EEA Family Permit (EFM) expiring, waiting for residence card

[magpie11]

Hi, i'm currently in the UK and working under a EEA Family Permit, as an unmarried partner of an EEA national (this is an extended family member EFM permit). I've submitted a EEA(EFM) residence card application, however it looks like my Family Permit will expire before the residence card application is completed.

First some dates:
FP expiry: 7th June
EEA(EFM) residence card application: ~7th May

I received a confirmation email from Home Office saying that it can take 6 months to process. When I tried to read through other descriptions it sounds like it would most likely take about 2 months for the application to be processed? which is longer than the FP.

I know that a married spouse can remain and work in the UK without a residence card, however for EFM permits it does not seem so clear. What options do I have? It seems like I need to ask for my passport back and leave the country before 7th June.

Some specific questions:
1) can a non-EEA person (me) who has a permit as a Extended Family Member, remain and work in the UK after the 6 month FP expiry date? or is this overstaying the visa
2) if I ask for my passport back, does it cancel the application?
3) the processing time for the EEA(EFM) residence card is supposedly 6 months according to their email, which is longer than the original family permit. how is it possible to apply for it and get a response before you overstay the visa?
4) is there an expedited processing option? They mention it in the time estimates, but I never saw an option to apply for it
5) at the moment i'm considering asking for my passport back so I have it before the permit expires, then leaving the country and possibly re-entering as a tourist. is it possible to do this while it is still being processed? I have a dual passport if that helps. is there a better way to do this right and avoid overstaying the visa?
6) I need to go to a wedding in late june, so it is important to be able to leave the country and return again. will this be a problem if the residence card still hasn't been processed?

thanks!

[kamoe]

1) can a non-EEA person (me) who has a permit as a Extended Family Member, remain and work in the UK after the 6 month FP expiry date? or is this overstaying the visa

I'm not 100% sure so I'll let someone else confirm (my humble guess would be no, you likely cannot stay past the expiration date, and yes, that could be considered overstaying.)

2) if I ask for my passport back, does it cancel the application?

No, it does not cancel the application and in fact this the preferred and standard course of action of people who need to travel.

3) the processing time for the EEA(EFM) residence card is supposedly 6 months according to their email,
which is longer than the original family permit.

The six months does not refer to current processing times, but to the maximum legal time allowed for them to give you a decision, as per EU law. It does not mean it takes 6 months.

how is it possible to apply for it and get a response before you overstay the visa?

You are supposed, and encouraged, to apply ASAP after you enter the UK.

4) is there an expedited processing option?

Nope.

5) at the moment i'm considering asking for my passport back so I have it before the permit expires, then leaving the country and possibly re-entering as a tourist. is it possible to do this while it is still being processed? I have a dual passport if that helps.

You can leave the UK whilst your RC is processed.

The absolute crystal clear and correct course of action would be for you to apply for a second Family Permit abroad, which will give you a further 6 months and will cover you 100%. This is free and usually done within a few days (depending on the country, but you do need to go over the same process you went through for your first FP from scratch, gathering documents and all). This does not cancel your pending RC application, and you do not need to apply in your own country, it can be done anywhere.

Not sure how "clean" and/or wise it is to re-enter the UK and declare you are a tourist (if one of your nationalities is exempted from a visa, for example). I'm not sure how this works. It could be that your most recent immigration record is visible on screen for the border control officer as soon as they scan your passport, and they might notice you last entered on a Family Permit and might ask you some questions (and might or might not let you in, as without the RC you are not the family member of a EU national, and it could be obvious to them that you are not coming for a short stay). Or... not, and they could say nothing and let you in on the strength of your passport (in case of visa exemption). In any case, you will not be able to work while you are still waiting for your RC.

is there a better way to do this right and avoid overstaying the visa?

An alternative bulletproof option if you don't want or can't apply for a second FP, is to stay abroad until your RC has been issued, and have your partner send it to you via secure post (DHL, Fedex, etc.) for you to use it to enter the UK.

6) I need to go to a wedding in late june, so it is important to be able to leave the country and return again. will this be a problem if the residence card still hasn't been processed?

As above.

[magpie11]

Thanks for the helpful suggestions

1) can a non-EEA person (me) who has a permit as a Extended Family Member, remain and work in the UK after the 6 month FP expiry date? or is this overstaying the visa

I'm not 100% sure so I'll let someone else confirm (my humble guess would be no, you likely cannot stay past the expiration date, and yes, that could be considered overstaying.)

Someone I spoke to at HO suggested that I can stay while an application is being processed, but from doing more research, it seems clear to me that automatic extensions do not apply for EEA applications, and it would be overstaying.

2) if I ask for my passport back, does it cancel the application?

No, it does not cancel the application and in fact this the preferred and standard course of action of people who need to travel.

Is there a problem with the timing of asking for the documents back? for example if you ask too early (before the biometrics letter or CoA) does it cause more problems than asking later?

5) at the moment i'm considering asking for my passport back so I have it before the permit expires, then leaving the country and possibly re-entering as a tourist. is it possible to do this while it is still being processed? I have a dual passport if that helps.

You can leave the UK whilst your RC is processed.

The absolute crystal clear and correct course of action would be for you to apply for a second Family Permit abroad, which will give you a further 6 months and will cover you 100%. This is free and usually done within a few days (depending on the country, but you do need to go over the same process you went through for your first FP from scratch, gathering documents and all). This does not cancel your pending RC application, and you do not need to apply in your own country, it can be done anywhere.

Thanks for the suggestion, that is worth considering. One difficulty is all of my documents to show a durable relationship are currently with HO for my RC application. But maybe they would send them back with my passport if I ask for it back?

Not sure how "clean" and/or wise it is to re-enter the UK and declare you are a tourist (if one of your nationalities is exempted from a visa, for example). I'm not sure how this works. It could be that your most recent immigration record is visible on screen for the border control officer as soon as they scan your passport, and they might notice you last entered on a Family Permit and might ask you some questions (and might or might not let you in, as without the RC you are not the family member of a EU national, and it could be obvious to them that you are not coming for a short stay). Or... not, and they could say nothing and let you in on the strength of your passport (in case of visa exemption). In any case, you will not be able to work while you are still waiting for your RC.

I'm not sure about the implications of doing this either, however if I go overseas, submit a FP application and then come back as a tourist while it is being processed (without working), it might be ok.

is there a better way to do this right and avoid overstaying the visa?

An alternative bulletproof option if you don't want or can't apply for a second FP, is to stay abroad until your RC has been issued, and have your partner send it to you via secure post (DHL, Fedex, etc.) for you to use it to enter the UK.

Thanks, unfortunately that also means being away from my current job for potentially a long time.

[magpie11]

Another option that might be possible, is if I receive a biometrics letter & confirmation of application before my current visa expires, I assume this will allow remaining in the UK while the RC is being processed, and it might allow working, but there seems to be very few guarantees with this. Its a difficult position to be in where HO has my passport, but I don't know if they will allow me to stay longer after the visa expiry date, or when they will respond, so I don't know if I should ask for it back or not.

[kamoe]

Someone I spoke to at HO suggested that I can stay while an application is being processed, but from doing more research, it seems clear to me that automatic extensions do not apply for EEA applications, and it would be overstaying.

Exact. They might also have thought you were the spouse of your EU partner, in which case there would be no issue.

Is there a problem with the timing of asking for the documents back? for example if you ask too early (before the biometrics letter or CoA) does it cause more problems than asking later?

Not really. You can request your passport as soon as you can and they will still not send it back before you have enrolled your biometrics. So the ideal time to ask is just after you enroll your biometrics, but if at all you did that before, no issues (I asked for my passport and all documents back on application, with attached pre-paid envelope and postage, asking them to send them back as soon as reasonable, which they did).

One difficulty is all of my documents to show a durable relationship are currently with HO for my RC application. But maybe they would send them back with my passport if I ask for it back?

Maybe. Try. This will not delay your application, as it is quite a standard thing to do.

if I go overseas, submit a FP application and then come back as a tourist while it is being processed (without working), it might be ok.

The point of going overseas and submitting an FP application is to come back with the FP. How long did it take you to get your first FP? It is usually processed within days.

is there a better way to do this right and avoid overstaying the visa?

An alternative bulletproof option if you don't want or can't apply for a second FP, is to stay abroad until your RC has been issued, and have your partner send it to you via secure post (DHL, Fedex, etc.) for you to use it to enter the UK.

Thanks, unfortunately that also means being away from my current job for potentially a long time.

To be honest you might not have to wait long now. I don't think this will take more than 2 or 3 of weeks after you submit your biometrics.

[kamoe]

Another option that might be possible, is if I receive a biometrics letter & confirmation of application before my current visa expires, I assume this will allow remaining in the UK while the RC is being processed, and it might allow working, but there seems to be very few guarantees with this.

Actually, you might be right. I believe I have seen descriptions of cases where unmarried partners with Family Permits get CoA with right of work. This could be OK for work, but might or might not be sufficient to allow you clean entry back in the UK if you leave before you receive your RC (tourist scenario + CoA).

Its a difficult position to be in where HO has my passport, but I don't know if they will allow me to stay longer after the visa expiry date, or when they will respond, so I don't know if I should ask for it back or not.

Again, asking for it back does not affect your application.

[magpie11]

Is there a problem with the timing of asking for the documents back? for example if you ask too early (before the biometrics letter or CoA) does it cause more problems than asking later?

Not really. You can request your passport as soon as you can and they will still not send it back before you have enrolled your biometrics. So the ideal time to ask is just after you enroll your biometrics, but if at all you did that before, no issues (I asked for my passport and all documents back on application, with attached pre-paid envelope and postage, asking them to send them back as soon as reasonable, which they did).

I wanted to check if this is the correct form: https://eforms.homeoffice.gov.uk/outrea ... ments.ofml . It says:

"This form should be used if:
You have an outstanding application with the Home Office and now wish to withdraw this and leave the UK
OR
You are a British or settled sponsor who requires their documents returned to them"

This sounds like it will cancel the application, am I misunderstanding?

if I go overseas, submit a FP application and then come back as a tourist while it is being processed (without working), it might be ok.

The point of going overseas and submitting an FP application is to come back with the FP. How long did it take you to get your first FP? It is usually processed within days.

I had an expedited application from australia, i can't remember exactly but it was a few weeks not days

An alternative bulletproof option if you don't want or can't apply for a second FP, is to stay abroad until your RC has been issued, and have your partner send it to you via secure post (DHL, Fedex, etc.) for you to use it to enter the UK.

Thanks, unfortunately that also means being away from my current job for potentially a long time.

To be honest you might not have to wait long now. I don't think this will take more than 2 or 3 of weeks after you submit your biometrics.

That kind of timeframe would be ok.

Another option that might be possible, is if I receive a biometrics letter & confirmation of application before my current visa expires, I assume this will allow remaining in the UK while the RC is being processed, and it might allow working, but there seems to be very few guarantees with this.

Actually, you might be right. I believe I have seen descriptions of cases where unmarried partners with Family Permits get CoA with right of work. This could be OK for work, but might or might not be sufficient to allow you clean entry back in the UK if you leave before you receive your RC (tourist scenario + CoA).

It looks like the guidance notes say that EFM applications always get a CoA without the right to work, however there have been examples where people got right to work: eea-route-applications/coa-efm-no-right ... 96950.html
But yes exiting and re-entering the country could be a problem

[kamoe]

I wanted to check if this is the correct form: https://eforms.homeoffice.gov.uk/outrea ... ments.ofml . It says:

It is. Note that the drop down menus let you select the RC EEA as type of application.

"This form should be used if:
You have an outstanding application with the Home Office and now wish to withdraw this and leave the UK
OR
You are a British or settled sponsor who requires their documents returned to them"

This sounds like it will cancel the application, am I misunderstanding?

Not necesarily. Try and start using the form, in step 3 it asks you if you want to withdraw your application, you can select "No".

I had an expedited application from australia, i can't remember exactly but it was a few weeks not days

Wow, in Colombia it was done within a few days; it's always in priority ahead of any other kind of application!

It looks like the guidance notes say that EFM applications always get a CoA without the right to work, however there have been examples where people got right to work: eea-route-applications/coa-efm-no-right ... 96950.html
But yes exiting and re-entering the country could be a problem

Yes, and yes.

[magpie11]

I spoke with an immigration lawyer, the short answer is that her advice was to remain in the country while the RC application is being processed.

It sounds like UK and EU law is a really unclear mess, if you stay and the application gets rejected, then you are overstaying after the FP permit expires. I didn't get a clear answer about why I can stay while it is being processed, and it was unclear about working rights (I guess getting a CoA with work would indicate to an employer you can work). It sounds to me like the suggestion is that nothing is going to happen while it is being processed and once you get the RC it is ok, but its not a very reassuring recommendation.

She also said that exiting the country could cause the RC/EU Settlement applications to automatically get cancelled.

So the recommended way to handle it is to stay in the country, assume that it will be approved and just wait. I guess there is a risk of a bad outcome if it was rejected for some reason (although this seems unlikely if a FP was granted), but there is also a risk from exiting the country.

I guess the other "clean" approach would be to exit the country and do a new FP, and then start a new RC after re-entering. The disadvantage would be the delay time, and it might not be possible to do it in a neighbouring country & would have to fly all the way back to your home country.

[Orxy]

Hiya,

You are legally residing in the UK while your case is under consideration. Once you submitted a Residence Card application, Home Office sent an email with your Case ID number confirming that they received it and that your case will be considered within 6 months.

Even though you were issued with Family Permit allowing you to work in the UK once you are here, Home Office will not issue you a letter with right to work while your case is under consideration for RC as you are an extended family member and do not have an automatic right to reside and work here. You will only have the right to work here and reside once you are issued RC.
I hope it clears things out.

[magpie11]

You are legally residing in the UK while your case is under consideration. Once you submitted a Residence Card application, Home Office sent an email with your Case ID number confirming that they received it and that your case will be considered within 6 months.

Thanks. The part I don't understand is how I am legally residing. For example Section 3C doesn't apply since its an EEA application, and I don't have any automatic EU rights since I am not a direct family member. As far as I understand the laws say I am only considered a family member while I have a current family permit or residence card, which I don't have after the FP expires. I get the impression that there isn't any law I can refer to showing that i'm legally residing, but I was advised to stay maybe because its unlikely anyone would act on it?

[Orxy]

EEA Regulations 2016 state the following:

Extended right of residence
14.—(1) A qualified person is entitled to reside in the United Kingdom for as long as that person remains a qualified person.

(2) A person (“P”) who is a family member of a qualified person residing in the United Kingdom under paragraph (1) or of an EEA national with a right of permanent residence under regulation 15 is entitled to remain in the United Kingdom for so long as P remains the family member of that person or EEA national.

(3) A family member who has retained the right of residence is entitled to reside in the United Kingdom for so long as that person remains a family member who has retained the right of residence.

(4) A person who otherwise satisfies the criteria in this regulation is not entitled to a right to reside in the United Kingdom under this regulation where the Secretary of State or an immigration officer has made a decision under regulation 23(6)(b), 24(1), 25(1), 26(3) or 31(1), unless that decision is set aside or otherwise no longer has effect.

[magpie11]

EEA Regulations 2016 state the following:

Extended right of residence
14.—(1) A qualified person is entitled to reside in the United Kingdom for as long as that person remains a qualified person.

(2) A person (“P”) who is a family member of a qualified person residing in the United Kingdom under paragraph (1) or of an EEA national with a right of permanent residence under regulation 15 is entitled to remain in the United Kingdom for so long as P remains the family member of that person or EEA national.

(3) A family member who has retained the right of residence is entitled to reside in the United Kingdom for so long as that person remains a family member who has retained the right of residence.

(4) A person who otherwise satisfies the criteria in this regulation is not entitled to a right to reside in the United Kingdom under this regulation where the Secretary of State or an immigration officer has made a decision under regulation 23(6)(b), 24(1), 25(1), 26(3) or 31(1), unless that decision is set aside or otherwise no longer has effect.

Yes, however:

7.—(1) In these Regulations, “family member” means, in relation to a person (“A”)—
(a)A’s spouse or civil partner;
(b)A’s direct descendants, or the direct descendants of A’s spouse or civil partner who are either—
(i)aged under 21; or
(ii)dependants of A, or of A’s spouse or civil partner;
(c)dependent direct relatives in A’s ascending line, or in that of A’s spouse or civil partner.

(2) Where A is a student residing in the United Kingdom otherwise than under regulation 13 (initial right of residence), a person is not a family member of A under paragraph (1)(b) or (c) unless—
(a)in the case of paragraph (1)(b), the person is the dependent child of A or of A’s spouse or civil partner; or
(b)A also falls within one of the other categories of qualified person mentioned in regulation 6(1).

(3) A person (“B”) who is an extended family member and has been issued with an EEA family permit, a registration certificate or a residence card must be treated as a family member of A, provided—
(a)B continues to satisfy the conditions in regulation 8(2), (3), (4) or (5); and
(b)the EEA family permit, registration certificate or residence card remains in force.


An extended family member (eg unmarried) is only considered a family member while the family permit, registration certificate or residence card is current. ie after the permit expires, there don't seem to be any rights. That is why i'm confused why a solicitor is advising to remain, when there doesn't seem to be any legal basis that I can refer to for doing it.

[Orxy]

Have you received a letter/ email from the Home Office confirming your Case ID and that your case is under consideration?

[magpie11]

Have you received a letter/ email from the Home Office confirming your Case ID and that your case is under consideration?

Yes I have a CoA for the EU Settlement application, and am expecting one for the RC soon (i've done biometrics).

[Orxy]

So your COA should state that you are residing legally in the UK while your case is under consideration.

[magpie11]

So your COA should state that you are residing legally in the UK while your case is under consideration.

The CoA doesn't say anything like that. In the guidance notes (https://assets.publishing.service.gov.u ... 8.0ext.pdf ) it says:

"The COA does not confirm that the holder has a right of residence in the UK:
* a ‘short’ COA confirms receipt of the holder’s application-it does not confirm any right to work for the applicant
* a ‘long’ COA confirms receipt of the holder’s application and confirms the applicant’s ability to take employment in the UK whilst their application is outstanding"

[Orxy]

This is what it says for my clients who applied for a pre-settled status:
CERTIFICATE OF APPLICATION
This certificate of application confirms receipt of your valid application under the
EU Settlement Scheme. You will receive a decision shortly.
You can continue to rely on any rights you have as an EEA or Swiss citizen, or as
the family member of an EEA or Swiss citizen.

As I previously stated, you do not have an automatic right to work in the UK while your case is under consideration (as you are extended family member), however, COA confirms that you continue to rely on your rights as a family member of an EEA national.

[magpie11]

This is what it says for my clients who applied for a pre-settled status:
CERTIFICATE OF APPLICATION
This certificate of application confirms receipt of your valid application under the
EU Settlement Scheme. You will receive a decision shortly.
You can continue to rely on any rights you have as an EEA or Swiss citizen, or as
the family member of an EEA or Swiss citizen.

As I previously stated, you do not have an automatic right to work in the UK while your case is under consideration (as you are extended family member), however, COA confirms that you continue to rely on your rights as a family member of an EEA national.

Yes its the same letter.

I read that letter as being much more vague, that it isn't granting any rights, and it is just saying you can use any rights you already have (even without the letter). In the case of an unmarried partner that would mean you don't have any rights, since you're not a family member without a current FP/RC.

I guess it doesn't really matter, i'll just do what the immigration lawyer said, although I don't feel so reassured by it.

[Orxy]

No, since you were issued with FP, you have the same rights as your EEA national.
You are wrong in saying that without actual visa in your pocket you have no rights. You have a valid visa, you applied within validity of the same therefore your stay extends for up to six months while it is under consideration for the RC.
If the application is refused, the time your case was considered will not be considered as overstaying. You will have the rights to re-apply by making a fresh application or appealing the decision.

[magpie11]

No, since you were issued with FP, you have the same rights as your EEA national.
You are wrong in saying that without actual visa in your pocket you have no rights. You have a valid visa, you applied within validity of the same therefore your stay extends for up to six months while it is under consideration for the RC.

Ok thanks.

If the application is refused, the time your case was considered will not be considered as overstaying. You will have the rights to re-apply by making a fresh application or appealing the decision.

The immigration lawyer I spoke to said differently, that if my application was rejected I would be overstaying from the date at the end of my FP. She did however say that I would be able to appeal it and I would be able to remain while the appeal was underway.

thanks for your help

[Orxy]

That is wrong advice unfortunately.

[Richard W]

The immigration lawyer I spoke to said differently, that if my application was rejected I would be overstaying from the date at the end of my FP.

I believe the law is untested on this matter. The argument is that the family permit and residence card for an extended family member are to be treated as visas because they are permissions rather than confirmations of right. They differ in that they can automatically cease to have effect because the relationship has ended or the sponsor has ceased to be resident or has ceased to be a qualified person or permanent residence.