Surinder Singh but fail col test

[raja.brit]

Dear All,

Im a British and Im exercising EU Treaty rights in Ireland since October 2015.

I am still awaiting my mother's EU Residence Card in Ireland and hoping to get in next couple of months.

I will fail Center of Life in one of the areas because of my wife who still lives and works in London.

Keeping Brexit in mind and using Brexit as a reason to move to UK, I have the following questions :

I. Is it better to apply for Residence Card directly in the UK by bypassing EEA Family Permit in Ireland or is it better to apply EEA Family Permit first?

2. If UK Residence Card if refused by the Home Office, will I still be backed by EU rules to get a successful appeal as COL is against EU law? I reckon Article 50 will be triggered by then.

3. If I do not move to the UK and dont use SS route, and live in Ireland with my mom until we get Irish Passports, would we be able to retain our residence rights as I have been residence in Ireland before the Brexit?

Many thanks for your time and assistance in advance.

Best regards,
Raja

[noajthan]

To avoid confusion & jumbled responses, I have moved your question to its own thread (this one) in the most appropriate forum (this one).

[noajthan]

Dear All,

Im a British and Im exercising EU Treaty rights in Ireland since October 2015.

I am still awaiting my mother's EU Residence Card in Ireland and hoping to get in next couple of months.

I will fail Center of Life in one of the areas because of my wife who still lives and works in London.

Keeping Brexit in mind and using Brexit as a reason to move to UK, I have the following questions :

I. Is it better to apply for Residence Card directly in the UK by bypassing EEA Family Permit in Ireland or is it better to apply EEA Family Permit first?

2. If UK Residence Card if refused by the Home Office, will I still be backed by EU rules to get a successful appeal as COL is against EU law? I reckon Article 50 will be triggered by then.

3. If I do not move to the UK and dont use SS route, and live in Ireland with my mom until we get Irish Passports, would we be able to retain our residence rights as I have been residence in Ireland before the Brexit?

Many thanks for your time and assistance in advance.

Best regards,
Raja

1) If you fail col it may be better to find out from Eire when you apply for FP. You can call wife over and keep on trying.
If you hop over border to UK, then apply for RC and fail your mom may have nowhere to go.

2) Maybe. How deep are your pockets?

Noone seems to have challenged it yet, if you do and win you will go down in history (just like Mr Surinder Singh).

But HO don't really even have to defend the col (if you do bring an action), they could just drag the case out until it doesn't matter anymore when UK has left EU.

Time is not on your side. Even if you get to UK your mom won't have time to acquire PR (by 5 years of residence) before UK has made final exit from EU.

3) Residence rights where? - in Eire or UK?
Mom doesn't have residence rights in UK to lose at the moment (as you live in Eire).

[Hamza2013]

Hi Raja,

As earlier we are in similar situation with difference in COL.

We are applying for family perms shortly as the job market in my field is changed due to brexit.

I asked several time on this group the pros and cons on applying stamp 4 for uk family permit but no luck with any answer,

I hope we are not taking wrong step,

I'll keep you posted.

[raja.brit]

1) If you fail col it may be better to find out from Eire when you apply for FP. You can call wife over and keep on trying.
If you hop over border to UK, then apply for RC and fail your mom may have nowhere to go.

- Great. That sounds good. So if I get FP and the chances of getting UK RC will be high right?

- Could I mention in a cover letter when I apply for EEA FP that I am moving back to UK coz of uncertainties of my future and my family and that my wife had plans to move to Ireland but changed her mind bcoz of brexit and hence I was unable to move my COL completely ?



2) Maybe. How deep are your pockets?

Noone seems to have challenged it yet, if you do and win you will go down in history (just like Mr Surinder Singh).

Lol, I wish.

But HO don't really even have to defend the col (if you do bring an action), they could just drag the case out until it doesn't matter anymore when UK has left EU.

Time is not on your side. Even if you get to UK your mom won't have time to acquire PR (by 5 years of residence) before UK has made final exit from EU.

- Are you saying UK RC issued before EU exit would be invalid to apply PR? So what would happen after 5yrs hypothetically?


- Do you think if Home Office would introduce transitional arrangements, PR shouldn't be a problem?

3) Residence rights where? - in Eire or UK?
Mom doesn't have residence rights in UK to lose at the moment (as you live in Eire).

Residence rights in Ireland as Im hoping mom will get her Ireland RC in couple of months. So hoping Ireland would honor my residence rights as a British Citizen and mom's based on EU Residence Card post EU exit taking into account, I have been resident prior to Brexit?

I really appreciate your time and assistance.

Best regards,
Raja

[noajthan]

1) If you fail col it may be better to find out from Eire when you apply for FP. You can call wife over and keep on trying.
If you hop over border to UK, then apply for RC and fail your mom may have nowhere to go.

- Great. That sounds good. So if I get FP and the chances of getting UK RC will be high right?

- Could I mention in a cover letter when I apply for EEA FP that I am moving back to UK coz of uncertainties of my future and my family and that my wife had plans to move to Ireland but changed her mind bcoz of brexit and hence I was unable to move my COL completely ?



2) Maybe. How deep are your pockets?

Noone seems to have challenged it yet, if you do and win you will go down in history (just like Mr Surinder Singh).

Lol, I wish.

But HO don't really even have to defend the col (if you do bring an action), they could just drag the case out until it doesn't matter anymore when UK has left EU.

Time is not on your side. Even if you get to UK your mom won't have time to acquire PR (by 5 years of residence) before UK has made final exit from EU.

- Are you saying UK RC issued before EU exit would be invalid to apply PR? So what would happen after 5yrs hypothetically?


- Do you think if Home Office would introduce transitional arrangements, PR shouldn't be a problem?

3) Residence rights where? - in Eire or UK?
Mom doesn't have residence rights in UK to lose at the moment (as you live in Eire).

Residence rights in Ireland as Im hoping mom will get her Ireland RC in couple of months. So hoping Ireland would honor my residence rights as a British Citizen and mom's based on EU Residence Card post EU exit taking into account, I have been resident prior to Brexit?

I really appreciate your time and assistance.

Best regards,
Raja

If you get a FP first then the chances of getting a RC are better. But not 100% guaranteed.

You can try a cover letter like that but I don't think worries over Brexit will stand up for not moving wife as part of col.
You must have been in Eire for months or almost a year. Noone was agonising over Brexit a year ago.
The col test is either pass or fail based on internal guidance criteria, I don't think a caseworker will see it your way..

What I mean is there isn't time for you to get back to UK and spend the 5 years it takes for mom to get PR.

Everyone still on an EU migration trajectory (whether SS-ers or EEA families) will now have to rely on the British sense of fair play and any transitional arrangements that Boris (or whoever it is) feel like putting in place;
its the same for all the thousands of good, hard-working people who, like you, have just been snookered by this Brexit shenanigans.
Noone know what such transitional arrangements may be (if there are any).

Brits like you are covered by the CTA - that's not changing, that was there even before UK & Eire joined the EC/EU.

if mom gets an Irish RC and Irish passport that won't be affected by Brexit either. Eire is not leaving EU.

An Irish passport is just as good if not better than a UK passport:

• visafree travel round a lot of the world (just as for BCs);
  none of the colonial baggage that comes with association with UK;
  and ofcourse the benefits of CTA ('free movement' if you will) between UK & Eire.

What's not to like?

[raja.brit]

You are a star noajthan. I really appreciate your time and cudn't thank you enough for your indepth feedback.You have always made wonderful contributions to this forum as all the other experienced members and you are indeed a great asset. I feel blessed

Brits like you are covered by the CTA - that's not changing, that was there even before UK & Eire joined the EC/EU.

if mom gets an Irish RC and Irish passport that won't be affected by Brexit either. Eire is not leaving EU

Does it mean that once mom gets her EU 5 years Residence Card (4EUFAM) and because of CTA, she cud still stay in Ireland as legal resident for 5yrs even after UK officially exits EU ?

If that is the case, then I'll be more than happy to stay in Ireland and not move back to the UK.

[noajthan]

...

Brits like you are covered by the CTA - that's not changing, that was there even before UK & Eire joined the EC/EU.

if mom gets an Irish RC and Irish passport that won't be affected by Brexit either. Eire is not leaving EU

Does it mean that once mom gets her EU 5 years Residence Card (4EUFAM) and because of CTA, she cud still stay in Ireland as legal resident for 5yrs even after UK officially exits EU ?

If that is the case, then I'll be more than happy to stay in Ireland and not move back to the UK.

There is one grey area but noone knows the answer right now, its about the actual timing of UK's final exit from EU.

Obviously thousands of people will still be 'in flight' and will not have completely acquired PR by the time that exit happens (whenever it is)..
That is the case for British SS-ers in places like Eire and EEA famiiies here in UK.

Clearly if the exit takes place in, say, 2 or 3 years time (from now) then anyone with less than 3 or 2 years time served (either in Eire, if BCs/families doing SS or in UK on a regular EU trajectory) will not have had time to acquire PR.

In Eire, BCs won't (or shouldn't) be affected so much by the exit (due to the CTA covering them).
I can't say if the BC's family members in Eire will be similarly blessed; non-EEA family members will (probably) be affected

Those affected (whether in UK or Eire or any other memberstate) will all have to rely on whatever transitional arrangements are put in place (if any).
Noone knows what they will be.
But, in the past, transitional arrangements have often been based around someone having EU-related documentation such as possessing a RC on a certain date.

So all you can do for now is stick to the current rules (which are still in place as of now) and keep all EU-related documents in order and up to date.

[raja.brit]

In Eire, BCs won't (or shouldn't) be affected so much by the exit (due to the CTA covering them).
I can't say if the BC's family members in Eire will be similarly blessed; non-EEA family members will (probably) be affected

Dear Noajthan,

Good afternoon. Many thanks for your response again. Very helpful as always.

Based on your response, it is obvious that I have to play it by ear when a deal is agreed between UK and EU and hoping there will be a sensible deal.

However my only dilemma now is what course of action and path should I take in the following months to avoid a situation that may put her residence at higher risk in the UK or Eire.

If you were me, what would you choose personally from the following if you don't mind me asking:

1. Would you apply for a EEA Permit as soon as mom gets her EU 5yrs RC and leverage on SS route while UK is still in EU (factoring in possible risk of not been able to secure UK RC and if secured, the risk of not been able to apply for UK PR after 5 yrs)?

2. Would you rather stay in Eire when mom gets EU 5yrs RC and not use SS route at all untill mom gets Irish PR/Passport (factoring in risk of mom not been able continue Eire residency if UK-EU deals don't happen in favour of Brits in EU nor would be in a position to use SS as it won't exist by then) ?

These are the main two questions running through my mind and hence want to know the less riskier option from your point of view.

I look look forward to hearing from you.

Thanks a million again for your time and guidance.

Best regards,
Raja

[noajthan]

Dear Noajthan,

Good afternoon. Many thanks for your response again. Very helpful as always.

Based on your response, it is obvious that I have to play it by ear when a deal is agreed between UK and EU and hoping there will be a sensible deal.

However my only dilemma now is what course of action and path should I take in the following months to avoid a situation that may put her residence at higher risk in the UK or Eire.

If you were me, what would you choose personally from the following if you don't mind me asking:

1. Would you apply for a EEA Permit as soon as mom gets her EU 5yrs RC and leverage on SS route while UK is still in EU (factoring in possible risk of not been able to secure UK RC and if secured, the risk of not been able to apply for UK PR after 5 yrs)?

2. Would you rather stay in Eire when mom gets EU 5yrs RC and not use SS route at all untill mom gets Irish PR/Passport (factoring in risk of mom not been able continue Eire residency if UK-EU deals don't happen in favour of Brits in EU nor would be in a position to use SS as it won't exist by then) ?

These are the main two questions running through my mind and hence want to know the less riskier option from your point of view.

I look look forward to hearing from you.

Thanks a million again for your time and guidance.

Best regards,
Raja

I'm not in a position to say. It's pure speculation from now on until the government mans up and gets a grip.

Clearly as you are in Eire your clock is already running there; you have time accrued.

If you return to UK the clock will start from zero again (and your mom's Eire RC will expire after 6 months due to absence).
And you still have the problem that you haven't moved your entire col to Eire so you may fail HO col test at or on your return to UK.

[Hamza2013]

Hi raja.brit,

Wouldn't it be easier for you (if possible in extreme circumstances) to look into strengthening your COL and take SS route?

[raja.brit]

I'm not in a position to say. It's pure speculation from now on until the government mans up and gets a grip.

Clearly as you are in Eire your clock is already running there; you have time accrued.

If you return to UK the clock will start from zero again (and your mom's Eire RC will expire after 6 months due to absence).
And you still have the problem that you haven't moved your entire col to Eire so you may fail HO col test at or on your return to UK.

Dear Noajthan,

Many thanks for all your help.

It perfectly makes sense and I better continue my journey in Eire and hope for a better future.

I really appreciate your assistance and for patiently putting up with my questions.

You are a true gift sent from the above to all our forum members.

All the best and God bless

Thanks and best regards,
Raja