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My wife (non-EEA) and I (Norwegian) lived in the UK between September 2002 and August 2009. We got married in the UK in December 2004 and my wife then got an EEA five-year family permit valid from March 2005 that expires March 2010.

In August of this year we left the UK temporarily as my wife was pregnant and we wanted to give birth in my home country. According to the Home Office website, this will not break our residency as: "a single absence of up to 12 months for important reasons such as pregnancy, childbirth, serious illness, study, vocational training or posting overseas will not affect your residence."

I have maintained my job with a UK employer and the intention is to return once the baby is fit. At a minimum we would like to ensure that my wife gets her PR on the basis of an EEA4 application.

I have a few questions in this regard:

1. Can the EEA4 application be made from abroad under the circumstances above? I have enquired with the HO about this but the helpdesk person wan't sure.

2. Does the fact that this extended stay abroad seemingly is allowed under European rules mean that we are still considered as UK residents and so with the clock towards the required five years still ticking?

3. I understand that even the time in the UK prior to marriag will count for this purpose (as long as we can prove cohabitation based on, say, council tax bills etc.). However, as we have been married for the required five years anyway, is my wife eligible for PR at five years from the date of marriage or only the date of the fisrt family-based residence permit?

4. I travel frequently in my work and would have problems sending away my passport for an unknown period, possibly months. Is there a way to avoid sending passports (at least mine) or get them back while the appliction is processed?

5. Should we decide to return to the UK just prior to the expiration of my wife's current residence permit in March next year - would the border control let us in and could she then stay on the basis of an EEA4 application being made after expiration? We have not maintained an abode in the UK, though our absence would have been "legal".

Thanks in advance for any help.

Sincerely
R. A.

Has the new baby arrived? Congratulations if so!

Note that if your wife has been in the UK with you for 5 years, then she already has permanent residence. The EEA4 application is just a formality to get a sticker in the passport for ease of travel and employment.

Also note that your wife, when travelling with you, has the same right of free movement that you do. You need to be able to prove she is your family member by producing your marriage certificate.

roaaad wrote:1. Can the EEA4 application be made from abroad under the circumstances above? I have enquired with the HO about this but the helpdesk person wan't sure.

"Made from abroad". According to the Directive (and because of the baby), you are apparently both "resident" in the UK right now. So I don't see why you can not submit. Where it is mailed from is not relevant according to the law, though home office sometimes does not appreciate such subtleness. Challenge would get requesting the passports back so you can travel back to the UK. And you may need to answer more questions from them.

roaaad wrote:2. Does the fact that this extended stay abroad seemingly is allowed under European rules mean that we are still considered as UK residents and so with the clock towards the required five years still ticking?

The clock ticks as long as you are residents of the UK. If you go for a two day trip to Paris, you are still resident in the UK for that time and it counts towards the six months. Same for a three month trip to India. Same for 11 months to Norway to have a baby.

roaaad wrote:3. I understand that even the time in the UK prior to marriag will count for this purpose (as long as we can prove cohabitation based on, say, council tax bills etc.). However, as we have been married for the required five years anyway, is my wife eligible for PR at five years from the date of marriage or only the date of the fisrt family-based residence permit?

Her relationship with you is what counts. It is 5 years from when you married or started a long term relationship. Whether and when she applied for her first EEA Family permit or Residence Card is not important.

roaaad wrote:4. I travel frequently in my work and would have problems sending away my passport for an unknown period, possibly months. Is there a way to avoid sending passports (at least mine) or get them back while the appliction is processed?

Home office seem to be saying recently that you have to send both passports when you send the application. But you can (and I would) immediately request BOTH passports back so you can travel at will while they take their time with the application.

roaaad wrote:5. Should we decide to return to the UK just prior to the expiration of my wife's current residence permit in March next year - would the border control let us in and could she then stay on the basis of an EEA4 application being made after expiration? We have not maintained an abode in the UK, though our absence would have been "legal".

If you have a non-expired Residence Card, and in the situation you describe, they are viurtually required to let you in.

And in fact if you are travelling together and have proof of your relationship (your marriage certificate), they are also pretty much required to let you in, even if the Residence Card was expired.

Thanks EU directive Guru, that was a most informative and clear answer. The new baby is not here yet, but could be any day now. Your answers have encouraged us to go ahead with the EEA4 application. I take it that even though Norway is not part of the EU (but the EEA) the same directive still applies in full.

One side question - can you also request back other important documents such as the marriage certificate while they process the application?

From a practical viewpoint, while the law seems clear, sadly I wouldn't want to be at the airport in, say, Hong Kong, wanting to board a UK flight with an expired UK residence permit waiving only a marriage certificate.....I doubt most airline personell would know about this!

I don't see why you can not request back all the documents. I would. They only need to see it once, and then should be able to return it.

If you got married in the UK, I would also suggest you get a few more copies of it. Never hurts to have 3 or 4 extra, for applications, and to give to your children eventually.