Replace spouse visa with EEA Family Permit

[dazzle]

Hi everyone,

So, the mrs has a valid spouse visa (about 6 months remaining). We had to appeal the initial refusal in order to get this spouse visa.

Since getting the spouse visa we have been living in the EU - for nearly 2 years.

I have now been offered a job back home in the UK, so we intend to move back. We want to go down the EEA route because of the costs and simplicity.

So, can we apply for the EEA Family Permit while she still holds a valid spouse visa? The worst fear is that they refuse the family permit, and then also cancel the spouse visa because it is no longer applicable

(we have used the spouse visa a few times for holidays to the UK)

Thanks in advance for any advice

[Jambo]

If the spouse visa is still valid and you can use it to travel to the UK, I would do the switch in country (by applying for a 5 years Residence Card under the EEA regulations). There is no requirement to hold a EEA Family Permit even in the case of family members of returning citizens.

Having said that, are you aware that under the EEA regulations, Permanent Residence (and British citizenship) can only be obtained after 5 years while if she renew her spouse visa under the old rules, ILR is granted after 2 years and British citizenship after 3 years.

[dazzle]

Thanks.

I was worried about this in this text in the ECI:

In such circumstances the third country national has the option to enter the U.K. either under the Immigration Rules or as the spouse of an EEA national, if the British citizen is also returning to the U.K..

If the third country national has been issued with an EEA Family Permit and has enter the U.K. on this basis then they have opted to use European law and cannot then switch to being considered under the Immigration Rules. The only way they could then avail themselves of the Immigration Rules would be if they left the U.K. and applied for entry clearance under the Immigration Rules as the spouse of a British citizen

If you can't switch from EEA to Immigration Rules, then does it work both ways?

[Jambo]

If you can't switch from EEA to Immigration Rules, then does it work both ways?

No. In this case it is a one way system

This is also why only EEA -> UK immigration is detailed in the ECI and not the other direction.

[dazzle]

Thanks very much Jambo

[Directive/2004/38/EC]

dazzle,

Which EU citizenships do you have?

Be sure, when you travel, you carry your marriage certificate

[Jambo]

dazzle,

Which EU citizenships do you have?

Be sure, when you travel, you carry your marriage certificate

If his wife is on a (UK) spouse visa, I would assume he is British.

[Directive/2004/38/EC]

Which EU citizenships do you have?

If his wife is on a (UK) spouse visa, I would assume he is British.

That is my assumption as well, but that might be wrong. EU citizens and people with ILR can also bring in spouses through a UK spouse visa.

[dazzle]

You are correct... I am British.

[Directive/2004/38/EC]

Hi everyone,

So, the mrs has a valid spouse visa (about 6 months remaining). We had to appeal the initial refusal in order to get this spouse visa.

Since getting the spouse visa we have been living in the EU - for nearly 2 years.

I have now been offered a job back home in the UK, so we intend to move back. We want to go down the EEA route because of the costs and simplicity.

So, can we apply for the EEA Family Permit while she still holds a valid spouse visa? The worst fear is that they refuse the family permit, and then also cancel the spouse visa because it is no longer applicable

(we have used the spouse visa a few times for holidays to the UK)

Thanks in advance for any advice

Have you been working while outside the UK?

Does she have just a spouse visa, or does she have ILR?

Is there any reason you will be prevented from re-entering the UK with the stamps your wife presently has?

My thinking is as follows. If you ever in the future need to, you can always say that your return to the UK was on the basis of EU law. There is no need to make an explicit switch to EU law.

It could be that going for ILR is preferable in that she could more quickly get British citizenship. But at the cost of 1000 pounds or whatever it is this week (i.e. the cost of an ILR application).

But again, there is no need to make an explicit choice to reenter the UK on the basis of EU law!

[dazzle]

To answer the q's:

Yes, I've been working in Europe for 2 years, with my wife staying with me for all that time... payslips, bank statements, contracts, photos etc have been kept.

She only has a spouse visa.. no ILR.

Can't think of any reason why she could not presently re-enter the UK. She has been doing so on visits to the in-laws for a while.

We are also thinking that ILR may be preferable now. Just need to start saving!!

Thanks for your thoughts on it.