EEA family permit if EEA national does not work in UK?

[bigsky]

I am a US citizen. My wife is a EEA national. We both currently live in the US.

We are planning to move to the UK this summer so I can open a UK branch office for my company and so my wife can be closer to her family in Europe. My wife may or may not work while we are in the UK.

I was planning to not get a visa and move to the UK with an EEA family permit.

However, I have been advised by one immigration lawyer that, "EEA Family Permit is not going to be the best option for you as your wife needs to show that she has genuine reason to be in the UK herself for the purposes of employment for this to be a viable route, as she does not intend to work the Tier 2 option will be the best for you."

Can someone confirm if this is true?

I thought my wife would be considered a qualified person as a "a self-sufficient person."

We need to move there in July so I would like to get this sorted quickly.

Many thanks in advance for any help.

[Directive/2004/38/EC]

Based on what you say here, I wonder why the lawyer suggested that EEA FP would not be the right option. Where was the lawyer you talked with? European law seems like the best and only option as far as I can tell.

Where is your wife from?

If you want to work immediately in the UK, the you will need an EEA FP. You will otherwise not be able to get a normal job. In general that will be valid for 6 months. You should apply now.

At the end of 6 months, she will need to be working, or be a student, or be self-sufficient. If she is self-sufficient (including through your income) then she and you will also have to have private health insurance (not sure if this is legal but they will ask for it). As soon as any of these conditions are met (does not have to be after 6 months), you can apply for a Residence Card. Your Residence Card remains valid as long as your wife continues to qualify.

[bigsky]

Thank you very much.

Based on what you say here, I wonder why the lawyer suggested that EEA FP would not be the right option. Where was the lawyer you talked with? European law seems like the best and only option as far as I can tell.

The response was from a "Visa Specialists" company based in London (I found on the Web). I'm wondering if they suggested Tier 2 because they don't make any money with the EEA permit route.

They also wrote that the company I work for that is establishing the UK branch, "will have to obtain a sponsors license to allow them to sponsor yourself and other staff members, this process takes around 6 weeks but they will need to be in a position to show that they have established an office in the UK, have a lease on premises, Employers Liability insurance and have obtained the a VAT registration and PAYE Reference from Her Majesty's Revenue and Customs."

Where is your wife from?

Germany

If you want to work immediately in the UK, the you will need an EEA FP. You will otherwise not be able to get a normal job. In general that will be valid for 6 months. You should apply now.

At the end of 6 months, she will need to be working, or be a student, or be self-sufficient. If she is self-sufficient (including through your income) then she and you will also have to have private health insurance (not sure if this is legal but they will ask for it). As soon as any of these conditions are met (does not have to be after 6 months), you can apply for a Residence Card. Your Residence Card remains valid as long as your wife continues to qualify.

So I apply for the permit now, and don't need to worry about things like proof of self-sufficiency and private health insurance until we are settled in the UK?

I just want to be certain that I won't have any issues remaining in the UK as our two small children (both EEA nationals) will be with us and will be settling into school there.

Thanks again in advance!

[Directive/2004/38/EC]

I'm wondering if they suggested Tier 2 because they don't make any money with the EEA permit route.

Same thought occurred to me! Plus some immigration lawyers do not seem to really understand EU law.

So I apply for the permit now, and don't need to worry about things like proof of self-sufficiency and private health insurance until we are settled in the UK?

Well the UK is a little mixed up with the EEA FP. They kind of roll everything into one form.

So if you absolutely definitely plan to stay for the next 20 years, then they will ask for proof your wife is working or self sufficient, etc...

If you plan to move to the UK and see how it goes for the next three months after your arrival, then they can not ask for any of that. For up to 90 days, they can put "no conditions" on your EEA FP. And if during those 90 days you decide to stay longer, you can do it with no problem so long as you now meet the working or self-sufficient conditions. For under 90 days, all you really need to provide is (1) your passport, (2) her passport or Personalausweis, and (3) your marriage certificate.

I just want to be certain that I won't have any issues remaining in the UK as our two small children (both EEA nationals) will be with us and will be settling into school there.

You have a right of free movement with your wife. It is VERY unlikely that your wife will be asked to leave the UK, and if she is not removed, then you will not be removed (unless you are a threat to national security, or something similar).



Note also that your wife could work part time, and that is enough to qualify her as the "worker". Any real job will do. For example, 1/2 time at MacDonalds is fine.

[bigsky]

I already have a job in the UK with my current employer (US company that is opening a branch in UK; initially I will be only employee). They would pay the fees for me to get a Tier 2 Visa. Is there any reason why a Tier 2 Visa would be better for me than the EEA route?

[Directive/2004/38/EC]

I already have a job in the UK with my current employer (US company that is opening a branch in UK; initially I will be only employee). They would pay the fees for me to get a Tier 2 Visa. Is there any reason why a Tier 2 Visa would be better for me than the EEA route?

Good question, and more interesting than you might think.

First off, I do not know much about Tier 2 visas, especially how long it takes to apply for, requirements, and so on.

You have a fundamental right of free movement in all of Europe based on your relationship to your wife. Even if you enter the UK on the basis of Tier 2, that in no ways infringes on your parallel right to be there because of your dear spouse. So if for some very imaginary reason all Tier 2 visas get cancelled on 13-Dec-2011, you still have a right to be in the UK based on your relationship to your wife (so long as she is self sufficient or working). You can think of it as your secret option in your pocket - and it is always there even if you do not tell anyone about it.

Is it better to initially go Tier 2 or EEA FP? Hmmm.... The following is my take on it, though others may have more to add or disagree...

Tier 2 benefits: There might (or might not) be a benefit for your employer to have their first person in the UK under Tier 2 (but I do not know). You would not have to provide your own health insurance in the UK, and your wife could probably avoid it too - so you save money if you stay with the NHS.

EEA FP benefits: You should be able to get this in a few weeks, which may be a lot faster than Tier 2, especially if your company presently has no UK presence. Free - maybe you can get your employer to pay you the fee which would otherwise go to your Tier 2 application into a bigger initial housing allowance in the UK (very expensive it is!).

[Kitty]

If you are going to be the "sole representative" of your employer in the UK, there is a visa category specifically for that:

http://www.ukba.homeoffice.gov.uk/worki ... igibility/

This does not come under the Points Based System (so it is not subject to things like caps etc. that make it difficult to obtain Tier 2 visas).

[bigsky]

If you are going to be the "sole representative" of your employer in the UK, there is a visa category specifically for that:

http://www.ukba.homeoffice.gov.uk/worki ... igibility/

This does not come under the Points Based System (so it is not subject to things like caps etc. that make it difficult to obtain Tier 2 visas).

Thanks for this. Very interesting.

One good thing about this approach is that I would not have to purchase private health insurance.

[Kitty]

Thanks for this. Very interesting.

One good thing about this approach is that I would not have to purchase private health insurance.

And on reflection, I'm not sure why you were advised that Tier 2 would be suitable at all: if your employer has no presence in the UK and you will initially be the only representative then there is no licensed sponsor who sould issue you with a Tier 2 certificate of sponsorship.

Other useful pages about the overseas representative route:

http://www.ukba.homeoffice.gov.uk/polic ... les/part5/ (scroll to paragraph 144)

http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary

Bear in mind that your wife doesn't have to work full time in order to be a "qualified person" under the European route.

[bigsky]

Bear in mind that your wife doesn't have to work full time in order to be a "qualified person" under the European route.

Thanks Kitty. I'm assuming my wife could be a "qualified person" by being a "self-sufficient person" through my income. Of course we could show US or UK bank statements to show our savings/resources.

Do you know if it is acceptable for the EEA national to be considered "self-sufficient" through the income of their non-EEA national spouse? Thanks!

[Directive/2004/38/EC]

Do you know if it is acceptable for the EEA national to be considered "self-sufficient" through the income of their non-EEA national spouse? Thanks!

It does not matter where the money comes from. Could be a decent sized savings account, or spouse's job.

[John]

I'm assuming my wife could be a "qualified person" by being a "self-sufficient person" through my income.

That is right. So when earlier you posted :-

I have been advised by one immigration lawyer that, "EEA Family Permit is not going to be the best option for you as your wife needs to show that she has genuine reason to be in the UK herself for the purposes of employment

-: clearly that lawyer has an incomplete understanding of a person exercising Treaty Rights in the UK. Being a "worker", that is, being employed, is only one such way, and there are others including being self-sufficient.

[bigsky]

I talked with an immigration lawyer today and he suggested that the Sole Representative visa might be the best option for me because I will not have to give up my passport two times (for several weeks each time) like I would with the EEA route.

Their fee for help with the Sole Representative route is 2,500 GBP.

Question - is that worth it? It seems like a pretty straight forward process that I could do on my own. Would it be much faster to do it with a lawyer?

[Directive/2004/38/EC]

I talked with an immigration lawyer today and he suggested that the Sole Representative visa might be the best option for me because I will not have to give up my passport two times (for several weeks each time) like I would with the EEA route.

Their fee for help with the Sole Representative route is 2,500 GBP.

Question - is that worth it? It seems like a pretty straight forward process that I could do on my own. Would it be much faster to do it with a lawyer?

Definitely worth it for the lawyer! :-)

It sounds like an important issue is that you want your passport available at all times.

Why do you think you would have to give up your passport for several weeks twice if you go the EEA route? I think it is for a few days to get EEA FP, and then a few weeks when you apply for the Residence Card.

You could even possibly pass on the Residence Card if you really want since you will be running the company and can travel with a US (no visa required) passport. Practically it may be easier to have the Residence Card though.

How long would the Sole Representative route take? How long would you have to give up your passport for? Would you then have to get an Foreigner's ID card when you get to the UK?

[John]

bigsky, I totally agree with Directive. Indeed I would say that not going down the EEA route is totally daft .... and a totally unnecessary expense.

[vinny]

Agree too.

See also self-sufficient person and AG and others (EEA-jobseeker-self-sufficient person-proof) Germany [2007] UKAIT 00075.

Don't forget about the comprehensive sickness insurance cover in the UK.

[bigsky]

Why do you think you would have to give up your passport for several weeks twice if you go the EEA route? I think it is for a few days to get EEA FP, and then a few weeks when you apply for the Residence Card.

Thanks for this. I'm now thinking again that the EEA route is best. Could someone please tell me more about exactly when and for how long I would have to give up my passport?

[Directive/2004/38/EC]

Depending on where you apply for the EEA FP, I think it should be pretty fast. I just read of somebody getting it in 3 hrs, though I do not know details, and I expect that is the best imaginable turnaround. But it is supposed to be "as soon as possible and on the basis of an accelerated process".

Applying for a Residence Card can take up to 6 months (legal maximum). Most are done faster. You should request the passport back from within the application or cover letter, and you can also call UKBA to request it back. I would personally suggest doing both. I do not know how long from mailing your application to getting the passport back would take. To be conservative, I would GUESS 4-6 weeks.