EEA4 after HSMP/Tier 1

[Obezag]

I am a US citizen who moved to the UK over 5 years ago on a student visa. My German girlfriend moved with me here and we began living together. After school, I got an HSMP visa (post 2006 rules), which was extended/converted to Tier 1 in 2009. I accidentally overstayed my student visa before receiving the HSMP, and after a brief visit to Germany for a wedding, I was denied re-entry to the UK for 6 weeks until my visa was approved. This has since been expunged on some level, and is no longer reflected in my passport. I re-entered the UK in 2007, and have been here without issue for 4 years and 6 months.

I am looking for the best (quickest/cheapest) route to UK citizenship.

If I apply for ILR, my understanding is that I will have to wait until next year, as this is when I will have been in the UK for 5 years under the HSMP/Tier visas. I have been told by some that student time does not count toward this 5 year number (?). I have alternatively heard that student time would count, but that overstaying my student would count as a break in the 5 year period (?).

Because of the above issues, and in an attempt to avoid the expense of applying for ILR, I am looking into applying for permanent residency as the partner of an EEA citizen who has been here for 5 years – using the EEA-4 form.

My questions are:

1. Will my being in the UK on a student visa, and a work visa, discount me from being eligible for this scheme?
2. Does my wife need to apply at the same time as me, using the EEA-3 form?
3. Will my little hiccup with immigration cause any issues?
4. If I am approved, when will I be eligible to apply for citizenship? 1 year after approval, 1 year after application for permanent residency, or 1 year after eligibility for permanent residency?

Many thanks in advance for your help.

[Jambo]

1. Will my being in the UK on a student visa, and a work visa, discount me from being eligible for this scheme?

ANSWER REMOVED AS IT WAS WRONG.

2. Does my wife need to apply at the same time as me, using the EEA-3 form?

No. She can if she wish but doesn't need to. However, if you make an application for EEA Residence Card, you will need to send her passport/ID card with the application.

3. Will my little hiccup with immigration cause any issues?

Not a problem with regards to a new EEA application. With regards to ILR, maybe. Better to ask experts in the ILR forum.

Your quickest way forward would be ILR but you will need to check if the overstay has broke your 5 years residence. You cheapest route is EEA route.

[Obezag]

Thanks. That's unfortunate.

Is my EEA4 application guaranteed to be rejected, then? And if it is, would I lose the ability to extend my Tier 1 visa?

I ask because one of the The EEA4 form seems to be a bit ambiguous. It seems that what is required is that I prove that my wife has been asserting treaty rights for 5 years, and that I have been living with her during this time.

So perhaps it is worth a shot to try for the EEA4 - and if I don't get it, then go for the ILR in January.

[Nimitta]

You can't apply for EEA Permanent Residence based on the years under UK immigrations rules. You can switch from UK immigration rules to EEA regulations. However, this will reset the 5 years count for Permanent Residence.

Are you sure? My understanding is that one cannot switch from EEA to domestic rules, i.e. one cannot enter on EEA FP, get an RC and in, say, three years submit application for an ILR.

But a nonEEA can enter the UK in literally any way one wishes to (although for refugees it might be different), and, provided he/she is legally married to an EEA citizen who has being exercising treaty rights for five years and all those five years they were husband and wife, and the nonEEA citizen spent five years in the UK (residence requirement), nothing can stop the nonEEA from applying for permanent residence. He gains the status of permanent residence automatically just by virtue of being a German citizen's husband (who exercises treaty rights bla-bla-bla). He can enter on student visa or illegally - it is irrelevant. The status of EEA family member is the determinative one.

Or maybe I got it wrong? The timeline is the US citizen entered the UK in 2007 being married to a German citizen. If so, it does not matter how exactly he entered the UK. It looks to me like somewhere in 2012 he has the right to apply for PR. His being in the UK on a visa seems to be an unusual choice, but does not deprive him of his EEA rights.

Am I wrong?

[Jambo]

Are you sure?

Reading your post, I'm not sure any more.
I suggest you wait for other comments as I might got it wrong here.

[pinkpanter]

I have been told by some that student time does not count toward this 5 year number (?). I have alternatively heard that student time would count, but that overstaying my student would count as a break in the 5 year period (?).

Usually student time does not count towards 5 year period in UK immigration law. However, in your situation, if you have been living with your EEA partner/spouse for 5 yrs and could prove that you have been in relationship with your EEA partner during your student visa/Tier 1 status (including before marriage at least 2 years and after marriage period) and it covers 5 years, then i think you should be eligible for PR.

Your 5 yrs period might be broken in Uk law due to your overstayed period.

[pinkpanter]

Is my EEA4 application guaranteed to be rejected, then? And if it is, would I lose the ability to extend my Tier 1 visa?

If your EEA4 application would reject, then it would not affect your Tier 1 visa.

[Obezag]

The timeline is the US citizen entered the UK in 2007 being married to a German citizen.

This brings up another wrinkle. The wedding we went to in 2007 was not our own - but her brother's (I apologize if my post was misleading). My wife and I were not married until 2008. However, I was hoping that for the 3 years in the UK prior to this I would be considered an 'unmarried parther' of an EEA national. We have no certificate of civil partnership but I should be able to document that we were in fact living together.

Will this work?

[Obezag]

If your EEA4 application would reject, then it would not affect your Tier 1 visa.

What if I am rejected for EEA4, but the decision comes back after my Tier 1 has expired? Will I still be able to apply for ILR under the Tier 1 scheme?

[pinkpanter]

I am pretty sure, if your application is pending for decision under UK law and your visa has expired then it would not effect your legal status.

However, here you are applying under EU law and if it rejected then I don't think you would be able to apply for ILR. The reason is that if you apply ILR (after PR has rejected and Tier 1 has expired) then HO would object that you have overstayed (although you are safe under EU law due to family member of an EEA). If you give argument that you are a family member of an EEA and therefore not overstayed, then again HO have reason for objection that you cannot switch from EEA to domestic law until you acquire PR.

I would advice you to take professional advice from solicitor or someone experience on the ILR forum before paying huge fee for ILR application.

[86ti]

However, I was hoping that for the 3 years in the UK prior to this I would be considered an 'unmarried parther' of an EEA national.

http://www.immigrationboards.com/viewtopic.php?t=74703

[Kitty]

If you are the unmarried partner of an EEA national, then you do not become eligible to be treated as a "family member" (with associated rights of residence" until you have applied for a residence document.

Once you are married, however, your rights are automatic.

I would say that Nimitta is right that you can count any eligible time int he UK towards Permanent Residence under EEA rules, regardless of whether you had entry clearance or leave to remain under the Immigration Rules.
However, you can only count from the date of your wedding, because before that you did not have "family member" status.

So you become eligible for ILR next year, or for PR in 2013.

If for any reason your ILR is refused, then you could always apply for a Residence Card at that point and rely on your family-member status for PR at a later date.

[pinkpanter]

Posted: Wed Aug 17, 2011 2:32 pm Post subject:

--------------------------------------------------------------------------------

If you are the unmarried partner of an EEA national, then you do not become eligible to be treated as a "family member" (with associated rights of residence" until you have applied for a residence document.

Once you are married, however, your rights are automatic.

I would say that Nimitta is right that you can count any eligible time int he UK towards Permanent Residence under EEA rules, regardless of whether you had entry clearance or leave to remain under the Immigration Rules.
However, you can only count from the date of your wedding, because before that you did not have "family member" status.

So you become eligible for ILR next year, or for PR in 2013.

If for any reason your ILR is refused, then you could always apply for a Residence Card at that point and rely on your family-member status for PR at a later date.

As per my understanding OP is eligible for PR right now. Please see below link for info.

http://www.lawfirmuk.net/unmarriedpartner_e.html

[86ti]

As per my understanding OP is eligible for PR right now. Please see below link for info.

http://www.lawfirmuk.net/unmarriedpartner_e.html

This link does not say that (and should be updated regarding A8 nationals).

[Jambo]

I've removed my original answer as my advice was wrong.

It's seems that you can either stick to the tier-1 route (if the overstay is OK). This is the quickest route.
or apply for a Residence Card now using EEA2 form and for confirmation of PR status 5 years after your marriage. This is the cheapest route.

[pinkpanter]

pinkpanter wrote:
As per my understanding OP is eligible for PR right now. Please see below link for info.

http://www.lawfirmuk.net/unmarriedpartner_e.html


This link does not say that (and should be updated regarding A8 nationals).

My understanding from the link (not saying in the link). I quoted below:

2. Unmarried Partners of EEA nationals exercising treaty rights in the UK

We can divide all EEA nationals into two categories:

o Those having full rights of work/residence without any requirement to register with UKBA

o Those requiring registration with UKBA, if they take employment (A8 nationals)

Entry clearance cases

In the former case, unmarried partners can make an application for a family permit and then make an application for a residence card in line with the registration certificate of the sponsor. Whilst, in the latter case, unmarried partners can make an application for a family permit and then make an application for a Family Member Residence Stamp.

Leave to remain cases

In the former case, unmarried partners can make an application for a residence card (Limited leave to remain for five years) in line with the registration certificate of the sponsor. Whilst in the latter case, unmarried partners can make an application for a Family Member Residence Stamp (limited leave to remain for 1 year) in line with their partner's registration with UKBA. It would then be necessary for them to make an application for a residence card (limited leave to remain for 5 years) in line with their partner's registration certificate before the expiry of their Family Member Residence Stamp.

In addition to the above, the following factors must also be noted:

o It is not necessary for the sponsor (EEA national) to apply for a registration certificate at any time during their stay in the UK but having an EEA registration certificate would greatly facilitate their partners/family members’ applications.

o It is at the discretion of the Entry Clearance Officer to issue an EEA family permit to an unmarried partner.

o Unmarried partners are permitted to take any employment or be self-employed whilst their partners are exercising their treaty rights in the UK.

o Unmarried partners can make an application for permanent residence on successfully completing 5 years residence under the 2006 EEA regulations.

As it says above " Unmarried partners can make an application for permanent residence on successfully completion of 5 years residence under the 2006 EEA regulations" if his/her EEA partner exercises treaty right.

The OP says above that he can show 3 years unmarried relationship plus his two years married period providing his EEA exerciseing treaty right, may qualify for PR (it is my understanding, may be i am wrong)

[pinkpanter]

However, OP does not have RC on the basis of unmarried partner. That might be a problem...

[86ti]

However, OP does not have RC on the basis of unmarried partner. That might be a problem...

Yes, it is because

Unmarried partners can make an application for permanent residence on successfully completing 5 years residence under the 2006 EEA regulations.

And now guess what the EEA regulations say about unmarried partners...

[pinkpanter]

pinkpanter wrote:
However, OP does not have RC on the basis of unmarried partner. That might be a problem...


Yes, it is because

Quote:
Unmarried partners can make an application for permanent residence on successfully completing 5 years residence under the 2006 EEA regulations.


And now guess what the EEA regulations say about unmarried partners...

EEA regulations says:

a person who is the partner of an EEA national (other than a civil partner) and can prove that he is in a durable relationship with the EEA national.

Only if a person has been recognised as an extended family member (including unmarried partners) and issued with a residence card (or EEA family permit or registration certificate) is he to be treated as a “family memberâ€

[Obezag]

http://www.immigrationboards.com/viewtopic.php?t=74703

This thread has two stories that are similar to mine, but they are not identical. In the first (rastica), the application is an unmarried partner of an EEA national, whereas I am a spouse, and therefore a direct family member. In the second (weareawesome) the application was rejected because the applicant was in the UK illegally for 2 years.

It appears that I have nothing to lose in attempting an application (other than time and effort). Is there is enough likelihood of a positive outcome to warrant an attempt? I wonder if there are any stories of successful applications similar to mine.

If not, if you could provide links to a couple more threads with similar stories, I'd feel much better about giving up.

[Kitty]

The link between those stories is that in both cases, time spent in the UK as an unmarried partner does not count towards Permanent Residence until you EITHER apply for a Residence Card, OR get married to your EEA national partner.

Unfortunately you cannot "backdate" recognition of your unmarried partnership.