EEA Family permit for non-EU member - help please!

[Trent]

My Chilean wife who was in the UK with a spouse visa and awaiting indefinite leave to remain had to return to Chile for family reasons. Since she asked the passport to be returned to her, the SET(M) Form application process was cancelled and she would have to start everything from scratch again. As it happens I am dual national, UK and Swiss and I was thinking of applying under EU law this time.

A couple of questions:

Can my wife come as a visitor to Switzerland and apply for the family permit to the UK from there?

If the application has to be done in Chile, apparently the consulate there doesn't process the visa and I have to go through Worldbridge services which involves sending her supporting documents to their New York office! It would seem to me that this will cause major delays. I wanted to get my wife and son back here before end of March (My son's first birthday). Is there any way around this? I thought they were under the obligation to treat these EEA applications quickly and having people send their documents from Chile to New York and back again doesn't seem fun.

I have read on these forums that as sponsor of an EEA family permit I need to demonstrate the right of permanent residence (I think that's what it was called). Can I present my UK passport as evidence or is this likely to cause problems as the application is under EU law as a Swiss citizen?

Many thanks for your help and time!

[Ben]

Have you lived in the UK for more than 5 years, exercising a Treaty right?

If so, you are a Swiss national with the right of Permanent Residence in the UK. This should be demonstrated by you wife in her application for an EEA Family Permit.

You have the right to be issued a Permanent Residence Certificate, which is the easiest way for your wife to demonstrate that she is the spouse of a Swiss national who has acquired the right of Permanent Residence in the UK. However, since this would probably take six months to process, it may not be the best option in your case.

In which case, other documentation to affirm that your wife is the spouse of a Swiss national who has acquired the right of Permanent Residence in the UK, would suffice.

I would stop short of submitting your British passport in the application. It is not necessary and might only cause confusion for the ECO.

[Trent]

Thank you for the quick reply.

I have lived in the UK for over 5 years either working or studying so I believe I would qualify. When you say:

In which case, other documentation to affirm that your wife is the spouse of a Swiss national who has acquired the right of Permanent Residence in the UK, would suffice.

What is needed to demonstrate that I have acquired the right of Permanent Residence? Correspondance to my name with an address in the UK dating from 5 years ago? Letters from people that know me?

About the UK embassy in Chile requiring us to send documents to their worldbridge office in New York, is that normal?

EDIT: Sorry I forgot to add, does the application need to be in her home country or can she apply at the UK embassy as a visitor to Switzerland?

[Ben]

What is needed to demonstrate that I have acquired the right of Permanent Residence? Correspondance to my name with an address in the UK dating from 5 years ago?

Yes, this would demonstrate residence in the UK. You also would need to show that you have been exercising a Treaty right for at least five years. To this end, you should show payslips / proof of study.

About the UK embassy in Chile requiring us to send documents to their worldbridge office in New York, is that normal?

Possibly, if New York is the nearest visa issuing post. Seems a bit far though.

[Trent]

Ok great. Sorry, I just added an edit right after you responsed.

Can she apply in Switzerland? I'm unsure due to the wording on the UKBA website and conflicting information from various sources. The Worldbridge email template I got back said:

You may submit an application for a Visit visa in any country. Applications for any other entry clearance categories, however, should be submitted in your country of nationality or your country of normal residence.

Which is quite categorical but I wonder if they confuse visa with EEAFP application? I have read elsewhere something to the effect that the EEA route is different to a typical visa and could be done as a visitor in anotehr country. This may be outdated inofrmation of course.

[86ti]

http://www.ukvisas.gov.uk/en/ecg/eunati ... t#13627112

[Trent]

http://www.ukvisas.gov.uk/en/ecg/eunati ... t#13627112

Thank you! That's very clear.

For a minute I was worried when I read this on that link:

EUN2.15 Can family members of dual nationals/ Irish nationals and EEA nationals with settled status qualify for an EEA family permit?

This guidance is currently under review, but please refer to ECO Support for interim instructions.

After a quick search I found this FOI request asking for clarification about the vagueness, you might be interested to see it if you haven't already:

http://www.whatdotheyknow.com/request/d ... _family_pe

There is no ambiguity, dual nationals/ Irish nationals and EEA nationals with settled status can choose which route, EU or UK, they wish to use. In addition, it states:

If dual nationality is mentioned by the applicant, you should explain the choice of whether to come under the Immigration Rules or EC law but should make clear that evidence of EEA nationality (for example EEA passport) will be required

So it incumbs upon the ECO to mention the EEA route if at any point dual nationality was mentioned.

[Trent]

If I can ask another related question, the requirements that an ECO has to fulfill to grant an EEAFP are:

EUN2.4 What are the requirements for issuing an EEA family permit?

In assessing an application, the ECO should be satisfied that:

1. the applicant is the family member of the EEA national (marriage certificate, birth certificate or other evidence of family link)
2. the EEA national is residing in the UK in accordance with the EEA Regulations (as qualified person if more than 3 months) and the non-EEA national is joining them; or
the EEA national intends to travel to the UK within 6 months and will have a right to reside under the Regulations on arrival, and the non-EEA national will be accompanying or joining the EEA national; and
3. if applying as a spouse or civil partner, there are no grounds to consider that the marriage or civil partnership is one of convenience (see Annex ….); and
4. if applying as dependent family members (dependent children 21 and over and dependent relatives) they are dependent on the EEA national or the EEA national’s spouse or civil partner; and
5. neither the applicant nor the EEA national should be excluded from the UK on the grounds of public policy, public security or public health.

There is no mention that I need to demonstrate permanent residence? Simply that I am "residing in the UK in accordance with the EEA Regulations (as qualified person if more than 3 months)". Indeed, what if I had recently moved to the UK, would I need to wait 5 years before my wife could join me?

[86ti]

There is no mention that I need to demonstrate permanent residence? Simply that I am "residing in the UK in accordance with the EEA Regulations (as qualified person if more than 3 months)". Indeed, what if I had recently moved to the UK, would I need to wait 5 years before my wife could join me?

No, you do not have to be a permanent resident. Not sure why Ben brought that up except that it should make the application process easier.

One point that is not clear to me. Even if your wife has to start from scratch again if naturalisation is of concern it would still be faster on the UK route (though expensive).

[Ben]

There is no mention that I need to demonstrate permanent residence? Simply that I am "residing in the UK in accordance with the EEA Regulations (as qualified person if more than 3 months)". Indeed, what if I had recently moved to the UK, would I need to wait 5 years before my wife could join me?

The EEA or Swiss national must either:

• Be resident in the UK for less than three months.
• Be resident in the UK for more than three months and, if less than five years, must be employed, self-employed, enrolled in a course of study or economically self-sufficient.
• Be resident in the UK for more than five years (thus having acquired the right of Permanent Residence).

Since you fall in to the third category, it is not necessary to provide evidence that your are currently employed, self-employed, enrolled in a course of study or economically self-sufficient. It is instead necessary (in the absence of your Permanent Residence Certificate) to prove that you were employed, self-employed, enrolled in a course of study or economically self-sufficient during the last five years.

Although, practically speaking and due to the absence of your Permanent Residence Certificate, you may find it easier to ignore the fact that you have acquired the right of Permanent Residence in the UK, in your wife's forthcoming EEA FP application, since it may be easier to prove that you are currently employed than to prove that you were employed for the last five years (assuming employment is the applicable activity in your case). For the purpose of the issuance of an EEA FP, it really makes no difference whether the EEA or Swiss national has the right of residence or the right of permanent residence in the UK - so long as he has one or the other, his family members have the right to join him.

[Trent]

Aha understood, thank you for the detailled explanations.

As a side note, I emailed the WorldBridge Services to ask why their advice conflicted with the UKBA directives. They just replied with a modified message, no apologies for having sent misleading information, that is unless they consider the EEA FP to be a visit visa:

You can lodge an application for a visit visa or an European Economic Area family permit even if you are not resident in Switzerland. There may be a delay with your application and you should ensure that you provide as much supporting documentation with your application as possible to show you are well established in the country where you reside. You cannot apply for a long term visa without a valid residence permit for Switzerland.

I don't see where the EEA FP procedure requires proof that "you are well established in the country where you reside" nor how they could justify delays on that basis.

[Ben]

I think you can take whatever WorldBridge say with a very large pinch of salt.

If I understand correctly, they are merely a forwarding agent who passes on visa applications to the embassy.

[Trent]

OK thanks, I'll keep that in mind.

86ti - You're right that it would be faster to reapply with a spouse visa. As you mentioned it is more expensive and for us the extra two or three years before she can apply for citizenship are not really a problem. In the meantime she is free to work and travel.

On another level which you may consider frivolous, is that the whole UK route costs well over £1000, which I take objection to. It is completely disproportionate to the incurred costs and I consider it extortion. I have already paid it once, and the UKBA in true Kafkaeque style, instead of pausing the application or returning her passport for a few days as my wife needed to travel urgently, just cancelled everything. So as a matter of principle, I do not wish to pay the UKBA anymore than I have already.

Ben - You're quite right, it will be much easier for me to prove my current employment than to go fishing for university matriculation and old pay slips! If that is acceptable then I will try and fit in as your second category.

[86ti]

I think you can take whatever WorldBridge say with a very large pinch of salt.

If I understand correctly, they are merely a forwarding agent who passes on visa applications to the embassy.

...and as far as I understand they have no responsibilities in the process apart from forwarding applications...

Better try and get the information from the people who (should!) know: http://ukinswitzerland.fco.gov.uk/en .