Non-EEA wife of EEA citizen what to do?

[bigN13]

Hello All,

I have few questions and hope anyone here can help us.
I have moved in UK six months ago and started in new job. I am EEA citizen so no issues here. My wife and 3 kids joined me four months ago. My wife is Non-EEA citizen, kids are EEA citizens. Upon entering UK, on the borders, she’s got visa for 6 months based on our Marriage Certificate (we hadn't applied for family permit in the first place). Visa is about to expire in one month, so I am not sure what to do now?

If she overstays what will happen?

Currently I am looking at other options as (a) apply for non-eea residence card (b) do nothing (c) new visa?
I do understand that residence card has many benefits especially when she will start looking for work. However, the gov.uk clearly states (“You don’t need to apply for a residence card as a family member “).
We, are flirting with do nothing option as she expects to receive her EU citizenship which is under its way in approximately 6 to 12 months.
Any suggestions would be really helpful.
Thank you

[noajthan]

Hello All,

I have few questions and hope anyone here can help us.
I have moved in UK six months ago and started in new job. I am EEA citizen so no issues here. My wife and 3 kids joined me four months ago. My wife is Non-EEA citizen, kids are EEA citizens. Upon entering UK, on the borders, she’s got visa for 6 months based on our Marriage Certificate (we hadn't applied for family permit in the first place). Visa is about to expire in one month, so I am not sure what to do now?

If she overstays what will happen?

Currently I am looking at other options as (a) apply for non-eea residence card (b) do nothing (c) new visa?
I do understand that residence card has many benefits especially when she will start looking for work. However, the gov.uk clearly states (“You don’t need to apply for a residence card as a family member “).
We, are flirting with do nothing option as she expects to receive her EU citizenship which is under its way in approximately 6 to 12 months.
Any suggestions would be really helpful.
Thank you

If you are exercising treaty rights (and it sounds as if you are), then wife can do nothing or else apply for a RC.
She has the right to reside, work, study through you as her sponsor.
You are correct, a RC is optional but can be useful to prove these rights to anyone who needs to know.

[bigN13]

I really, really appreciate for so prompt response.
So to put it in simple words, she won't have any issues if her visa expires and she overstays? If we decide to travel, at some point, there won't be any issues on the borders?
We are going to apply for RC however due to family issues she might have to do some travelling back home, and I am hearing that RC might take up to 6months which means that her and my passport will be held by authorities till whole process finalized, which might cause us tremendous issues.
Are all of my assumptions correct?

[noajthan]

I really, really appreciate for so prompt response.
So to put it in simple words, she won't have any issues if her visa expires and she overstays? If we decide to travel, at some point, there won't be any issues on the borders?
We are going to apply for RC however due to family issues she might have to do some travelling back home, and I am hearing that RC might take up to 6months which means that her and my passport will be held by authorities till whole process finalized, which might cause us tremendous issues.
Are all of my assumptions correct?

Wife won't be an overstayer so suggest drop that terminology. She is the dependent, direct family member of an EEA national sponsor.

Travelling (to/from Europe) without a RC can be done but it can be stressful and incur delays.
A RC helps here.

Remember you can always request the passport back from HO once the RC application has been filed - you don't need to sacrifice the passport for whole 'x' months.

[bigN13]

Thank you, unfortunately my legal vocabulary is quite short:)
Will be using right terminology from now on.
I do have few questions regarding RC it self, for example Guide states that Biometrics need to be sent with an application, otherwise application won't be considered, but later on it states that we should receive an biometric enrolment letter with further instructions.

[noajthan]

Thank you, unfortunately my legal vocabulary is quite short:)
Will be using right terminology from now on.
I do have few questions regarding RC it self, for example Guide states that Biometrics need to be sent with an application, otherwise application won't be considered, but later on it states that we should receive an biometric enrolment letter with further instructions.

No worries, I'd struggle with any vocabulary in your language not just the 'legalese'.

Non-EEA persons will be invited to enrol biometrics.
There is just an initial page to be filled in (about biometrics) in the application form.

[bigN13]

Thank you I really appreciate your help, we will relax a bit now:)

[Richard W]

Remember you can always request the passport back from HO once the RC application has been filed - you don't need to sacrifice the passport for whole 'x' months.

What about Mrs BigN13's passport? If the 'EEA regulations' stamp has expired, will they return it or retain it?

[bigN13]

Hmm thats really interesting point...

[noajthan]

Hmm thats really interesting point...

Why would you think passport would not be returned if applying as direct family member of EEA qualified person?

Passport should be returned within approx 10 days.
Many members do this.

fyi - caseworkers do not have powers to retain documents except in specific circumstances.

Retention of documents
You do not have powers to retain documents of EEA nationals until the point at which an IS 151A (EEA) has been served. At this point paragraph 17 of the 2004 Act allows for retention of documents to facilitate removal.
However, should the EEA national make a reasonable request for the document to be returned (e.g. for a job interview) during the 30 day notification period, you should consider this on a case by case basis, as withholding the document may prevent the individual from exercising Treaty rights

Ref https://www.gov.uk/government/uploads/s ... A_v8_3.pdf

[Richard W]

Hmm thats really interesting point...

Why would you think passport would not be returned if applying as direct family member of EEA qualified person.

There are many cases where a direct family member of an EEA qualified person has asked for their passport back while waiting only to be told that they have no basis of stay in the UK and that their passport is being retained. In some cases, they have received their residence card and passport shortly afterwards. However, all these cases were cases where the family member had not entered on a family permit but had entered Britain with leave to enter (tier 2, student visa, etc.), and the leave to remain had expired while waiting for the residence card.

BigN13's wife has been a good girl and entered on a family permit, so I wondered how she would be treated if her family permit, which formally does not convey leave to enter and is not a visa, expired before her passport could be returned. I was wondering if BigN13 should take his wife on a visa run to get an 'EEA Regulations' stamp in her visa before submission, which could be awkward with 5 of them in the family.

[noajthan]

Hmm thats really interesting point...

Why would you think passport would not be returned if applying as direct family member of EEA qualified person.

There are many cases where a direct family member of an EEA qualified person has asked for their passport back while waiting only to be told that they have no basis of stay in the UK and that their passport is being retained. In some cases, they have received their residence card and passport shortly afterwards. However, all these cases were cases where the family member had not entered on a family permit but had entered Britain with leave to enter (tier 2, student visa, etc.), and the leave to remain had expired while waiting for the residence card.

BigN13's wife has been a good girl and entered on a family permit, so I wondered how she would be treated if her family permit, which formally does not convey leave to enter and is not a visa, expired before her passport could be returned. I was wondering if BigN13 should take his wife on a visa run to get an 'EEA Regulations' stamp in her visa before submission, which could be awkward with 5 of them in the family.

You are seriously over thinking this.
And you are not reading the OP's stated facts of the case

we hadn't applied for family permit in the first place

Forget all this nonsense about visa runs and the like. She is (I think) a normal woman living a normal life, enough of the drug-mule/James Bond visa-run stuff.

In fact abuse of treaty rights such as a cycle of 'visa runs' of the type you seem to advocate will only excite the interest of IOs and can lead to serious consequences...

Removal under Regulation 19(3)(c)
Engaging in conduct intended to circumvent the requirement to be a qualified person under Regulation 14

Regulation 19(3)(c) makes provision for the Secretary of State to administratively remove a person on the grounds of abuse of rights in accordance with regulation 21B(2)

For example, an EEA national who repeats a cycle of leaving the UK shortly before their three month period expires, only to reeenter
in order to benefit from a further three month’s period of residence, therefore being able to reside indefinitely without exercising Treaty rights

Ref https://www.gov.uk/government/uploads/s ... A_v8_3.pdf
- page 9+

EU law does not care one fig about the entry mechanism into the member state, be it FP or whatever.
The only requirement for the good wife to remain in UK is for spouse/sponsor to remain married to her and to be exercising treaty rights.

Retaining documents is a serious step, governed by HO procedures, which cannot apply here if sponsor shows he's working and the couple prove their id and show they are married.
They have evidently already used similar documents at the UK border to facilitate their entry in the first place.

If requirements are met the RC has to be issued.
If documents are validated by HO then I have no doubt they would be released up-front on request.

[Richard W]

And you are not reading the OP's stated facts of the case

we hadn't applied for family permit in the first place

Whoops! I saw the 'six months' and thought 'family permit'. He must be referring to the 'EEA Regulations' stamp.

Forget all this nonsense about visa runs and the like. She is (I think) a normal woman living a normal life, enough of the drug-mule/James Bond visa-run stuff.

I don't know where you get the 'James Bond' idea from. A visa run is standard practice where one has to regularly leave a country as a condition of residence. In this case, it would be to get 'EEA Regulations' stamps until her residence card arrives. You have to look very hard at Right to Rent Document Checks: a User Guide to see that one can get, in just 2 days, confirmation of one's right to rent if waiting for a residence card. Or perhaps not, if the processing of the application hasn't started.

EU law does not care one fig about the entry mechanism into the member state, be it FP or whatever.

EU law may not, but British law does. While family members of British-EEA dual nationals who had entered on a family permit were accorded the benefit of the McCarthy transition arrangements, others who had neither permanent residence nor a residence card were not. I don't think a Code 1A stamp qualified either, but please correct me if I am wrong.

Retaining documents is a serious step, governed by HO procedures, which cannot apply here if sponsor shows he's working and the couple prove their id and show they are married.

It's standard practice according to this FoI enquiry
Question:

Where there is no current leave to remain in the UK on an applicant's passport due to the expiration occured while waiting for the final decision, is the non-EEA applicant entitled to request their documents back without withdrawing the application? If this is the case, which of them (passport, certificate of marriage, etc.)? If not, would you please provide reference of this within EEA Regulations or any other?

Partial answer (by reference):

Where a person has no valid leave to enter or remain we would not usually return the passport to them as section 17 of the Asylum & Immigration (Treatment of Claimants etc) Act 2004 gives the Home Office the power to retain documents, such as a passport, where the Secretary of State or an Immigration officer suspects a migrant is liable to removal and the retention of the document may facilitate removal. For guidance in this area see https://www.gov.uk/government/publicatio...

So, does this practice apply when the family member entered the UK using EEA rights?

The problem is that Mrs BigN13 needs to travel soon, and I think she would rather not have to make an appointment with Immigration to temporarily leave the country.

[noajthan]

And you are not reading the OP's stated facts of the case

we hadn't applied for family permit in the first place

Whoops! I saw the 'six months' and thought 'family permit'. He must be referring to the 'EEA Regulations' stamp.

Forget all this nonsense about visa runs and the like. She is (I think) a normal woman living a normal life, enough of the drug-mule/James Bond visa-run stuff.

I don't know where you get the 'James Bond' idea from. A visa run is standard practice where one has to regularly leave a country as a condition of residence. In this case, it would be to get 'EEA Regulations' stamps until her residence card arrives. You have to look very hard at Right to Rent Document Checks: a User Guide to see that one can get, in just 2 days, confirmation of one's right to rent if waiting for a residence card. Or perhaps not, if the processing of the application hasn't started.

EU law does not care one fig about the entry mechanism into the member state, be it FP or whatever.

EU law may not, but British law does. While family members of British-EEA dual nationals who had entered on a family permit were accorded the benefit of the McCarthy transition arrangements, others who had neither permanent residence nor a residence card were not. I don't think a Code 1A stamp qualified either, but please correct me if I am wrong.

Retaining documents is a serious step, governed by HO procedures, which cannot apply here if sponsor shows he's working and the couple prove their id and show they are married.

It's standard practice according to this FoI enquiry
Question:

Where there is no current leave to remain in the UK on an applicant's passport due to the expiration occured while waiting for the final decision, is the non-EEA applicant entitled to request their documents back without withdrawing the application? If this is the case, which of them (passport, certificate of marriage, etc.)? If not, would you please provide reference of this within EEA Regulations or any other?

Partial answer (by reference):

Where a person has no valid leave to enter or remain we would not usually return the passport to them as section 17 of the Asylum & Immigration (Treatment of Claimants etc) Act 2004 gives the Home Office the power to retain documents, such as a passport, where the Secretary of State or an Immigration officer suspects a migrant is liable to removal and the retention of the document may facilitate removal. For guidance in this area see https://www.gov.uk/government/publicatio...

So, does this practice apply when the family member entered the UK using EEA rights?

The problem is that Mrs BigN13 needs to travel soon, and I think she would rather not have to make an appointment with Immigration to temporarily leave the country.

I have no idea how any of the above is relevant to this topic or helps OP.
But it is important to read the OP's stated facts and relate to their topic, not to some arbitary, generic, imaginary topic.

Dual nationals and McCarthy (ie McCarthy 2012 rather than the later McCarthy 2014) is not relevant at all.
No sign of dual nationals in OP's case.
And there is no Code 1A stamp anymore.

The OP is not doing any of this to rent a room or a house; they don't need a RC for that. Not relevant to justify a dubious visa run for imagined rental purposes.

As I have shown, visa runs are clearly seen by authorities as a potential abuse of EU rights.
James Bond signifies the melodrama.

The travel plans are a self-imposed problem. HO will (by the most generous definition of a government department) not care.
The OP can request return of documents or not whilst any RC application is processing - its my helpful suggestion but their call.
Or they can reschedule travel - up to them/their call.

In my experience normal life goes on hold (whether you like it or not) when dealing with such immigration matters; you cannot multi-task life and immigration battles.
My advice would be suspend or postpone the travel (as hard or as costly &/or inconvenient as that may be).

The wife has legal residence if spouse/sponsor is exercising treaty rights.
That means EU regulations and not UK Immigration Regulations apply; husband & wife & family can all legally be in UK under EU regulations.
So they can't be penalised under regulations that apply to those on UK migration route.

The 'EEA admin removal' document (I linked above) is very clear on the procedures to remove EEA nationals and family members.
it is clearly an unusual and not a standard step; lots of checks and balances there. British fair play protecting EEA nationals if you will.

Including checks and balances on retaining EEA nationals' documents;' (did you even read the 51 pages?):

You do not have powers to retain documents of EEA nationals until the point at which an IS 151A (EEA) has been served.

The wife does not even appear to want a RC for proof of her EU rights as one option they have correctly identified is to 'do nothing'.
That's all that needs to be said.

[Richard W]

Dual nationals and McCarthy (ie McCarthy 2012 rather than the later McCarthy 2014) is not relevant at all. ... And there is no Code 1A stamp anymore.

It was a clear example of British law caring about how an EU family member entered the UK. Did the "EEA regulations" stamp exist in 2012?

The OP is not doing any of this to rent a room or a house; they don't need a RC for that.

I was pointing out that Mrs BigN13 is not 'normal' because she faces the stresses and constraints of the immigration process. However, if they are renting, Mrs BigN13 will need an RC, an EEA ID card or passport, or an unexpired "EEA Regulations" stamp.

As I have shown, visa runs are clearly seen by authorities as a potential abuse of EU rights.

But BigN13 would not be using them to circumvent the need to be a qualified person; I suspect his tax payments would show that. And the slow processing of RC applications is another abuse, this time by the government.

The wife has legal residence if spouse/sponsor is exercising treaty rights.
That means EU regulations and not UK Immigration Regulations apply; husband & wife & family can all legally be in UK under EU regulations.
So they can't be penalised under regulations that apply to those on UK migration route.

The 'EEA admin removal' document (I linked above) is very clear on the procedures to remove EEA nationals and family members.
it is clearly an unusual and not a standard step; lots of checks and balances there. British fair play protecting EEA nationals if you will.

Including checks and balances on retaining EEA nationals' documents;' (did you even read the 51 pages?):

You do not have powers to retain documents of EEA nationals until the point at which an IS 151A (EEA) has been served.

I wan't suggesting the BigN13's documents would be retained. I was concerned that his wife's might be. Is IS 151A or IS 151A (EEA) the threatening letter family members have been receiving when their passports are retained? Non-EEA spouses' documents are being retained while they wait for an RC and have no leave to remain. I was wondering whether this only affected those who had had leave to remain or been "in breach of the immigration laws".

UK laws apply, even if they ultimately have to conform to EU laws and treaties. I'm not even sure there are any relevant EU regulations, just directives and treaties transposed to UK regulations.

The wife does not even appear to want a RC for proof of her EU rights as one option they have correctly identified is to 'do nothing'.

You recommended getting one.

[noajthan]

Yes I gave OP options, that is what they asked for.

In this case:

• Do nothing;
  Get RC;
  Ask for passport back.

- that is all that OP required.

It is their life, their travel/work plans - I have no view on which they should take & is 'best' for them(if any).

You say you are not sure if there any "EEA regulations"; well yes there are so suggest start with the basics:
Regulations may be cited as the Immigration (European Economic Area) Regulations 2006

This is now going way off topic; throwing random bits of UK and EU law and random arguments into the mix, willy nilly, is not helping and is not the point of the forum.

This topic is now meandering all over the place and OP has been scared off. This topic has almost run its course.

[Casa]

+1 Noajthan. I notice that in many recent topics where the threads evolve into a 'what if' scenario and way off track from the original query, the OPs simply give up and leave the 'discussion' to meander on regardless.