EEA Family Permit query (employment contract)

Hi all,
I am a Portuguese citizen who married to a Brazilian citizen two years ago in Ireland.
Unfortunately my wife is not able to renew her residence here (Ireland) as she has never lived in another EU member State apart of Ireland before and therefore she got her residence denied after 10 months waiting.
My Company is currently moving my Employment contract over to the UK and I should be starting in July. My wife will be returning to Brazil and applying for the "EEA Family Permit" in the meantime.
As my contract will be an extention of the current one, it will be for 5 months. Do you think this is enough for the British Immigration? Is there any risk to have her application refused?
Thanks for your attention.

Does it clearly say in the contract that your services will be employed in the UK itself or does the extension make it look like you will still be working in Ireland?

rafo wrote: My Company is currently moving my Employment contract over to the UK and I should be starting in July. My wife will be returning to Brazil and applying for the "EEA Family Permit" in the meantime.
As my contract will be an extention of the current one, it will be for 5 months. Do you think this is enough for the British Immigration? Is there any risk to have her application refused?
Thanks for your attention.

I would strongly suggest you should apply for the EEA family permit while she is still in Ireland. Do NOT do it from Brazil or you will be evaluated according to the UK rules (and not the EU rules).

Her application will be accepted even if you do not have work. Five months is good. But you (and her) remaining in the Uk depends on you exercising your treaty rights, also after the end of the 5 months. So you will need to find a new job there if you want to remain (or you can study).

Hi, thanks for your answers.
Just to give you more information, the new contract will be completely new. It will be prepared by another office based in the UK and will contain my details as living in the UK. It will not have anything to do with Ireland. Also after the 5 months I must become a permanent employee following the company's standards.
Regarding my wife's EEA Permit application, unfortunately it will not be possible to apply from Ireland because she is not resident in this country and I dont think we can wait for the visa to be granted longer than one month in Ireland as we are willing to move over to the UK in the beginning of July. What is the risk if she applies from Brazil?
Regards,
Rafael

Directive/2004/38/EC wrote:Do NOT do it from Brazil or you will be evaluated according to the UK rules (and not the EU rules).

I am sorry but I do not think that is correct at all. Why should the Brazilian wife of a Portugese citizen applying to come to UK be evaluated under the UK immigration rules just because she is applying from Brazil?

rafo wrote:What is the risk if she applies from Brazil?

The same as applying for a EEAFP almost anywhere else in the world. Just get all the documents correctly and apply. Keep in mind that they might ask for proof of co-habitation and so be a bit 'extra' prepared as it really isn't pleasant flying half way round the world and then facing some trouble with a minor paperwork.

Directive/2004/38/EC wrote:Do NOT do it from Brazil or you will be evaluated according to the UK rules (and not the EU rules).

Maybe I am too strong in saying it this way. But if you did have a chance to apply from Ireland (it should only take a few days), then the application will definitely be done under EU law (and you will have all your material at hand).

Docterror wrote:I am sorry but I do not think that is correct at all. Why should the Brazilian wife of a Portugese citizen applying to come to UK be evaluated under the UK immigration rules just because she is applying from Brazil?

I agree that I dislike this, but that seems to be what is happening. If you read the UK DSPs (Diplomatic Service Procedures), they make a distinction whether the application is made in an member state or not.

The Irish are taking this to the extreme, and thus all the EU citizens with non-EU spouses who are having to consider leaving. That is why I think it is very important to consider applying at the British Embassy in Ireland before you leave Ireland.

Since you have resided in the EU already, you should clearly and explicitly state that in your application and say that the application should be considered on the basis of your prior residence in an EU member state. Include proof of your stay there. (This is all not needed if you apply in Ireland).

Directive/2004/38/EC wrote:I agree that I dislike this, but that seems to be what is happening.

I am sorry, but I do not agree with that assessment as well. A lot of applications for the EEAFP are indeed issued outside the EEA, none quite as prominent in this board as the poster 'yankeegirl' who was granted one in USA as recently as March.

But if you did have a chance to apply from Ireland,... I think it is very important to consider applying at the British Embassy in Ireland before you leave Ireland.

Since the residence for the wife has already been denied after the 10 month wait, I don't think the British Embassy in Dublin will even accept the case as she is no longer "legally" resident there. Doesn't hurt to ask, but the chances are indeed very slim.

If you read the UK DSPs (Diplomatic Service Procedures), they make a distinction whether the application is made in an member state or not

Theoretically, yes they do. But practically there is no difference at all. If anything, the misinterpretation of Arkich ruling has only made it more difficult to apply for one from within the EEA. A look at the required documents to apply for the EEAFP from outside the EEA is almost identical to the evidence needed to apply from inside the EEA. The applicant has to be legal in the country that they apply from and that's all.

The Irish are taking this to the extreme

But the British are not! And the case in discussion is the British EEAFP.

I just wanted to say that I think you are both right lol. I talked with an advisor before returning to the US to apply for the FP. She told me that there was some rule or something recently in effect that gave consulates the choice to apply UK standards to EU applications. (It was something to that effect, I don't remember exactly how she phrased it). She had suggested I bring more documentation than the FP guidance notes required (I actually used the spousal visa requirements as a guideline) as she was unsure if this was actually being done in practice yet. I was fortunate in that where I applied was not doing that and only required minimal documentation.

Yankee girl, sorry to be picky, but I would rather clear out this confusion so that I can better informed in case I have made a mistake. I think that the advisor was only cautioning you to err on the safe side because of this statement in 21.4.1 of the UK DSPs.

If the applicant cannot demonstrate lawful residence in an EEA Member State, which includes those applying from outside the EEA, they would also be expected to meet the relevant requirements in the Immigration Rules for leave to enter the UK as the family member of an EEA national.

But the requirements in the Immigration rules to enter as the family member of an EEA national is the same as derived drom Directive 2004/38/EC. This can be seen by a look at 2.3 of of this ECI

which states:-

...the family member would be expected to meet the requirements in the immigration rules (other than those relating to entry clearance ) for leave to enter the UK as the family member of the EEA national....

So, the requirements relating to entry clearance under the immigration rules do not have to be met and only the immigration rules to enter as the family member of an EEA national have to be met.

I think that the advisor was only cautioning you to err on the safe side because of this statement in 21.4.1 of the UK DSPs.

That could be; just wasn't how she explained it. I was under the impression that it was something relatively new that had just come down the pipeline.

The old adage is true, I learn something new every day

Docterror wrote:

Directive/2004/38/EC wrote:But if you did have a chance to apply from Ireland,... I think it is very important to consider applying at the British Embassy in Ireland before you leave Ireland.

Since the residence for the wife has already been denied after the 10 month wait, I don't think the British Embassy in Dublin will even accept the case as she is no longer "legally" resident there. Doesn't hurt to ask, but the chances are indeed very slim.

I respectfully disagree. Nobody, including the Irish government, suggests that the non-EU spouses are illegally in Ireland. They have not been deported or even told they must leave the country. And nobody has suggested the UK government thinks they are illegally in Ireland.

If you live in Ireland, I recommend applying in Dublin for several reasons:
(1) Any required documentation is easily available
(2) After all the turmoil of a long application with the Irish government, it resolves the "will it be issued?" question quickly and easily and then it is done
(3) The person is not illegally in Dublin (and thus definitely is handled under the EU laws)
(4) There is no problem if you do not use the EEA family permit – but it is there if you want to use it.

Docterror wrote:

Directive/2004/38/EC wrote:If you read the UK DSPs (Diplomatic Service Procedures), they make a distinction whether the application is made in an member state or not

Theoretically, yes they do. But practically there is no difference at all. If anything, the misinterpretation of Arkich ruling has only made it more difficult to apply for one from within the EEA. A look at the required documents to apply for the EEAFP from outside the EEA is almost identical to the evidence needed to apply from inside the EEA. The applicant has to be legal in the country that they apply from and that's all.

If you apply from outside the EU, you will likely have to ensure that the embassy uses the “previously resident in EUâ€

Thanks for all answers. They are helping a lot.
Suppose we decide to try applying for the EEAFP from Dublin. Would you know what documents are required?
Regards.

Directive/2004/38/EC wrote: Nobody, including the Irish government, suggests that the non-EU spouses are illegally in Ireland.

There is reason that the word 'legally' was put in inverted commas. Ofcourse, the non-EEA family member of an EEA national is never a illegal immigrant and I am not suggesting that she is. But according to 21.4.1 of the UK DSP instructions :-

If the applicant cannot demonstrate lawful residence in an EEA Member State, which includes those applying from outside the EEA, they would also be expected to meet the relevant requirements in the Immigration Rules for leave to enter the UK as the family member of an EEA national. If they satisfied the Rules, they would still be issued with an EEA Family Permit

So, even if an applicant is lawful, but cannot demonstrate that they are legally resident, the Embassy may not accept the application. If they do, then terrific.

I agree that it should make no difference in the end

Great! So, it would not make difference in the required documents if the application was made in Brazil or Ireland. But, what I did not understand was...

If you apply from outside the EU, you will likely have to ensure that the embassy uses the “previously resident in EUâ€

[quote="Docterror"][quote]If you apply from outside the EU, you will likely have to ensure that the embassy uses the “previously resident in EUâ€

Just wondering... my wife has been having English classes since her arrival to Dublin in order to have an activity, but we havent applied for a "student visa". I think if we asked the school, they could help us to get a student visa stamped on her passport.
Do you think this would be enough for the British Embassy consider her application for the EEAFP from Dublin?
Regards.

rafo wrote:Just wondering... my wife is having English classes since her arrival to have an activity, but we havent applied for a "student visa". I think if we ask the school, they could help us to get a student visa stamped on her passport.
Do you think this would be enough for the British Embassy consider our application for the EEAFP from Dublin?
Regards.

Is your wife illegally in the country? (I doubt it, but it is worth asking explictly).

If she arrived in the country legally and has not overstayed and has not been asked to leave, then she is legally in Ireland. If she is legally in Ireland, she should have no problem applying for an EEA Family Permit today or next week or the week after.

To be very honest with you, I would suggest you plan an overnight trip to Belfast (or London!). Apply today for an EEA family permit for the trip. I think you will find it approved very quickly. You may also want to apply for a multiple entry "re-entry permit" from the Irish so that you continue to be legally resident in Ireland. And then have a great weekend in the UK (note that you and your wife will be resident in the UK according to UK law any time you visit the UK).

OPTIONAL: When you are done with your weekend in London or Belfast, send all possible evidence of your weekend of residence in another EU country to department of Justice for consideration with your application for EU1

According to the Department of Justice a weekend in the UK is not considered being a resident by the Irish justice Department.

According to them they apply the UK Interpretation of Residency, which is:

"By UK law you are regarded as resident in the UK if you are actually in N. Ireland/UK for 183 days or more in the UK tax year (April to April)."

If my wife applied for the EEAFP (and suppose the British Embassy accepted her application from Dublin) to spend a weekend with me in the UK, the visa would be valid for 6 months (the minimun duration visa they issue), right?
If so, that means she would be allowed to return to Ireland as she has a valid UK visa... is that correct?
If the above are correct, I will try because my wife would have a UK visa and therefore she would be ready to move when my Employment contract in the UK starts (July).

rafo wrote:If my wife applied for the EEAFP to spend a weekend with me in the UK, the visa would be valid for 6 months (the minimun period of time), right?
If so, that means she would be allowed to return to Ireland as she has a valid UK visa... is that correct?
If the above are correct, I will try because my wife would have a UK visa and therefore she would be ready to move when my Employment contract in the UK starts (July).

I am not sure if all UK issued EEA family permits are for 6 months. But it should be no problem. You should explain in the application that it is for a holiday visit, and that you may also be moving to the UK for work during July. Ask that it is issued for the full 6 months to allow you to come and go at will during that time.

For applications to stay for more than 3 months, you may be asked for more evidence than for stays of less than 3 months, but even if there is not yet a contract for the employment starting in July they should still issue the family permit. Bring what you can, like emails discussing the contract, or written letters from the potential employer (if there are letters).

Well, I do have a confirmation that my position can be transferred to the UK from July on and that would not be a problem to prove as the company is willing to help me with this. They could also prepare a letter to prove that.
Also we could explain her visit to the UK is important as she will help me to find a good house to rent, etc...
The only problem is if they deny her application from Dublin due to the pending residence status. I would have spent money with the hotel booking and flight tickets for nothing.
But I still think it is worth the risk.

dsab85 wrote:According to the Department of Justice a weekend in the UK is not considered being a resident by the Irish justice Department.

According to them they apply the UK Interpretation of Residency, which is:
"By UK law you are regarded as resident in the UK if you are actually in N. Ireland/UK for 183 days or more in the UK tax year (April to April)."

It is considered residing in the UK by the UK government. The UK transposition of Directive 2004/38/EC is The Immigration (European Economic Area) Regulations 2006 says:

Initial right of residence
13.—(1) An EEA national is entitled to reside in the United Kingdom for a period not exceeding three months beginning on the date on which he is admitted to the United Kingdom provided that he holds a valid national identity card or passport issued by an EEA State.
(2) A family member of an EEA national residing in the United Kingdom under paragraph (1) who is not himself an EEA national is entitled to reside in the United Kingdom provided that he holds a valid passport.
(3) But—
(a) this regulation is subject to regulation 19(3)(b); and
(b) an EEA national or his family member who becomes an unreasonable burden on the social assistance system of the United Kingdom shall cease to have the right to reside under this regulation.

UK law is clear that the EU national and the non-EU family member are residing in the UK for any visit to the UK made on the basis of Directive 2004/38/EC. EU law (in the Directive itself) is also clear that this is residing.

And in fact, the Irish transposition of the Directive says only that the person must be lawfully resident in another member state, and does not specify the number of days. Nobody has pushed back on the Irish Department of Justice on this, and until they do, Justice will not move an inch.

(2) These Regulations shall not apply to a family member unless the family member is lawfully resident in another Member State and is -
(a) seeking to enter the State in the company of a Union citizen in respect of whom he or she is a family member, or
(b) seeking to join a Union citizen, in respect of whom he or she is a family member, who is lawfully present in the State.

rafo wrote:Well, I do have a confirmation that my position can be transferred to the UK from July on and that would not be a problem to prove as the company is willing to help me with this. They could also prepare a letter to prove that.
Also we could explain her visit to the UK is important as she will help me to find a good house to rent, etc...
The only problem is if they deny her application from Dublin due to the pending residence status. I would have spent money with the hotel booking and flight tickets for nothing.
But I still think it is worth the risk.

You do not need hotel bookings or flight tickets.

You need to be married, be traveling together and have valid passports. That is all for a short visit.

As discussed, the job documentation may be needed for a longer term family permit.

Ok, so just to confirm... I fill up the EEAFP Application form specifying the days we will stay and also include the address of a hotel in the UK, but we do not need to prove that with tickets or the hotel bookings (is this gonna work?). I also bring letters from my company to prove that we are actually visiting the country because we will be moving definitely to the UK shortly. Is that correct?

[quote="Directive/2004/38/EC"][quote="Docterror"][quote]If you apply from outside the EU, you will likely have to ensure that the embassy uses the “previously resident in EUâ€