SWITCH FROM UK VISA TO EEA2 - POSSIBLE?

[Rozen]

Wonder if anyone can give some advice on this….

XYZ has been here on a UK visa for just over five years now. She is married to an EU citizen (exercising his Treaty rights – work). She applied for FLR visa six months ago, but still hasn’t been given a decision, and is getting anxious, because she needs to travel back to her non-EU home country asap to see a seriously ill immediate family member.

She didn’t apply the EU route after marriage (well before her UK visa expired) because she didn’t want to re-start the clock to ILR. She is now considering asking HO to return her passport to enable her to apply under the EU route, which technically, shouldn’t take more than six months. With the HO backlog, it's looking more and more likely that her application under the UK rules could possibly take over a year to resolve. (Please note that she didn't overstay her UK visa or anything, and made an in-time application, which was acknowledged about a week later by HO.)

Question is….Will asking for her passport and documents back in order to apply under EEA route, render her an overstayer, thus unlikely to succeed with an EEA2 application? I know for a fact that her being married to an EU citizen grants her stay in UK anyway, and the EEA2 is just to prove it, but I don’t want to be responsible if I give her the wrong information, and she eventually ends up in problems. So thought I’d ask here….

[Dawie]

Can you give more information about what XYZ's current immigration status is? There must be some reason for the FLR application taking so long to process. FLR applications made in person at the Home Office are usually processed on the same day and those submitted by post in 6 weeks.

[sakura]

In what capacity is she in the UK? i.e. student, WP, HSMP. And, like Dawie writes..why would it take 6 months? Has she contacted them at all? Was she, perchance, wrong about the dates and submitted it too late?

[thsths]

Question is….Will asking for her passport and documents back in order to apply under EEA route, render her an overstayer, thus unlikely to succeed with an EEA2 application? I know for a fact that her being married to an EU citizen grants her stay in UK anyway, and the EEA2 is just to prove it, ...

That is correct. And the part of the Home Office dealing with European applications should understand the situation perfectly well. So getting the EEA2 approved should not be a problem. Note that it could potentially take a bit longer than 6 months, but usually not by much.

But I think there may be more options available. She should be able to ask for her passport back on "compassionate grounds", in which case the application for FLR can still continue.