Residence permit

[worrier]

In view of the new immigration law that affect EU family members, I would like advice on my situation. This a recap of what's happened so far.

-Got married to an irish citizen in 1998 and was issued a 5yr visa
-I applied for ILR just before my visa expire in 2003 and I was refused on the basis that my husband was not working and did not work the whole of the five year
- As I was nearer to my 14yr residency, my lawyer adviced that it would be best to reapply based on long residency. which I did for myself and husband.
- That was over 2yrs now and we still haven't had a decision from HO.
-As a result, I'm now classified as an overstayer

My question is that I heard about this new EU law that came in to force in Apr 06 that allows family members of EU nationals to retain their residency. Could anyone advice me, based on my past records, if I would be able to benefit from this rule.

Thank you

[JAJ]

In view of the new immigration law that affect EU family members, I would like advice on my situation. This a recap of what's happened so far.

-Got married to an irish citizen in 1998 and was issued a 5yr visa
-I applied for ILR just before my visa expire in 2003 and I was refused on the basis that my husband was not working and did not work the whole of the five year
- As I was nearer to my 14yr residency, my lawyer adviced that it would be best to reapply based on long residency. which I did for myself and husband.
- That was over 2yrs now and we still haven't had a decision from HO.
-As a result, I'm now classified as an overstayer

My question is that I heard about this new EU law that came in to force in Apr 06 that allows family members of EU nationals to retain their residency. Could anyone advice me, based on my past records, if I would be able to benefit from this rule.

Thank you

Why on earth did you not apply for a UK spouse visa under normal rules. Do you not realise that Irish citizens automatically have permanent residence?

I cannot see why the solicitor is applying for "residence" for your husband as he already has it.

And what has your husband been doing in the UK since he arrived, if not working? Has he ever worked in the UK?

[worrier]

JAJ,

We applied based on 14yrs as my solicitor said that it guaranteed me ILR.

Yes, he worked for a while in the 5yrs, but not steady as he works in contruction. He was given a Residence card when we first put in the application and I was given a 5yr visa. We are now trying to get ILR and since him not working is a problem, that is why we are applying for ILR based on me.

I'm really confused as I do not know what I should or should not do. That's why I'm turning to this site to get some advice.

Do you think I can benefit from this new rule as my ILR application is taking far too long

thank you

[JAJ]

Yes, he worked for a while in the 5yrs, but not steady as he works in contruction. He was given a Residence card when we first put in the application and I was given a 5yr visa. We are now trying to get ILR and since him not working is a problem, that is why we are applying for ILR based on me.

As far as I know, and someone like John will be able to add more detail, if your husband was working even for part of the 5 year period, he was "exercising Treaty rights" in the United Kingdom.

And in that case, because of the new rules on 30 April 2006, you should automatically have acquired Permanent Residence on that date.

I see no reason why your previous application for ILR should have been refused in 2003 (based on the information you provide) but it seems that you should seek to revisit the situation in the light of the 2006 rules.

If the Home Office confirm you became a Permanent Resident on 30 April 2006, then you would be eligible to apply for naturalisation in May 2007.

Has your solicitor not already discussed this with you? All serious immigration practitioners should be fully aware of the 2006 rules and their impact.

And as an Irish citizen your husband is deemed to have ILR already (again your solicitor should know about the special Common Travel Area rules). Does he plan to apply for naturalisation as a British citizen?

And have you any UK-born children, or do you plan to have children in future?

[worrier]

Thank you John for shedding more light to my matter. It's clear that my solicitor gave me a bad advice at the beginning. I think he went for the easier option at the time (which was to apply on 14yrs basis) instead of fighting my case. I've called him several times lately, about the delay in deciding my case, but he tells me to be patient as the HO will soon write to me. He had never mention this new rule to me, I only learnt about it on this site.

I think another visit to his office should be my next step. But I need further help from you, first

but it seems that you should seek to revisit the situation in the light of the 2006 rules.

How can I go about doing this? Do I have to withdraw my application based on 14yrs or can I do this at the same time.

As my visa expired in 2003 and I'm now classified as an overstayer, does this have any negative effects?

Does he plan to apply for naturalisation as a British citizen

He doesn't have an immediate plans to apply for naturalisation as he is not limited in anyway by holding an irish passport

And have you any UK-born children, or do you plan to have children in future

We do not have any kids at the moment. We plan to have kids in the near future, except that it is very difficult to make such plans when we are not sure about what is going on with my residency application.

this whole ordeal has been very stressful.

[JAJ]

Thank you John for shedding more light to my matter.

I'm not John ... John is the moderator of this site and knows a lot more about the Immigration Rules than I do.

It's clear that my solicitor gave me a bad advice at the beginning. I think he went for the easier option at the time (which was to apply on 14yrs basis) instead of fighting my case. I've called him several times lately, about the delay in deciding my case, but he tells me to be patient as the HO will soon write to me. He had never mention this new rule to me, I only learnt about it on this site.

No one can say on this forum whether applying for ILR under the 14 year rule was a better or worse decision than appealing the refusal of ILR in 2003.

However it concerns me that your solicitor seems not to know about the change in the rules regarding EEA citizens and dependents on 30 April 2006. Any serious immigration practitioner needs to understand these rules "inside-out" and if your solicitor doesn't then it may be time to find a new one.

14 year ILR applications take a long time. But it might be productive to contact your Member of Parliament.

How can I go about doing this? Do I have to withdraw my application based on 14yrs or can I do this at the same time.

As my visa expired in 2003 and I'm now classified as an overstayer, does this have any negative effects?

You should not withdraw your 14 year application. As far as I understand you can separately seek confirmation you automatically acquired Permanent Residence on 30.04.2006 by filling out form EEA4.

Once again - as long as your husband was working from time to time and seeking work in between, that counts as "exercising Treaty rights".

And I don't believe you are an "overstayer" - your 5 year EEA Family Permit (if that's what you had) was just evidence of your right to remain in the United Kingdom. Even if it expired, it did not make you unlawful.

However, do not leave the United Kingdom for any reason until your status is resolved.

He doesn't have an immediate plans to apply for naturalisation as he is not limited in anyway by holding an irish passport

Not in most respects (although there are exceptions). However if you are going to be British in due course, and your future children will be British, then why on earth would he want to remain a foreigner in the United Kingdom? He would not lose his Irish citizenship.

[Kenny001]

Dear JAJ,

I have read your posting and I am in a similar. but worse situation. I am married to an irish national. We separated before my 5yr visa ran out and before the new law was introduced.

My Wife and I are separeted, but not divorced. We had a major bustup before we decided to separate and we no longer keep in touch. Infact I do not know where she is right now. Because of this I did not have any papers for her like P60, passport, etc to apply for leave to remain after my 5yr visa ran out so I have not done anything since to resolve my immigration status.

I would like to ask if I can now apply to the homeoffice for leave to remain even though I was separated before the new law and cannot provided evidence that my wife was exercising her treaty. I work full time and have done so for more that 5yrs.

[JAJ]

Dear JAJ,

I have read your posting and I am in a similar. but worse situation. I am married to an irish national. We separated before my 5yr visa ran out and before the new law was introduced.

I'm afraid you need advice from a specialist immigration lawyer, sorry. An online forum is not going to be able to resolve such a complex case.