Have the Family Permit, now can't get the Residence Card

[britandco]

I am British Citizen married to Filipino in UK Jan 2007 (visit for marriage visa). Lived in Spain since that time (with Spanish residence cards). We have two children, one Filipino national (age 6), the other - born in Spain - dual British and Filipino nationality (age 4).

In the past, my wife and son have obtained EEA Family Permits several times to visit the UK with me (Surinder Singh route because I was self employed in Spain before I met wife). All I needed for the FP was to show proof that I was contributing 'autonomous' Spanish Social Security contributions.

Now that my wife and son are living in the UK with me they want to apply for UK residence cards, but the application form states that I must prove that she was living with me at the time I was excersing my Treaty rights in Spain. I cannot do this because I met my wife after I ceased self-employment. The rules for applying an EEA FP and applying for residence card under the Surinder Singh criteria are different. I cannot see anywhere, other than on the residence card application form, that I must prove that my wife was living with me at the time I was self employed.

My wife and son can live here as long as they like - legally - but my wife needs the residence card to enable her to work and they could not leave the UK and return without applying for another FP.

We have been married for six years and have two children so presumably we would be considered as having a "durable relationship". I have pensions of £35,000 and 50k savings so should not be a burden on the state!

What should they do? How can they apply for a visa when they are already in the country?

[Lucapooka]

When did she enter the UK? If she entered the UK with an EEA FP she will have no problem getting a residence card under Singh. She has already shown that she qualifies in that respect.

[britandco]

Last month.

This is the problem, application form EEA2 for residence card Section 5 Surrinder Singh cases:

" 5.1 Has your UK national family member exercised treaty rights as a worker or self employed person in another EEA member state? "

Answer: Yes - as a self-employed person

" 5.2 Were you the family member of the UK national at a time when they were exercising treaty rights as a worker or self-employed person in another EEA member state? "

Answer: No

" 5.3 Did you reside with your UK national family member in that EEA member state at a time when they were exercising treaty rights as a worker or self-employed person? "

Answer: No

" You must provide evidence to show that you resided in the EEA member state at a time when your family member was exercising treaty rights in that EEA member state. "

... but I was excerising my treaty rights before I met my wife. Irrespective of this my wife and son were issued with EEA family permits to visit the UK each time we applied for one.

[vinny]

How did you define when you ceased self-employment?

Moreover, 9(2)(a) specified that you had to be working in another EEA country before returning to the UK.
9(2)(b) specified that your wife had to be living with you in the EEA country before coming to the UK.
Does this imply that she had to be living with you simultaneously while you were working? Perhaps not.

... The Regulation does not specify when the United Kingdom national must be residing in another EEA state as a worker before returning to the United Kingdom...

Durable relationships are used for unmarried partners.

[britandco]

How did you define when you ceased self-employment?

Moreover, 9(2)(a) specified that you had to be working in another EEA country before returning to the UK.
9(2)(b) specified that your wife had to be living with you in the EEA country before coming to the UK.
Does this imply that she had to be living with you simultaneously while you were working? Perhaps not.

... The Regulation does not specify when the United Kingdom national must be residing in another EEA state as a worker before returning to the United Kingdom.

Durable relationships are used for unmarried partners.

I am not sure I understand your first question. All I needed to do to obtain Family Permits for my wife and son in previous years was to provide the British Consulate in Spain with a letter from the Spanish Social Security stating that I was registered as self employed and paying contributions from 1 December 2000 until 31 October 2002.

You make the same point I am making, and the reason why I am asking for advice here, is that the 2006 Regulations make no mention of my wife needing to have resided with me during my period of employment in Spain. I satisfied both the requirements in 9(2)(a) and (b). This is why my wife and son were able to get their FPs. It is only on residence card application form that this requirement is specified. I cut and pasted the text from the application form in my previous message.

[Jambo]

Well, the application form is not compulsory. You can apply without it. You can write a cover letter stating EEA FP has been issued several times in the past based on the evidence attached and attach the evidence. I would also state in the letter that as the application form is not compulsory, you didn't use it. If refused (because you have not lived together while exercising treaty rights), you can appeal. I don't think the interpretation in EEA2 is correct.

[Obie]

They could reject it, but you will live to fight another day.

Their view is that the residence of the family member should be linked to the exercise of treaty rights.

The case cited above,involved a spouse who was previously working when the family member was in the memberstate, but cease working there a long time before return.

It could not be said, that the spouse was not living there at the time the EEA national was exercising treaty rights. This case however does not seem to fall within the ambit of that one.

You will have to wait and see what UKBA says, and perhaps the matter might reach thevCJEU, or they might hold it pending the outcome of the current Dutch cases.

[wiggsy]

this is an issue our route is looking at... i considered registering as self employed, my wife going back to indonesia with kids (after getting GNIB card in ireland) for a month or two.. and me work (and live in small place to build up funds and support us ETC) then when we were setup she move back...

work for 10-12 weeks more then apply...

it might not work so well...

BUT: my wifes EEA 2 application is based on me being a "EEA National" after residing and working in finland (i married my wife in the uk AFTER returning, but have not left the uk since returning from finland... for the purposes of EEA law im still an eea national?)

on the second case my wife has a Derivative right of residence - 2 british (sole citizenship - indonesia doesnt support dual nationals) children.

so if they refuse either, i will take it to JR...

If she gets Derivative RC - i will appeal that it should be an EEA family permit... - and if they refuse JR - but at least the Derivative RC will be valid...

If a JR fails, then we will go to ireland and live together and work...
- been thinking that we might even get PR in ireland and then her transfer to IRISH citizenship... and myself gain dual citizenship... ( if UK leaves EU this would be beneficial ) - Irish citizens can reside in uk.. due to CTA agreement.