EEA4 application married to a british woman

[elsareis]

Hi,

I really would appreciate your help! my 5 year residence card is due to expire in Nov 2014... I am married to a british lady, we have 3 children together. My question is can I apply for the EEA4 route or do I have to apply for the IDLR ? where I have to do the life in the uk test etc..

The reason why I would like to apply for the eea4 is because the IDLR route is over £1000 to apply where as the EEA4 route is only £55!

The guidelines show that you have to be married to a person who is a EEA national ...so does that include british citizens too?

[Obie]

No you cannot apply.

You have never resided with you British wife in another EEA State in which she was a worker or self employed person.

Neither did you enter the UK under EU law.

[elsareis]

thanks ok..she does have dual nationality as her mother is portuguese, so she has a portuguese passport; although it has expired and arranging the renewal could take up to 5 months.. should we wait until we have the portuguese passport in date, or would that mean I will automatically become illegal in November?

[dalebutt]

Unfortunately you cannot rely on her Portuguese citizenship. please see the following thread; http://www.immigrationboards.com/eea-ro ... 71130.html

[Jambo]

Could you explain what type of visa / card you have at the moment?

Is it a 5 years Residence Card issued following a EEA2 application in 2009 based on your partner's Portuguese nationality?

If this is the case, you can apply for PR using EEA4 (and her Portuguese nationality) assuming she has been exercising treaty rights in the past 5 years (for example by working continuously).

The changes preventing dual nationals (British and other EEA) don't affect you if you have applied under the EEA rules before they changed in 2012.

[Obie]

You have to rely on National rules or you will overstay.

Getting her to apply for Portuguese nationality will not change your status as she is a British Citizen and you have never been issued a Residence permit on her basis under EU law, neither have you ever lived with her in another EEA State.

[Casa]

Obie she has a Portuguese passport and it appears the 5 year residency may have been issued under EEU regulations in 2009 before the Rules changed. The OP needs to confirm this.

[Obie]

Yes.

OP's post is presented in a confusing way. He appeared to have been married to a Portuguese national who was also a British, as opposed to a British Citizen.

If he was issued with a Residence Card prior to the rule changes as a family member of a Portuguese Citizen, then notwithstanding the rule change or her passport expiry, he will be covered by transitional provision, allowing people with dual and other EU citizenship to qualify.

He will not need wife's passport to apply, but wife will need to have exercise treaty rights over the last 5 years.

[elsareis]

Hi all ,

first of thank you very much for your replies this has really helped, I do indeed have a previous portuguese residence card as myself and my wife both lived in Madeira for 1 year. We have both been working for 5 years in the UK, we have always been employed during this period. My current residence document is a Residence card of a family member of an EEA National, because we applied with my wife's portuguese passport. However I am a bit worried because my wife's passport is not in date, I am very worried they will not accept it on this basis? What do you think?

This is why I was going to apply though her british passport as that one is in date.

[Obie]

You should be fine to apply under EU law on EEA 4, even without the Portuguese passport.

On the basis of the information you have provided, you cannot apply for ILR even if you wanted to.

You should stick to EEA 4.

[elsareis]

Obie,

I can't thank you enough, I would have made a big mistake - So in this case on the guidance notes for the EEA4 it says this;

your EEA family member’s valid passport or national identity card - meaning it can not be expired.. in this case can I send the british passport alongside the expired portuguese passport and ID card?

[Obie]

A large portion of the thanks should be attributed to Casa, for making me review the content of your post again, as it appeared very confusing.

If passport or ID not available, then don't produce, it is not compulsory, as they have satisfied themselves before that she is a Portuguese national, in any event, you have both lived and worked in Portugal.

[elsareis]

Thank you very much Casa and Obie God Bless you

[Jambo]

I would recommend not sending the British passport as it could confuse things and cause unnecessary problems.

Either ID or an expired passport should be good enough.

[Obie]

Better still, no ID should be sent.

[Casa]

....and I have to thank Jambo who pointed me in the right direction. Teamwork
I wouldn't submit the British passport.
Edit: I can see that Jambo beat me to it!

[Obie]

Yeah Thumbs up to Jambo. You are a star as always