". That is, it is not just a question of the person being in the UK. They do actually need to be living with the EU/EEA Citizen.

Of course it may be difficult to convince the Home Office. But someone has to try, otherwise they will continue to cut our freedom wherever they like. I would however consult with SOLVIT first about the correct interpretation of the law, and maybe you should ask the European Commission whether they would support you if necessary. That could be very helpful.

I agree, someone has got to take a stand. But whether Dpap wants to be the "guinea pig" is maybe a different matter.

[Docterror]

So there appears to be a difference between the two sets of legislation.

The "in accordance with these Regulations" part of the UK regulations is a whole different ball game. As you can see, it is also a part of 15(1)(a) as well. It would be interesting to see with a petition to European Commission or atleast the SOLVIT to see whether one would be eligible for the PR with just 5 years of legal residence or whether some treaty right has to be exercised for the 5 years in order to qualify.

Even without those words incorporated into the Immigration (EEA) Regulations 2006, your analysis of the point about having "legally resided with the Union citizen in the host Member State" does negate the 3rd point made by thsths... no point making a stand against the HO on it.