EEAFP, initial right to reside, & lawful residence Q's

[Quag888]

Hi all,

Couple questions. I entered UK in 2015 with an EEAFP as the Aussie husband of an Italian, I applied for EEAFM RC twice (with wife as self sufficient) and had both apps rejected for stupid reasons.

We gave up and left the UK 2/4/17, and have been in Italy at wife's parent's house since then. We now want to apply for a new EEAFP to come back and try once more (sucker for punishment I guess).

1) Bearing in mind we only left the UK on 2/4/17 and it is now 23/8/17, will my wife have a 'new' initial right to reside for 3 months (meaning she does not need to be a qualified person to bring me with her)? Or do we need to stay out of UK for 6 months to 'reset' this? I've read conflicting opinions on this. Note this isn't related to social assistance, we have never and hope to never need it.

2) How much evidence will they require that I am present in Italy lawfully? I entered schengen zone as a tourist with an Aussie passport, and prior to the 90days expiring I submitted an application for an Italian Permesso di Soggiorno. This is currently processing but timeframes have really blown out as everyone including the Questura is off on August holidays, I don't expect to get the Permesso until October! The problem is they do not give you a nice certificate of application for this, so I AM here lawfully but have very little clear cut evidence to show it. A receipt for payment to the post office of some fees is about it. Will it suffice to explain this in the comments section of my EEAFP application? Or will they want more? I'd really rather not wait until October to submit this application...

Happy to discuss my backstory in more detail if wanted. Thanks in advance, love your work.

[CR001]

What were the 'stupid' reasons for refusals of the residence card??

[secret.simon]

I applied for EEAFM RC twice (with wife as self sufficient)

Were both your wife and you covered with CSI (aka private health insurance) for the whole time that you were resident in the UK?

1) Bearing in mind we only left the UK on 2/4/17 and it is now 23/8/17, will my wife have a 'new' initial right to reside for 3 months (meaning she does not need to be a qualified person to bring me with her)? Or do we need to stay out of UK for 6 months to 'reset' this?

I believe that depends upon whether your wife was exercising treaty rights at all while she was in the UK.

If your wife was exercising treaty rights in the UK before the departure in April 2017, then her residence continues within a 6 month period and therefore she would only be resuming her residence if she returns within that timeframe.

On the other hand, if she was not exercising treaty rights, she did not have residence in the UK to start with, let alone continue, and therefore any future residence would be "new".

It is worth remembering that residence in the UK for EEA citizens is not unconditional, but must meet the requirements of EU Directive 2004/38/EC.

2) How much evidence will they require that I am present in Italy lawfully?

To the best of my knowledge, that would be irrelevant. Family members of EEA citizens have an absolute
right to reside in the EEA with the EEA citizen and that can not be restricted by whether the family member was previously resident in an EEA member state illegally. The right to reside in the EEA member-state flows from the marriage and is independent of any required documentation.

It is of course subject to the EEA citizen themselves meeting the requirements of being resident.

[Quag888]

Thanks for the replies people, appreciate your time.

What were the stupid reasons for rejection?

The first rejection said:

'you have stated in your application that you and your sponsor share have access to the funds shown in your bank account and that you share all finances equally, however as this bank account fails to name your eea sponsor as a joint account holder this dept is unable to confirm whether what you have stated in your application is true'.

I had supplied a statement signed by both of us that we share finances, and bank statements showing wages/salary for the year before for both of us going into that account (w matching payslips) and bills coming out. Seems pretty stupid to me that this isn't enough. They indicated on this letter that my wife's EHIC card was sufficient for CSI.

So we went and added my wife's name to the bank account 2 days later, and reapplied. We waited 6months more, and got another rejection letter. The second rejection was because I didn't have CSI. I very stupidly thought that having her EHIC was enough, as that's what the last rejection letter seemed to state. I now know better. So, the stupid reasons I referred to were in part my own stupidity.

Were we exercising treaty rights?

Yep I think so. 1 week after submitting the second application as self sufficient, my wife finally secured employment. She worked decent /consistent hours from July 2016 to March 2017 when we decided to leave. Maybe we should have cancelled the self sufficient application and resubmitted one with her employment details on it; hindsight is a killer.

Re: being lawfully present in the country you are applying from. Glad to hear that you don't think it's too important, they do specifically ask about it on the application form and I had read something somewhere that said you SHOULD be present lawfully. Guess that doesn't indicate that it is a necessary requirement. I just really don't want to give them any more silly excuses to reject.

[Richard W]

@everyone:
Would the wife be thought to be abusing the right to reside if she and the OP travelled to the UK together? I worry that if the OP applies for a family permit, he will have to wait several months for it.

[Quag888]

@everyone:
Would the wife be thought to be abusing the right to reside if she and the OP travelled to the UK together? I worry that if the OP applies for a family permit, he will have to wait several months for it.

Yeah I've been reading the ink stamp threads, and had toyed with this option; wait until 2/10/17 which will be 6months since we left UK, then head to Calais or Le Havre and ask for code 1a/eea dependent stamp. I think it's risky given my history of rejections, I'd be nervous, but it could save a few months waiting and save me a trip to the visa processing centre in Rome. We'd be taking the ferry or driving the tunnel in our campervan anyway...

As a backup I could ask for tourist entry as an Australian, but I may have a hard time convincing them that I do not plan to overstay (recent history of living in uk, asking about eea dependent stamps, driving a campervan that looks liveable, have my Italian wife with me and no job in italy so why would I go back). I'd need bulk evidence... The thing is, if I can't get a family permit within a reasonable timeframe, I'd like to just come over for a few weeks without any work rights or anything to sell my van then move home to Aus. I just have a feeling it's going to be difficult at the border no matter what i'm asking for...

[Richard W]

As a backup I could ask for tourist entry as an Australian, but I may have a hard time convincing them that I do not plan to overstay (recent history of living in uk, asking about eea dependent stamps, driving a campervan that looks liveable, have my Italian wife with me and no job in italy so why would I go back). I'd need bulk evidence...

And you'd be lying to an immigration officer, which is illegal. Don't do that.

[Quag888]

As a backup I could ask for tourist entry as an Australian, but I may have a hard time convincing them that I do not plan to overstay (recent history of living in uk, asking about eea dependent stamps, driving a campervan that looks liveable, have my Italian wife with me and no job in italy so why would I go back). I'd need bulk evidence...

And you'd be lying to an immigration officer, which is illegal. Don't do that.

Why would I be lying? If I can get a family permit then fine maybe we'll consider staying a while and working. But if it's going to be too difficult given our recent residence or if it's going to take up to 4months then I'd consider my alternative to go as a tourist. if i entered as a tourist my sole intentions would be to stay a few weeks to sell my van, visit a friend, then moving home to Aus. Have I missed something?