EEA National - 1 year relationship with non EEA overstayer

[jenster]

Hi,

Hoping for some advice as im not sure of the best approach to take.

I'm an Irish national, residing in UK since 2008 - working full time, so exercising treaty rights.

May 2015 I commenced living with my partner who is an Egyptian national. He has overstayed his visa by about 4 years now.

Our relationship is strong and in July 2015 we married in an Islamic ceremony. I realise this isn't legally recognised but thought it might be relevant.

I was married previously and will have decree nisi end of March 2016. I've been separated for over 2 years but due to DV in the previous relationship had difficulty securing a divorce so it took some time.

i consider myself to be married so want to have that legally recognised, and obviously want to ensure my partners status in the UK is sorted out.

I've read the new procedures for giving notice at the Registry Office and referrals to Home Office and read about applying for EEA Residence Permits based on a durable relationship. I've found some of the information on what constitutes a durable relationship a bit conflicting.

We have resided at the same address since May 2015. We have utility accounts in joint names dating from May 2015 but no joint bank accounts. We have taken trips together and have photos etc. I'm not clear on whether our claim to a durable relationship would stand up or whether the home office are strict on the 2 year rule?

We had planned on attending the registry office in April once my decree nisi arrives. From what i've read it seems likely that we'll be referred to the Home Office. I dont feel too concerned about an investigation as im confident that our marriage is genuine, but i am concerned that they'll detain my partner and/or deport him.

I've seen advice on this forum earlier that suggested it was sensible to have an application in with the Home Office before attending the registry office.

I'm not sure what our best approach should be now - to just attend the registry office and await referral to the home office and follow that procedure through. Or to apply along the unmarried partner route and see if we can provide statements and evidence re a durable relationship based on our year relationship (nearly) and islamic marriage.

I've been in the UK for 7 years now and have an established career and home here. I would really prefer not to relocate and i'd hate for my partner to have to leave and apply from outside the UK.

I'm eligible for a British Passport as i've been in the UK for over 5 years now, and in fact both of my parents are British born and hold dual British/Irish passports. If applying via the British route was better then that could be an option, but my understanding is thats more complicated. No issues with the earnings side of the British route, but i dont think the resulting residence permit/visa is better than the EEA Residence permit?

[secret.simon]

I was married previously and will have decree nisi end of March 2016.

When is the decree absolute expected? You are only free to marry after your decree absolute.

I'm eligible for a British Passport as i've been in the UK for over 5 years now, and in fact both of my parents are British born and hold dual British/Irish passports.

My interpretation of the above is that as both your parents are British born, you are automatically a British citizen by descent (wherever in the world you were born) and hence you are ineligible for the EEA route completely. You will have to apply under the UK Immigration route.

[Wise]

I gave you credit for all your research. Like you said the Islamic marriage is only useful in Egypt not in UK especially not with present government.

Apply on a durable partner and as soon as your partner receive Certificate of application without right to work make a move to registry and get married in UK, then send the new marriage certificate to them with your case ID nember and request for new COA with right to work as married couple and it will change your spouse status. But I will advice to use lawyer who understand EU law properly.

Most importantly, if there's any joint medical test either relating to having baby comfirm by a family doctor/hospital that will seal everything positively as you are in genuine relationships.

Good luck.

[noajthan]

Hi,

Hoping for some advice as im not sure of the best approach to take.

I'm an Irish national, residing in UK since 2008 - working full time, so exercising treaty rights.

May 2015 I commenced living with my partner who is an Egyptian national. He has overstayed his visa by about 4 years now.
Our relationship is strong and in July 2015 we married in an Islamic ceremony. I realise this isn't legally recognised but thought it might be relevant.

I was married previously and will have decree nisi end of March 2016. I've been separated for over 2 years but due to DV in the previous relationship had difficulty securing a divorce so it took some time.

i consider myself to be married so want to have that legally recognised, and obviously want to ensure my partners status in the UK is sorted out.

I've read the new procedures for giving notice at the Registry Office and referrals to Home Office and read about applying for EEA Residence Permits based on a durable relationship. I've found some of the information on what constitutes a durable relationship a bit conflicting.

We have resided at the same address since May 2015. We have utility accounts in joint names dating from May 2015 but no joint bank accounts. We have taken trips together and have photos etc. I'm not clear on whether our claim to a durable relationship would stand up or whether the home office are strict on the 2 year rule?

...

I'm eligible for a British Passport as i've been in the UK for over 5 years now, and in fact both of my parents are British born and hold dual British/Irish passports. If applying via the British route was better then that could be an option, but my understanding is thats more complicated. No issues with the earnings side of the British route, but i dont think the resulting residence permit/visa is better than the EEA Residence permit?

Two issues here...

1) As mentioned by secret.simon, you appear to be a dual Irish/British national. HO will only recognise you as a BC (for immigration purposes).
That means you are not an EEA national (even though you are) & so you cannot use the EEA route and sponsor any extended family member (eg an unmarried partner) as a dependent.

2) In order to demonstrate a durable & sustained relationship 'akin to marriage' you have to be free to engage in such a relationship.
HO may play hard ball with your previous marriage, the not yet completed divorce, the overlap with your recent unrecognised marriage and hence your durable relationship.

This HO guidance may help you get inside the head of a HO caseworker:
https://www.gov.uk/government/uploads/s ... _clean.pdf
- see page 13+ which should give a heads up on how such a case would be assessed.

One option to dig into may be to revoke your British citizenship;
then you would truly be an EEA national & qualified person exercising treaty rights in UK.

Don't know much about it but other forum members do - & there's a good thread about it.

Good luck.

[jenster]

Hi,

Hoping for some advice as im not sure of the best approach to take.

I'm an Irish national, residing in UK since 2008 - working full time, so exercising treaty rights.

May 2015 I commenced living with my partner who is an Egyptian national. He has overstayed his visa by about 4 years now.
Our relationship is strong and in July 2015 we married in an Islamic ceremony. I realise this isn't legally recognised but thought it might be relevant.

I was married previously and will have decree nisi end of March 2016. I've been separated for over 2 years but due to DV in the previous relationship had difficulty securing a divorce so it took some time.

i consider myself to be married so want to have that legally recognised, and obviously want to ensure my partners status in the UK is sorted out.

I've read the new procedures for giving notice at the Registry Office and referrals to Home Office and read about applying for EEA Residence Permits based on a durable relationship. I've found some of the information on what constitutes a durable relationship a bit conflicting.

We have resided at the same address since May 2015. We have utility accounts in joint names dating from May 2015 but no joint bank accounts. We have taken trips together and have photos etc. I'm not clear on whether our claim to a durable relationship would stand up or whether the home office are strict on the 2 year rule?

...

I'm eligible for a British Passport as i've been in the UK for over 5 years now, and in fact both of my parents are British born and hold dual British/Irish passports. If applying via the British route was better then that could be an option, but my understanding is thats more complicated. No issues with the earnings side of the British route, but i dont think the resulting residence permit/visa is better than the EEA Residence permit?

Two issues here...

1) As mentioned by secret.simon, you appear to be a dual Irish/British national. HO will only recognise you as a BC (for immigration purposes).
That means you are not an EEA national (even though you are) & so you cannot use the EEA route and sponsor any extended family member (eg an unmarried partner) as a dependent.

2) In order to demonstrate a durable & sustained relationship 'akin to marriage' you have to be free to engage in such a relationship.
HO may play hard ball with your previous marriage, the not yet completed divorce, the overlap with your recent unrecognised marriage and hence your durable relationship.

This HO guidance may help you get inside the head of a HO caseworker:
https://www.gov.uk/government/uploads/s ... _clean.pdf
- see page 13+ which should give a heads up on how such a case would be assessed.

One option to dig into may be to revoke your British citizenship;
then you would truly be an EEA national & qualified person exercising treaty rights in UK.

Don't know much about it but other forum members do - & there's a good thread about it.

Good luck.

Thanks for taking the time to read and reply. I thought i'd have to apply for British citizenship i didnt think it was something i'd automatically acquire. Everything i've seen on the Home Office site indicates an application process. My mother is UK born to Irish/British parents and emigrated to Australia as an infant. I was born in Australia in 1978 so as far as i can see i'd have to apply for British citizenship. I've lived in the UK for 5 years now exercising treaty rights, so i think i automatically acquire perm residence, but still have to apply for Brit citizenship? That may well change our approach entirely then i guess if its the case that i'll be considered British rather than Irish. When i moved to the UK i had to apply for a UK ancestry visa using my Aus passport. If i'd been automatically British surely that would have been discovered then?

Decree Absolute i should have said is due end of march. Decree nisi is mid feb this year. I worry that the HO are likely to not view this overlap with my current relationship and unresolved divorce favourably. It doesnt seem that the climate at the moment, politically speaking is likely to be favourable at all.

In the scenario then that i am considered EEA national would your advice be to apply and attempt to claim durable relationship (or is that just massively unrealistic) or approach the registry office directly?

does anyone see benefit in submitting a durable relationship application and then approaching the reg office once that's been submitted?

[secret.simon]

in fact both of my parents are British born and hold dual British/Irish passports.

I was born in Australia in 1978

If you were born in 1978, only the citizenship of your father would matter and that if he was married to your mother. If your father was born in the UK and he was married to your mother at the time of your birth, you acquired British citizenship by descent automatically and would not need registration.

When i moved to the UK i had to apply for a UK ancestry visa using my Aus passport.

If you provide your father's British birth certificate, your parents' marriage certificate and your birth certificate, you can directly apply for a British passport.

[jenster]

in fact both of my parents are British born and hold dual British/Irish passports.

I was born in Australia in 1978

If you were born in 1978, only the citizenship of your father would matter and that if he was married to your mother. If your father was born in the UK and he was married to your mother at the time of your birth, you acquired British citizenship by descent automatically and would not need registration.

When i moved to the UK i had to apply for a UK ancestry visa using my Aus passport.

If you provide your father's British birth certificate, your parents' marriage certificate and your birth certificate, you can directly apply for a British passport.

Oh ok - well my parents were never married (no judgement please! lol) so im quite sure i havent automatically acquired citizenship then. My father was never ever around i just know from my mother that he was born in Scotland. I think that means then that'll i'd be considered an EEA national from the HO perspective.

[Casa]

In very simple terms...so you entered the UK on an Ancestry visa? In which case have you never applied for an EEA residence permit?

[secret.simon]

well my parents were never married (no judgement please! lol)

No judgments made

If your parents were not married, there is a very good chance that you are not a British citizen by descent, but you will have a lifelong (or until when the British Nationality Act 1981 is repealed) entitlement to register as a British citizen based on your mother's British citizenship under Section 4C of the British Nationality Act 1981. This entitlement is independent of any rights you may have under EU law and is specific to your circumstance.

Also, any children born to you at any time in any part of the UK will automatically be British citizens otherwise than by descent at birth as Irish citizens (such as you) have settled status in the UK on arrival.

You can see that the law in your circumstance can be complicated because you are simultaneously an Irish citizen in the UK with its own rights, an EEA citizen exercising treaty rights in the UK and an Australian citizen with UK ancestry.

[CR001]

You can apply to register as British on form UKM as your were born to a British mother before 1983. Cost is £80, substantially cheaper than the route most migrants have to take (currently £1005).

Why did you apply for an Ancestry visa if you had an Irish passport?

[jenster]

In very simple terms...so you entered the UK on an Ancestry visa? In which case have you never applied for an EEA residence permit?

Hi - i entered on an ancestry visa then while here applied for an obtained irish citizenship and have lived worked in the UK on Irish passport since then.

I have a Registration certificate that i applied for with the home office when i obtained my Irish citizenship.

[jenster]

You can apply to register as British on form UKM as your were born to a British mother before 1983. Cost is £80, substantially cheaper than the route most migrants have to take (currently £1005).

Why did you apply for an Ancestry visa if you had an Irish passport?

So it sounds like something to apply for rather than something automatically obtained?

It wasnt until i was in the UK researching family history that i realised i was entitled to an Irish passport and applied once i was already here. Complicated family history and my folks passed away while i was quite young so i didnt have a lot of info.

[secret.simon]

Given that the original question was regarding the OP's relationship with an overstaying Egyptian national, the OP is better off holding off on registering as a British citizen and continuing to exercise treaty rights as an EEA citizen.

Be aware however, that there are proposed changes afoot regarding non-EEA spouses of EEA citizens as well.

So it sounds like something to apply for rather than something automatically obtained?

In your specific circumstance, yes. But had your parents been married or you were born after 1983, UK citizenship would have been automatic without any need to register.

[jenster]

well my parents were never married (no judgement please! lol)

No judgments made


You can see that the law in your circumstance can be complicated because you are simultaneously an Irish citizen in the UK with its own rights, an EEA citizen exercising treaty rights in the UK and an Australian citizen with UK ancestry.

Agree - it is complicated and i can't work out how the HO are likely to view my status.
It'd be good to have some degree of confidence that i'm applying for my husband to remain here under EU rules and use the right application processes etc rather than get caught up in the confusion.

Surely if i make an application under a "durable relationship" using my Irish passport they wouldnt even be looking to see if i happen to have British citizenship as well? Or am i just being naive here?
I dont have a British passport so everything i submit to them will be using Irish passport only. I only use my Oz passport every 2 years when i go back to visit so i wont be dusting that off

[Casa]

Yes, but they will have a record of your UK Ancestry visa.

[CR001]

When did or does your Ancestry visa expire?

You are not British, so you don't have to worry about that aspect.

[jenster]

Given that the original question was regarding the OP's relationship with an overstaying Egyptian national, the OP is better off holding off on registering as a British citizen and continuing to exercise treaty rights as an EEA citizen.

As far as i can see thats the more favourable route.

Be aware however, that there are proposed changes afoot regarding non-EEA spouses of EEA citizens as well.

So it sounds like something to apply for rather than something automatically obtained?

In your specific circumstance, yes. But had your parents been married or you were born after 1983, UK citizenship would have been automatic without any need to register.

I've just been reading up on those - so im concerned now that we'll need to make a decision quite quickly. My decree nisi date is 17th Feb 2016 so all going to plan i should have decree absolute sometime early April at the latest (fingers crossed).

As far as i can see we have 3 options

1. Wait til decree absolute arrives and take our passports down to the registry office and give notice. Then i guess its just a matter of seeing that process thru. I have no doubts about proving the relationship is genuine, but im seriously concerned about my husband being detained or removed as he's an overstayer.
2. submit an application for residence permit as an umarried partner. Argue the durable relationship and see if that works. If granted, then great, if not then follow the appeal process through
3. submit an application for residence permit as an unmarried partner. Wait til thats been received then go to the registry office and give notice. I read somewhere on this board (God knows where tho - i cant find it now!) that having an application in with the HO before going to the registry office was a sensible thing to do. I'm not sure how or why that would really help tho?

or maybe a 4th option - beg for suggestions of a brilliant immigration lawyer and pass all the responsibility over to them !

[jenster]

When did or does your Ancestry visa expire?

You are not British, so you don't have to worry about that aspect.

True - they'll have a record of my ancestry visa - It expired in 2013 and i obtained Irish citizenship in 2010.

[CR001]

Members aren't allowed to 'suggest lawyers' and even if you had one, the responsibility will always be yours and your partners.

[CR001]

When did or does your Ancestry visa expire?

You are not British, so you don't have to worry about that aspect.

True - they'll have a record of my ancestry visa - It expired in 2013 and i obtained Irish citizenship in 2010.

So for all intents and purposes, HO could argue that you have only been exercising treaty rights from the day after your Ancestry visa expired.

Did you ever communicate with HO to update your status regarding the Irish passport and have your ancestry visa cancelled?

[jenster]

Members aren't allowed to 'suggest lawyers' and even if you had one, the responsibility will always be yours and your partners.

i know - just a joke to lighten the mood. hence the

[jenster]

So for all intents and purposes, HO could argue that you have only been exercising treaty rights from the day after your Ancestry visa expired.

I guess so - but in this context does it matter that i've been exercising treaty rights since 2013 rather than since 2008 when i arrived?


Did you ever communicate with HO to update your status regarding the Irish passport and have your ancestry visa cancelled?[/quote]

I didnt have my ancestry visa cancelled but in 2011 i applied for a Registration Certificate as an EEA national. and that was issued pretty much straight away. Not the same as cancelling my visa i suppose but the HO issue the Registration Certificate so they're aware I acquired Irish citizenship as i had to submit my passport with the Reg Cert application.

[CR001]

So you should be ok then on the exercising treaty rights bit.

[secret.simon]

So for all intents and purposes, HO could argue that you have only been exercising treaty rights from the day after your Ancestry visa expired.

Did you ever communicate with HO to update your status regarding the Irish passport and have your ancestry visa cancelled?

Char, surely her rights as an EEA citizen would trump any leave granted under the Immigration Rules and hence all the years after acquisition of Irish citizenship (2010) should count for the purpose of exercising treaty rights.

even if you had one, the responsibility will always be yours and your partners.

+1
We have seen examples of lawyers's advice being totally incorrect on this site. You have done a very good job of keeping yourself informed so far. Remain so.

[jenster]

So for all intents and purposes, HO could argue that you have only been exercising treaty rights from the day after your Ancestry visa expired.

Did you ever communicate with HO to update your status regarding the Irish passport and have your ancestry visa cancelled?

Char, surely her rights as an EEA citizen would trump any leave granted under the Immigration Rules and hence all the years after acquisition of Irish citizenship (2010) should count for the purpose of exercising treaty rights.

even if you had one, the responsibility will always be yours and your partners.

+1
We have seen examples of lawyers's advice being totally incorrect on this site. You have done a very good job of keeping yourself informed so far. Remain so.

Thank you - i'm absolutely impressed at the level of knowledge u guys have. and very grateful for your advice!
I've never been fond of lawyers...i'd still feel the need to do my own research as well.
Thoughts on my next steps then?