Marco, hopefully the solicitor knows what he is doing but personally I can't see any sense in submitting both an EEC1 and EEC2 at the same time. Why? At the end of the EEC2 is merely asks for further items to be enclosed .... 2 passport-type photographs and Last three month’s payslips ..... where the applicant for ILR has not previously been issued with a UK Residence Permit. Of course to get ILR you need to live been living in the UK and exercising your community rights for at least four years, but as just said, it is not necessary for the Residence Permit to have been issued previously. You can do it all on the EEC2 form.
An application clearly needs to be made by your wife for an extension to her permit. The easy thing to say is that if her US passport is submitted with the EEC1 application form then that would clearly solve any problem about her getting back into the UK. That is, when she gets her US passport back it will clearly have a UK Residence Permit in it.
So is there any plan for your wife to go abroad, from the UK, from mid-December onwards, until she gets her 5-year Residence Permit, after say three or four months? If not then submit her passport with the application and just wait.
Alternatively if just a certified copy of the passport is submitted then will there be a problem your wife getting back into the UK after 13th January 2006? Let's just quickly review what we are talking about here. It is worth spending a few minutes looking at
EEA/EU nationals on the IND website. This starts off clearly defining your rights. It then goes on to cover family members and makes clear that they have the same rights as an EU/EEA Citizen, but effectively need an EEA Family Permit or Residence Permit in their passport to prove it.
In fact EU/EEA rules make it clear that the third-country national family members have their rights automatically. It is just, well, how do they prove they have those rights? The EEA Family Permit or Residence Permit in their passport!
Your wife is from the US and thus not a so-called visa national. Visa nationals always need a visa to enter the UK, but that does not apply to non-visa nationals. However even visa nationals require UK visas in all sorts of situations and now that includes anyone wishing to stay in the UK for more than six months. Your wife would seem to be in that category. There is therefore a risk, theoretical (?), that your wife might be refused entry using a passport with an expired EEA Permit.
How to proceed? What is the intention? After you have your ILR, one possibility would be your wife going back to the States and applying for a spouse visa there. OK, that is not free ... it costs £260, or rather the equivalent in local currency, I think that is currently defined as US$491, but it could have advantages. The main one is that after getting her two-year spouse visa and then coming to the UK on that visa, she would apply for for her own ILR near the end of that two years, rather than after the four years that would apply using the EU/EEA route.
The plan could be :-
- wait for you to get your ILR in your passport
- your wife flies back to the States and applies for a two-year spouse visa there, after which she would return to the UK
- after you have had your ILR for one year you apply for naturalisation as British
- near the end of the two-year spouse visa your wife would apply for her own ILR
- after getting her ILR and after she has been in the UK legally for three years, your wife would apply for her own naturalisation as British (given that she would be married to a British Citizen ... you!)
Also great advantage in applying for a spouse visa in the States .... processing time (assuming all required evidence submitted) is just a few days ... compared to applying for Residence Permit in the UK which takes say three months. And of course the ability to get her ILR after two years rather than four years.
A possible plan? Assuming you have got your ILR in your passport ... the two of you might spend Christmas and New Year in the States ... apply for and get the spouse visa there ... then fly back, your wife using that new spouse visa to enter the UK.