Immigrationboards.com

Hello,

I need advice!

I am a family member (spouse) of an EU citizen with a pre-settled status.

In 2019, my immigration advisor advised me that since I wasn't qualified for a settled status that I should use my last travel entry into the UK, not my first entry exercising my EU right of free movement. That it doesn't matter since I was not qualified anyway.

Also, the same advisor helped me apply for a visitor's visa in 2018 because my spouse wasn't traveling with me at the time and they didn't include a vital travel history - an entry through Ireland with my spouse in 2017. He said it doesn't count since my passport was checked and stamped only, to and from, in Dublin - Ireland.

I have now realised that I have been wrongly advised by my immigration advisor.

CONTEXT:
I first entered the UK lawfully through Ireland with my EU spouse in May 2017 for research work as part of my PhD in Germany. And I started living in the UK with my spouse ever since using my Article 10 residence card issued under EU law by the German authority during that period, and until I was issued a pre-settled status.

I have proofs such as:
- a passport stamp confirming my entry through Ireland,
- flight tickets from Germany to Dublin and Dublin to London - both for me and my spouse,
- proof of residence for that period in the UK

QUESTION:
1. Can I apply for a settled status now despite these discrepancies?
2. Should I just wait until I reach 5 years based on the entry date that was submitted in my pre-settled status application?

I fear that this might cause me unnecessary problems

victorndi wrote: ↑

Tue Apr 18, 2023 10:35 pm

In 2019, my immigration advisor advised me that since I wasn't qualified for a settled status that I should use my last travel entry into the UK, not my first entry exercising my EU right of free movement. That it doesn't matter since I was not qualified anyway.

If the purpose of this application was to get you a pre-settled status as smoothly as possible, submitting evidence that covers only the period since your first official UK entry would not necessarily be against your interests, since you would still get pre-settled status. This is not necessarily wrong advice, since every application gives you the opportunity to submit proof independently of previous applications, so no harm in having done it this this way, for this particular application. This does not affect your future application for Settled status, whatever date of entry you want to claim when you do it.

Also, the same advisor helped me apply for a visitor's visa in 2018 because my spouse wasn't traveling with me at the time and they didn't include a vital travel history - an entry through Ireland with my spouse in 2017. He said it doesn't count since my passport was checked and stamped only, to and from, in Dublin - Ireland.

This is what I don't understand. If you came to the UK in May 2017, did you not have a EEA residence card at this time?
If you did, you could have used that to re-enter the UK; if you did not, that is what you should have applied for, not a visitor's visa.
You did not need to travel with your EU family member to use the EEA card as documentation to prove your right to enter the UK.

1. Can I apply for a settled status now despite these discrepancies?

You can apply when you can submit proof that you have resided in the UK for 5 continuous years as the family member of a EU national, regardless of what stamps you have on your passport. For this, three things are key:
- proving you have resided in the UK continuously for those 5 years
- proving your EU family member has also resided in the UK continuously for those 5 years
- proving that you are still the family member of your EU sponsor as of the time of application

Should I just wait until I reach 5 years based on the entry date that was submitted in my pre-settled status application?

No. As I said earlier, every application is independent, they look at the evidence you submit on the spot. If you can proove the above points, that's it, you have it; regardless of what you submitted for your previous application.

This is what I don't understand. If you came to the UK in May 2017, did you not have a EEA residence card at this time?
If you did, you could have used that to re-enter the UK; if you did not, that is what you should have applied for, not a visitor's visa.
You did not need to travel with your EU family member to use the EEA card as documentation to prove your right to enter the UK.

Thank you so much for your reply. It's very helpful.

I needed a visitor's visa because I didn't apply for a EEA residence card in the UK at the time. I was studying for my PhD in Germany (on scholarship) but living in the UK with my spouse using my EEA residence card issued in Germany, not by UK. Since I wasn't looking for a job, I thought it wasn't mandatory because my spouse was present in the UK that I can exercise my right of free movement without applying (my thinking at the time).

victorndi wrote: ↑

Wed Apr 19, 2023 4:14 pm

I needed a visitor's visa because I didn't apply for a EEA residence card in the UK at the time.

You did not need a visitor's visa. You could have applied for a Family Permit in any country; to gain entry back in the UK, which was free, and was usually treated in priority. For this you did not need to travel with your EU sponsor.

I was studying for my PhD in Germany (on scholarship) but living in the UK with my spouse using my EEA residence card issued in Germany, not by UK.

It was not your German EEA residence card what granted you the right to live in the UK. It was your marriage certificate.

Since I wasn't looking for a job, I thought it wasn't mandatory because my spouse was present in the UK that I can exercise my right of free movement without applying (my thinking at the time).

This was not mandatory indeed, and you had the right to live in the UK by virtue of just being married to your EU spouse, German EEA card or not. But yes, not applying for it put you in a silly position when you did need to travel.

Much appreciated. Thanks.

kamoe wrote: ↑

Wed Apr 19, 2023 4:21 pm

victorndi wrote: ↑

Wed Apr 19, 2023 4:14 pm

I needed a visitor's visa because I didn't apply for a EEA residence card in the UK at the time.

You did not need a visitor's visa. You could have applied for a Family Permit in any country; to gain entry back in the UK, which was free, and was usually treated in priority. For this you did not need to travel with your EU sponsor.

I was studying for my PhD in Germany (on scholarship) but living in the UK with my spouse using my EEA residence card issued in Germany, not by UK.

It was not your German EEA residence card what granted you the right to live in the UK. It was your marriage certificate.

Since I wasn't looking for a job, I thought it wasn't mandatory because my spouse was present in the UK that I can exercise my right of free movement without applying (my thinking at the time).

This was not mandatory indeed, and you had the right to live in the UK by virtue of just being married to your EU spouse, German EEA card or not. But yes, not applying for it put you in a silly position when you did need to travel.

Are you absolutely sure, that one can apply for a femily permit in any country. The guidance says, it is only possible in a country of residence.

Nata2007 wrote: ↑

Fri May 26, 2023 8:01 pm

Are you absolutely sure, that one can apply for a femily permit in any country.

Please note the answer above refers to the now-defunct / now-unavailable EEA family permit. For that, yes, I am sure it was possible to apply in any country.

I know one can apply for a EU Travel permit from abroad, and this should be available in any country as well, as this is the mechanism to gain entrance back into the UK when a non-EU family member gets stranded abroad. Not being available in any country would defeat its purpose.

The guidance says, it is only possible in a country of residence.

Which guidance is that, can you share a link?

kamoe wrote: ↑

Tue May 30, 2023 2:49 pm

I know one can apply for a EU Travel permit from abroad, and this should be available in any country as well, as this is the mechanism to gain entry entrance back into the UK when a non-EU family member gets stranded abroad. Not being available in any country would defeat its purpose.

The guidance says, it is only possible in a country of residence.

Which guidance is that, can you share a link?

The general rule-of-thumb is that one can apply for a residence visa only from a country where the applicant is either a citizen or has permanent/long-term residence, whereas one can apply for a visit visa even from a country where one is visiting.

So I suspect that the argument above turns on whether the EUSS family permit is a residence visa or a visit visa.

Then again, the EUSS family permit could be sui generis and exempt from most of the standard rules for other UK visa applications.

I’m surprised that they had excluded references to the EUSS family permit, when they had previously included EEA family permits in their Guidances.

Possibly, the only requirement for the location of an EUSS Family permit application is that:

You must be outside the UK to apply.