Have to be married for 5 years,previous time NOT COUNTED!
Posted: Mon Dec 13, 2010 7:25 pm
There was a recent exchange of info on the thread regarding the possibility of applying for Permanent Residence based on a 3-4 year marriage but a 5-year relationship where parties lived in the UK for 5 years.
http://immigrationboards.com/viewtopic.php?t=67107
I emailed the UKBA the following letter and got a definitive reply, that's how they see it, at least at the moment.
"Dear Sir/Madam
I am married to an EEA National who, by having exercised Treaty Rights for 5 years, has recently obtained a Document Certifying Permanent Residence (on EEA3 form).
We got married in March 2007. I am intending to apply for permanent residence card (on form EEA4) soon. According to Regulation 15(1)(b) of the 2006 Regulations, the following persons can acquire the right of permanent residence:
"a family member of an EEA national who is not himself an EEA national but who has resided in the United Kingdom with the EEA national in accordance with these Regulations for a continuous period of five years;"
Now, my query is as follows:
We have actually lived together in a durable relationship in the UK since around September 2006, before officially marrying (I was then in the country on a student visa).
I want to apply for Permanent Residence 5 years from the date we moved in together and started to live in a durable relationship which led to the marriage in March 2007 rather than 5 years from the date of the marriage (a matter of some 6-8 months really).
My concern is that during my future EEA4 application intended for September 2011, the caseworker will look at the marriage certificate, count 5 years from March 2007 and ASSUME that I am only eligible for Permanent Residence in March 2012.
This is wrong, and I wanted to confirm that I would not be wasting my time and energy in mid September 2011 applying for Permanent Residence trying to prove my point on the basis that even before marrying, I was living with the EEA National in the UK as an (extended) family member in accordance with the Regulations (Reg. 8(5) in a durable relationship which then led to the marriage.
If this is not the UKBA's view, it would lead to absurd results. You can imagine a (hypothetical) situation where a NON-EEA national would obtain a Residence card on the basis of having lived with the EEA National in a durable relationship in the UK for around 3 years and depending on whether he decides to marry afterwards he would have 2 different outcomes:
1) If he doesn't marry, he'd apply for Permanent Residence 5 years from when they started to live together; or
2) If he does marry, he would effectively be penalised for taking the more serious step through having the previous 3 years of living together in a durable relationship DISCOUNTED and only the 5 years from the date of marriage would count towards the joint residence.
Therefore, in order to interpret the legislation correctly, so long as the non-EEA and the EEA lived together in the UK for a continuous period of 5 years, the non-EEA can apply for the confirmation of his/her Permanent Residence regardless of when the actual marriage took place, as the marriage is only ONE way of proving the relationship.
Kindest Regards, "
The answer from the UKBA was:
"Thank you for your enquiry below.
I see the logic of your argument but have to disagree with your conclusion.
As you say, reg. 15(1)(b) of the 2006 Regulations recognises a right of permanent residence in the case of "a family member of an EEA national who is not himself an EEA national but who has resided in the United Kingdom with the EEA national in accordance with these Regulations for a continuous period of five years".
The term "family member" is defined by reg. 7. Specifically, reg. 7(3) states that "a person who is an extended family member [defined in reg. 8 as including "the partner of an EEA national (other than a civil partner)"] and has been issued with an EEA family permit, a registration certificate or a residence card shall be treated as the family member of the relevant EEA national...".
In other words, so far as a person relying on his/her "durable relationship" (as distinct from marriage) with an EEA national is concerned, the clock only starts ticking towards the 5 year point specified in reg. 15(1)(b) once a residence card (etc) has been issued. The mere existence of a relationship does not, under the 2006 Regulations, confer any residence rights on the non-EEA party. This reflects the distinction made by the European directive on the free movement of persons, Dir 2004/38/EC, between, on the one hand, direct family members (spouses/civil partners, children, parents etc) and, on the other hand, "other family members" and "the partner with whom the Union citizen has a durable relationship": direct family members have an automatic right of residence irrespective of whether they have been granted a residence card etc, but other relatives and partners have this right only after the host State has undertaken "an extensive examination" of their personal circumstances and determined that it would be appropriate to allow their admission and residence.
On checking our records I see that you were issued an EEA residence card only after the marriage. It follows that no residence right can derive from the earlier period when you were not married, and that an assumption that you will not in fact qualify for permanent residence until the fifth anniversary of your marriage would be correct.
Yours sincerely,"
http://immigrationboards.com/viewtopic.php?t=67107
I emailed the UKBA the following letter and got a definitive reply, that's how they see it, at least at the moment.
"Dear Sir/Madam
I am married to an EEA National who, by having exercised Treaty Rights for 5 years, has recently obtained a Document Certifying Permanent Residence (on EEA3 form).
We got married in March 2007. I am intending to apply for permanent residence card (on form EEA4) soon. According to Regulation 15(1)(b) of the 2006 Regulations, the following persons can acquire the right of permanent residence:
"a family member of an EEA national who is not himself an EEA national but who has resided in the United Kingdom with the EEA national in accordance with these Regulations for a continuous period of five years;"
Now, my query is as follows:
We have actually lived together in a durable relationship in the UK since around September 2006, before officially marrying (I was then in the country on a student visa).
I want to apply for Permanent Residence 5 years from the date we moved in together and started to live in a durable relationship which led to the marriage in March 2007 rather than 5 years from the date of the marriage (a matter of some 6-8 months really).
My concern is that during my future EEA4 application intended for September 2011, the caseworker will look at the marriage certificate, count 5 years from March 2007 and ASSUME that I am only eligible for Permanent Residence in March 2012.
This is wrong, and I wanted to confirm that I would not be wasting my time and energy in mid September 2011 applying for Permanent Residence trying to prove my point on the basis that even before marrying, I was living with the EEA National in the UK as an (extended) family member in accordance with the Regulations (Reg. 8(5) in a durable relationship which then led to the marriage.
If this is not the UKBA's view, it would lead to absurd results. You can imagine a (hypothetical) situation where a NON-EEA national would obtain a Residence card on the basis of having lived with the EEA National in a durable relationship in the UK for around 3 years and depending on whether he decides to marry afterwards he would have 2 different outcomes:
1) If he doesn't marry, he'd apply for Permanent Residence 5 years from when they started to live together; or
2) If he does marry, he would effectively be penalised for taking the more serious step through having the previous 3 years of living together in a durable relationship DISCOUNTED and only the 5 years from the date of marriage would count towards the joint residence.
Therefore, in order to interpret the legislation correctly, so long as the non-EEA and the EEA lived together in the UK for a continuous period of 5 years, the non-EEA can apply for the confirmation of his/her Permanent Residence regardless of when the actual marriage took place, as the marriage is only ONE way of proving the relationship.
Kindest Regards, "
The answer from the UKBA was:
"Thank you for your enquiry below.
I see the logic of your argument but have to disagree with your conclusion.
As you say, reg. 15(1)(b) of the 2006 Regulations recognises a right of permanent residence in the case of "a family member of an EEA national who is not himself an EEA national but who has resided in the United Kingdom with the EEA national in accordance with these Regulations for a continuous period of five years".
The term "family member" is defined by reg. 7. Specifically, reg. 7(3) states that "a person who is an extended family member [defined in reg. 8 as including "the partner of an EEA national (other than a civil partner)"] and has been issued with an EEA family permit, a registration certificate or a residence card shall be treated as the family member of the relevant EEA national...".
In other words, so far as a person relying on his/her "durable relationship" (as distinct from marriage) with an EEA national is concerned, the clock only starts ticking towards the 5 year point specified in reg. 15(1)(b) once a residence card (etc) has been issued. The mere existence of a relationship does not, under the 2006 Regulations, confer any residence rights on the non-EEA party. This reflects the distinction made by the European directive on the free movement of persons, Dir 2004/38/EC, between, on the one hand, direct family members (spouses/civil partners, children, parents etc) and, on the other hand, "other family members" and "the partner with whom the Union citizen has a durable relationship": direct family members have an automatic right of residence irrespective of whether they have been granted a residence card etc, but other relatives and partners have this right only after the host State has undertaken "an extensive examination" of their personal circumstances and determined that it would be appropriate to allow their admission and residence.
On checking our records I see that you were issued an EEA residence card only after the marriage. It follows that no residence right can derive from the earlier period when you were not married, and that an assumption that you will not in fact qualify for permanent residence until the fifth anniversary of your marriage would be correct.
Yours sincerely,"