EEA Fp/ EEA2 or FLR(M)?

[tati*]

Hi, everyone!

I would very much appreciate if you could help me to clarify some doubts.

In January 2011 I have got a Marriage/Settlement visa.
My partner is Italian who has been living in the UK more than 16 years.
After our marriage what kind of visa should I apply for? EEA FP/ EEA2 or FLR(M)?

One immigration lawyer told me that I'll have to apply for FLR(M).
Could anyone explain me: why I can't apply for EEA2?

I look forward to hearing from you soon.
Thanks in advance.

[vinny]

After marriage, if your spouse has a permanent right of residence, then you have a choice of FLR(M) or EEA2. Else, if s/he is a qualified person, then you may apply for EEA2.

[fysicus]

Go for the EEA route: applications are free of charge and you don't need a sollicitor at all!

Your Italian partner may never have applied for Permanent Residency under the EEA regulations, but he probably acquired it automatically on 1 May 2006 when the current regulations came into force.

You could consider to submit now an EEA2 form for yourself and an EEA3 form for your partner simultaneously; there is a lot of overlap in the required supporting documentation.

[tati*]

After marriage, if your spouse has a permanent right of residence, then you have a choice of FLR(M) or EEA2.

Vinny, my husband does not have any document which proves his PR. Should he have? He has been living and working in the UK since 1996 and he never felt a need to apply for any document because he acquired this status automatically as fysicus said above.

[tati*]

Go for the EEA route: applications are free of charge and you don't need a sollicitor at all!

That's why I would like to apply for EEA2.
But that imm.lawyer told me that if I was granted Fiancee or Marriage Settlement visa, I cannot apply after that for EEA2, only for FLR(M).
That's why I am confused. What to do?!

Your Italian partner may never have applied for Permanent Residency under the EEA regulations, but he probably acquired it automatically on 1 May 2006 when the current regulations came into force.

You could consider to submit now an EEA2 form for yourself and an EEA3 form for your partner simultaneously; there is a lot of overlap in the required supporting documentation.

But can I apply for my visa alone? Or do we have to apply together?

[vinny]

The permanent right of residence is atomatic if he can show that he satisfies all the requirements. So, you should have a choice, as previosly stated above.

[tati*]

The permanent right of residence is atomatic if he can show that he satisfies all the requirements. So, you should have a choice, as previosly stated above.

Could you, please, tell me, for example? What can he show.. any documents for the last ... years?

Thanks a lot for your help!

[vinny]

Click on given links for more info.

[fysicus]

Look at the information on UKBA website and ignore your immigration lawyer. If your Italian partner has been exercising treaty rights (for example by being in employment, being self-employed or studying) for an uninterrupted period of five years, he has acquired Permanent Residency and can apply for confirmation of this status (form EEA3). And even if he does not qualify (unlikely I would think, if he is in the UK for 16 years already), you can still apply for a Residence Card (form EEA2) if he is currently exercising treaty rights. There is no need to send in your applications together; I simply suggested that as I think it is more convenient.

What documents exactly to submit, depends on his activities in the last five or six years or so, and there is certainly no need for an overdose on documentation as some people on this forum seem to believe (ill-advised by their lawyers). Look at the guidance that comes with the application forms, and remember that in English the word OR does not mean AND.

[tati*]

Thanks a lot, guys!!

I will apply for EEA2 and will suggest my husband to apply together.
You calmed me down.. the thoughts that I will be forbidden to apply for EEA2 because of my Marriage Settlement visa, didn't let me sleep well.

[Directive/2004/38/EC]

But that imm.lawyer told me that if I was granted Fiancee or Marriage Settlement visa, I cannot apply after that for EEA2, only for FLR(M)

What exactly did the lawyer say and what explanation did they give? I am curious, though I think the lawyer is likely wrong (as was outlined previously).

[tati*]

What exactly did the lawyer say and what explanation did they give? I am curious, though I think the lawyer is likely wrong (as was outlined previously).

He just said that if I've got Marriage/Settlement Visa as Fiancée of "a settled and present person in the UK", I cannot change a regime/ way I chose, means that I cannot after Marriage Settlement Visa apply for EEA2. That's all.

[Directive/2004/38/EC]

So, there are two streams of law. UK-specific rules and EU-rules as implemented by the UK.

I think it might be fair to say that if you start or assert your rights under EU rules, that you then do not have the option of changing to UK-specific rules. (The exception I know is for applying for citizenship: there you make the transition from EU-rules PR and then can apply for citizenship).

If you start out in UK rules, then I think you are always free (if you qualify) to chose instead to be covered by EU rules.

Disclaimer: I am not a lawyer, and there may be dark areas which do not work like this, but I think this is generally true.

[tati*]

So, there are two streams of law. UK-specific rules and EU-rules as implemented by the UK.

I think it might be fair to say that if you start or assert your rights under EU rules, that you then do not have the option of changing to UK-specific rules. (The exception I know is for applying for citizenship: there you make the transition from EU-rules PR and then can apply for citizenship).

If you start out in UK rules, then I think you are always free (if you qualify) to chose instead to be covered by EU rules.

Disclaimer: I am not a lawyer, and there may be dark areas which do not work like this, but I think this is generally true.

Thank you, Guru, a lot. If you remember me, we had a discussion about my Fiancee visa in autumn last year where YOU were RIGHT! I was granted a visa.
But now I am puzzled and don't know what better to choose?! I am so afraid to be refused if I'll apply for EEA2 changing my immigration status from UK-specific rules to EU rules.

[fysicus]

I am 1000% sure that there is not the remotest chance of an EEA application being refused for such a silly reason. This lawyer obviously has no experience whatsoever with the EEA regulations, and what he says is utter rubbish!

How you entered the UK is totally irrelevant for a Residence Card application. Even if you would have entered the UK illegally and then somehow get married to an EEA national, your Residence Card application would still be perfectly acceptable!

Furthermore, technically an application under EEA regulations is a request for confirmation of rights that you have acquired automatically already (in tati*'s case by marrying an Italian). These rights are independent of any other rights that you may have been granted by the UK on the basis of other legislation, and no piece of UK law can deny you these rights or the privileges derived from them.

Tati*: get married if you have not done so yet, then submit your EEA2 form and stop worrying!

[vinny]

But now I am puzzled and don't know what better to choose?!

choice

The link explains the differences so that you may make an informed decision.

[Directive/2004/38/EC]

I agree that you have a *choice* to make. And since you are married to one of those European types, one perfectly viable options for you is to get a Residence Card as the family member of a European citizen.

[tati*]

THANK ALL of YOU for THIS:

Tati*: get married if you have not done so yet, then submit your EEA2 form and stop worrying!

THIS:

The link explains the differences so that you may make an informed decision.

and THIS:

I agree that you have a *choice* to make. And since you are married to one of those European types, one perfectly viable options for you is to get a Residence Card as the family member of a European citizen.

There are VERY important words and opinions for me.
Best wishes, Taty.

[vinny]

Note that there are plans to extend the spouse's probationary period under the UK immigration rules.

[tati*]

Note that there are plans to extend the spouse's probationary period under the UK immigration rules.

Vinny, thanks, I have not heard about this yet. Means that I need to apply for EEA2 for sure.