Advice wanted from experts

[hot_chocolate]

Hi everyone,

I need help with my case which i think is a bit complicated. So let me start by giving some background...

I am a filipino national and so is my husband. My husband came to the UK in july 2005 as a family member of an EEA national; the EEA national being his younger sister who is a french national. I came to the UK in september 2006 along with our 2 children as my husband's dependents. My husband will be completing 5 years in the UK in july 2010 and would apply for indefinite leave to remain around that time.

My husband and i had some marital issues over the past few years which as given rise to a few questions regarding my stay in the UK. We are still legally married and are sorting out the differences but the problem in this case is my sister in law (the EEA national) who wants us to divorce and is insisting my husband to get a divorce and is threatening by saying she wont sign the ILR form if he fails to do so.

Now my questions are:

1. Which form is he supposed to use when he applies for ILR?

2. Can he put my name as one of his dependents on the same form?

3. When my husband applies for ILR, would he require his sister's permission for it? Her sign on the application form, any letter or anything like that?

4. Can my sister in law cause problems at the time of the ILR application if we are still legally married (which would be against her wish)? Or can she cause problems with our stay in the future once we get the ILR?


I would very much appreciate if members can come up with some expert advice on the matter.

Thank you all for the forum

[Ben]

Hi hot_chocolate.

I am a filipino national and so is my husband. My husband came to the UK in july 2005 as a family member of an EEA national; the EEA national being his younger sister who is a french national. I came to the UK in september 2006 along with our 2 children as my husband's dependents.

Are you sure this is accurate? Directive 2004/38/EC makes no provision for the right of residence of the family member of the family member of a Union citizen.

My husband will be completing 5 years in the UK in july 2010 and would apply for indefinite leave to remain around that time.

Assuming the relevant conditions have been met, your husband shall acquire Permanent Residence in July 2010 (it is not applied for, acquisition of this status is automatic).

1. Which form is he supposed to use when he applies for ILR?

It's not ILR, it's PR. The form is EEA4.

2. Can he put my name as one of his dependents on the same form?

Directive 2004/38/EC makes no provision for the right of residence (or Permanent Residence) of the family member of the family member of a Union citizen. This is why I question on what basis you are currently resident in the UK.

3. When my husband applies for ILR, would he require his sister's permission for it? Her sign on the application form, any letter or anything like that?

Permanent Residence is automatically acquired by the family member of a Union citizen, after having legally resided with the Union citizen in the host Member State for a continuous period of five years. No permission is required in order to acquire this status, neither from his sister nor from the UKBA. The Union citizen is not required to sign the EEA4 form (application for a Permanent Residence card).

4. Can my sister in law cause problems at the time of the ILR application if we are still legally married (which would be against her wish)? Or can she cause problems with our stay in the future once we get the ILR?

She can cause problems if she fails or refuses to supply evidence to support your husband's application for a Permanent Residence card. For example, it is required to submit the passport / National ID card of the Union citizen, together with evidence of residence / exercise of Treaty rights in the UK over the last 5 years.

[Ben]

Hi hot_chocolate.

Got your PM. Would you mind pasting it on-thread though?

Thanks.

[hot_chocolate]

Sorry i am still a bit new to this hence sent you pm by mistake!

Yes i (and our kids) are dependents of my husband.

In the EEA4, in section 2, it asks for non-EEA national family members to be included in application. I am a non-EEA national family member, I am still his legal wife and we have two children. So my understanding is that he he should be able to include me and our children in section 2. Please correct me if i am wrong.

But as mentioned, my problem is about his sister who is the EEA national, who is encouraging my husband to not include me in that EEA4 application. Yes, it is possible for her to not supply the needed documents such as passport if she sees my name on it.

What are other ways to extend my stay?

If indeed, my husband gets the permanent residence in UK without my name on it, and assuming he gets hold of the said permit before my visa expires, can he, as a permanent UK resident be able to petition me or sponsor me as his wife under SET M of Settlement?

[Ben]

Yes i (and our kids) are dependents of my husband.

In the EEA4, in section 2, it asks for non-EEA national family members to be included in application. I am a non-EEA national family member, I am still his legal wife and we have two children. So my understanding is that he he should be able to include me and our children in section 2. Please correct me if i am wrong.

I understand your thinking, but you are missing the point that there is no provision in the Directive for the right of residence of the family member of the family member of a Union citizen.
On what basis are you currently in the UK? If resident under EC law, were you a member of your sister-in-law's household in the country from which you have come? Or were you dependent on her?

But as mentioned, my problem is about his sister who is the EEA national, who is encouraging my husband to not include me in that EEA4 application.

It's not really up to her. But anyway, we need to know on what basis you are currently resident in the UK.

Yes, it is possible for her to not supply the needed documents such as passport if she sees my name on it.

What are other ways to extend my stay?

If indeed, my husband gets the permanent residence in UK without my name on it, and assuming he gets hold of the said permit before my visa expires, can he, as a permanent UK resident be able to petition me or sponsor me as his wife under SET M of Settlement?

Once your husband has acquired Permanent Residence status in July 2010 (note: application or possession of a Permanent Residence Card is not mandatory), he is considered a person present and settled in the UK.

You would then be able to apply for settlement, in accordance with the Immigration Rules, as the spouse of a person present and settled in the UK. This may involve your returning to The Philippines and returning on a Spouse Visa - I'm not at all sure about that though, I'm personally not too familiar with the UK Immigration Rules - hopefully someone else can confirm.

[hot_chocolate]

I understand your thinking, but you are missing the point that there is no provision in the Directive for the right of residence of the family member of the family member of a Union citizen.
On what basis are you currently in the UK? If resident under EC law, were you a member of your sister-in-law's household in the country from which you have come? Or were you dependent on her?

Thanks for your replies.

My entry clearance says 'EEA family permit - family member'. I am not sure about what the directives say, but this is what it says on my visa. I am not sure if the directives were correctly followed or not but this is the case right now i am here in the UK and my visa mentions the above mentioned category as my current immigration status and i would be grateful if i could be advised on the way forward from here to extend my visa beyond july 2010 or getting PR along with my husband.

[Ben]

I understand your thinking, but you are missing the point that there is no provision in the Directive for the right of residence of the family member of the family member of a Union citizen.
On what basis are you currently in the UK? If resident under EC law, were you a member of your sister-in-law's household in the country from which you have come? Or were you dependent on her?

Thanks for your replies.

My entry clearance says 'EEA family permit - family member'. I am not sure about what the directives say, but this is what it says on my visa. I am not sure if the directives were correctly followed or not but this is the case right now i am here in the UK and my visa mentions the above mentioned category as my current immigration status and i would be grateful if i could be advised on the way forward from here to extend my visa beyond july 2010 or getting PR along with my husband.

Ok, you came in on an EEA Family Permit. On what basis was this issued? I.E., what is your relationship to the EEA national?

Also, EEA Family Permits are a form of entry clearance only, valid for six months. Do you now hold a Residence Card?

[hot_chocolate]

As far as I have read through the HO UKBA website under ''For European Citizens'' section, 'a resident card is normally valid for five years.' I believe I was issued resident card because the stamp or visa or what it's called which has a heading of ''UK Entry Clearance'' says the following:

Number of entries: MULT
Type: VISA EEA FP: FAMILY MEMBER
Valid until: 22/07/2010

My relationship to the EEA national is a sister-in-law because I am married to his brother.

To briefly say how it all started, firstly my husband entered UK as a family visitor in March 2005. His EEA national sister applied for his EEA Family Permit while he was here and eventually the visa was granted July 2005. My husband then wrote letter to UK Embassy, Philippines requesting me and my kids to come to UK and live with him. I have applied for Family Permit as advised by a consul and eventually it was released sometime August 2006. Then my kids and I arrived UK September 2006.

Therefore, as he is to complete his 5 years requirement, he will apply for permanent residency by July this year. Now the question I am trying to raise is, if he will not include my name into the application due to his sister hindering him...what will I do?

I hope the situation is a bit cleared now.

[datuchi]

technically I see what you mean. You were included as a dependant of the person applying as a family member of the EEA national. I would think that even if you do divorce before the 5 years in the UK (which in your case is 2011) you will retain the right of residence upon ceasing to be a member of the EEA national's family, provided you lived in the UK for over a year and in the "relationship" over 3 years. This is the way I see it, otherwise it's unfair to get rid of extended family members who came to the UK on the sole basis of being dependent.


assume that a non-eea brings his parents as dependants in the ascending line in 2009, upon divorce the non-eea fulfils the retention of rights requirement in 2010 (having been married since 2007), what about his parents??? they can't be sent back as the whole point of bringing them here is that they are dependants. You are in a similar situation, and I think you will have to resort to some professional advice as this is not a straightforward scenario. But, I think you do have a good chance of succeeding.

the only problem I see is that when you apply for PR you will be asked to prove that at the time of your divorce (when you technically sever ALL the ties with your sister-in-law) the EEA national was exercising the treaty rights. Her being uncooperative, it could prove to be problematic to explain your situation etc, you really need to see an adviser.

As far as I have read through the HO UKBA website under ''For European Citizens'' section, 'a resident card is normally valid for five years.' I believe I was issued resident card because the stamp or visa or what it's called which has a heading of ''UK Entry Clearance'' says the following:

Number of entries: MULT
Type: VISA EEA FP: FAMILY MEMBER
Valid until: 22/07/2010

My relationship to the EEA national is a sister-in-law because I am married to his brother.

To briefly say how it all started, firstly my husband entered UK as a family visitor in March 2005. His EEA national sister applied for his EEA Family Permit while he was here and eventually the visa was granted July 2005. My husband then wrote letter to UK Embassy, Philippines requesting me and my kids to come to UK and live with him. I have applied for Family Permit as advised by a consul and eventually it was released sometime August 2006. Then my kids and I arrived UK September 2006.

Therefore, as he is to complete his 5 years requirement, he will apply for permanent residency by July this year. Now the question I am trying to raise is, if he will not include my name into the application due to his sister hindering him...what will I do?

I hope the situation is a bit cleared now.