EEA family permit confusion

[Gerry_Marsden]

Totally confused on this one, so maybe some of you kind folks can help.

I'm a UK citizen. My wife is a Russian citizen, and our son is a British citizen. My wife has a two year settlement visa which expires in February. Up until August 2005 we were living in the UK, and planning to stay there permanently. But her brother became seriously ill, and she has has no other relatives (I mean 0), so we were left with no other choice but to return to Russia to look after him.

Here's the problem... We have to return to the UK in March for a couple of weeks to sort some stuff out with our house, but, question is, what is her entry clearance status? I mean, does she have any rights as the parent of a child (he is 1 and a half) who is a British citizen? Previously, when we lived in Germany, she simply sent her passport to the British Embassy and she received an EEA family permit, free of charge. But, I have been told that this does not apply if you live outside the EU.

I plan to contact the consulate here in Moscow, but they are notoriously unhelpful, and as past experience has shown, they are often very economical with the truth.

If anyone can give me a few pointers, I'd be well grateful.

BTW, my wife is currently working, and I stay at home to look after the kid.

[John]

what is her entry clearance status? I mean, does she have any rights as the parent of a child (he is 1 and a half) who is a British citizen?

In March? She has no status! Unless she makes an application. The fact that she is the mother of a British citizen might well help the application but nevertheless she needs to make the application.

she received an EEA family permit, free of charge. But, I have been told that this does not apply if you live outside the EU.

The EEA Family permit was issued because you, an EEA Citizen, were exercising your treaty rights. But now you are not, so your wife cannot make an application for an EEA Family Permit.

We have to return to the UK in March for a couple of weeks to sort some stuff out with our house

Based upon that information your wife should apply for a visitor's visa. Assuming after the two weeks all of you will return to Russia, and that can be proved ..... you have a Russian visa? ..... then I would not expect any great problem getting that visitor's visa.

[JAJ]

The EEA Family permit was issued because you, an EEA Citizen, were exercising your treaty rights. But now you are not, so your wife cannot make an application for an EEA Family Permit.

But he can of course sponsor for a regular spouse visa when he wants to bring his wife back to live in the UK.

In the meantime, as you suggest, a visitor visa may be most appropriate, unless there is some way to hang onto her status as a spouse.

[John]

But he can of course sponsor for a regular spouse visa when he wants to bring his wife back to live in the UK.

Of course, but at the present time there does not appear to be any intention to move back to the UK. They merely intend to visit for two weeks and accordingly it would be distinctly inappropriate for a spouse visa to be applied for at the present time. A spouse visa is of course a type of settlement visa and currently they don't intend to settle in the UK.

So visitor's visa is the one to go for .... certainly at this point in time.

[Kayalami]

My 0.02p,

In spousal applications the couple are not required to have spent the entire probationary period on the UK. The HO will review absences from the UK and in particular whether the couple were together outside the UK and reasons thereof. IMHO the couple have compelling grounds for their absence and were such to be documented properly then I see no reason why a settlement application were they to return to the UK before the current spouse visa expires would fail. After all they were here till August 2005 so they have only been away for circa 5 months.

However John raises a crucial point in regards to their return to the UK being on a permanent/ settlement basis. Since this is not the case then the application would fall on this ground - however this is a subjective area and may not be an issue if approached correctly. I suggest the op seeks competent legal advise if going down this route since IMHO it is somewhat outside the scope of the forum in relation to content and representations to be made.

Regardless of such being successful the op must realise ILR can be lost where there are long term absences from the UK but at least it guarantees the spouse easier entry into the UK as and when required. Likewise note that physical residence (other than on restricted grounds e.g crown service) is a pre-requisite for naturalisation as a British Citizen = gives you the right of abode = the right to enter and live in the UK as you please (of course within the law b4 some legal body out there jumps at this ). Nationality laws can and do change...they may be stringent on the day you decide to apply relative to the current situation - you may rue this at that point in time.

[Gerry_Marsden]

Thanks all for your advice. It is very much appreciated.

I have to say, although the rules appear to be reasonably consistent and clear, I can't help but feel that they are a bit harsh and slightly intimidating. In my case, we had no alternative but to return to Russia, as the possibility of my wife's brother coming to the UK was impossible. Now we find ourselves in the position where my wife is the main breadwinner in the family, and I look after our son full time. Given this situation, I suspect that this may adversely affect any application we make, either for a tourist visa, or, in the longer term, if we wish to re-settle in the UK. To be honest, not having been in this situation before, I have absolutely no idea how much the circumstances I have mentioned above might be taken into account when making a decision about ILR.

Once again, thanks for taking the time to respond.