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Hello,

Background information:

I’m an American citizen and my partner (unmarried) is Latvian, living in the UK with a settled status. We met in America in 2018 when she came to work for 3 months at the camp I worked at. We had a close friendship but only decided to make our relationship official the next summer she visited. After summer 2019 , she extended her work contract and was able to stay until the end of October. During this time we both lived together on the camp property. In December I decided I wanted to spend time with her in England before she came over for her third summer. Our original plan was to move to America in May 2020, she would go on her J1 visa and we would seek legal advice whilst over there. However , in March lockdown started and her program was cancelled and she was no longer able to go to the states on any visa. As it stands she still is prohibited from going there until the December.

Current situation:

Due to the virus and current ongoing riots in my area, I don’t feel safe returning home. We were a offered a house to live in by her parents once we can both afford it. We came to the decision that we would like to stay and reside here in the UK permanently. My original visitor visa was due to expire May 31, due to COVID-19 it was extended until the July 31 and then eventually August 31. In June I applied for the EEA EFM form, within a week I received a COA stating that I’m unable to work whilst my application is in process due to the fact I have not provided original documentation of all of the following:
1) current valid identity documents for
Yourself/your sponsor
2) evidence of relationship with your EEA national sponsor
3) sufficient evidence of your sponsor exercising treaty rights

I am unsure why this is the case , I sent both mine and my partners passports as well as separate passport photos. Evidence wise, we provided lots of text messages, photos, holidays we’ve been on. With my partners treaty rights, she has a settled status which she is only able to prove online. Why would this be their reasoning?

Our biggest concern is that my partner is currently unemployed due to the virus and moving location in the UK. I understand that they now take into consideration previous earning to determine whether it’s a sufficient amount. However she has had many temporary contracts travelling, meaning there won’t be a consistent annual income in her name. Will the deny my application because of this ?

I have also read many contradicting articles stating whether or not I can legally be in the UK whilst my application is in process. My original visa was due to expire May 31 , now the extension is until August 31. I sent my application in June and have not received my passport back so I wouldn’t be able to go home if it was by choice. I’ve asked many advisers and all have assured me that I’m not an overstayer and am able to reside in the UK until there is a decision on my application. Is this correct ?

I appreciate any extra information on this form as there’s not a lot about it online.

You are not married so you are not currently considered as a family member of an EEA national until such time when the application is decided and you are issued with a residence card. This means that you are overstaying once your visa expires. Under EEA regulations, exercising of treaty rites is a requirement and therefore your partner needs to be working, studying (with comprehensive medical insurance) or self sufficient (has own money to maintain yourselves and not relying on any state benefits). The work doea not need to be continues/ permanent contract.

I'm afraid there are a numbers of significant misunderstandings here. I'll address them one by one.

Andrew13 wrote: ↑

Tue Sep 01, 2020 12:48 pm

I’m an American citizen and my partner (unmarried) is Latvian, living in the UK with a settled status. We met in America in 2018 when she came to work for 3 months at the camp I worked at. We had a close friendship but only decided to make our relationship official the next summer she visited.

I interpret that this means your relationship started only in 2019? If so, I'm afraid it is unlikely that you qualify as an EFM unmarried partner. This route is open for couples whose relationship is 'akin to marriage', that is, relationships with significant commitments (usually at least two years of cohabitation and either financial in nature and/or with the care of a child), not recent couples with only the status of of boyfriend/girlfriend.

After summer 2019 , she extended her work contract and was able to stay until the end of October. During this time we both lived together on the camp property.

This suggests you have only lived together for a few months in 2019?

In December I decided I wanted to spend time with her in England before she came over for her third summer. Our original plan was to move to America in May 2020, she would go on her J1 visa and we would seek legal advice whilst over there. However , in March lockdown started and her program was cancelled and she was no longer able to go to the states on any visa. As it stands she still is prohibited from going there until the December.

And then after than your relationship has been long-distance?

My original visitor visa was due to expire May 31, due to COVID-19 it was extended until the July 31 and then eventually August 31.

Can you elaborate on these visits? How frequent, how many, when? Why a visitor visa when you are American?

In June I applied for the EEA EFM form, within a week I received a COA stating that I’m unable to work whilst my application is in process due to the fact I have not provided original documentation of all of the following:
1) current valid identity documents for
Yourself/your sponsor
2) evidence of relationship with your EEA national sponsor
3) sufficient evidence of your sponsor exercising treaty rights

I am unsure why this is the case , I sent both mine and my partners passports as well as separate passport photos.

If you sent both passports then the above line might be in error. The problem is more with the other stuff, as follows:

Evidence wise, we provided lots of text messages, photos, holidays we’ve been on.

This only proves that you know each other and that you have spent some time together as a couple. This can represent a genuine couple , but this is far from proving your relationship is durable, and ''akin to marriage'. Again, to qualify as EFM as unmarried/durable partner, you need to show proof of continuous cohabitation for at least 2 years and joint financial commitments.

With my partners treaty rights, she has a settled status which she is only able to prove online. Why would this be their reasoning?

You are mixing up two completely different routes:

a) The EEA route, which operates under EU law that required the exercise of treaty rights (the EU citizen needs to show they are in full-time work, full-time study, looking for work, or being a tax-paying self-sufficient person).

b) The EUSS, which will replace the EEA route come Brexit, and which is much more relaxed in terms of requirements (the EU citizen only needs to be in the UK to be granted Pre-Settled status, and to have lived in the UK for 5 years to obtain be Settled status. No need to show exercise of treaty rights).

The EEA EFM you are applying to is a), EU law, more strict.
The Settled status that your girlfriend has is b), less requirements.

So, no, having Settled status does NOT prove she is exercising or has exercised treaty rights.

Our biggest concern is that my partner is currently unemployed due to the virus and moving location in the UK.

Your biggest concern should be to take time to understand what your options are. From all you have shared, it does not seem like you are eligible to apply to the EEA EFM at all.

I understand that they now take into consideration previous earning to determine whether it’s a sufficient amount.

(FACE PALM) It is rare to find a case where some has managed to mix up so many things at once!!!

No.

There are no minimum earnings required either for the EEA EFM or the EUSS routes. That applies only for applications for spouses of British citizens or non-EU permanent presidents. None of which applies to your case at any point.

However she has had many temporary contracts travelling, meaning there won’t be a consistent annual income in her name. Will the deny my application because of this ?

Not because of this, but simply because from everything you said this is simply not the route for you!

I have also read many contradicting articles stating whether or not I can legally be in the UK whilst my application is in process.

Short answer is your application for any EEA route does not cover you in the event of expiration of your current visa.

Applying to renew or obtain a new visa sometimes prevents the applicant from being an overstayer but this applies to (some) categories of visas that operate under UK rules, like the Tier system, NOT for the EEA routes, which is EU law. So no, you are not covered by this provision.

My original visa was due to expire May 31 , now the extension is until August 31.

Then your permission to stay has officially expired.

I sent my application in June and have not received my passport back so I wouldn’t be able to go home if it was by choice.

This might help justify your overstay but will not look good if you extend your stay much longer.

I’ve asked many advisers and all have assured me that I’m not an overstayer and am able to reside in the UK until there is a decision on my application. Is this correct ?

No. It is not correct, and any 'advisor' who told you otherwise, specially and any 'advisor' who told you you could apply for the EEA EFM route given the information you have shared above, deserves a slow and painful death.

I appreciate any extra information on this form as there’s not a lot about it online.

As said above, I'm afraid the chances of your application being successful cannot be more than zero.

The best way we can be of help if you share more details of your timeline, where exactly you both have lived as a couple, and what has been your girlfriend status during that time (e.g. has she worked or been a student in the UK during that time?)

Yes, our relationship started in 2019 when my partner came to America in May 2019. Since then we lived together for the next 6 months. She flew back to England in October and then I flew to England in December. I’m currently still in the UK. As it stands right now , we have technically been living together for 15 months.

Every single helpline we have called have assured us that the EEA EFM form is the best route for us to take at this moment in time.

Whilst filling out the application we both spoke to several people from the home office who told us that I am able to stay whilst my application is in progress.

My partner moved to the UK when she was five with her mum, she’s completed primary and secondary school. Got her first part time job whilst in sixth form and then in 2018 spent the summer in America. Then until 2019 summer she continued working her part time job until she visited the states again. Once she returned to the UK in October 2019 she worked a part time job until March 2020 when lockdown started and the business shut down. Since then we have been offered a house by her family that we can pay off in the years to come if we settle down in the UK. She’s still looking for work at the minute but we’re hoping that I will get the right to work if this application goes through.

Andrew13 wrote: ↑

Wed Sep 02, 2020 10:12 pm

As it stands right now , we have technically been living together for 15 months.

While it is technically not impossible to succeed a EFM application with less than two years of cohabitation, these applications need to be accompanied with compelling evidence that the couple is 'akin to marriage'. It is not sufficient to be a genuine couple of boyfriend and girlfriend, you have to have operated in the likeness of a married couple for the last two years, which for the Home Office means either having joint financial responsibilities and/or the care of a child.

Every single helpline we have called have assured us that the EEA EFM form is the best route for us to take at this moment in time.

I find this hard to believe to be honest. Any competent solicitor would have told you what I just explained. Simply being in a relationship for two years (which you have not even completed) does not by itself meet the requirement of 'akin to marriage'. Not even if you toss some cohabitation in the mix. This is a common misunderstanding. See some examples of other EFM inquiries here, here, and here.

Whilst filling out the application we both spoke to several people from the home office who told us that I am able to stay whilst my application is in progress.

You might have told them you were applying for a 'visa' and not for permit under the EEA route?

My partner moved to the UK when she was five with her mum, she’s completed primary and secondary school.

Unless she had comprehensive sickness insurance during this time, then she probably has not exercised treaty rights as a student.

Got her first part time job whilst in sixth form and then in 2018 spent the summer in America.

How old is she

Then until 2019 summer she continued working her part time job until she visited the states again. Once she returned to the UK in October 2019 she worked a part time job until March 2020 when lockdown started and the business shut down.

What has been her main activity? Why only part-time work? If not in work that can be identified as her main activity, work that is considered 'genuine and effective and not marginal or supplementary.' then she has not exercised treaty rights as a worker either. See section 'Assessing whether the EEA national is a worker' in page 13 of the document defining what a qualified person is for the purpose of the EEA route here.

She’s still looking for work at the minute

Did you supply evidence of her looking for work? She could exercise treaty rights as a job seeker, but again, evidence is needed. See page 10 of same document above.

but we’re hoping that I will get the right to work if this application goes through.

You will likely not, I'm afraid. This is because of the same two reasons your CoA state:

1. She has not proved evidence she is exercising treaty rights
2. You have not proved you have shared strong financial commitments for two years

Unfortunately, I understand the EEA route does not contact you to provide further evidence for your case, if the evidence they have is insufficient. As such, they will likely refuse your application, I'm afraid.

Every single helpline we have called have assured us that the EEA EFM form is the best route for us to take at this moment in time.

The helplines weren't necessarily wrong. When there is only one option for you, that option is "the best". It doesn't mean this option is good or has high chances of success, but it means it's the only one.

On itself, EEA EFM is a weak route. The only way to improve your chances is to have a solid application:

- Your EEA sponsor MUST be in the UK exercising Treaty Rights. If the EEA national is just present in the UK but not working, studying or seeking a job, that EEA national may be seen as non qualified. It's means the EEA national won't be able to sponsor anyone including spouse, children and so on. EEA nationals are not subject to immigration control. It means if an EEA national doesn't have any activity in the UK, it will be hard to prove that EEA national resides in the UK at all.

- You must be in a durable relationship with shared commitments so you can be seen as a married couple. This means having your both names on bills, rental contract or mortgage, joint bank accounts... etc.

If your relationship is at the level of "boyfriend / girlfriend" or "seeing each other", it won't take you far in terms of immigration.