EEA family permit from other visa?

[Marcuspt]

Hello,

I'm an Australian on a Tier 5 YMS visa, expiring late July 2016, currently living and working in the UK. My partner of 2 years is an Italian citizen exercising her treaty rights in the UK.

I want to apply for the EEA2 visa to stay in the UK with her, but I read that it takes 3-6 months to be processed. My tenancy agreement has a strict break clause that can only be used by 9 July or I have to stay in the contract for 6 more months, paying rent for somewhere I am not physically able to stay.

Am I able to apply for a EEA family permit instead (from outside of the U.K., eg Paris), while currently on a Tier 5 YMS visa? As this would give me 6 more months as well as a much shorter (1-3 weeks) processing time, allowing me to use the break clause if I am unsuccessful.

Can anyone offer their advice please?

Thanks,
Marcus

[noajthan]

Hello,

I'm an Australian on a Tier 5 YMS visa, expiring late July 2016, currently living and working in the UK. My partner of 2 years is an Italian citizen exercising her treaty rights in the UK.

I want to apply for the EEA2 visa to stay in the UK with her, but I read that it takes 3-6 months to be processed. My tenancy agreement has a strict break clause that can only be used by 9 July or I have to stay in the contract for 6 more months, paying rent for somewhere I am not physically able to stay.

Am I able to apply for a EEA family permit instead (from outside of the U.K., eg Paris), while currently on a Tier 5 YMS visa? As this would give me 6 more months as well as a much shorter (1-3 weeks) processing time, allowing me to use the break clause if I am unsuccessful.

Can anyone offer their advice please?

Thanks,
Marcus

You could apply but you'd have to be living in France.

Are you partners in a relationship 'akin to marriage'?
You will have to prove all that for the FP and then for subsequent RC.

[Richard W]

Can anyone offer their advice please?

Marriage would be one solution.

Now, with non-EEA visas, the normal rule is that when one applies for further leave to remain, the old conditions continue until a decision is made, even though the expiry date of the previous leave has expired. There is a school of thought, subscribed to by at least some solicitors, that this applies for some applications under the EEA rules. The logic would be that for extended family members, family permits, residence cards and permanent residence cards (and their equivalents for EEA nationals) act as visas, for they give permission for extended family members to be treated as family members. There is some evidence that this view is correct, or at least shared by part of the Home Office. Therefore, it may be worth applying for a residence card now, in the hope that in a month's time you will receive a 'positive CoA', i.e. one stating that you have the right to work.

If the Home Office is consistent, and I have not heard of it being inconsistent in this regard, this 'positive CoA' will allow you to continue to work.

Apart from its doubtful legal basis, one problem I perceive is that it does not appear that you and your girlfriend live together. If you do not, it may be hard to present clear evidence that you are her 'durable partner', and so you may get a negative CoA, which would cast doubt on the legality of your presence in the UK once your Tier 5 visa expires.

A drawback of the doubtful legal basis is that it may later be argued that a 'positive CoA' was issued in error and that you were not lawfully present in the UK between the expiry of your Tier 5 visa and the grant of a residence card. This would then bar you from acquiring British citizenship until ten years had passed since the grant of the residence card (or your departure form the UK, if earlier).

[Marcuspt]

Thanks for the reply.

I am living with my girlfriend, we have been renting an apartment together for 20 months, and before that we spent 2 months traveling together and 2 months I was staying with her family in Italy.

Apart from that, I know it seems that the EEA2 visa seems the logical choice, but what I am most concerned about is getting confirmation before the break clause on my tenancy agreement expires - meaning that I want to be sure of my visa situation for the next 6 months at least, so that I do not end up paying rent for a flat I cannot live in if I am forced to exit the country.
Furthermore, we only really plan to stay in the UK for another 6-12 months.

So do you/does anyone know if I would technically be able to apply for the EEA family permit, even though I already have a valid visa and live in th UK? I don't want to arrive at the embassy in Paris or Amsterdam and be told I cannot actually apply for it!

Thank you again for your help.

Marcus

[noajthan]

Applications (apart from those made by N.Koreans) are made online.
Proof of right to reside in the country the applicant is applying from is required if it is not their home memberstate.

[vinny]

It's possible to apply for an EEA family permit in a non-UK country, where one is legally present.

If successful, then it may be beneficial.

[noajthan]

It's possible to apply for an EEA family permit in a non-UK country, where one is legally present.

If successful, then it may be beneficial.

I wasn't aware of the possibility to apply locally. The FP website masks that pretty well.

It also appears unnecessary to be normally or legally resident which increases the options.

EUN2.2 Where can an EEA family permit be issued?

EEA family permits may be obtained from any visa issuing post. It is not necessary for an applicant to be lawfully or normally resident in the country to apply.

[Marcuspt]

The UKVI responded to me today with the following regarding applying in another country:

You can apply for a standard visit, EEA or Tier 5 sportsperson or
entertainer visa in any country in which UK Visas and Immigration accept
visa applications. If you wish to apply for other PBS visas or a settlement
visa, you can do so in your home country or in a country in which you
normally live.

It is advisable to apply for a UK visa from the city where you are
documented as a resident. Where an applicant wants to apply out of their
region, they must provide a compelling reason as to why. Any acceptance to
do so is up to the discretion of Home Office but, as an indication only,
visitors (for example) can generally apply from any location. Please note
that there might be delay in application if applicants apply from out of
region.

Applications for all visa types should be made in the applicant’s country
of residence. ‘Country of residence’ is not necessarily their country
of origin and refers to wherever the applicant has permission to reside,
for example, for work or study purposes. Many countries will issue overseas
nationals with residency cards in these cases. An applicant who has
permission to stay in a country as a visitor for 6 months or is on holiday,
for example, is not a resident.

[Marcuspt]

The most pressing question for me that I can't seem to find an answer to is whether I am even eligible for th EEA Family Permit at all - as I currently hold a valid visa (Tier 5) and live in the UK already. If I apply for the Family Permit, will they just tell me I've applied for the wrong visa and reject my application (and will this then count as a rejected visa application that I have to declare when I apply for the 'correct' one?)

[vinny]

It may be easier for for unmarried couples to produce evidence of living together for at least two years, in a relationship akin to marriage, etc.

[Marcuspt]

Hi all,

I am an Australian national (currently on YMS visa) living in London with my partner who is an Italian national.We have been renting an apartment together (joint lease) for 20 months, and before that we spent 2 months traveling together and 2 months I was staying with her family in Italy. We met overseas and moved to the UK together. Will the fact that we do not have a full 24 months of formal evidence of cohabitation make us illegible for this EEA family permit? I have heard that informal living/traveling together does not count towards this 2 year rule - how strict is it now?

Thanks
Marcus

[noajthan]

You are almost there with your 2 years.

A related case fyi - member refused a RC (not FP) due to lack of cohabitation evidence:
http://www.immigrationboards.com/eea-ro ... 09231.html

And some case law that may help if you press ahead now and suffer a refusal:
http://www.immigrationboards.com/eea-ro ... l#p1292065

[rotor]

The thing you are most worried about (the flat), is the thing that is 100% in your control. So sort that out! Go to the landlord and say that you will not be committing to a further six months as you don't know what your immediate future is. If they say "that's not my problem", then plan to leave on the original break date, and start looking for a new flat. If they say "don't worry about it, we can go onto a rolling month-by-month arrangement with x months notice", then you know where you stand.

My point is, ANYTHING to do with the Home Office is uncertain and EXTREMELY slow. So don't ever assume things will go your way, because they just won't. Better to be prepared.

[Marcuspt]

Hi Noajthan and Rotor,

Thanks very much for your replies! First of all, I've spoken to my landlord who has agreed to be flexible with the situation, so that's one massive worry put to rest

Secondly, my work has hired an immigration legal consultant to help with my application for the EEA permit, which we are planning to apply for from Dubai (fastest processing center I have found) in late June (my current visa expires end of July). However, he has expressed doubts that we may not have enough strong evidence of cohabitation for 2 years. This is what we have (reverse chronological order):

- March 2016 to present - UK - we have a new joint tenancy agreement (up until March 2017), joint bank account, bills, insurance, letters etc.

- November 2014 to March 2016 -UK - we have a joint tenancy agreement, letters to the same address, bank transfers to one another. (Bills were included in our rent)

- September 2014 to November 2014 - Italy - we have flights into and out of the country, a letter from her mother saying we stayed with them at their home on an air force base, and trying to get a letter from the airforce base confirming my presence there (had to submit my passport to stay there). We also traveled Italy a bit during that time, so we have those tickets/bookings.

- August 2014 to September 2014 - China - We have flights into and out of the country, I have her Chinese address on my Chinese visa application form, so does my father who came to visit and stay with us for that period as well. We have her tenancy agreement but needs to be translated from Chinese. I have a hospital bill that lists her address as my place of residence. I can get her and her flatmate to write letters that I stayed there during that time.

- July 2014 to August 2014 - Australia - We have flights to Australia, I paid for her tickets, we have a letter from my mother that she stayed with us for the month.

-June 2014 to July 2014 - China - this is the weakest period, we have text history, photos, emails about her Australian tourist visa and booking flights etc - I can get a letter from her/her flatmate stating I lived with them, but not much else unfortunately. We met in May 2014.

I feel very nervous about the first few months before we both moved to the UK together. I feel like we can prove evidence of a durable relationship, but not strongly for 2 years cohabitation (1 year 7 months solid proof, 3 months decent proof, 2 months very weak proof). For all this period we also obviously have loads of travel history, photos together and message history etc.

Do you think that we have a chance/it is worth applying with this amount of evidence?

Another option we thought of was to apply for the EEA2 visa, and then amass more cohabitation evidence/time elapsed while it is being processed, then re-apply if it has been rejected with this new amount of evidence. However, from what I have read and been told by the immigration legal consultant I would lose the right to work during this period, which is not ideal obviously as I'm currently employed.

Thanks again for your help and advice.

[noajthan]

I don't really follow the logic of applying for a FP. It's only for entry and you seem to be in UK already.

If you're in UK you should apply for a RC.
If you have any doubt on strength of evidence wait until you have more.

As an EFM/partner it is likely your COA will not confirm a right to work.

btw - a RC is not a 'visa' its simply a confirmatory document.
Visas are obtained on the UK immigration route and give permission to remain; the EU route is about rights (& responsibilities).

[Marcuspt]

Hi,

The logic (which the immigration advisor also suggested) is that the EEA Family Permit, although unnecessary, will give me the right to work for that 6 month period, which I can then apply for the EEA2 and retain that right to work as I have already been confirmed as an extended family member. If I apply directly for the EEA2 RC then I will have to resign from my job.

Can you offer any advice on the state of our cohabitation/durable relationship evidence?

Thanks!

[noajthan]

Hi,

The logic (which the immigration advisor also suggested) is that the EEA Family Permit, although unnecessary, will give me the right to work for that 6 month period, which I can then apply for the EEA2 and retain that right to work as I have already been confirmed as an extended family member. If I apply directly for the EEA2 RC then I will have to resign from my job.

Can you offer any advice on the state of our cohabitation/durable relationship evidence?

Thanks!

The subsequent COA still may not confirm a right to work. I assume you plan that that won't matter as you will be in a job by then.
However not all employers will accept a FP as demonstrating right to work (whether they should or not).

Unless you move to Dubai it's unclear how you can apply from Dubai; (FPs are applied for by persons outside UK).

Looking at the dates I would disregard at least all of 2014 as it seems you only met in May 2014.
It's not credible that you instantly fell into a relationship 'akin to marriage' from the following month after meeting.
What you seem to show from those heady early days is that you were flatmates, co-travellers and bf/gf.

What you need to show is the relationship akin to marriage and (due to HO's rather narrow and blinkered view which is based on UK immigration rules) also evidence of co-habitation.

This UK approach is still somewhat controversial and not supported by case law but is the test that will be applied in the first place. If you fail then you can fight based on the case law & etc.

[Marcuspt]

Hi Noajthan,

Thanks for the reply. My current employer is aware and is willing to take the Family Permit as evidence of the right to work.

As for Dubai, I was under the impression from Vinny several posts above that it is possible to apply from anywhere (one does not have to be a resident, just legally allowed in the country). This is reflected on the gov.uk website (https://www.gov.uk/government/publicati ... the-policy), numerous emails I have sent the UKVI and the immigration lawyer who has been advising my employer and I.

In regards to the evidence, I'm aware that the cohabitaiton evidence is weak, and that it seems that it is strange that we were in a 'durable relationship' so soon after meeting. However not long after meeting we committed to moving to the UK together (dropping everything else) in order to be together, and have not been apart for more than a week total since we met - Although I understand this has little weight with the Home Office.

[vinny]

The subsequent COA still may not confirm a right to work.

If successful, then it may be beneficial.

The EEA family permit's holder may be treated as a family member. This makes the issue of a COA, with a right to work, possible.

[Marcuspt]

So based on the amount of evidence we can provide as listed above, do you recommend not even trying to apply for the EEA route?

The alternative is for us both to quit our jobs and leave the UK (we do not want to rush a marriage just for the visa).

[noajthan]

So based on the amount of evidence we can provide as listed above, do you recommend not even trying to apply for the EEA route?

The alternative is for us both to quit our jobs and leave the UK (we do not want to rush a marriage just for the visa).

I think it would be a stronger case if you were applying in 6 months time ie with approx 2 years covered by the 2 joint tenancy agreements that you have.

As per my understanding, it seems medium risk (yet low cost) if you apply now and are refused.
(Not sure the FP approach will fly unless you relocate at least temporarily).

Its a similar risk/low cost if you shoot for the RC. In my book, less risk of refusal in 6 months.

[rotor]

Its a similar risk/low cost if you shoot for the RC. In my book, less risk of refusal in 6 months.

But how does Marcuspt legally work in the UK during those months?

[noajthan]

Its a similar risk/low cost if you shoot for the RC. In my book, less risk of refusal in 6 months.

But how does Marcuspt legally work in the UK during those months?

The COA may not state that it confirms a right to work, that does not mean there is no right to work.

As confirmatory documents the COA and RC are simply physical proofs of the right;
- the document doesn't confer the right in the first place, it simply confirms it.

If OP has an employer who understands that then all good; I'm not guaranteeing OP will be able to work if they choose to follow this EU migration trajectory.

In general the challenge is not all employers are au fait with treaty rights and also have a fear of prosecution for employing illegal workers.
OP is also free to indulge in a spot of self-employment too, then any/all such concerns melt away.

[Richard W]

If I apply directly for the EEA2 RC then I will have to resign from my job.

Why? Your YMS visa doesn't expire until the end of July.

OP is also free to indulge in a spot of self-employment too, then any/all such concerns melt away.

Is this on the basis that the application for a residence card as an extended family member (to be precise, a durable partner) would extend the YMS leave under Section 3C? (I think we await case law on this matter.) The application is effectively an application to be treated as a 'direct' family member, as well as a request for confirmation that the sponsor is exercising treaty rights; in this case, the card would not be a mere confirmation of an existing right.

[noajthan]

If I apply directly for the EEA2 RC then I will have to resign from my job.

Why? Your YMS visa doesn't expire until the end of July.

OP is also free to indulge in a spot of self-employment too, then any/all such concerns melt away.

Is this on the basis that the application for a residence card as an extended family member (to be precise, a durable partner) would extend the YMS leave under Section 3C? (I think we await case law on this matter.) The application is effectively an application to be treated as a 'direct' family member, as well as a request for confirmation that the sponsor is exercising treaty rights; in this case, the card would not be a mere confirmation of an existing right.

Not at all, noone's waiting for case law; if self-employed OP doesn't need to show card to anyone.