Spouse Visa major problems

[bobhope]

Hello this is my first post but a very important one at the same time.

I am Irish (NI), gay male...and been living in London the past year as a student studying. I currently do not work as I am mostly busy studying my degree.

The major problem is that I'm dating a guy from India for the past few months and we are deeply in love. His country doesn't allow you to be gay as it is illegal. The guy came here in 2009 but his visa expires in May 2012, as he is currently here on a student visa.

We are planning to get married this month 'Nov 2012' and then try and apply for a spouse visa. The Indian guy will move in with me a few days before we get married, so we can prove we live together, and have letters to the same address.

The massive back-pain is that I do not earn £18,600 per year or have £16,000 already saved in funds to support him - according to the government.

Therefore I don't know what solution/path would be best to take when we go to a solicitor and begin the paper work. Although I heard since I am Irish, I could apply for an Irish passport and then apply via EU rules which doesn't include the money limit...although I don't know the full extend of this path.

Can someone advice me on the best option, which would allow him to stay in the country after his student visa expires.

[geriatrix]

Are you Irish and British? Or only Irish?

[bobhope]

I am only Irish. Also can you get married while the other person is in the UK on a student visa?

[geriatrix]

I am only Irish.

Then applying under EU directives may be a possible option. Moving the topic to appropriate forum where people will be able to answer your queries accurately.

Also can you get married while the other person is in the UK on a student visa?

Yes. See Getting married or registering a civil partnership in the UK

[Greenie]

I am confused. You begin your post by talking about the immigration rules but then talk about applying for an Irish passport so that you can apply under the Eea regulations instead. Are you certain you are not also British? Have you always lived in NI?

[bobhope]

I am 100% Irish. I am able to have Irish or British passport and can decide which rules I want to use.

[Directive/2004/38/EC]

If you have only ever held a Irish passport, you should be golden. Have you worked in the UK and have evidence of that?

[Greenie]

I am 100% Irish. I am able to have Irish or British passport and can decide which rules I want to use.

but according to your first post you haven't yet applied for an Irish passport. Are you saying you have never had a British passport either?given that you are a student studying a degree presumably you are in receipt of student funding and had to provide evidence of your nationality to prove your entitlement to home fees? What nationality did you use for that you don't have in Irish passport?

[bobhope]

A solicitor today said we can apply under the EU rules which doesn't require the 18,600 fee, since I am Irish. Although I will need to be working once I apply for him to get his visa for 5-years.

Also when I did the student finance thing, I put myself down as 'Irish'. I do not ever consider myself British, only Irish. I had a British passport cause it was cheaper to get, but it has expired so I am going to the embassy for an Irish passport this Thur or Friday.

This is the option that will get him the Visa and after 5years he can be classed as an Irish or British Citizen...according to the solicitor.

[Greenie]

Well you are British as well as Irish and therefore unable to make use of the Eea regulations unless you work in another member state or renounce your British citizenship.

[bobhope]

So what am I able to do then? I want this person to stay in the country.

I was 100% born in Northern Ireland and just came to London to study my degree.

How can I renounce my British citizenship? What effects does this have on myself?

[Directive/2004/38/EC]

Well you are British as well as Irish and therefore unable to make use of the Eea regulations unless you work in another member state or renounce your British citizenship.

Not 100%

General statement: The UK law, as modified this summer, is simply incorrect. The other option is to apply, maybe get refused, and then appeal on the basis the ECJ McCarthy give a gave a carefully qualified judgement, and those qualifications do not apply in a particular case.

About this case: On the other hand, since this OP has never worked in the UK, and has only ever had an British passport, then McCarthy might actually apply here.

[bobhope]

Does this apply to me? The good Friday brought forward that anyone living in NI can be of either nationality. It's up to that person to choose.

I will ask the solicitor tomorrow, but a few we asked said I can have either passport. I doesn't matter if I am from ROI or NI and then invoke the treaty rules so I work and then go that route - as stated before.

But I will double check. The solicitor seemed to be positive about the EU route.

[Directive/2004/38/EC]

Does this apply to me? The good Friday brought forward that anyone living in NI can be of either nationality. It's up to that person to choose.

I will ask the solicitor tomorrow, but a few we asked said I can have either passport. I doesn't matter if I am from ROI or NI and then invoke the treaty rules so I work and then go that route - as stated before.

But I will double check. The solicitor seemed to be positive about the EU route.

I think you should read about McCarthy: http://eumovement.wordpress.com/2012/07 ... y-british/

Ask your solicitors how many EU free movement cases they have handled in the last year, and what was the nature of those cases.

[Jambo]

You can't have the cake and eat it too.

Being British when the passport fee is cheaper but now being just Irish.

Under the Good Friday agreement one can be British, Irish or both but it is your actions that determine which of those 3 options you chose. If you never held a British passport and was always using your Irish citizenship, you can claim you are not British but you can't one day be just Irish and another day not.

The NI solicitor might have a different view but I suspect the HO would see it as I described and unless you are willing to go in a legal battle, you might look at other option. Saying that, EEA applications are free so you can always try although if by that point, your partner status in the UK won't be clear, the HO might reject the application and hold his passport.

[bobhope]

I understand what you mean. I never picked the British Passport as I was a child when my parents got me it, even though I was born in Northern Ireland...although I have had zero contact with my parents for over 4years. As well, that British passport is now expired. I offically have no active passport at the moment.

Moreover every form in my entire life - University, student finance, banks. I have put down "Irish" as my nationality. I will ring my London based solicitor in the morning and explain the circumstances that have risen by the people posting in here and see what he says.

In my mind, I am hoping there is still a strong chance.

[anp]

You need to have A passport in order to apply. If you qualify for an Irish, get one and apply under EEA route as it seems to be an easier route. If not, you can apply under UK route. It makes little difference. The hard part in both cases is proving that your relationship is genuine.

[Jambo]

It makes little difference.

It does make a difference.

It doesn't make a difference which valid passport he holds. It does make a difference if he is also British as British citizens can't make use of the EEA regulations (unless worked in another member state).

[Directive/2004/38/EC]

It does make a difference if he is also British as British citizens can't make use of the EEA regulations (unless worked in another member state).

That is not quite true.

What the new rules do say that "if the person is British, then they are only British". It is very unclear if this can be legally sustained by UKBA, as that is NOT what McCarthy said. McCarthy was very well qualified, and UKBA has just dropped those qualifications.

So somebody can and will appeal an incorrect decision by UKBA and will likely win their appeal.