Advice Needed for EEA situation

[Turiya]

Hi there,

I've been looking at the posts and can seem to find the answer to this one. Here is our situation:

1. Married in July 2008 in Vancouver, Canada. I am Canadian born and my husband is Spanish
2. Came to the UK in November 2008, applied for the EEA2. Approved within a year of applying.
3. EEA2 permit expires in January 2015.

Work HIstory:

4. Canadian wife with EEA2 has been working since 2009 to date at the same company, in the UK, being paid GBP to a UK Bank account.
5. Spanish husband was working since 2008 to 2012 as self employed. Then started vocational training from 2012 to 2013 for a UK based non-profit charity but was also being paid for events from that charity from 2012 (proof of income using invoices from charity can be presented). In January 2014, husband completed vocational training and was hired by the non-profit charity as a consultant and is now being paid a regular salary monthly, in GBP, into our joint bank account in the UK.

Travel:
6. Canadian wife with EEA2 has been abiding in UK throughout the years, and has been travelling with husband (not more than 6 months away)
7. Spanish husband has been doing vocational training and has started employment with UK based charity in PORTUGAL. He has been residing in Portugal for work purposes since July 2012. He has travelled to Russia and back to the UK during this time for this work. Wife has been travelling to Portugal for regular and lengthy visits but has not broken the 6 months rule.
8. There has been no purchase of CSI as both have been consistently working since 2008
9. Spanish husband who found UK work but was unfortunately called to work from Portugal is working for a UK BASED charity and being paid in GBP and being paid into our joint UK bank account.

Options:
10. What can we do now that my 5 year EEA2 permit expires in January 2015? What are my options? Would I still qualify for the EEA4 or are we disqualified because my husband has been abroad for over 12 months without emergency or military reasons? Would I need to extend the EEA2 permit and is this possible to extend? We are happily married and have a home here, I work here and neither of us want to change our base from UK to Portugal, although this would be our final option (it would mean I have to leave my job which is in the UK).

Other questions:
11. If I apply for either an extension for my EEA2 permit, or apply for my EEA4 in January, while the application is still processing would I need to quit my job or can I legally continue until a decision is made by UKBA?

12a.Are there other options that I can qualify for? For example, my grandmother's sister (with same surname) lives in the UK and is a UK citizen. Can I apply for naturalisation through this lineage using the ancestry visa application, as I am part of the commonwealth (being Canadian born)?
12b. Is there such thing as applying for a visa due to self sufficiency? How much income do I, or both my husband and I, need to have to qualify as self sufficient? Would I/we need to have CSI in order to apply with this option?


Please advise if I have any options to remain in the UK.

Warm regards,
turiya

[Turiya]

Can anyone help me?

warm regards,
turiya

[Hubba]

Hi there,

I've been looking at the posts and can seem to find the answer to this one. Here is our situation:

1. Married in July 2008 in Vancouver, Canada. I am Canadian born and my husband is Spanish
2. Came to the UK in November 2008, applied for the EEA2. Approved within a year of applying.
3. EEA2 permit expires in January 2015.

Work HIstory:

4. Canadian wife with EEA2 has been working since 2009 to date at the same company, in the UK, being paid GBP to a UK Bank account.
5. Spanish husband was working since 2008 to 2012 as self employed. Then started vocational training from 2012 to 2013 for a UK based non-profit charity but was also being paid for events from that charity from 2012 (proof of income using invoices from charity can be presented). In January 2014, husband completed vocational training and was hired by the non-profit charity as a consultant and is now being paid a regular salary monthly, in GBP, into our joint bank account in the UK.

Travel:
6. Canadian wife with EEA2 has been abiding in UK throughout the years, and has been travelling with husband (not more than 6 months away)
7. Spanish husband has been doing vocational training and has started employment with UK based charity in PORTUGAL. He has been residing in Portugal for work purposes since July 2012. He has travelled to Russia and back to the UK during this time for this work. Wife has been travelling to Portugal for regular and lengthy visits but has not broken the 6 months rule.
8. There has been no purchase of CSI as both have been consistently working since 2008
9. Spanish husband who found UK work but was unfortunately called to work from Portugal is working for a UK BASED charity and being paid in GBP and being paid into our joint UK bank account.

Options:
10. What can we do now that my 5 year EEA2 permit expires in January 2015? What are my options? Would I still qualify for the EEA4 or are we disqualified because my husband has been abroad for over 12 months without emergency or military reasons? Would I need to extend the EEA2 permit and is this possible to extend? We are happily married and have a home here, I work here and neither of us want to change our base from UK to Portugal, although this would be our final option (it would mean I have to leave my job which is in the UK).

Other questions:
11. If I apply for either an extension for my EEA2 permit, or apply for my EEA4 in January, while the application is still processing would I need to quit my job or can I legally continue until a decision is made by UKBA?

12a.Are there other options that I can qualify for? For example, my grandmother's sister (with same surname) lives in the UK and is a UK citizen. Can I apply for naturalisation through this lineage using the ancestry visa application, as I am part of the commonwealth (being Canadian born)?
12b. Is there such thing as applying for a visa due to self sufficiency? How much income do I, or both my husband and I, need to have to qualify as self sufficient? Would I/we need to have CSI in order to apply with this option?


Please advise if I have any options to remain in the UK.

Warm regards,
turiya

Unfortunately, you can't apply for EEA4 since your husband is not exercising Treaty Rights in the UK, since he doesn't in fact leave here. Any absence of more than 180 days within a year already breaches the residence period. The fact that he is hired by an UK based charity is irrelevant, since what matters is his residence in country, first and foremost.

Sorry to be bearer of bad news, but I'm afraid you're actually working here illegally. You may have an EEA2 residence card, but such residence card was issued under different circumstances and since then, such circumstances have changed and theoretically the Home Office should have been made aware of that.

Your best option would be for your husband to relocate to the UK and then apply for another EEA2, but bear in mind that if he moves back to Portugal and stays there for more than 180 days in a year, your stay here would be illegal.

[SouthWest1]

was your husband in UK prior to you moving over here in 2008 or did you both move in the same time?

@Hubba
not 100% sure but if he is employed by UK based company and pays his tax to the UK authorities, then he is considered to be exercising treaty rights in UK.

the case is a bit tricky, so let us wait for a moderator to comment before delivering bad news to the Op

[Hubba]

was your husband in UK prior to you moving over here in 2008 or did you both move in the same time?

@Hubba
not 100% sure but if he is employed by UK based company and pays his tax to the UK authorities, then he is considered to be exercising treaty rights in UK.

the case is a bit tricky, so let us wait for a moderator to comment before delivering bad news to the Op

@SouthWest1

Unfortunately, the right of residence is based on residency, not only on employment. He needs to to live in the UK, regardless of his employment status with an UK based company.

Moderators have already told the OP the same thing I've said, on her previous thread regarding this subject (http://www.immigrationboards.com/eea-ro ... 48262.html). Check Jambo's comment back in 12/10/2013:

It seems that his residency has broken. It also means that you have no legal basis to stay in the UK. The 5 years clock for PR would start once he is back in the UK.

On a related note - if he has been out from the UK for so long, he doesn't need to pay taxes in the UK and can ask for the money to be returned to him.

[SouthWest1]

thanks for the clarification.
it seems that the issue is on going for a while now looking at the date of the original post !

[Hubba]

thanks for the clarification.
it seems that the issue is on going for a while now looking at the date of the original post !

No problem, mate. I didn't know about the previous thread until I've gone through her post history.

[Obie]

In all fairness to Vinny and Jambo, they might have been right with their advice when the adviced the OP last summer. But now, the caselaw has moved on significantly, and I believe the OP may be able to qualify.

See Babajanov (click).

 

[Turiya]

Now I'm confused. How long does it take for an administrator to respond to posts? It would be great to get the final verdict. Very nervous now to hear that I might be illegally here... We had no idea! And I am working for a charitable organisation with a very important role... please help.

[Obie]

No one is obliged to reply to your post. No one gets paid for that purpose.

You were last advised based on the position of the law.

I have now updated the forum on the clarification of the law , and the fact that my colleague was correct In the advice they gave you last year, but in light of changes in the law, you may now qualify.

So I guess your query is resolved.

[Hubba]

Hi Turiya,

My apologies if I caused any distress. Sometimes it is easy to forget when answering queries on this forum that most people who comes here for help are already knocking their heads out whilst trying to find out the best solution for their problems.

As Obie have said, the advice I have given you was based on my knowledge of the law, which although I like to believe is good, I'm no lawyer. As he have said, the case law may now allow you to qualify for residence.

[Turiya]

Thanks so much for clarifying.

I understand and appreciate the advice and I do understand that this is a free forum to help cases like my own and that no one has to answer my queries. I understand that no one gets paid to give responses and appreciate that a forum like this exists nevertheless...

At the same time, is nice to receive sensitive responses to those of us who are simply confused and looking for some kind support. There was just a confusion here that needed to be clarified as I had received two different answers to my query.

Thanks so much to both of you for your time and help and for clarifying the advice given. Nothing is being taken for granted.


Warmly,
turiya