VISITOR VISA TO EEA2

[Rozen]

My friend has a question....

He is a South African married to a German lady, and is here on EEA2 basis (Residence Card). His 50 year old widowed sister is here on a family visit visa, and he would like her to stay with them long term. But he is not sure whether she can apply on EEA2 basis as an 'extended family member' before her visit visa expires.

I doubt it, but I'm not sure. Can anyone help? Please?

[Rozen]

Anyone??

[eufreemovement]

He is a South African married to a German lady, and is here on EEA2 basis (Residence Card). His 50 year old widowed sister is here on a family visit visa, and he would like her to stay with them long term. But he is not sure whether she can apply on EEA2 basis as an 'extended family member' before her visit visa expires.

As per EU law, Other family members (as mentioned in UK Regulation 2006 - Extended family member) can apply for their EEA resident as long as they are dependant or members of EEA National household or serious health grounds.

The same mentioned in EU directive 2004/38/EC

Article 3(2)

(a) any other family members, irrespective of their nationality,not falling under the definition in point 2 of Article 2 who, in the country from which they have come, are dependants or members of the household of the Union citizen having the primary right of residence, or where serious health grounds strictly require the personal care of the family member by the Union citizen;

But the UK is interpreting differently since 2006, you may need to get advice from lawyer.

There is no such discrimination between family member and other family members (Article 2 and 3) in EU law. Once the above condition fulfilled, they have an automatic rights. As per EU law, your other family members can apply for resident as long as they fulfill the above condition.

Currently there are cases pending before the court which will prevent such UK interpretation, normally incompatible with EU law.

[zashiq]

I have a few questions regarding immigration law to the UK. I am a Belgian (EEA) national settled in the UK. I have been living and working here for the past 8 years. My wife (Pakistan National) joined me here 2 years ago. She came on a 2 year spouse settlement visa. We have a son born here who obtained British Nationality based on the fact that I have been exercising treaty rights in the UK and been able to show proofs of settlement (P60s for the past 5 years). So far, so good.

We have been going through the process of getting my wife's spouse visa extended to an "indefinite leave to remain" status as it was due to expire recently. However, the proofs we used to get my son's citizenship were said to not be enough and I was told that as I did not hold a British resident card, my wife had to apply for a visa extension using the Eaa2 form. My questions are: is this the right way to proceed? I thought that after 2 years, she is entittled to apply for ILR. Should I also apply for a resident form using the EEA1 form? When would my wife be able to apply for indefinite leave to remain? Same question for British nationality.

Many thanks

[yankeegirl]

Has her spouse visa expired?

She is eligible to apply for ILR 28 days before expiry of the spouse visa. Has she taken and passed the Life in the UK test?

To be on the safe side, I would submit the last 5 years of P60's and such, so there is no question for whoever deals with the application that you are in fact settled in the UK.

I would wonder why they would need it though, considering she would not have gained entry via the UK spouse visa if you weren't permanently settled at that time. I guess common sense still has not prevailed at hte Home Office lol.

IIRC, your wife should be able to apply for British citizenship after being resident for 5 years, at least one of which spent on ILR. Have you any plans to obtain British citizenship? I *think* that might speed up the time in which she would be eligible to apply for herself.

[Directive/2004/38/EC]

I have a few questions regarding immigration law to the UK. I am a Belgian (EEA) national settled in the UK. I have been living and working here for the past 8 years. My wife (Pakistan National) joined me here 2 years ago. She came on a 2 year spouse settlement visa. We have a son born here who obtained British Nationality based on the fact that I have been exercising treaty rights in the UK and been able to show proofs of settlement (P60s for the past 5 years). So far, so good.

We have been going through the process of getting my wife's spouse visa extended to an "indefinite leave to remain" status as it was due to expire recently. However, the proofs we used to get my son's citizenship were said to not be enough and I was told that as I did not hold a British resident card, my wife had to apply for a visa extension using the Eaa2 form. My questions are: is this the right way to proceed? I thought that after 2 years, she is entittled to apply for ILR. Should I also apply for a resident form using the EEA1 form? When would my wife be able to apply for indefinite leave to remain? Same question for British nationality.

Many thanks

I am curious. Why did you decide originally to have your wife come to the UK on the basis of UK law? Was it so that she could get ILR more quickly and then get citizenship one year faster?

I think they are confused. As an EU citizen, you are not required to hold any sort of UK issued residence confirmation. I do not see how they could require you to have it now if they did not require you to have it when you applied for the spouse visa. Anyone like to confirm or shoot down this hypothesis?

If she decides later to stay on the basis of EU law, then there is no requirement to extend or file any official documentation. Her right to stay is based solely on her relationship to you. That said, you should apply for a free Residence Card to prove her right to stay and work and come and go freely into the country.

[zashiq]

I did not specifically decide to apply on the basis of UK law. This is what we were advised to do at the time. As her 2 year spouse visa was expiring, and as no-one at the home office in Croydon accepted our SET(M) application, we applied through the EEA2 route. what you are saying seems to confirm we have been misguided and unfairly turned away for our ir application. Is there any way this could get corrected?

[Directive/2004/38/EC]

You certainly can apply for a Residence Card under EU law. It is free. Then 5 years after the date she arrived in the UK, she will have PR. One year after that she can apply for naturalization as a UK citizen.

A slightly faster path to citizenship is if she gets ILR now. She could then apply for naturalization (I think this is right) 5 years after she arrived in the UK (saving one year).

Have you already applied for ILR and gotten rejected? What did they do with your application fee?

[zashiq]

You certainly can apply for a Residence Card under EU law. It is free. Then 5 years after the date she arrived in the UK, she will have PR. One year after that she can apply for naturalization as a UK citizen.

A slightly faster path to citizenship is if she gets ILR now. She could then apply for naturalization (I think this is right) 5 years after she arrived in the UK (saving one year).

Have you already applied for ILR and gotten rejected? What did they do with your application fee?

Thanks for your reply. I finally get a clearer picture of what happened. To clarify, we went to apply for ilr using the one day service at Croydon after having booked two months in advance to see them. When we went to the desk that filters applicants, to be told by the person there this is not the right place for us to apply and we should apply via EEA2 form (they basically turned us away before we paid for any fee). We have now applied via the EEA2 form as my wife's 2 year spouse visa was about to expire and there was a risk that if we sent the SET(M) form for ilr, it might get refused as was the case when we went in person to Croydon. However, there are two thing that annoy me: the EEA2 procedures takes more than 6 months currently given no fees is paid and therefore they don't have the staff to process the applications. Secondly, from what I'm reading from you, we were unfairly tod that we could not apply for ilr. Is there any way we could revert to the ilr procedure now that we have sent her application via the EEA2 procedure?