EEA Family Permit from Visitor Visa

[alex.mckenzie98]

My wife, who is from Kenya, is currently visiting me in the UK and holds a 1 year visitor visa. I am an EEA national and resident in the UK.

We have exchanged visits while we were deciding where we would like to settle down. Desicion now made due to my work.

Upon her return to Kenya, we have considered her applying to return permantly as my spouse using an EEA Family Permit, which I would qualify for.

My question is, can she apply for an EEA Family Permit while still holding a visitors visa?

[vinny]

Which EEA country are you from?

If you are a qualified person, then she may apply for a residence card.

[Kitty]

Holding a valid visit visa will not prevent her from applying for a Family Permit once she is back in Kenya.

She is also eligible to stay in the UK right now under EEA rules as your family member: she may apply for a Residence Card to prove this (which would mean she wouldn't need a Family Permit: she could leave the UK and return using her RC).

However, I don't know how long EEA applications are taking to process at the moment: if she has things to tie up in Kenya and needs to go back within the next few months it may be easier for her to apply for the Family Permit once she is back.

[alex.mckenzie98]

Thanks Vinny and Kitty

Vinny; I was born in Dublin in the Republic of Ireland, but have lived and worked in Northern Ireland most of my life. I hold an Irish and British passport.

Kitty: As my wife works in Kenya, she would have to clear up her personal things and leave work cleanly with a good reference.

By the way, can any of you tell me if it will be any problem bringing our little boy, who is 11 years of age to the UK as well? He still lives with mama in Kenya.

This whole immigration thing is very confusing, so I would appreciate any advice.

[Directive/2004/38/EC]

I assume you are working in the UK right now.

Depending on how much time she has remaining in the UK, you can apply for a Residence Card now. You would then need to immediately request back the passport and then she could travel.

Does she have a multiple entry visa to the UK? If so she could pass entirely on the EEA FP. The upside of the EEA FP is that she could immediately work in the UK on her return and that it clearly marks her entry as based on European Law.

Your children and her children can also get an EEA FP.

Make sure you wife has a copy of your passport, the original or a copy of your marriage certificate, and the original birth certificates of the kids.

[alex.mckenzie98]

Thanks Directive/2004/38/EC

Yes, I am working in the UK and own my own home.

The 1 year visa allows her multiple visits, but as you say, the EEA FP would allow her to work immediately.

My wife would have to give one months notice at her work and would get a good reference, which would be important in her securing a good position in the UK.

As long as she can apply for the EEA FP while still holding a visitor visa and no major problems bringing our child as well, then that is the way we will go.

Thanks again.

[Directive/2004/38/EC]

As long as she can apply for the EEA FP while still holding a visitor visa and no major problems bringing our child as well, then that is the way we will go.

She should take all documentation needed for the EEA FP application. Specifically she needs her passport, a photocopy of your passport, your marriage certificate, (ideally) proof that you are working and living in the UK, and her child's birth certificate and passport.

She should apply for an EEA FP for herself and for any children. See http://www.ukvisas.gov.uk/en/howtoapply ... s#22714756

Is your child also biologically yours? Does the child have a European passport?

[alex.mckenzie98]

Thanks again Directive/2004/38/EC

No, the child is not mine biologically and has a Kenyan passport.

I’ve been told my wife may need an affidavit to confirm sole custody of the child. Is this the case?

Are there any other documents that need to be included that you can think of?

[Directive/2004/38/EC]

I suspect you will need some documentation about the child's other parent and who has parental responsibility.

See Chapter Three in http://www.ukba.homeoffice.gov.uk/sitec ... dlaw/ecis/

2.1 Handling and assessing applications for EEA Family Permits

Children’s Duty

Section 55 of the Borders, Citizenship and Immigration Act 2009 requires the UK Border Agency to carry out its existing functions in a way that takes into account the need to safeguard and promote the welfare of children in the UK. It does not impose any new functions, or override existing functions.

Officers must not apply the actions set out in this instruction either to children or to those with children without having due regard to Section 55. The UK Border Agency instruction ‘Arrangements to Safeguard and Promote Children’s Welfare in the United Kingdom Border Agency’ sets out the key principles to take into account in all Agency activities.

Our statutory duty to children includes the need to demonstrate:
• Fair treatment which meets the same standard a British child would receive;
• The child’s interests being made a primary, although not the only consideration;
• No discrimination of any kind;
• Asylum applications are dealt with in a timely fashion;
• Identification of those that might be at risk from harm.

Section 55 ( http://www.ukba.homeoffice.gov.uk/sitec ... /bci-act1/ ) though seems to be rather vague and mostly oriented to cases when they believe there is child trafficking, which is unlikely in this case.

Please let us know if they request anything related to parental responsibility for her child.

[alex.mckenzie98]

Thanks Directive/2004/38/EC

One other question, does my wife include our child in her application or on a separate application?

Thanks.

[Directive/2004/38/EC]

I am not sure. Check carefully through the web site and I am sure you will find the information. If not post here again.