retained residence rights

[amansingh96]

Hi. I came to the UK in October 2014 on an EEA family permit to join my husband in the UK, he is an Irish passport holder living in the UK. I came from India with my 2 sons. older son was 18 and younger was 11.

now they are 23 and 16.

my indian passport has expired and same for my 16 year old son.

Indian embassy say we can't renew it in the UK without proof of right to stay in UK

We did not apply for residence card when we arrived and don't have a residence card

We wish to apply for a residence card or permanent residence (5 years nearly completed) - not sure which is best to apply right now?

but main thing is that we have 2 expired passports - how to solve this problem? UK may not grant documents without valid passport and Indian embassy won't give valid passport without proof of right to stay here.

please advise

Many thanks

[kamoe]

Indian embassy say we can't renew it in the UK without proof of right to stay in UK

If your husband is a qualified person (is a student, a worker, a self-sufficient person, or a job seeker) and you are still married to him, then you and your son have automatic free movement rights to stay in the UK as per EEA law. The residence card is only a formality, as the right is automatic.

So for the Home Office, the ensemble of below documents would prove your right to stay:

-your expired passports (you and your son)*
-husband passport
-proof that your husband is a qualified person (e.g. work certificate, student certificate, proof of self-sufficient, etc. as per guidance document linked above).
-marriage certificate
-birth certificate of your son

Now, this might or might not necessarily do it straight away if you show the above to the Indian embassy, but you can try. They have to be aware of EEA regulations.

*Technically speaking the Home Office obviously requires valid passports, but that is the point of your visit to the Indian embassy, so this list should be proof enough, for them Indian embassy, of your right to stay.

[amansingh96]

Thank you so much for your advice.

should we try again with the indian embassy. perhaps taking along a letter from a solicitor explaining the law and our right to reside here?

or should we try with the home office to apply for a residence card? or PR?

I read online that the requirement by home office is that we send a VALID passport so this is why i am unsure

Thanks

[kamoe]

I was just trying to edit my post, as I see it was not clear: I am suggesting you present the above documents to the Indian embassy, in lieu of a residence card, since those are the same documents you would present for your residence card application should you had valid passports.

So no, don't try the Home Office with expired passports. You will get refused.
Try the Indian embassy, and explain the law in cover letter if necessary.

[amansingh96]

Thanks again for your reply.

My younger son has been sent a letter by the home office to provide proof of right to stay including his passport. we have only 2 weeks to submit this.

he is required to send 3 things:

1. his dads passport - we have this

2. my sons passport (which is not valid)

3. his birth certificate - we have this

[iwolga]

Hi. I came to the UK in October 2014 on an EEA family permit to join my husband in the UK, he is an Irish passport holder living in the UK. I came from India with my 2 sons. older son was 18 and younger was 11.

my indian passport has expired and same for my 16 year old son.

We did not apply for residence card when we arrived and don't have a residence card

Excuse me my curiosity, but did you ever had any other problems without the BRC? Did you travel abroad after expiration of your FP? Or were you trying to work?

I just guess you are a good example of the idea that though they say you are not obliged to apply for the card, it's a bit of a stretch not to do it.

@kamoe - please correct me if I'm wrong, I thought you can only apply for BRC as long as your FP is valid (ie within 6 months' frame)?

[amansingh96]

Hi, none of us have traveled out of the uk in those 5 years since arrival.

work has not been a problem, in the same job since i arrived

[kamoe]

My younger son has been sent a letter by the home office to provide proof of right to stay including his passport.

he is required to send 3 things:

1. his dads passport - we have this

2. my sons passport (which is not valid)

3. his birth certificate - we have this

This letter could be shown to the Indian embassy as evidence that, really, all you need is a valid passport for the Home Office to confirm your son's right to stay.

Now... they could argue this letter is proof that your son has not yet the right to stay, but this is not true. This is why it is important for the consul/embassador to be aware of EU law. By EU law your right is automatic; through the application, the Home Office just confirms this existing right, which means you already have it regardless of the existence of a residence card. Do include a reference to the EEA family members free movement rights I link above.

I'm unfamiliar with the general policy of the Indian embassy, and if they tend to be on the tough side, but you are all Indian nationals, and the embassy is there to help its nationals, so I would try them first.

we have only 2 weeks to submit this.

No time to waste then, contact the embassy ASAP.

[kamoe]

I just guess you are a good example of the idea that though they say you are not obliged to apply for the card, it's a bit of a stretch not to do it.

Indeed. A good example of the dangers of taking Home Office directives to the letter. One has to always read between the lines.

@kamoe - please correct me if I'm wrong, I thought you can only apply for BRC as long as your FP is valid (ie within 6 months' frame)?

For direct family members, neither the FP nor the BRC are mandatory at any point. The main purpose of a FP is to give you smooth entry into the UK, but in some cases, you can even get entry into the UK with passport + marriage/birth certificate (then stay for all the time you want without ever applying for BRC after that, although never what I would consider the best thing to do).

In that sense, and having stressed in my post above about rights being automatic, and documentation there just to confirm them, you can apply for a BRC without ever having a FP in the first place (many people switch from Tier visas directly into BRC, for example), or indeed, if your FP is expired.

For extended family members is a different story, as your rights are not automatic, and you will be overstayer/illegal if you do not have documentation, or if your documentation, such as a FP, is expired. This is also important if you want to prove your right to rent or work, as an expired document won't do. Hence why some of the cases seen in this forum are so urgent about applying in that 6-month time frame. None of this applies to the OP's case, so they are fine.

[amansingh96]

I think it may apply to my older son? he is over 21 (he is 23 now)

he arrived with us when he was 18

please advise if he is now an extended family member?

[kamoe]

I think it may apply to my older son? he is over 21 (he is 23 now)

If he is dependent on either of you or your husband, then he is a direct family member, no matter his age. (See page 11 of document linked above regarding free movement rights, for the specific definition of dependency).

he arrived with us when he was 18

He was definitely a direct family member then. But this might have changed, hence why is important to establish if he's dependent now or not. Good news is, dependency seems not to be very strict or subject to whether he works or not; easily most young people are still dependent on their parents during their early twenties.

please advise if he is now an extended family member?

Actually, he cannot be considered an extended family member. Either he is a direct family member, or he is nothing. Extended family members are either unmarried partners or other relatives, who are dependent and members of the household (but if he's dependent, then he's direct family member).

[amansingh96]

thanks so much for your many replies and advice.

He is living with us in our rented house.

we pay the rent and the bills, he does not pay so my estimate is that he is dependent on myself and his father.

[arunsingh03]

hi all. my case is outlined below, my problems are difficulty in renewing my indian passport and the passport of my son.

I came to the uk in 2014 and my 5 years of residence are nearly complete. I came with my 2 sons to join my husband (their biological father) who is irish passport holder.

I have been married for over 23 years

we all stayed with my husband in rented accomodation, he has left after approx 2.5 years but we are still there. the landlord is able to confirm. My estranged husband will not speak with any of us and is refusing to help when requested by friends and family.

the home office have writted to my sons to request they send

1. passport of their father (irish passport but he won't agree to do so)

2. son's own passport ( 1 indian invalid + 1 indian valid)

3. birth certificate (we have these)

4. for older son only (23) some proof of dependancy on father (he is not help now but he was helping in the first 2 1/2 years)..... older son was also under 21 in the first 2 1/2 years

problem:

1: father won't give passport or even discuss the issue or offer any help - even if we offer him money to help us.

2: indian embassy won't issue indian passport for younger son (aged 16) unless I also apply (my indian passport also expired) AND the father provides his passport - which he refuses to do.

3: Indian embassy also require some letter from home office to show we are "working to regularlise our stay in the UK" younger son can provide some correspondence but I cannot. I wrote again to Home Office to request they write something to me - just waiting on reply. Previously We 3 wrote to the jointly but they responded only in 1 joint letter to my 2 sons and excluded my name from the letter.

Questions:

1: how can we get something in writing from the Home Office in my name or regarding my status?

2: we are sure we have retained rights of evidence but how to prove this without our own valid passports and fathers/husband passport?

3: husbands employer is able to assist with proof of working in UK - he is on our side.

appreciate any help

Thanks

[CR001]

Why have you registered a second username to ask the same questions again?? Multiple usernames are not permitted in the forum.

Unlikely your other username login details are forgotten as the other user logged in today.

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[arunsingh03]

apologies circumstances have changed.

feel free to delete the other account.

can anyone advise?

[arunsingh03]

I spoke with the home office today and they advised to fill out a form called subject access request

this may be useful to other people who require some information about their status for themselves or for a 3rd party like in the indian embassy in my case

Thanks