Query-EEA Family Member applying for permanent residence

[tensailee]

My partner came to the UK as a student in 1997, and has been working since 2003, so he’s been continuously living in the UK for over 9 years. He got his Registration Certificate in Feb 2005, and is valid until Feb 2010.

I am myself non-EEA. I hold a student visa valid from 2001 to Nov. 2007. I formed a Civil Partnership with my EEA partner in January 2006, and am currently holding a Residence Card as well, which is valid until Feb 2010.

As a result of the change of EEA immigration regulations earlier this year, my partner is now eligible to apply for permanent residence because he has been residing in the UK for over 5 years (including both studying and working). My question is: given the circumstances above, will I be able to apply for permanent residence together with his application?

Thanks so much in advance!!!

[John]

Could you please state your partner's nationality? And indeed yours?

When your partner started to work in the UK in 2003, that was on the basis of what? A Work Permit? HSMP?

I think it is only possible to comment upon what you write in your third paragraph after having that further information.

[tensailee]

Thanks for your reply, John.

My partner is Greek, and I'm Chinese.

When he started to work in 2003, he didn't need any permit thanks to his EEA nationality.

thanks again.

[JAJ]

Thanks for your reply, John.

My partner is Greek, and I'm Chinese.

When he started to work in 2003, he didn't need any permit thanks to his EEA nationality.

thanks again.

It sounds like your partner automatically became a Permanent Resident on 30 April 2006 under the new EEA rules, after 5 years residence in the UK exercising Treaty Rights. He should use form EEA3 to apply for evidence of this.

Does he intend to apply for Naturalisation as a British citizen? If so, he will be eligible to do so in May 2007.

As for you, your situation may be more complex. John or someone who knows the Immigration Rules better may be able to comment in more detail, but it appears that as you are admitted under EEA rules, you may not be eligible for Permanent Residence until 5 years have elapsed - ie, in 2011.

It may be possible to apply in-country for a partner visa under the UK Immigration Rules, which would give you Permanent Residence in 2 years from now, ie in 2008. You may want to consider this option but you will likely need a good lawyer.

If your partner becomes a British citizen, then once you get Permanent Residence you will immediately be able to apply yourself for Naturalisation, as you will have lived in the UK for 3+ years. If your partner does not naturalise as British, you will have to wait one year after you obtain Permanent Residence.

[John]

JAJ, I think you have summed it up very well. I have nothing to add.

Tensailee, as JAJ says, if you remain on the EEA route it will be 2011 before you get your Permanent Residence. But by getting a Civil Partner visa, under UK law, you will be able to apply for Indefinite Leave to Remain near the end of the 2-year Civil Partner visa.

[tensailee]

Thanks for your replies John and JAJ.

One more question regarding my partner's permanent residence tho:

JAJ said he "automatically" became permanent residence on 30th April 2006. However, he is in the process of applying for that confirmation as we speak (in fact, he sent his application in late Sep), and the result is not likely to be known for at least another month.

When he gets his PR, he will have to wait for 12 months before Naturlisation. When does this 12-month count start? From the date his PR is issued (likely in Nov or Dec 2006), or from 30th April 2006?

Thanks again for your invaluable advice.

[ppron747]

I think JAJ got it right - he automatically became free of time limits on his stay on 30 April this year, regardless of when they actually confirm it. I would imagine that the IND reply will make this clear, given its importance.

[Marco 72]

It sounds like your partner automatically became a Permanent Resident on 30 April 2006 under the new EEA rules, after 5 years residence in the UK exercising Treaty Rights. He should use form EEA3 to apply for evidence of this.

These rules have not been implemented by the UK, even though EU directive 2004/38/EC was supposed to become law by 30 April 2006. The current EEA3 form (August 2006 version) still states that applicants must prove they have been "exercising Treaty rights" for five years. The exact words are:

To qualify for permanent residence you need to have excercised a Treaty right in the UK for 5 years through employment, self employment, study, economic self sufficiency, retirement or permanent incapacity (provide details below and continue on a seperate sheet if neccessary). If you have been supported by the employment or funds of a family member you may still qualify. If you were excercising rights in ways other than employment, self-employment or study, please state the category (eg economic self-sufficency) in the space(s) for employer/school/college addresses for the year(s) concerned. [...] We will require documentary evidence of the exercise of Treaty rights over a 5 year period.

There is no provision for an EEA citizen to become a permanent resident automatically after five years. The Home Office may well be acting in violation of an EU directive in doing this, but unfortunately it is the Home Office, and not the EU, which has the power to grant Indefinite Leave to Remain.

Regarding the original poster's question about the non-EEA partner obtaining ILR, I don't think there's any provision for that. I am an EU citizen with ILR but last year my American wife was only able to obtain a five year residence permit, conditional on the fact that I am here "exercising Treaty rights". Of course now that she is the wife of an ILR holder she could apply for a spouse visa, which would give her access to ILR within 2 or 3 years (I'm not sure which), but we have no plans to do that.

[ppron747]

I think you are misreading the form, Marco. It doesn't say that it is an application for permanent residence. It says it is an application for a document certifying permanent residence. In other words, it is not giving you PR - it is confirming that you have it.

[JAJ]

These rules have not been implemented by the UK, even though EU directive 2004/38/EC was supposed to become law by 30 April 2006.

It was implemented by the UK on 30.04.06. This document from the Nationality Instructions gives a good overview, including (in section 8 ) details on how the British nationality issues are addressed:
http://www.ind.homeoffice.gov.uk/docume ... iew=Binary (pdf)

[ppron747]

Thanks for posting that link, JAJ. Looking at the form again, I can see where some of the misunderstanding may have arisen. The form itself - and the link to it, on the IND site - is called "Application For Permanent Residence", and you have to go to the guidance notes to see that this is inaccurate, and that in fact it is an application for a document confirming permanent residence - a slightly different animal. When I first looked at it, I went straight to the guidance notes, and skipped over the heading - hence the slip in my previous post.

[tensailee]

Thanks for the link JAJ!

Reading the document from your link, I made an interesting discovery!

In "Example g" on page E12, in "D. ILLUSTRATIONS", it gave a bizarre example of an Italian national whose situation is rather similar to that of my partner's. It said "Consideration should be given to the possible exercise of discretion under paragraph 2(c) of Schedule 1 to the BNA 1981 to accept a shorter period of freedom from immigration time restrictions than the 12 months normally required (see Chapter 18, Annex B, paragraph 7.4)."

And THAT document states:

"h. if the applicant is a national of an EEA country or is a Swiss national, we are satisfied that he or she was genuinely unaware of the need to satisfy this requirement."

Oh... I love the wit of it! This means IN THEORY, my partner can apply for his Naturalisation straight away!!

awesome!

[JAJ]

Oh... I love the wit of it! This means IN THEORY, my partner can apply for his Naturalisation straight away!!

In theory at least. But bear in mind the application is (at best) likely to take a lot longer and may be refused.

If there's no particular hurry, it might be better to wait until May next year.

Incidentally, he could have applied for Indefinite Leave to Remain under the old rules in 2001. In those days ILR had to be applied for - it wasn't automatic - but was available after 4 years exercising Treaty Rights.

And prior to 2 October 2000, there was no need normally for EEA citizens to apply for ILR in order to become British citizens, or get British citizenship for UK born children.

[Marco 72]

It was implemented by the UK on 30.04.06. This document from the Nationality Instructions gives a good overview, including (in section 8 ) details on how the British nationality issues are addressed:
http://www.ind.homeoffice.gov.uk/docume ... iew=Binary (pdf)

The document you quote shows that the right to permanent residence is not automatic, but rather depends on the EEA citizen having exercised Treaty rights for a continuous period of five years (see paragraph 6.3.1). According to the directive there shouldn't be any conditions (apart from the possibility of an expulsion order) and it should indeed be automatic. At the moment the burden of proof rests on the applicant to show that he has "exercised Treaty rights" for five years, e.g. by working, studying, or being self sufficient. The current EEA3 form is identical to the one I had to fill in last year, except that the residence requirement has been increased to five years. See also my message here. Also, from what I can see, the directive should apply to EU citizens rather than EEA citizens, but the Home Office makes no distinction between the two.

[JAJ]

The document you quote shows that the right to permanent residence is not automatic, but rather depends on the EEA citizen having exercised Treaty rights for a continuous period of five years (see paragraph 6.3.1). According to the directive there shouldn't be any conditions (apart from the possibility of an expulsion order)

The condition is lawful residence! And an EEA citizen must be exercising Treaty Rights in order to be lawful in the first place. There is no unconditional right of establishment in another member state.

Also, from what I can see, the directive should apply to EU citizens rather than EEA citizens, but the Home Office makes no distinction between the two.

Most EU directives are extended to EEA member states under separate legislation.

[Marco 72]

The condition is lawful residence! And an EEA citizen must be exercising Treaty Rights in order to be lawful in the first place.

The only EU citizens who are unlawfully here are the ones who have stayed despite an expulsion order. This is what the directive states explicitly, there is no mention of economic self sufficiency (through a job, your personal funds or your own family), which is a condition for ILR. Take as an example an EU citizen who was supported by a girlfriend: he is not here illegally, but most likely wouldn't qualify for ILR.