EEA family permit rules and regulations

[rmg1979]

Hello,

I'm an EU national from Ireland. My wife is Peruvian. My wife was granted a 5 year EEA family permit in the UK over 2 years ago.
However I moved abroad for work 2 and a half months ago. My family are back in the UK still.
My wife and son have visited me 3 times. The thing is that each time
when my wife comes back to the UK she gets harassed by Immigration at Manchester airport. A few days ago she was asked by them to contact Home Office immediately.
Are we breaching the EEA family permit rules? Yes, it was granted based on my status in the UK. However I did contact a solicitor before moving abroad about this topic. She advised me that it should be ok for me to be abroad but for no longer than 12 months. Does anyone know the rule for how long I can be out of the UK for without it affecting my wife's status? Should she even leave the country to visit me again in the near future?
Please help.
Thanks.

[MomG12]

Hi. I believe that an EEA family permit is only good for a few months. The holder may come in and out of the UK as many times as they like in the period it is good for. Once it expires, they should probably have a Family Member residency card. It's not required for direct family members, but it may stop any hassle they encounter coming back into the UK. Extended family members, on the other hand, are required to have one.

Good luck!

[MomG12]

Oh, sorry, I did not read that carefully. The permit and residency cards allow them to live with you in the UK. If you are not living in the UK... I'm thinking that your family members don't have a right to live there, either. Suggest you speak with an immigration consultant ASAP.

[secret.simon]

How long have you resided continuously in the UK? Where are you working? Is it a country that borders on the UK? Can you return home to the UK every weekend?

Your wife's rights to reside in the UK are entirely dependent on your residence in the UK. Residence Cards are not visas and do not confer an independent right to reside in the UK. If you are residing abroad, her right to reside in the UK comes to an end. There is however no fixed guidance on this point as to how long she can stay in the UK without you, the EEA citizen, being outside the UK.

(4) A person is not entitled to be admitted to the United Kingdom as the family member of an EEA national under regulation 11(2) unless, at the time of arrival—
(a)that person is accompanying the EEA national or joining the EEA national in the United Kingdom; and
(b)the EEA national has a right to reside.

[rmg1979]

I was living and working in the UK for just over 2 and a half years. I am now living and working in Switzerland since April.
The first solicitor I spoke to around 6 months back told me I could be out of the UK for up to 1 year without it affecting my wife's EEA residence card. I now know that this is not the case.
A few days ago I contacted another solicitor who told me that I can likely be out of the UK for 6 months max. He told me straight up that there are 2 clear options: either I return to the UK or my family join me in Switzerland.
I am looking at both options and what fits best for the family. I don't have a job to return to in the UK. If I do return to the UK I think I need to do it very soon.
Thanks for all your advice.

[Zerubbabel]

Take a calendar and see how long your wife really held a residence permit while you were in the UK. There are situations where she may have acquired a retained right for residence. This means that her residence doesn't depend on you. This is usually used when there is a divorce, separation or death of the EEA national.

Otherwise, as you live, work and pay taxes in Switzerland, the Home Office can easily claim that you are not exercising Treaty Rights in the UK and therefore you can't sponsor your wife to live in the UK. From the issues she had at the airport, they already know about the situation or have been informed by the Border Agency.

You need to check if there is a retained right, see if your wife can find another ground to apply for a residence in the UK (like a work visa if her employer sponsors her) or she would have to move with you to Switzerland.

[kamoe]

There are situations where she may have acquired a retained right for residence. This means that her residence doesn't depend on you. This is usually used when there is a divorce, separation or death of the EEA national.

This is also the case if there is a child involved, who is enrolled in education in the UK, at the care of the remaining parent. In this case, both can benefit from a retained right of residence.

But bottom line is, the non-EU spouse's right to enter and reside in the UK was given only by virtue of the EU national free movement rights, which would be limited if his family could not join him in the UK while they are exercising treaty rights here. But if the EU national moves abroad, then this justification comes to and end, and it makes little sense that the non-EU spouse is still entitled to stay in the UK, as they no longer have a right to, within the EU regulations. Hence the advise to notify the Home Office immediately.

Concur with previous option to either obtain a work visa for your wife, or move the entire family to Switzerland.