EEA3 refused (in the space of 2 weeks!) What now?

[EUsmileWEallsmile]

Forgot to mention. You do have a plan B available to you in the event that EHIC is not available.

Best of luck whatever happens.

[dormice]

Eusmiles, I still need time to mull over your previous post regarding the EHIC not being sufficient. So no comment on that yet, but I need to ask, what is my plan B?[/b]

[EUsmileWEallsmile]

I would suggest that you check out all guidance for yourself. People may comment with the best of intentions, but at the end of the day individual circumstances will be different.

Your plan B is your marriage to a UK citizen. It might be easier to prove and quicker for you. Incidentally, if you do manage to qualify for PR, your marriage should reduce your waiting time by a year.

Hope it all works out for you.

[EUsmileWEallsmile]

Incidentally, has your British spouse ever worked outside the UK in another EU country? If so, it may help your case.

[dormice]

I will reapply this week for PR; will have to re-organise the material in a better way, perhaps weed out unnecessary documents, and prepare a covering letter.



In the meantime…..



Let’s explore the marriage-to-Brit route as suggested by EUsmiles. It is easier and shorter after all, so why not.

After all, there is Chapter 4 / 4.15 which says EU spouses of Brits have this possibility so why not?

Has anyone actually done it before?

I found this thread http://britishexpats.com/forum/showthread.php?t=691457 and I got disheartened.

I cannot find a form on the Home Office I can use; the form-finder sends me to forms such as SET (!) which explicitly say are not to be used by Europeans.

So I wrote an e-mail to them quoting 4.15 and asking for help locating the correct form/procedure.

Let’s see what they say ☺

[Jambo]

I'm not sure you'll find the spouse route better. I believe you will need to start from scratch - i.e. apply as a spouse for the 2 years visa and then for ILR. So it is still two years down the line (and £££'s also).

I don't see any reason why you won't get the PR (once the HO come to their senses).

[EUsmileWEallsmile]

[quote="Jambo"]I'm not sure you'll find the spouse route better. I believe you will need to start from scratch - i.e. apply as a spouse for the 2 years visa and then for ILR. So it is still two years down the line (and £££'s also).

I don't see any reason why you won't get the PR (once the HO come to their senses).[/quote]

Jambo - I don't believe she needs a spouse visa. She did not come to the UK on any visa. She is a European National. As far as I can see, she needs to satisfy the residence requirements and be married to UK national.

[EUsmileWEallsmile]

Let’s explore the marriage-to-Brit route as suggested by EUsmiles. It is easier and shorter after all, so why not.

After all, there is Chapter 4 / 4.15 which says EU spouses of Brits have this possibility so why not?

I cannot find a form on the Home Office I can use; the form-finder sends me to forms such as SET (!) which explicitly say are not to be used by Europeans.

Doormice,

The form is the AN form. I have not had time to go through it in detail, but I don't see where you get the impression that it cannot be completed by EEA nationals. Note that where it talks about EEA national exercising treaty rights, ignore this. Imagine someone that's simply lived with their UK spouse, never worked, was never a qualified person...as far as I can see these people could still qualify under the spouse route, but not under the EEA route. Does that make sense to you?

http://www.ukba.homeoffice.gov.uk/briti ... alisation/

[Greenie]

Let’s explore the marriage-to-Brit route as suggested by EUsmiles. It is easier and shorter after all, so why not.

After all, there is Chapter 4 / 4.15 which says EU spouses of Brits have this possibility so why not?

I cannot find a form on the Home Office I can use; the form-finder sends me to forms such as SET (!) which explicitly say are not to be used by Europeans.

Doormice,

The form is the AN form. I have not had time to go through it in detail, but I don't see where you get the impression that it cannot be completed by EEA nationals. Note that where it talks about EEA national exercising treaty rights, ignore this. Imagine someone that's simply lived with their UK spouse, never worked, was never a qualified person...as far as I can see these people could still qualify under the spouse route, but not under the EEA route. Does that make sense to you?

http://www.ukba.homeoffice.gov.uk/briti ... alisation/

EUSmiles - you really should be careful about advising people when you (as you freely admit) 'are not sure on the details'

Doormice cannot simply apply for Citizenship on the basis that she is married to a British national and satisifes the residence requirements. She must also be free from immigration restrictions (i.e. have ILR or Permanent Residence) on the date of her application. Unless she can show she has acquired PR under the EEA regs, she would, as Jambo says, have to first apply under the immigration rules for a spouse visa, and she would have to do this from outside the UK. She would then have to complete two years under this route before she could applyly for ILR, only after this could she apply for citizenship.

See Requirements for naturalisation if you are married to or the civil partner of a British citizen

[dormice]

Greenie, this is how I read things too. Form AN can be completed only after obtaining proof of freedom from immigration restrictions (PR or ILR). What I was looking for is the form to use as a EEA spouse of a British citizen in order to get ILR.

THEN, having obtained ILR, I would be able to submit form AN.

So the question is, how can an EEA apply for ILR?

By the way, UKBA have already replied to my mail, but the answer is a non-event: simply an enormous e-mail with most of the (generic) information on the UKBA site copy-pasted in, and not even information related to my circumstances, just a catch-all email full of blah blah blah. There is no answer to my question; just a comment before the blah blah blah starts suggesting I can find an answer using the ‘search’ facility on the UKBA website. Well I’m damned if I can…

[Jambo]

Greenie, this is how I read things too. Form AN can be completed only after obtaining proof of freedom from immigration restrictions (PR or ILR). What I was looking for is the form to use as a EEA spouse of a British citizen in order to get ILR.

THEN, having obtained ILR, I would be able to submit form AN.

So the question is, how can an EEA apply for ILR?

By the way, UKBA have already replied to my mail, but the answer is a non-event: simply an enormous e-mail with most of the (generic) information on the UKBA site copy-pasted in, and not even information related to my circumstances, just a catch-all email full of blah blah blah. There is no answer to my question; just a comment before the blah blah blah starts suggesting I can find an answer using the ‘search’ facility on the UKBA website. Well I’m damned if I can…

If a EEA national wants to apply for ILR (under the immigrations rules), he can apply as any other non-EU national. There are no restrictions preventing a EEA national asking to be treated as a non-EEA.

ILR as a spouse is only possible after completed 2 years in that category (i.e. holding a spouse visa).

[dormice]

I don't hold a 'spouse visa', never had (I'm EEA, we don't have to).

Can you please point me to the actual ILR form?

[Greenie]

I don't hold a 'spouse visa', never had (I'm EEA, we don't have to).

Can you please point me to the actual ILR form?

you don 't qualify for ILR as a spouse because you don't have a spouse visa - the fact that you don't need one to live in the UK is irrelevent. As per my previous post, if you want to go down the immigration rules route, in order to qualify for ILR as the spouse of a British Citizen, you would need to leave the UK and apply for limited leave to enter the UK as the spouse of a British citizen (spouse visa), which would be granted for 2 years, and after the two years, you could then apply for ILR.

This route is therefore expensive, and possibly unnecessary - pursue your EEA application as already advised, although I am unclear as to whether EHICs can be used for EEA3/4 applications.

[EUsmileWEallsmile]

Having now had a chance to read the AN guidance in full, I can see that an EEA national cannot use three years' marriage as a basis for naturalisation. Plan B as I was referring to is not an option. I was a little surprised that a British citizen would be treated differently depending on where they come from.

To qualify for permanent residence as the 2006 regulations are written in general, one needs to be a qualified person for five years or be a family member of such a person.

If one refers to the directive itself, it talks about 5-years' legal residence (the regulations say five years in accordance with these regulations). As the spouse of a UK citizen, you will have achieved 5-years legal residence in the UK irrespective of whether you had CSI or not. Nobody could suggest that you were living in the UK with your spouse unlawfully.

Imagine a French couple; the husband works full-time for five years and his wife is a homemaker. Both qualify under the regulations for PR.

Why would the spouse of a UK citizen, who by definition has a right of permanent residence from birth be treated differently from the example above?

BTW, I've just checked and see that you married in 2008, but nonetheless I would not suggest that any of your time in the UK was not lawful.

Sorry about the confusion earlier and I hope the above helps. Check it all out for yourself and don't take my word for it!

[Greenie]

Having now had a chance to read the AN guidance in full, I can see that an EEA national cannot use three years' marriage as a basis for naturalisation. Plan B as I was referring to is not an option. I was a little surprised that a British citizen would be treated differently depending on where they come from.

To qualify for permanent residence as the 2006 regulations are written in general, one needs to be a qualified person for five years or be a family member of such a person.

If one refers to the directive itself, it talks about 5-years' legal residence (the regulations say five years in accordance with these regulations). As the spouse of a UK citizen, you will have achieved 5-years legal residence in the UK irrespective of whether you had CSI or not. Nobody could suggest that you were living in the UK with your spouse unlawfully.

Imagine a French couple; the husband works full-time for five years and his wife is a homemaker. Both qualify under the regulations for PR.

Why would the spouse of a UK citizen, who by definition has a right of permanent residence from birth be treated differently from the example above?

BTW, I've just checked and see that you married in 2008, but nonetheless I would not suggest that any of your time in the UK was not lawful.

Sorry about the confusion earlier and I hope the above helps. Check it all out for yourself and don't take my word for it!

Please, please, you are making things more complicated, you are trying to advise on something you do not completely understand.

Having now had a chance to read the AN guidance in full, I can see that an EEA national cannot use three years' marriage as a basis for naturalisation

Not completely true - an EEA national married to a British Citizen can apply for naturalisation on the basis of 3 years residence and marriage to a British Citizen but he or she must be free from immigration restrictions on the date of application

As the spouse of a UK citizen, you will have achieved 5-years legal residence in the UK irrespective of whether you had CSI or not. Nobody could suggest that you were living in the UK with your spouse unlawfully

.

The fact that the OP is the spouse of a British Citizen is competely irrelevent as to whether she requires CSI in order to acquire PR under the EEA regulations.

Imagine a French couple; the husband works full-time for five years and his wife is a homemaker. Both qualify under the regulations for PR.

Why would the spouse of a UK citizen, who by definition has a right of permanent residence from birth be treated differently from the example above?

A British Citizen who has not exercised treaty rights outside the UK cannot make use of the EEA regulations, he is not exercising treaty rights, he is in the UK as a British Citizen. Therefore the fact that he is British and working cannot be relied upon by the OP to say that she is exercising treaty rights as the family member of an EEA worker.

[Greenie]

Sorry about the confusion earlier and I hope the above helps. Check it all out for yourself and don't take my word for it!

Definitely - do not take EUsmile's word for it.

[EUsmileWEallsmile]

Greenie, have you anything positive to add to this? I was not correct about the OP being able to naturalise on the basis of her marriage and have apologised for that.

The fact is that the directive states "Union citizens who have resided legally for a continuous period of five years in the host Member State shall have the right of permanent residence there." The EEA regulations say "an EEA national who has resided in the United Kingdom in accordance with these Regulations for a continuous period of five years" There is a difference between them. The regulations appear to make it more onerous than the wording in the directive.

Was the OP residing legally in the UK for five years or not? If yes, she qualifies for PR, if not, she doesn't.

The point I was trying to make earlier was imagine the EU spouse of a British citizen who does not exercise any independent treaty rights (by that I mean that they are not a worker, a job-seeker, a self-sufficient person because they don't have CSI, etc, etc). There does not appear to be any way for them to qualify for PR under the regulations, even if their UK spouse was a qualified person throughout.

Does this make sense to you or not?

[Greenie]

Greenie, have you anything positive to add to this? I was not correct about the OP being able to naturalise on the basis of her marriage and have apologised for that.

The fact is that the directive states "Union citizens who have resided legally for a continuous period of five years in the host Member State shall have the right of permanent residence there." The EEA regulations say "an EEA national who has resided in the United Kingdom in accordance with these Regulations for a continuous period of five years" There is a difference between them. The regulations appear to make it more onerous than the wording in the directive.

Was the OP residing legally in the UK for five years or not? If yes, she qualifies for PR, if not, she doesn't.

The point I was trying to make earlier was imagine the EU spouse of a British citizen who does not exercise any independent treaty rights (by that I mean that they are not a worker, a job-seeker, a self-sufficient person because they don't have CSI, etc, etc). There does not appear to be any way for them to qualify for PR under the regulations, even if their UK spouse was a qualified person throughout.

Does this make sense to you or not?

I have positively explained to the OP that she should pursue her EEA3 application.

You started your previous post by apologising for your earlier mistake only to make further incorrect assertions.

A UK citizen who has not exercised EEA treaty rights outside the UK is not a qualified person, and, therefore, an EU national married to a British Citizen who is working cannot said to be exercising treaty rights purely on the basis that s/he is married to a British Citizen who is working.

Positive suggestions that are completely incorrect in law are not positive suggestions at all.

[Kitty]

The EEA spouse can qualify in their own right by exercising treaty rights: in the OP's case, she came to the UK in order to do precisely that.

If an EEA national in such a situation then meets and marries a UK national, they have a choice: continue to exercise treaty rights and qualify for PR in their own right (which the OP may or may not have done, depending on the CSI issue), or switch to the Immigration Rules. They can do the latter by leaving the UK and applying for re-entry.

The Directive is about encouraging freedom of movement. A British citizen who has never worked abroad in the EU is not exercising rights of free movement and therefore does not need the benefit of rules designed to encourage it.

ETA: Greenie beat me to it again. Time for a night cap...

[EUsmileWEallsmile]

Ok Kittie, enjoy your nightcap. I think people might be missing the point about the difference between the wording of the directive and the regulations regarding legal residence and in accordance with the regulations.

For the OP, her application centres on CSI and whether she can prove that she's been covered in some form or other for her chosen five-year period.

[dormice]

Well, I’m glad we’re all in agreement now on the ‘married to a Brit’ question. I had said in one of my firsts posts that I didn’t think it was possible, so now we’ve gone full circle on that particular issue.

The situation regarding spouses is frankly absurd, because the regulations as they stand in effect penalize EU spouses for the fact of holding an EU passport.

Take a woman who is, say, a Mexican national. The regulations would allow her to live in the UK as a housewife to her British husband and then apply for ILR after 2 years. There would also be no costs to this other than the cost of the ILR application itself.

Now take the example of a French housewife married to a Brit. The regulations will impose two extra burdens on her: first, she will have to wait 5 years before she can apply for PR; second, although the PR application in itself is free, she will need to have paid a hefty sum towards 5 years of CSI in order for the PR itself to stand a chance.

Some may say that, on a matter of principle, it is not right to give married people an advantage; why should the fact of being married to a Brit give a time advantage or indeed why should it exempt any ‘kept’ spouse from paying for CSI? Maybe it should, maybe it shouldn’t, it is all debatable. As it happens, the UK immigration system does provide an advantage to married partners, but only if they don’t carry a EU passport. It is this contradiction which I find vexing.

Of course, discrimination on the basis of nationality is allowed, all countries do it to a certain extent. But why the discrimination towards the EU national? It makes no real logical sense. The UK is part of the EU; it has taken a major political and financial commitment to join and continue to be part of an international (some may say supranational) organisation which has as one if it explicit aims the ‘ever closer union’ of its people. There is no such relationship or covenant between the UK and Mexico. Yet for the French woman it will take 3 years longer and possibly it will cost much more (when CSI is considered) to be recognised as a permanent resident.

On an aside, if my MP was even half decent I would have written to her with these queries long ago but she is pretty useless; hence I choose to bore you lot instead ☺

[Jambo]

dormice,

You missed the point I raised earlier - there is no discrimination against EU partner. Nothing is stopping you to be treated the same as a non-EU. You can apply for a 2 year spouse visa + ILR with all the associated costs if you wish. The same as a Mexican wife would do.

Doing it now is a bit pointless as it is better for you to go down the EU route but if you would done it after you married in 2008, you could have applied based on the UK immigration rules in 2011.

[Greenie]

Doormice - what you are failing to appreicate is that an EU national who is married to a British Citizen or person settled in the UK can choose to go down the immigration rules route and applying for leave to enter as the spouse of a British/settled person, and thus can take advantage of the shorter time scale in order to qualify for settlement.

Spouses who apply under this route have to incur the following fee

- Fees for the initial application ( £550 in county if apply by post, £850 in country if apply in person), £810 if you apply from outside the UK.

In addition to this, there is the cost of an English language test and lessons if you do not have a degree taught in English.

Spouses who apply under this category have no recourse to public funds during this period. Couples have to show they have adequate income and resourses, and adequate accomodation in order for the visa to be granted. They also have to go to (in some cases great) lengths to prove the genuineness of their marriage.

There is then the fee for settlement, £972 if you apply by post, £1350 if you apply in person.

In addition to this there is again the cost of either English language lessons, to take a further English language test to qualify for ILR, or the cost of the Life in the UK test.

EEA nationals do not have to incur any of these charges.

I appreciate your frustration but it was your choice to live in the UK for a significant period without being econimically active, you are perfectly free, as an EEA national to do this however if you are self-sufficient the EEA regulations (and the EEA directive) requires that you have CSI.

[Greenie]

Jambo - we were posting at the same time - sorry!

[Jambo]

Jambo - we were posting at the same time - sorry!

Always happy to get backup from a senior member !