Tier 4 to EEA EFM un-married partner residence help!

[jenneyshi]

Hi there,

I am currently on a Tier 4 visa which is due to expire on 30 January 2018. I am exploring my options to stay, and so far it seems the one with the greatest chance is the EEA EFM residence card, although even this feels a bit unstable, but as we don't have any other options we're going to take a risk. I am originally from Canada, and holds a biometric card from my current Tier 4 visa, and my un-married partner is German, and have been living for 4 years and working full- time. So my inquiries are:

1.) I know that EU Law states that we need to be in a durable relationship for 2 years (we have been in a relationship for 2.5 years); however we have only lived together for 1.5 years, which I know is not favourable in the eyes of Home Office. But I'm hoping other evidence such as joing bank account, holidays, weddings we have attended (not ours) and family events over the 2 years would help our case? I have had 2 consultations with 2 different lawyers, the first saying I have a pretty strong case, the second saying not so sure. So would love to hear more opinions on this?

2.) From browsing the forum and other online sources, it seems that when switching to EEA rules, I won't have the right to stay once my current Tier 4 visa expires, even if my residence application is still pending. So question here is, I'm hoping to send everything off in 2 weeks (so mid-November), what are the chances I will hear an answer before end of January 2018? Are there any ways the process could be sped up?

3.) Lastly, if my application is still pending when my visa expires, because I won't have my passport or biometric card (will need to send it off along with my application), I actually cannot travel, so how do I combat the issue of not overstaying?

My timeline is as following:

15 Nov 2017 – hopefully send off my application (can't do it earlier as I already have travel plans)
30 Jan 2018 – my current Tier 4 visa expires

Any help is urgently appreciated!!

[lunallena]

When I applied for a RC as the unmarried partner of an EEA citizen I had a Tier2 BPR.

1. The guidelines are quite clear on this point, saying that you need to be in a relationship akin to marriage, which involves living together for 2 years. Some people may be able to obtain the RC with less than 2 years of cohabitation if they have a child together or under very specific circumstances. Therefore, you may want to wait in order to complete these two years so you don't face a refusal.

2. When you apply for the RC under EEA rules you will receive a certificate of application (CoA) stating your right to stay and work (or not) in the UK while your application is pending. If your Tier4 expires while your application is being processed, you can still stay in the UK. The problem comes if you want to apply for naturalization in the future, as you have a period of overstaying that may impact the outcome. If your application for the RC gets refused, you will definitely become an overstayer. Unfortunately, there is no way to speed the process, but I have seen that some people are getting the cards in three or four months.

3. As I said, you will be covered by your CoA to stay in the UK. You won't be able to travel. The only way to combat the issue of not overstaying is to extend your Tier4 or switch to a working visa (Tier2).

I hope this helps.

[jenneyshi]

Thanks for these llunallena!

1. The guidelines are quite clear on this point, saying that you need to be in a relationship akin to marriage, which involves living together for 2 years. Some people may be able to obtain the RC with less than 2 years of cohabitation if they have a child together or under very specific circumstances. Therefore, you may want to wait in order to complete these two years so you don't face a refusal.

That's what I thought initially when I first looked into the UK de facto visa, when I spoke to a lawyer (the first one that said I have a strong case), said I definitely don't qualify for as we haven't lived together for 2 years; but he then suggested the EEA EFM and said there that according to EU law, there was more wiggle room in defining what consititues as a durable relationship and the 2 year living together can be flexible. Obviously since then I've heard many different things on how the Home Office measures the EU law, which just confuses me!

2. When you apply for the RC under EEA rules you will receive a certificate of application (CoA) stating your right to stay and work (or not) in the UK while your application is pending. If your Tier4 expires while your application is being processed, you can still stay in the UK. The problem comes if you want to apply for naturalization in the future, as you have a period of overstaying that may impact the outcome. If your application for the RC gets refused, you will definitely become an overstayer. Unfortunately, there is no way to speed the process, but I have seen that some people are getting the cards in three or four months.

Okay so, that will depend on what the state of the certificate of applicaiton I receive? And if it states I cannot work, I can still stay in the UK (and in this case, without my passport I cannot actually leave anyways)?

Naturalization isn't really a problem as we don't play to settle in the UK for the long term (will probably move to either Canada or Germany once we decide to marry and have family). My question to this is, in the event I receive a rejection for my RC, is there a set amount of time we can sort things out (pack up, sell things, terminate work etc)? Or is it, because assuming by the time I receive an answer, my Tier 4 would have expired, I literally need to leave the next day? (to not become an overstayer?)

Thanks for your input!

[lunallena]

Okay so, that will depend on what the state of the certificate of applicaiton I receive? And if it states I cannot work, I can still stay in the UK (and in this case, without my passport I cannot actually leave anyways)?

Direct family members (FM) receive the right to work, whereas extended family members (EFM) do not receive the right to work. However, I have seen a few cases where EFM do receive right to work. I can't really tell you how this is decided. If the CoA states that you cannot work, you can still stay in the UK. You can request your documents back while the application is in process but you will encounter problems to re-enter the UK if you leave.

Naturalization isn't really a problem as we don't play to settle in the UK for the long term (will probably move to either Canada or Germany once we decide to marry and have family). My question to this is, in the event I receive a rejection for my RC, is there a set amount of time we can sort things out (pack up, sell things, terminate work etc)? Or is it, because assuming by the time I receive an answer, my Tier 4 would have expired, I literally need to leave the next day? (to not become an overstayer?)

I am not sure about this. As EFM you don't have right to appeal the decision so I don't know how long they give you to leave the country or if they give you the opportunity to reapply. In normal circumstances, If you overstay by more than 30 days with a Tier4 you will normally be prohibited from coming back to the UK for at least 12 months from the date you leave the UK. Probably someone else from the forum can give you accurate information about this.

[kovacsma]

Hey,

On right of appeal, I would just point out that this has changed recently and EEA EFM applicants have the right to appeal now: https://www.freemovement.org.uk/breakin ... rt-appeal/
Although the question is, do you really care to get in the queue that is the UK judicial system?

Also, based on several different precedents which I've cited in some of my recent posts (from October 2017), the original poster is correct, that the two year rule is not necessary. With enough supporting evidence of a 'durable' relationship, you do not need to have lived together for 2 years. That said, it's still an uphill battle to get the Home Office to care about what past case law has said...