Help please - EEA4/EEA2/other?

[avellana86]

Hi,

Looking for some advice for a rather complicated situation - sorry - will try to be succinct.

A = Colombian national (M)

B = Italian national (F)

Z = British national (F)

A and B met while at university in London and married in Feb 2008. A was issued 5 year residence card (EEA2) in March 2009.

A and B separated in early 2012 but remain legally married and on good terms. A wants to apply for permanent residence (EEA4), with B's support on providing documents etc. However B - as the EU national exercising treaty rights - has incomplete evidence for the full 5 year period - no income declared since Sep 2011, missing documents eg 'comprehensive sickness insurance' during university study. B has been working in the couple's joint business - established in March 2012. But they have yet to file company accounts for the business and B has not filed self-assessments etc - s0 no means of proving income for the past 2 years.

1) Am I correct on thinking that based on this, EEA4 is unlikely to be approved? Is it worth a shot? (Also, see 3))

2) If EEA4 not an option, but if B can gather enough evidence to support the current situation, does A at least stand a chance of being granted a second EEA2?

3) Is there any risk that, in submitting a patchy application, there may be serious consequences i.e. could it result in A (or both) being kicked out or prosecuted etc?

Also -

Some time after separating from B, A met Z and they are now in a relationship. Z would be willing to sponsor A if there is a route available - i.e. A moves into visa category of partner of British citizen.

4) If A and B legally separate (divorce) and A and Z were to marry in UK soon after, what would the next steps be? Would A need to leave the country to apply for new visa, or could he apply to change category from within the UK while still on EEA visa? (I understand his right to be in UK under EU law ends as soon as divorce from B is granted?)

Sorry for complexity - any advice gratefully received.

Thanks from A, B, and Z...

[Jambo]

1) If there is no evidence to cover 5 years, then there is no much point of applying for PR confirmation.
2) It is possible to get another 5 years RC if the conditions are met (i.e. exercising treaty rights).
3) What do you been by patchy? If they don't provide 5 years of evidence, the HO will refuse the application. No one will get kicked out of the country.
4) spouse application under UK immigration needs to be done from outside the UK. He will need to leave the UK before applying.

[avellana86]

Thanks for the reply Jambo!

By patchy I meant they are currently missing some documents eg payslips, tenancy agreements etc, and proof of self-employment for past 2 years.

(The reason I asked Q3 was that I read on another forum a case of someone's passport being retained and told to leave country due to 'insufficient documents'. Worried that this might happen.)

As regards proof of self-employment, are they looking specifically at [B's] earnings or just that the company exists and is in operation? Can provide the latter but not the former...

How do UKBA view receiving money from family (ie. B's family in Italy supporting her financially)?

Thanks again.

[Amber]

Hello,

I am a Brit living in the UK with my partner, a non EU national. We have been together one year and living together 6 months.

Currently he holds an EEA2 residence card on basis of his previous partner (they are separated but not divorced).

If he finalises the divorce with his wife, and I become his sponsor, how would it work...? Specifically:

1) Would we need to get married, or can I sponsor him as my unmarried partner? If we get married, is it better to do this in the UK?

2) How soon could (or should) we apply for new visa after the divorce?

3) I understand it costs £850 to apply from outside the UK, correct?

4) I understand he would need to apply from outside of the UK i.e. go back to his native country to make the application and wait for it to be processed before he is allowed to return 'home'? Home office website states this might take around 15 working days to process. Would it be better for me to go with him (so we can co-sign documents etc) or remain in the UK?

5) Apart from that 15-ish days to process the visa, are there any other applications to be made or waiting around to be done?

6) I understand I would need to satisfy a financial requirement of proving I earn more than £19k, correct? Do they look at his past financial history in the UK at all, or are they only interested in mine?

7) Is it likely we would run into issues due to him divorcing his Italian wife then applying for entry in a new category on the basis of a new relationship... (our relationship is genuine and committed, and started several months after he separated from his wife, but I understand the proximity/overlap may not look good on our application.)

Any advice much appreciated! Anyone been in a similar situation??

How long has you partner been married to this Italian national?

How long have the resided in the UK with the Italian national for?

He may be able to retain his right of residence in certain circumstances. If he fell into one of those circumstance, it make no sense in him changing his status.

He should now be applying for PR, but I'm not confident we can prove his wife's 'continuous 5 year period', as she hasn't declared any income for the past 2 years.

Are there any other routes available to him?

[avellana86]

Thanks for adding that D4109125!

[Obie]

Thanks Amber. I was minded to close the other thread, then i realised that the issues are different.

In the other thread, the OP was seeking information on how her partner can regularise his status as a spouse of british national.

I deviated her into EU law, without the knowledge that another thread has been reopened.

In light of the fact that i believe the spouse is better of staying on the EU law route, i have changed my mind again and will now close the thread.

She will get a better advice if both topics are linked rather than fragmented.

[Obie]

I am of the view that he will be able to retain his residence in the UK in the event of a lawful divorce.

In those circumstances, i see no practical benefit of him entering the Spouse of a British Citizen Route.

[avellana86]

Thanks Obie!

Can you tell me what evidence he would need to provide to support a retained right of residence application? (Would that still be EEA4?)

What makes someone qualify for retained right of residence? I was previously told he wasn't likely to get it as they have no children.

Would it not still go against him that his wife can't provide proof of exercising treaty rights for the last 2 years?

Thanks in advance..

[Obie]

I think with all due respect, those advice are baseless.

He can only retain residence after divorce, as he seem to have been married for over 3 years. Lack of a child will not be an issue.

[UKBA HUNTER]

Good work by Obie - senior. If the thread is new but different than earlier thread from same op then it must be permissible which newcomers doing their excessive job must need to know as well because it can affect a lot to query seeker op.

[Obie]

Amber is offering fantastic assistance, but on this occasion, the OP was not engaged in any impermissible act, but i nevertheless felt that having her case dealt with in this thread is in her interest, so i decided to lock the other thread.

[avellana86]

Sorry for breaching the forum etiquette by posting in 2 places.

Does anyone have any further advice on this situation? As far as I understand it:

1. as it stands he's not likely to get PR because of his wife's incomplete 5 years

2. he would be more likely to get another EEA2 RC but she still needs to provide evidence of exercising treaty rights currently.

3. if they divorce he could qualify for retained right of residence (but I am unsure what info he would need to provide in support of this and what makes someone qualify or not qualify for retained right?).


It seems like PR via the first route would be the best solution if we can pull together a solid 5 year record. If not then we will have to explore 2/3. (Option 4 being the British spouse route and option 5 is give up and go home...)

Does anyone have any experience of claiming self-sufficiency via cash from parents? Her parents have been supporting her (partly) for the past 2 years while the business they started together is not making much money. Do the HO look on that positively or negatively? What evidence could we provide to prove this?

At the moment B's past 5 years looks like this:

Feb 2008 - April 2011 - full-time student (no CSI but has Italian EHIC card) AND in part-time employment

April 2011 - June 2011 - in employment

August 2011 - present - "self-employed" but without adequate records; also receiving money from parents so could also be considered as self-sufficient (again no CSI but has Italian EHIC card)

She also received JSA for a short time in late 2011 although I'm unsure of the exact dates.


Any thoughts?

[avellana86]

Hi,

I found the below on UKBA.

http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary

7.1 Retention of the right of residence following divorce or annulment of marriage/dissolution of civil partnership

A person who ceases to be a family member of an EEA national who is a qualified person or who has acquired permanent residence on termination of a marriage or civil partnership will retain a right of residence if:

the marriage or partnership lasted for at least three years immediately before the initiation of proceedings for divorce, annulment or dissolution, and
the parties to the marriage or civil partnership had resided in the UK for at least one year during the duration of the marriage or civil partnership.

In such circumstances a family member retains a right of residence if:
(a) S/he is a non-EEA national but is pursuing activity which would make him/her a worker or a self-employed person if s/he were an EEA national,
(b) S/he is a self-sufficient person,or
(c) S/he is the family member of a person in the UK who is either a worker, 
self-employed, or is a self-sufficient person.

(a) is currently difficult to show - could (c) be an option for us? So I would become sponsor but still within the EEA track?

Thanks in advance!

[EUsmileWEallsmile]

Hi,

I found the below on UKBA.

http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary

7.1 Retention of the right of residence following divorce or annulment of marriage/dissolution of civil partnership

A person who ceases to be a family member of an EEA national who is a qualified person or who has acquired permanent residence on termination of a marriage or civil partnership will retain a right of residence if:

the marriage or partnership lasted for at least three years immediately before the initiation of proceedings for divorce, annulment or dissolution, and
the parties to the marriage or civil partnership had resided in the UK for at least one year during the duration of the marriage or civil partnership.

In such circumstances a family member retains a right of residence if:
(a) S/he is a non-EEA national but is pursuing activity which would make him/her a worker or a self-employed person if s/he were an EEA national,
(b) S/he is a self-sufficient person,or
(c) S/he is the family member of a person in the UK who is either a worker, 
self-employed, or is a self-sufficient person.

(a) is currently difficult to show - could (c) be an option for us? So I would become sponsor but still within the EEA track?

Thanks in advance!

If the I, you refer to is a British citizen, then no.

[avellana86]

To update on this situation - we are trying to accumulate enough documents to prove his wife has been exercising treaty rights so he can apply for PR EEA4. Am not convinced we will have enough - but hopefully it is worth a shot.

A further question. Almost 2 years ago he applied for Italian citizenship which is possible after 3 years of marriage to an Italian citizen. The process *SHOULD* take up to 2 years so - if all is accepted - he *SHOULD* get citizenship by March 2014 - which when his RC is also due to expire.

All is very quiet with Italian embassy though...

I was wondering if it might be possible (and more importantly - more likely to be successful than EEA4) to apply for some kind of extension of his current RC on the basis that he is waiting to be granted Italian citizenship (and can provide documents to show he has submitted his application to the embassy etc).

If so, would he need to wait until his current RC expires in March before he can apply? He has some important travel next summer so we were planning to send off [EEA4] papers now and get passport back in time for this.

Thanks in advance for your advice...

[askmeplz82]

To update on this situation - we are trying to accumulate enough documents to prove his wife has been exercising treaty rights so he can apply for PR EEA4. Am not convinced we will have enough - but hopefully it is worth a shot.

A further question. Almost 2 years ago he applied for Italian citizenship which is possible after 3 years of marriage to an Italian citizen. The process *SHOULD* take up to 2 years so - if all is accepted - he *SHOULD* get citizenship by March 2014 - which when his RC is also due to expire.

All is very quiet with Italian embassy though...

I was wondering if it might be possible (and more importantly - more likely to be successful than EEA4) to apply for some kind of extension of his current RC on the basis that he is waiting to be granted Italian citizenship (and can provide documents to show he has submitted his application to the embassy etc).

If so, would he need to wait until his current RC expires in March before he can apply? He has some important travel next summer so we were planning to send off [EEA4] papers now and get passport back in time for this.

Thanks in advance for your advice...

Italian citizenship may be difficult :

http://www.immigrationboards.com/viewto ... ht=italian

[avellana86]

Thank you, good to know. He is at the waiting around stage now (application accepted almost 2 years ago) but useful to hear that they are unlikely to hold to their quoted processing time of 2 years.

[avellana86]

We went to see an immigration lawyer this week and explained the current situation. Her advice was OK but some parts struck me as a bit odd, summary below:

- He should apply for EEA4 (thus try to collate the missing evidence from his wife's periods of self-employment - basically the last 2 years when she was not stating any income to HMRC, paying tax or NI, all cash in hand)
- She had no experience of anyone applying for a second EEA2, ever.
- She seemed to think that by providing bank statements to show they had sufficient money (regardless of whether declared to HMRC or not) during the gaps in records - basically June 2011 until April 2012 now (we plan to submit his wife's tax return for 2012-13 this week) - and explaining why no solid evidence, this would be enough to prove they were here + exercising treaty rights
- She said we could make a Freedom of Information request to home office regarding the RC application they made back in 2008, and thus get copies of all the documents supplied ~6 years ago - said this would be helpful - not clear to me why this would help as surely the RC is proof enough that the application was valid
- She also said it was an 'unwritten rule' that we should provide proof that the non-EEA spouse has been "exercising treaty rights" for past 5 years alongside his wife - first I have heard of this.

What do you think? Is she talking any sense?

Current position as it stands is to go for PR = collate as much evidence as possible for past 5 years, and send off a very organised bundle with a really good cover letter, and hope for the best.

Would love it if anyone could tell me if it would be more sensible to go for a second EEA2, particularly bearing in mind it's likely he'll be granted Italian citizenship within the next 12-18 months, so he is just waiting for that to progress, and has no interest in becoming British!