EEA family permit possible for refugee applicant outside UK?

[africunda]

Hello all,

I have been reading through the forum and a lot very interesting topics are posted here. Thanks to you all for this great site.

I have a question that I did not see answered before and I hope you can help me with it.

My spouse and I are currently living in Ireland. I'm an EU national, but my partner is a non-EU national. I recently got a very interesting job opportunity in UK and I understood from this site that in order for us to come and live/work in the UK my non EU spouse needs to apply for an EEA family permit (visa).

But we have one problem, my partner is still undergoing refugee status procedure in Ireland. This means that he hasn't gotten the permanent residence card yet. He does have a passport and a temporary residence card.

My question is now: Can he still apply for the EEA family permit (visa)? Or will it be refused based on his status here?

Thanks for your anticipated response!

[Mr Rusty]

Here's an extract from the EEA Casework instructions:

"2.2 If the application is being made from another Member State:

Following the case of Akrich, which established that a right of movement for a family member is only derived if s/he is lawfully resident in a Member State, the requirement for an applicant to demonstrate lawful residence has been introduced (Regulation 12(1)(b)(i) of the 2006 Regulations refers). This would normally be in the form of either the local equivalent of leave to enter/remain as a family member of a national of the Member State in which they are residing, or an EEA residence card if he/she is the family member of an EEA national residing in a Member State of which he/she is not a national.

Evidence of an outstanding application to reside in the Member State in question would not be considered as sufficient evidence of lawful residence, and the applicant should be advised to await the outcome of their application before seeking a family permit."

It doesn't look as if that last paragraph applies to you because you say your spouse has a passport and a temporary residence card, i.e. although he hasn't secured permanent residence in Ireland, he is lawfully resident there.
The thing is, it will cost you nothing to find out, EEA applications are free!

[JAJ]

Hello all,

I have been reading through the forum and a lot very interesting topics are posted here. Thanks to you all for this great site.

I have a question that I did not see answered before and I hope you can help me with it.

My spouse and I are currently living in Ireland. I'm an EU national, but my partner is a non-EU national. I recently got a very interesting job opportunity in UK and I understood from this site that in order for us to come and live/work in the UK my non EU spouse needs to apply for an EEA family permit (visa).

What EU country are you from, and what is your partner's nationality?

Are you aware that if your partner abandons status in Ireland then there will be no entitlement to return if things don't work out in the U.K.

[Mr Rusty]

I would add a caveat to my previous post. If your spouse's "temporary residence" is only by virtue of his status as an asylum-seeker in Ireland, this may only qualify as an"outstanding application" rather than "lawful residence" for the purposes of making an EEA application, and he would be required to be granted residence there before he could make a successful application.
That is to say, if the residence card or the paperwork he has from the Irish authorities indicates that he hasn't been granted permission to enter or stay in the country, only what is known in the UK as "Temporary Admission", to which reporting restrictions are attached, then I doubt whether he can be considered as having "lawful residence"

[vinny]

Continuation:

Hi mr Rusty,
Thank you for your response .To elaborate on our situation, I'm a Belgian and my husband is a Nigerian. Does that change anything about the situation? We got married here in Ireland but he hasn't received his permanent resident card base on his marriage right yet.

He is currently holding a temporary refugee identity card here in Ireland which is renewable every three months as his asylum procedure is still on going despite our marriage. I do not know if this is regarded as a legal resident permit in order to satisfy the EEA family Visa requirement that reqiures the non EU spouse to be legally resident in the host member state from where application is being sought. I'm really worried about this as I can't afford to forego my new job in the UK neither do I want to leave my husband behind.

Please someone need to make this happen. Once again thanks for your assistance and I'll appreciate more counsel if possible.

[Mr Rusty]

It's difficult to be definitive without knowing how the asylum system works in Ireland, but it sounds very much as if your husband's status would be regarded as having an "outstanding application" for the purposes of an EEA family permit application, and the British ECO would want to see him granted residence in Ireland before looking at this.
Your dilemma is understandable, but you must also consider that if you move out of Ireland before his status is secure, you might be risking his applications being refused and him returned to Nigeria. Again, I don't know about asylum in Ireland, but as an indication, in the UK Nigerian applications are liable to be subjected to "fast-track" procedures because Nigeria is deemed to be a relatively safe country and most applications are rejected without a right of appeal before removal. If you're no longer living in Ireland, I can't imagine that the Irish immigration rules would permit him to remain as your spouse.
One further option that you might want to consider is for him to return to Nigeria and make the application from there once you are established in the UK.
I think you need to talk to a good immigration lawyer in Ireland before you decide what to do.

[archigabe]

Another option would be for your husband to return to his home country and applying for a EEA family permit from the British Embassy in Nigeria.

[Decus et Tutamen]

Bearing in mind the recent Tribunal determination which established that regulation 12 of the Immigration (EEA) Regulations 2006 is a construct of UK law and has no foundation in Directive 2004/38, I'd say the OP's husband should apply for a family permit regardless of his current status in Ireland. If push comes to shove, he can quite legitimately present himself to a UK immigration officer without having a family permit and plead his case under Regulation 11(4).

http://www.ait.gov.uk/Public/Upload/j20 ... igeria.doc

[VictoriaS]

Simple answer - probably not, but check with the British Embassy in Dublin.

Victoria