Switching from Tier 1 (G) to EEA Residence Card. Downsides?

Hi all,

Looking for some advice as I haven't found the necessary information on the forum.

Following is my situation:
I'm currently on a Tier 1 (General) visa. The extension is going to expire in October 2015 however I wouldn't have completed 5 years to allow me to apply for an ILR at that stage. I will be around 6-7 months short.

But at the same time I am also spouse of an EU national (who's exercising treaty rights in the UK) and technically eligible to apply for an EEA Residence Card. I am quite tempted to go for this option instead of extending the Tier 1 as there is practically no cost involved in getting a EEA Residence Card. We have lived together since I came to the UK in 2011.

However, I am not sure where this puts me in terms of gaining Permanent Residence in the UK. Are there any downsides to switching from Tier 1 (G) to EEA residence card?

I understand that I should be able to apply for a Permanent Residence Card (which is equivalent to Indefinite Leave to Remain?) after having spent 5 years in the UK and also 5 years of living with the EEA family member. i.e. it does not matter when the EEA Residence Card itself was issued? Am I correct in understanding this?

I need to decide this now as I just realised that Tier 1 extensions must be applied for before April 2015.

Thanks in advance for your thoughts.

cheers
Mr Lucifer

mrlucifer wrote: I understand that I should be able to apply for a Permanent Residence Card (which is equivalent to Indefinite Leave to Remain?) after having spent 5 years in the UK and also 5 years of living with the EEA family member. i.e. it does not matter when the EEA Residence Card itself was issued? Am I correct in understanding this?

Correct. Just make sure that your other half continues exercising the treaty rights.

I have a residence card (EEA2) and also just received ILR last week. You can have both T1(G) and EEA2 RC at the same time if you like. The only significant reason why I spent £1000+ and waited for 4+ months for the ILR is that I still have almost 3 years till I complete 5 years as a spouse of an EEA national.

It's really nice to have a residence card, because you can skip those ridiculous stuff like landing cards, fingerprint scanning etc and use the EEA queues at the UK border.

If I were you, I'd ditch the T1(G) and ILR right away. There's no downside to EEA2/4 relative to T1(G)/ILR. On the contrary, they're more useful. My current employer didn't quite appreciate the expiry date of my T1(G) and decided to hire me only after seeing my RC and asking the HO about my right to work in the UK as an EEA family member.

Hi yoshi_jp

Thanks for the reply!
..Especially for clarifying that one can have a EEA RC and T1(G) at the same time.

yoshi_jp wrote: Just make sure that your other half continues exercising the treaty rights.

True, and hope that UK stays in the EU for another year and a bit.

But consider this scenario: I get a EEA2 RC and do not bother extending the T1(G), subsequently for one reason or the other I'm unable to apply for EEA4 PRC... then is it possible to go back to the ILR route? I'm guessing not..

mrlucifer wrote:But consider this scenario: I get a EEA2 RC and do not bother extending the T1(G), subsequently for one reason or the other I'm unable to apply for EEA4 PRC... then is it possible to go back to the ILR route? I'm guessing not..

Correct. you cannot go back to the ILR route unless you're prepared to start all over again from scratch.

If, for example, you get divorced, you'll still be able to retain your right to reside, provided that both of you have spent at least 3 years legally in the UK as a married couple.

I would agree with yoshi_jp's interpretation but disagree with his advice to scrap your T1(G). Depending on your financial circumstances, better to pay up for a T1(G) extension and keep both routes open. One never knows how the UK may decide to arbitrarily mis-apply EU law.

mrlucifer wrote:Hi all,

Looking for some advice as I haven't found the necessary information on the forum.

Following is my situation:
I'm currently on a Tier 1 (General) visa. The extension is going to expire in October 2015 however I wouldn't have completed 5 years to allow me to apply for an ILR at that stage. I will be around 6-7 months short.

But at the same time I am also spouse of an EU national (who's exercising treaty rights in the UK) and technically eligible to apply for an EEA Residence Card. I am quite tempted to go for this option instead of extending the Tier 1 as there is practically no cost involved in getting a EEA Residence Card. We have lived together since I came to the UK in 2011.

However, I am not sure where this puts me in terms of gaining Permanent Residence in the UK. Are there any downsides to switching from Tier 1 (G) to EEA residence card?

I understand that I should be able to apply for a Permanent Residence Card (which is equivalent to Indefinite Leave to Remain?) after having spent 5 years in the UK and also 5 years of living with the EEA family member. i.e. it does not matter when the EEA Residence Card itself was issued? Am I correct in understanding this?

I need to decide this now as I just realised that Tier 1 extensions must be applied for before April 2015.

Thanks in advance for your thoughts.

cheers
Mr Lucifer

Just want to be really clear about one thing about applying for EEA4 PRC.
The Guidance notes state:

Third-country national family members who acquire permanent residence under the 2006 Regulations can apply for confirmation of their permanent residence status. Permanent residence will normally be acquired after you have lived in the United Kingdom for a continuous period of five years in accordance with the EU laws relating to free movement rights that were in force during the five-year period.

If I was resident in the UK (with my EEA partner) for a continuous period of 5 years, but for most of the time I also held a T1(G) visa, then can it still be considered that I was in the UK in accordance with the EU laws relating to free movement rights that were in force during the five-year period.?

+

mrlucifer wrote:If I was resident in the UK (with my EEA partner) for a continuous period of 5 years, but for most of the time I also held a T1(G) visa, then can it still be considered that I was in the UK in accordance with the EU laws relating to free movement rights that were in force during the five-year period.?

Yes. Because, what you are doing here is almost completely immaterial. What matters is what your spouse is doing.

I understand that I should be able to apply for a Permanent Residence Card (which is equivalent to Indefinite Leave to Remain?) after having spent 5 years in the UK and also 5 years of living with the EEA family member

Are you married?

Living together is not enough in your case. The 5 years for PR under EEA regulations would start when you were living in the UK as married.

Jambo wrote: Living together is not enough in your case. The 5 years for PR under EEA regulations would start when you were living in the UK as married.

Please could you explain this interpretation? This doesn't quite sound right.
FYI we are married, but only for just over a year.

Very simple.

Under EEA regulations, only spouse of EEA national has automatic rights. Unmarried partner doesn't have automatic rights. So time under EEA regulations is counted (automatically) if married. If unmarried, time only counts if an application under the EEA regulations has been made (the authorities "approving" the relationship). In your case, you didn't make an application as unmarried so that time is not counted for PR.

Stick to tier-1(g) or wait another 4 years for PR under EEA regulations.

Jambo wrote:Under EEA regulations, only spouse of EEA national has automatic rights. Unmarried partner doesn't have automatic rights.

So you think if an unmarried partner applied and got a RC after say 2years of durable relationship, then s/he can't apply for a PRC after 5 years of durable relationship, but only after 5 years since the RC was actually issued?

I don't believe that's what the UKVI Guidance states.

mrlucifer wrote: I don't believe that's what the UKVI Guidance states.

Good for you.

See 7(3)

Unfortunately, Extended family member have no automatic right under the Directive or EEA Regulation. The can only be granted that right by the memberstate, if in all the circumstances it is appropriate to do so.

Until such a time when a right of residence is conferred on them, rights under EU law cannot be accrued.

This follows from the case of Rahman.

Therefore Jambo is 100% correct.

Thanks Jambo and Obie for your responses.

I'm aware I might be reading too much into this and interpreting things how I'd like them to be so please bear with me.
But to be honest, 7(3) merely states under what conditions an extended family member is to be treated as a family member.
For this they have to (in my case):
a. have a vaild RC &&
b. Continue to satisfy either 8(2), (3), (4) or (5)

Once these conditions are true an extended family member == family member.

Moving on, for a PRC an extended family member fitting the above criteria need satisfy the same requirements as a family member.
i.e. - be in the UK for 5 years
- lived with the EEA national for 5 years
- EEA national bas been exercising treaty rights.

Have I missed something here?

What you are missing is the timing.

mrlucifer wrote: i.e. - be in the UK for 5 years
- lived with the EEA national for 5 years as a family member
- EEA national bas been exercising treaty rights.

You need to complete 5 years as a family member. You only regarded as family member if you are married or (if not married) from the day the RC is issued as unmarried partner.

As I said, stick to the tier 1(g).

So I called European enquiries today, and the guy said that the time towards a PRC would be counted from when the RC is issued, not even from the time I've been married which I found rather surprising.

Interestingly, he also said that if I applied for a EEA RC then I would automatically lose the T1 (G) visa. I understood that the two are not mutually exclusive. That's also what yoshi_jp confirmed on this thread earlier.
He said he was "110% confident", and had no clue how anyone might have a T1(G) and and EEA RC at the same time.
Sound like a bunch of bollocks to me.

Thoughts?

He might be "110% confident" but he is "100% wrong".
This would not be the first time the enquiry line gives wrong information.