Am I a qualified person?

[charybdis]

Can somebody help us make sense of this immigration mess that my wife and I are in? Here are the facts:

*EU National (British) moves to other member state (Czech Rep)
*EU National sets up life there (job, pays taxes, health etc..)
*EU National enters relationship Non EEA person (Sri Lankan).
*Non EEA person is EU Resident (Czech Permanent Residence)
*EU National moves in with Non EEA national.
*After 2 years co habitation, the couple move to Sri Lanka and get married (2011).
*Non EEA/EU Resident arrives in UK with EU National spouse on a family visit visa.
*Married couple need to stay in UK beyond the 6 months of the visa. (Sick relative)

After consulting a lawyer, they advised that we apply for discretionary leave to remain, which if refused, would be successfully overturned in the ECHR but this would involve a few thousand in fees and could take years.

My question is, am I still considered to be a British national excersising treaty rights, hence a qualified person? I can't see why we can't apply direct for a residence card for my wife?

I lived and worked in Czech Rep for 4 years (2007 - 2011)

Do we really have to move to another EU country to enable my wife to have free access to the UK, even though she is PR of another EU member state?

Thanks to the people who set and contribute to this site, you do a great service to a great many people.

[Jambo]

Where have you been living since 2011?

Have you been living together in Czech Republic after marriage or just before marriage?

[charybdis]

Thanks for the reply.

We were living together for 2 years in Czech Rep but left in 2011 to go to Sri Lanka where we got married. There seems to be no issue with the marriage, as a 6 month visa was issued by UKBA as a family member (after 2 previous refusals). We actually got married in March 2012.

We came to UK to visit my family but during this time my mother was diagnosed with cancer and so a 3 month stay has turned into a 6 month stay.

[Jambo]

It might require a bit of a fight (and maybe a judge) but in your circumstances I believe it is worth pursuing.

The main issue I believe would be the gap. However see a similar case (13 month break between employment and the return) - OB (EEA Regulations 2006 - Article 9(2) - Surinder Singh spouse) Morocco [2010] UKUT 420 (IAC). Worth referring to it when making the application.

I suggest you familiar yourself with the wording of Regulation 9.

[charybdis]

Do you mean we should apply for RC in this country. Will it enable her to work while the application is pending (currently not allowed on visit visa)?

Thanks a lot for your help.

[Jambo]

Correct.

RC using form EEA2 using evidence from your time in Czech Republic.
She should receive an acknowledgement letter (Certificate of Application) several weeks after applying which will confirm her right to work.

[Davmck70]

I would advice you request your passports back after confirmation of application in case you need to travel at any point. All the best