Married for 13 years, unsure of wife's legal status

[tjj81]

Hello,

Firstly, thank you for taking the time to read the following, any input given is greatly appreciated.

I am a British Citizen, born in Northern Ireland. I married my wife in 2005 in America. I lived in America until 2012 and came home with my wife and son as I always had planned to do so as I have very strong family ties here. I immediately gained employment upon returning but was unsure as to what Immigration route to take for my wife,subsequently I had a meeting with Citizens Advice Bureau and they advised me to gain an Irish Passport through the Good Friday Agreement 1996 and to apply for a 5 year residency card for my (Non-EEA) American Wife. I did this, obtained an Irish passport and my wife was granted a 5 year resident card as a family member of an EEA national.

The 5 years has come and gone and her residence card has now expired which from my understanding would not normally be an issue, however, I ceased activity due to health reasons (Cluster Headaches and acute tendonitis in both shoulders). I was granted DLA (Low Rate) but this expired after 1 year and I was in debilitating pain at the time (chronic headaches 29-30 days of the month) so decided to not pursue it further.I have not again applied for DLA/PIP. I was granted ESA (IR) and remain in the support group, I was first diagnosed with severe migraines at age 7. My wife and I are as close as ever, but my lack of knowledge of immigration law is evident and I find myself pondering long and hard with heaviness at the prospect that my wife of 13 years is in a grey area immigration wise due to my health conditions which unfortunately are beyond my control. If someone could guide me in the correct direction regarding what I should do regarding my wife's immigration status, I would be extremely grateful.

Sincerely

tjj

[vinny]

When did she apply for an EEA residence card?

[tjj81]

Hello,

Thank you for replying

She applied in July/Aug 2012 I believe and her 5 year residency card was issued Oct 2012 and Expired Oct 2017.

[vinny]

How long were you a qualified person (e.g. working)?
When did you cease activities?

She may be eligible for PR under 15(d).

[tjj81]

I was working from April 2012 until November 2012 at which point I stopped being paid by my employer and therefore ceased activities.

[tjj81]

Thank you for referencing 15(d), as far as I read it, my wife satisfies both criteria (i) and (ii) of 15(d), therefore would the appropriate action in my case be to apply for EEA(PR) for my wife. Thank you very much for your input Vinny, it's really been of great help

[Obie]

How long were you a qualified person (e.g. working)?
When did you cease activities?

She may be eligible for PR under 15(d).

OP will not meet the requirement of Regulation 5(3)(a). In relation to 5(3)(b), it is unclear whether this can be classified as accident at work or an occupational condition.

I am doubtful whether the conditions in Regulation 5 are met.

[tjj81]

Hi Obie, thank you for the reply

I clearly fail the conditions of Regulations 5(3)(a) and 5(3)(b) as I only had returned to the U.K (N.I) back in 2012. Given this, if I was to submit the EEA(PR) form, it would most likely be automatically refused given this. I am unsure at this stage given this, what course of action to take.

[Obie]

What about 5(3)(b). Was you ill health the result of accident at work or occupational issues.

[tjj81]

Hi Obie,

No, I've had these specific issues since childhood, they have just manifested much more vigorously in later adulthood.

[tjj81]

Hello,

Given that it seems my options are extremely limited to non existent, would there be just cause should I get contacted regarding my wife to claim 'Right to family life' under the Human Rights Act 1998. What happens in my wife's case, at some stage would she be contacted by the Home Office for removal despite the fact I rely solely on her due to my health conditions, What I am trying to ascertain is would the UK punish a citizen for having health conditions beyond their control and remove their married partner of 13 years? Is there a possibility of finding another sponsor?, Would the new 'Settled Status' changes being introduced in January 2019 prior to Brexit avail any options for me?, As always, all responses greatly appreciated.

[Richard W]

Would the new 'Settled Status' changes being introduced in January 2019 prior to Brexit avail any options for me?

By my reading, if there is no attempt to initiate the removal of your wife before she applies for settled status, she will become eligible under Immigration rule EU11(3) (see https://www.gov.uk/guidance/immigration ... ppendix-eu) as she will be "a family member of a relevant EU citizen ... and has completed a continuous qualifying period of five years ... and since then no supervening event has occurred ". The complex requirements are in annex 1 of that appendix.

If your health had held out, your wife would have achieved PR under the transitional arrangements for the McCarthy decision. The spirit of the settlement scheme is that the requirement for there to be a 'qualified person' has been dropped, so I believe your wife is intended to meet the requirements for the EU settlement scheme.