probation period?

[mischa]

hi all,

I have a complicated situation.. my partner (non-EEA) and I (EEA citizen in the UK) recently registered our civil partnership in the UK. She came here on a Spouse/CP Visa which allowed her to remain in the UK for up to 6 months for the purpose of registering the partnership.

After doing so she had to apply via EEA2 to obtain a residence card (the website says that such a card is valid for 5 years and would be placed in her passport)

In the meantime we've been having some problems in our relationship. My partner, who is from Venezuela but has a US green card, wants to go back to the US for a while to figure things out. Her residence in the US would at the same time be renewed for another 6 months if she was to go there.. which would make her feel more secure, knowing that in case our relationship was to fall apart she wouldn't have to go back to Venezuela where she hasn't lived in almost 20 years.

I read on the BIA website that in order to apply for permanent residence you have to have lived in the UK for a continuous period of 5 years, but you are allowed to stay out of the country for up to 6 months per year for that not to be affected.

Would that apply to my partner, who hasn't even received her residence card (she requested her passport to be returned to her before the Home Office has actually dealt with it.. it's been about 3-4 months and I guess it takes around 6 months).. she wants to go back to the US and possibly return to the UK if we can work things out. She would still be "married" to a UK resident (EEA national living in the UK).. she is still registered in the UK, paying council tax..

is there a probation period for marriage/civil partnership or would it be okay for her to return to the US for up to 6 months to sort herself out?

Would she have to re-apply to enter the UK? The only documents she has are the original Spouse/CP Visa and the document confirming that we registered our partnership. (she didn't need a visa to come here in the first place as a tourist)

Any help would be greatly appreciated.

Thanks!!

Mischa

[thsths]

I read on the BIA website that in order to apply for permanent residence you have to have lived in the UK for a continuous period of 5 years, but you are allowed to stay out of the country for up to 6 months per year for that not to be affected.

I think it is 3 months, but the effect is the same: you cannot be resident in two countries. So she has to make up her mind.

Would she have to re-apply to enter the UK?

She is free to leave and to come back. The application is a separate issue, but if you time it right, she should eventually get the residence card. I think it remains valid even if she is out of the UK for a while, as long as your relationship is still ongoing. However, she will not get PR after 5 years if she has been out of the country for too long.

Tom

[mischa]

thank you tom..

so does anybody know what would happen if for instance she was to stay in the US for more than three months?

we are still married, couldn't she still come back as the spouse of an EEA citizen? the application for her residence permit would obviously have to be resubmitted, but theoretically it should work.. right?

thanks again!

mischa

[vinny]

For your residence in the United Kingdom to be considered continuous you should not be absent from the United Kingdom for more than six months each year. Longer absences for compulsory military service will not affect your residence. Additionally, a single absence of a maximum of 12 months for important reasons such as pregnancy, child birth, serious illness, study, vocational training or posting overseas will not affect your residence.

More information may be found in European Casework Instructions.

Without a residence card, she may apply for an EEA family permit before coming back. She should also submit evidence that she had applied for her residence card.

See also CO (EEA Regulations: family permit) Nigeria [2007] UKAIT 00070 and KA (EEA:family permit; admission) Sudan [2008] UKAIT 00052.