EEA FAMILY PERMIT FOR NON EEA BEING A PARENT?

[adnan01]

Hi,

I am in very bad situation. Basically, I lived in Uk for more then 6 years and was studying with student visa. I got married religiously with my wife(Partner) and did not manage to register our marriage under UK law.

I applied for Residence card when I was in the UK and was informed that my application is withdrawn because my wife (partner) is exercising her treaty rights as a student and I am her extended family member. Hence, extended family member can not be sponsored if EEA citizen is student. My Partner is Latvian citizen and living in the UK since 2006.

I left UK and came to Dubai and got work. Now, Its been four months since I am away and I dont see things getting better here. So I want to go back to UK. I have 2 years old daughter who also has Latvian passport. My daughter was born in the UK and I'm sure she should get British Citizenship.

Anyway, I just want to find out how can I apply for EEA family permit because my partner (Wife) is still a student and our marriage is not registered. Last time when I applied for Residence card being present in the UK, I did not provide my daughter's passport because we did not had her passport issued.

On what basis can I apply EEA family permit? Would I get EEA Family permit to join my family. I need to be there to support my family because I am unable to bring them here in Dubai as my job is not good enough to support them.

Please advice me on this matter.

Thanks.

Adnan

[Kitty]

What is your nationality?

Have you got evidence of contact between you and your wife since you left the UK?

Does your wife hold medical insurance as required for students exercising EC rights? If you come to the UK, what are your chances of getting work?

[adnan01]

Hi,

I have been completely in contact with my wife. We send text messages to each other every day many times. We also speak on skype, msn and phone calls. She does not have medical insurance at the moment, but she did have it before until I got negatice reply from HO. But she already has Registration certificate as a student. However, WRS has been abolished, would it have any positive impact on my application?

I am UK graduate and had worked in retail for 6 years. I graduated last year and have best chances to get employment within a month. Ofcourse, I would get employment in Retail again, but as I graduated recently I will get better job afterwards.

I am Pakistani national and was living in the UK since 2004. My daughter and wife are Latvian National. I do have Marriage certificate which was issued by Mosque, however according to UK law it is not considered to lawful. We have been sending emails to each other. My daughter's birth ceriticate is attested by Foriegn affairs which shows I am her father and my wife is her mother as we are her parents ofcourse.

I will be very grateful for advice.

Thanks,

[adnan01]

Its urgent as I am willing to apply for EEA family permit asap. I will be very obliged for guidance.

Thanks

[Kitty]

adnan01, it's quite confusing if you have a number of threads running with different information in all of them.

In order for you to get a family permit you must show:

1. You are married to, or in a "durable relationship" with your EEA partner

2. She is exercising treaty rights in the UK in accordance with the Immigration (European Economic Area) regulations 2006.

As I understand it, you married your Latvian wife in a religious ceremony. You don't say whether this was in the UK or elsewhere. If you married in a country where the religious marriage is legally recognised, then you may apply for a family permit as a spouse (family member).

If your marriage is not recognised (for example, you had only a religious ceremony in the UK), then you can either get married, or apply as an extended family member in a "durable relationship".

How long have you and your wife lived together? The definition of a "durable relationship" is based on the requirement to have lived together for at least 2 years. However, I would say that as you have a child together, you may get away with a shorter duration.

If your wife is a student, she must have "comprehensive sickness insurance" in order to be living in the UK "in accordance with the Regulations".

However, if she starts even a part-time job, she can be considered to be in the UK as a "worker", not requiring insurance. Is that something that is possible?

[adnan01]

Thanks you very much

Yes it is possible that she can work part-time.

We had our religious marriage ceremoney in UK and I do have certificate from mosque. I can't get marriage registered as I am away in Dubai rightnow.

We lived together since 2007 December till January 2011 and have daughter who is 2 year 3 months old. We have been getting child tax credit since February 2009 on same address under my and my wife name for my daughter so that is good enough to show that we have lived together for more then 2 years.

So you suggest she should start part-time work and that should do? or job seeker can also be considered?

As I mentioned earlier that for Residence card EEA2 I was told that my wife can not sponsor me as I am her extended family member (this is when I was present in the UK) so this is why I feel unsure to apply again same way. Or for family permit she being a student can sponsor extended family member? So i get sickness insurance for her and apply family permit straight away?

I am looking for best options because I want to make sure my application get accepted so that I can come and support my family.

Thanks

[Kitty]

adnan01, you can choose the following:

1. Have your wife obtain insurance, and then apply for a family permit. The UKBA are not obliged to grant a FP, but I think that the fact that you and your wife have a child together should be influential. Can you provide evidence that you have been living together since 2007? You should give as much information about your family circumstances and relationship history as possible. Emphasise that your wife would be deterred from exercising treaty rights in the UK if you were not allowed to rejoin your family.

2. Your wife begins work and you apply for a family permit using (for example) payslips, employment contract, letter from her employer etc. As the WRS has been abolished, your wife need only submit evidence of her employment.

You should give as much information about your family circumstances and relationship history as possible. Emphasise that your wife would be deterred from exercising treaty rights in the UK if you were not allowed to rejoin your family.

[adnan01]

Thank you very much Kitty.

So actually exercising treaty rights as a student allows her to sponsor extended family member for FP but not for Residence card EEA2?? Want to be sure abt this particularly.

I am very grateful for your advice. I personally think 2nd option would be more safer but I know it will be abit harder process for my wife, possible though.

I can prove we had lived together since December 2007 to January 2011 as bank addresses were same during this time. We did have tennacy agreements together, then since 2009 February we have been recieving child tax credit documents together as one letter with my name and my wife's name appearing together for my daughter.

This should be sufficient proof i guess!!..I will add other things too If possible!!!

Thanks

[Kitty]

My reading of the Regulations is that you may be issued with a Family Permit (and then a Residence Card) at the discretion of UKBA, once they have undertaken "an extensive examination of [your] personal circumstances".

They don't have to grant you a permit or RC, but there is not a prohibition on their doing so.

You should gather evidence of your relationship, family, any savings, UK job prospects. If you were denied entry to the UK, what would your wife and child do? You should emphasise in any applicaiton that if you are not allowed to join your family they will effectively be prevented from exercising their treaty rights in the UK because they will have no option but to up sticks and join you. Take care in how you present this as I suspect the UKBA might try to use your absence in Dubai as evidence that your family can well survive apart.

[Directive/2004/38/EC]

Is it possible for your wife to work during the summer, even on a part time basis? Any real job will do. She would then be considered a worker.

I realize that this is difficult to work when you have a two year old!

It is unfortunate that you left the UK. You could have possibly also been married in a civil ceremony at your local council offices. She could also have worked for a short time while you applied for a Residence Card.

[adnan01]

Thank you very much for your reply.

Well I applied for Residence card but after six months of wait HO replied that my wife (we only attended religious ceremony) as a student not eligible to sponsor me as Im her extended family member. Moreover, they also lost all our documents including passports, but fortunately after one month they sent us all the documents back stating that they located our documents.

Yeah it is unfortunate that I left UK, I had this worries that I have become over stayer as my student visa was expired on 31st May 2010 and I applied for Residence card in March 2010 and got reply from HO on 2nd October. So I left with this thoughts that Ok i will go Dubai and get a job and we are moving to Dubai. But things havent worked out here so far and I have no more courage to live with out my wife and daughter so I decided to come back.

I might ask her to work part-time or I may go for another simpler route of Tier 1 Post study work visa as I graduated last year september and all i need is 3 months bank statement balance of £2800. So Im planning to go back to pakistan and apply for Post study work permit and once I am in the UK then I will sort things out. Main reason for this is because in Dubai my employer has kept my passport and I cant apply from here because they dont give me my passport back until i Resign..So I will resign soon..

Thank you very much for YOUR HELP GUYS...very much appreciated.

Regards, ADnan

[Directive/2004/38/EC]

Don't jump to a decision too quickly on how to approach this. That did not work too well the first time... :-)

I would guess, but do not have experience to back my guess up, that since you have been rejected for the Residence Card and "overstayed" your past visa, that they will reject you for "Tier 1 Post study work visa" even if you otherwise qualify. So I would think that would be a risky way to go about things. (Others hopefully have comments on this route). The good news is that I do not believe that a new refusal would have a negative impact on a subsequent EU-law application.

You have a couple of basic things going for you:
(1) You are the legal father of an EU citizen child (and have a birth certificate to prove it)
(2) You have been living together as a married family (for how long exactly?) with an EU citizen wife, although you are now told by UKBA that they do not recognize the marriage.

There are also a couple of things you and your wife can optionally do to make things even easier for the EEA FP and/or for a subsequent Residence Card application:
(3) You could get "legally" married. In Latvia? In Pakistan? In Dubai? You would then not be an extended family member (this would result in a quick application and should be straight forward) You have a long history together, so this is clearly not a marriage of convenience.
(4) Your wife could start working. That would change her status, even if working part time (e.g. 8 hours per week). If all other things stay the same (e.g. you do not legally marry when you arrive in the UK), she would need to continue working.

It seems to me that you have several entry options:
(A) You could just apply as the husband of your wife. You have a clearly established common law relationship in the UK with a child. Under EU law, the child and your wife have a general right to not be separated from their family member (you!). I believe they have the discretion to allow this, and there is also case law which supports this.
(B) You could enter, under EU law, purely as the father of the lovely baby. (this might be a slower application). There is case law that supports this.

[adnan01]

Thank you very much for your comment.

Well I believe that I have legally stayed until my degree got completed as my application was with HO from March 2010 to 3rd November 2010 and my visa got expired on 31st May 2010. I had RC application in process when I got my degree awarded.

I was awarded degree on 16th September 2010, therefore as requirement is to be legally staying in the UK for your education period than I think I should getting it. However, it is certainly more riskier but quicker than FP application.

I did not had refusal of my residence card Application. Infact, they sent me letter stating that they have withdrawn my application on this basis that my wife is not eligible to sponsor me as an extended family member. So I don't have any refusal stamp in my passport. Yes, I left UK on 20th January 2011 which arguably I had to manage my finances to make sure I leave enough money with my family so that they do not struggle.

Unfortunately, my plan did not work out as my current job is not good enough to bring my family in Dubai and I feel they are more secure in the UK as if they struggle so welfare system is there as a last resort which we dont want at all and this is the reason I want to get back so I can work and support my family.

But certainly I am in very bad situation, not for myself but Its my family and I need to be with them at any cost.

I had lived with my wife since December 2007 where we had same address of bank statements and all billls. I have been getting tax credit letters with my all three family members name (including me) on one letter since Feb 2009 at same address. Which is enough to prove we had lived together for more than 2 years. My wife is gettins student finances and my name is on her application since 2009 as a partner and I provided student finance England with my financial details. So all these things are more then enough to show that we are in durable relationship.

FP application will take very long as I am unable to apply from Dubai because my employer has kept my passport and they are not willing to give me MY passport back (from Dubai FP application takes max 15 days). So I do not have any other option than just resigning and going to Pakistan to apply UK visa.

For family permit it takes around 2 months to hear a decision when apply from Pakistan and for post study 89% of the cases are resolved within 15 days. (UK visa processing times website)

How can I apply on basis of father of my daughter. Which application would I need to use? What category of immigration would it be?
Can I come to UK on visit visa and then change my status there?

Its all too complicated for me at the moment because I see options but I want to go for the one which gives me the best chance of acceptance.

Please advise me on this.

Regards

[adnan01]

There are many other factors I Need to mention;

1. My wife & Daughter living with my Mother-in-law who is herself on benefits and she is pushing my wife & daughter everyday to leave her home. So my wife need to rent a flat in order to show she have accomadation in the UK which is hard as we have limited finances. Or she go to council to claim a flat but this will make my application bad? Tho I want to come to UK to support my family but she having benefits will increas chances of refusal for my FP applciation.

2. Ok lets say my wife finds part-time work than she would still need to rent a flat and if she rent a flat than she will need benefits temporarily to pay rent so that she can survive until I get there and work, but again this can have negative impact on my applciation of FP.

So would that help my application at all? So this is the reason I thought to apply thro different route and come to UK on Post study work while my wife claims whatever she needs in order to survive. We do have enough finances for maintenance but we can't afford to rent a flat and in FP application it requires me to show that my family have proper accomadation.

What would be the best thing to do here!! My wife & daughter still living on there own with no welfare help but her mother is pushing her to leave flat that will end up her applying some sort of benefits. This is why I am thinking to go thro different route.

What do you think guys??? Appreciate your comments!!thanks alot

Regards,

[Kitty]

One further possiblity, adnan01:

The Immigration Rules inrespect of fiancés state:

290A. For the purposes of paragraph 290 and paragraphs 291 - 295, an EEA national who holds a registration certificate or a document certifying permanent residence issued under the 2006 EEA Regulations (including an EEA national who holds a residence permit issued under the Immigration (European Economic Area) Regulations 2000 which is treated as if it were such a certificate or document by virtue of Schedule 4 to the 2006 EEA Regulations) is to be regarded as present and settled in the United Kingdom.

http://www.ukba.homeoffice.gov.uk/polic ... vilpartne/

Does your wife have a Registration Certificate? (If she doesn't have CSI then she probably doesn't, but worth thinking about getting it).

You could then come here, marry her under UK law, and apply for a Residence Card under EEA rules again. However, it's an expensive visa, and the process will probably take as long as just applying for a Family Permit.

I honestly think that a Family Permit is the best way to go, as long as you make sure your wife's status is established with proper evidence.

[adnan01]

Thank you very much for your reply.

Yes she have residence card as a student which she obtained in November 2009 after she started her university.

I am really sorry for showing alot of concerns to confuse you guys but believe me thats my condition at the moment as I want to get to UK asap for the sole purpose of supporting my family.

Well, as I menitioned in my last post that one more thing I want to know is that if she is getting any sort of benefits then would it effect my application??? or that should be ok? as my family's current situation my wife is trying to apply for council flat so that she can atleast have her own place to stay because my mother-in-law is asking my wife to leave her flat. So in this condition would my EEA family permit be accepted?

I will look into the other option 'Kitty' has just mentioned and see if I get entry clearance on that basis.

Looking forward for reply!

[adnan01]

We took CSI when we applied for her Registration certificate. After obtaining Registration certificate we still had CSI until I applied for residence card as CSI was the requirement. But when I had my application withdrawn as I mentioned earlier then we cancelled CSI because I decided to leave the country. Leaving the country is the most silly mistake I have ever done. It feels harder that I will get back to UK but I have my family so HO should really consider these things..at the end of the day Law is law and I hope it works out for my family..

[Directive/2004/38/EC]

We took CSI when we applied for her Registration certificate. After obtaining Registration certificate we still had CSI until I applied for residence card as CSI was the requirement. But when I had my application withdrawn as I mentioned earlier then we cancelled CSI because I decided to leave the country. Leaving the country is the most silly mistake I have ever done. It feels harder that I will get back to UK but I have my family so HO should really consider these things..at the end of the day Law is law and I hope it works out for my family..

Do not beat yourself up. You live and learn with these things. You are in a relationship to an EU citizen and I personally do not see any major problem to you getting back.

If she is a student when you apply, she may need to again get CSI that covers her, you and the baby. If she is working when you apply, then nobody needs it.

[adnan01]

thanks alot for your support everyone!!!

Yeah im not going to give up!i havent even tried yet..so I am hoping for the best things to happen soon!!! THANK U VERY MUCH!!!

[Directive/2004/38/EC]

How does it work with your passport and your employer? If you quit, they immediately give you back the passport? Can you apply at the British High Commission and remain there while you get back the reply? Or do you have to leave the country within a short fixed time (e.g. 24 hours) of getting your passport back from your employer?

[adnan01]

Well my employer is not giving me my passport back so I have to quit in order to get my passport back. They will give me my passport back once they cancel my work visa. As far as I know after the cancellation I can still stay one more month in Dubai, but to apply visa from Dubai I need to have valid visa of UAE which is one of the requirement. So currently Im planning to go back to Pakistan and apply from there. From Dubai it takes 15 days max for decision but from Pakistan it can take upto 2 months.

But I have no other choice, I will ask my employer one last time, if not then I will quit.

I hope they issue me my passport because that will be better to apply from Dubai and Incase my job will be secure..lets see!!

Thank you very much!!

Regards,

[Directive/2004/38/EC]

Well my employer is not giving me my passport back so I have to quit in order to get my passport back. They will give me my passport back once they cancel my work visa. As far as I know after the cancellation I can still stay one more month in Dubai, but to apply visa from Dubai I need to have valid visa of UAE which is one of the requirement

As far as I know you need to be legally in the country. And it sounds like you will be legally there during that final month. I would definitely try applying as soon as you get back your passport. Worst case they force you to apply in Pakistan. Best case they give you the EEA FP right away and you can then have a relaxed visit with your family in Pakistan before going off to kiss you wife and baby in the UK.

[adnan01]

yeah thats true!...One more thing is!!!my wife is living with her mother at the moment..and ofcourse we are at that situation when she is trying to get council flat. If she get it or if I show that she is living with her mother who herself is on benefits and council flat then would that make things harder?

This law is strange that in order to get FP my sponsor should have enough financial stability. Well Im man of a family and I want to be there for this sole purpose that I support my family as I was doing before so HO consider these things or just stick to what law says?

As you says my case is strong, yes it is I believe but When I see documents requirements then I have two concerns, 1. my wife is student and I got refused for EEA residence card because she cant sponsor me...SO DOES IT MEAN FOR FP SHE CAN SPONSOR EXTENDED FAMILY MEMBER? 2. She is not renting an accomadation so how can I show she have her own place, she is trying for council flat as she wants her own place because my mother-in-law giving my wife so much pressure to leave her home, then ofcourse she wont get flat straight away, she will be in some temporary accomadation. How can I sort this out?

This is why I eventually started thinking about applying through route of post study work visa!..

Please advise me on 2 points I have mentioned with possible solution which can support my applicaiton. Then certainly getting CSI in not an issue and I can apply FP with confidence..

Thanks

Regards

[Directive/2004/38/EC]

I will answer the rest later. But let me talk about "man of the family"...

European free movement law works is written and structured to ensure that the EU citizen has a clear path to move to another EU country. Everything is in terms of them working/studying/being-self-sufficient/travelling.

Once the EU citizen qualifies, then and only then does the attention turn to the non-EU family members. They are then allowed to accompany their EU family members, and have roughly equivalent rights, but only so long as the EU citizen remains qualified.

It does not matter if the non-EU family member is smart or rich or talented or beautiful or friendly or wonderful or mean or ugly or lazy or hardworking or male or female or short or tall.

All that matters is what the EU citizen is doing.

[adnan01]

Thank you very much for your advice. Things seems much clearer now, I am going to ask my employer for a passport today! lets see what happens.

I was concerned by looking at FP application form and also had many other issues not clear to me. Well I should come out of this soon!! thanks alot for advice, I will ask more if needed:)