SHORT TERM STUDENT TO EEA PR

[kaffuk]

Hello,

Very quick questions..

Spouse: 11 Month Short-Term Student (NON-EEA)
Husband: EEA Citizen with PR CARD in UK.
Married in Europe.

1) I have been informed that under EU Law, a Student (11 Months Visa) can apply to get EEA PR card directly from within the UK instead of leaving the UK and apply for EEA Family Permit and THEN PR card.

Can someone confirm? any cases where this has worked?

2) If a student has a student visa 11 months valid until July 2018 and leaves the UK for holidays and comes back in June with her EEA Husband. Can the student be refused entry at the airport if she holds a visa valid for 1 more month? (Under EU regulations, a spouse of EEA citizen should not be refused entry ie: http://www.eearegulations.co.uk/Regs201 ... ulation_11)

"11.—(1) An EEA national must be admitted to the United Kingdom on arrival if the EEA national produces a valid national identity card or passport issued by an EEA State.

(2) A person who is not an EEA national must be admitted to the United Kingdom if that person is—

(a)a family member of an EEA national and produces on arrival a valid passport and qualifying EEA State residence card, provided the conditions in regulation 23(4) (family member of EEA national must accompany or join EEA national with right to reside) are met; or
(b)a family member of an EEA national, a family member who has retained the right of residence, a person who meets the criteria in paragraph (5) or a person with a right of permanent residence under regulation 15 and produces on arrival—
(i)a valid passport; and
(ii)a valid EEA family permit, residence card, derivative residence card or permanent residence card.
(3) An immigration officer must not place a stamp in the passport of a person admitted to the United Kingdom under this regulation who is not an EEA national if the person produces a residence card, a derivative residence card, a permanent residence card or a qualifying EEA State residence card."

Thanks

[GMB]

1) I have been informed that under EU Law, a Student (11 Months Visa) can apply to get EEA PR card directly from within the UK instead of leaving the UK and apply for EEA Family Permit and THEN PR card.

I think you mean the EEA Residence Card (EEA RC). Permanent Residence requires 5 years in the UK to be eligible. Regardless, either one can ONLY be applied for from inside the UK; there is no need to have had a FP first. The only purpose of the FP is to get the non-EEA family member into the UK, and since she's already here it's of no value to her for purposes of her RC or PR application. And yes, you can 'switch' from a student visa to an EEA RC or PR inside the UK, because it's not actually 'switching' -- it's just having status under two different sets of rules at the same time, which is permitted (see below).

2) If a student has a student visa 11 months valid until July 2018 and leaves the UK for holidays and comes back in June with her EEA Husband. Can the student be refused entry at the airport if she holds a visa valid for 1 more month?

UK domestic immigration rules and UK EEA rules are entirely separate from each other. If she tries to re-enter under UK domestic immigration rules and there is a problem with her student visa which was issued under those rules, then she can be refused entry. If she re-enters under UK EEA rules, then her student visa has nothing to do with whether she gains re-entry or not. As you cited from the regulations, she only has to prove that she is the immediate family member of an EEA national who is exercising treaty rights in the UK. I have re-entered the UK that way myself. They don't like it, but fortunately what they do or do not like doesn't matter. Only the rules matter. If she doesn't have her EEA RC or PR card yet, the magic words are "I am re-entering the UK under the EEA rules." And of course, having all the required documentation to prove her status under the EEA rules.

[kaffuk]

Thanks a lot. I'm sure not a lot of people are aware of this at all !

So you confirm that traveling with the EEA person and entering the UK (with a valid UK VISA still) but to ask to under the EU law is, although not very well received by the border, totally legal and legitimate?!

I assume the documents to provide are very similar to what you would provide anyway for the EEA Family Permit right?!

Thanks

[GMB]

So you confirm that traveling with the EEA person and entering the UK (with a valid UK VISA still) but to ask to under the EU law is, although not very well received by the border, totally legal and legitimate?!

Yes. When I first got my EEA RC, I still had a valid UK visa for nearly two years after. I routinely entered on the EEA RC, ignoring the UK visa. In July this year I re-entered the UK without the EEA RC (my old UK visa being long expired), but showing proof I am an EEA family member, also with no problems. While I have never done BOTH things at the same time (valid UK visa, no or expired EEA RC), there is no other possible interpretation of the EEA rules. I realize now you didn't quote para. 11(4) above, which is the key here. It says:
11(4) Before an immigration officer refuses admission to the United Kingdom to a person under this regulation because the person does not produce on arrival a document mentioned in paragraph (1) or (2), the immigration officer must provide every reasonable opportunity for the document to be obtained by, or brought to, the person or allow the person to prove by other means that the person is—
(a) an EEA national;
(b) a family member of an EEA national with a right to accompany that EEA national or join that EEA national in the United Kingdom;
(c) a person who meets the criteria in paragraph (5); or
(d) a family member who has retained the right of residence or a person with a right of permanent residence under regulation 15.

So 11(4)(b) applies to this scenario specifically.

I assume the documents to provide are very similar to what you would provide anyway for the EEA Family Permit right?

If you want to re-enter under this rule, you need to have at a minimum a copy of your EEA sponsor's passport or national ID and PR card (if he's not traveling with you), and having proof he's still residing in the UK (current bank statement or council tax bill) wouldn't hurt either.

Sorry, I'm using he and she somewhat randomly here. I've lost track of who's who.

[kaffuk]

We have both passport
We will be traveling together and coming back to the UK together from our holidays
Husband has his UK PR Card
Husband also has a British Passport (nationalisation) but never use it...

[kaffuk]

So you confirm that traveling with the EEA person and entering the UK (with a valid UK VISA still) but to ask to under the EU law is, although not very well received by the border, totally legal and legitimate?!

Yes. When I first got my EEA RC, I still had a valid UK visa for nearly two years after. I routinely entered on the EEA RC, ignoring the UK visa. In July this year I re-entered the UK without the EEA RC (my old UK visa being long expired), but showing proof I am an EEA family member, also with no problems. While I have never done BOTH things at the same time (valid UK visa, no or expired EEA RC), there is no other possible interpretation of the EEA rules. I realize now you didn't quote para. 11(4) above, which is the key here. It says:
11(4) Before an immigration officer refuses admission to the United Kingdom to a person under this regulation because the person does not produce on arrival a document mentioned in paragraph (1) or (2), the immigration officer must provide every reasonable opportunity for the document to be obtained by, or brought to, the person or allow the person to prove by other means that the person is—
(a) an EEA national;
(b) a family member of an EEA national with a right to accompany that EEA national or join that EEA national in the United Kingdom;
(c) a person who meets the criteria in paragraph (5); or
(d) a family member who has retained the right of residence or a person with a right of permanent residence under regulation 15.

So 11(4)(b) applies to this scenario specifically.

I assume the documents to provide are very similar to what you would provide anyway for the EEA Family Permit right?

If you want to re-enter under this rule, you need to have at a minimum a copy of your EEA sponsor's passport or national ID and PR card (if he's not traveling with you), and having proof he's still residing in the UK (current bank statement or council tax bill) wouldn't hurt either.

Sorry, I'm using he and she somewhat randomly here. I've lost track of who's who.

P.S: You're a gem! Thanks. How do I send gold to you? Haha

[GMB]

Husband also has a British Passport (nationalisation) but never use it...

Uhhh...that just changed everything. Current UK law is "if British then only British," meaning that in most cases a person who holds British citizenship cannot use the EEA rules to sponsor family members in the UK. You may have a serious problem, but that depends on when you were married, when you both arrived in the UK, and when he was naturalized as a citizen (date of ceremony).

[kaffuk]

No. We checked that, his passport is under the UN rules (UN blue passport) as he is a UN ambassador and the rule does not apply here.

Thanks.

[GMB]

No. We checked that, his passport is under the UN rules (UN blue passport) as he is a UN ambassador and the rule does not apply here.

Whew! I felt my heart drop when I first read that. OK, fantastic; you're aware and it's not an issue. Lots of EEA nationals have been caught up in that by innocently applying for UK citizenship without understanding the implications for their non-EEA family members.

[kaffuk]

Once I have my EEA RC it doesn't matter anymore wether he has a EU or British passport right? Because he is entitled to an official UK Passport and been thinking of applying?

[GMB]

Once I have my EEA RC it doesn't matter anymore wether he has a EU or British passport right? Because he is entitled to an official UK Passport and been thinking of applying?

This gets complicated. Right now, for the average EEA national and non-EEA family in the UK, the "if British then only British" policy means that the instant the EEA national becomes a UK citizen, then the EEA route is closed for them and their family members. Meaning that, legally, that family member's otherwise valid RC would become invalid on the same day, because a UK citizen can't normally sponsor anyone under the EEA rules. This is as a result of the McCarthy case before the ECJ in 2011/2012. In 2017, in a case called Lounes (I think), the ECJ ruled that the UK gov't had gone way too far with their implementation of McCarthy, and that in most cases the EEA national becoming a UK citizen should not cause any problems. But Lounes(?) is so new that the UK hasn't incorporated it into the EEA regulations yet, meaning that for now "if British then only British" is still the law of the land.

[kaffuk]

What would then be the option for the non-EEA person? Just need to re-apply for a different visa as a spouse of a british person right? (Though expensive...)..

Just thinking that since the RC will be invalid after brexit it's a good idea to be covered.. ?

[GMB]

What would then be the option for the non-EEA person? Just need to re-apply for a different visa as a spouse of a british person right? (Though expensive...)..

Just thinking that since the RC will be invalid after brexit it's a good idea to be covered.. ?

Yes, in normal circumstances, that family member would have to apply for some category of visa under the UK domestic rules, which in all cases I know of require you to submit the application from your home country and wait.

Personally, I would get the RC anyway. No one knows what's going to happen with Brexit. An RC might be worthless after Brexit, or it might be the critical document you need to show you're eligible for whatever transition deal the UK negotiates with the EU. Better to have and not need than need and not have in my view.

[Richard W]

But Lounes(?) is so new that the UK hasn't incorporated it into the EEA regulations yet, meaning that for now "if British then only British" is still the law of the land.

Strictly speaking, the Lounes judgement is now part of the law of the land. The problem one faces is that the Home Office isn't very good at following the law of the land. The Immigration Officers at the borders do seem to be rather better at following the law, perhaps because they are actually speaking to the people about whom they make decisions.