EEA family member-different dates in HO letter and passport?

[wolfiestar]

Hi,
Hope that someone can help me. I am an Australian and the unmarried partner of a German. We have resided together in the UK for nearly four years (Jan 2007 will be four years). After two years (I was on a student visa at the time) we applied for me to stay as an EEA family member and my partner applied for "residency" as I would get equal rights as he has to stay in the UK.
I received back my passport and a letter from the home office and the dates of FLR are different on the letter and on my passport. On my passport I have a stamp as the family member of my partner dated until March 2010. However I was also sent a letter at the time stating that I should apply for FLR (no mention of ILR though) in March 2007 (two years after receiving the original FLR as an EEA family member).
So, what takes precedence? The stamp in my passport or the letter from the Home Office? Also, I have been asked to work abroad, but hired from the UK, in April 2007, and have been told that if I send my application off early to the HO (if it is indeed required to do so), with an explanation of why I need my passport back in early April, they will process my application 1 or 2 months earlier. Does anyone know anything about this? And please let me know what date I should be paying attention to - my passport or the HO letter.
Thankyou very much

[John]

Nearly two years ago do you remember which type of application was used? And was the application free, or was there an application fee to pay?

The answers to those questions will help determine whether the passport or the letter is correct.

[wolfiestar]

Hi John,
Thanks for your response. Unfortunately I do not know which form we used - we did it through a lawyer who has since left the company he worked for. I do know that there was no fee payable to the Home Office and that the emphasis was on my German partner stating his intention of living/settling in the UK (despite already living in the UK since Sept 2001). When submitting his application for which he received a little "residence" blue booklet (which we will try and find at home this evening in case it has extra information on it) we also submitted the evidence of us living together for two years so that I would be considered his family member. I think that even though the application had greater significance for changing my circumstances than his (ie gaining permission to work without a permit), the application was more based on him and I was just the family member. Of course, we sent off loads of documents, photos, letters etc supporting the family member application. Please let me know if you need more information and I will do my best to find it out.

[John]

OK, in stages, your partner ... exercising Treaty Rights in the UK since September 2001 ... thanks to regulations that came into force on 30.04.06 he automatically got Permanent Residence on the 5th anniversary of his arriving.

However he might like to use form EEA3 to get that Permanent Residence evidenced in his passport. No fee.

You? I think it is clear that you are now here under EEA legislation. Accordingly I think the passport is correct, and the letter is wrong. Nearly 5 years after you got your Residence Card put into your passport you should use form EEA4 to apply for your own Permanent Residence. That is, say a month or two before the expiry of the current Residence Card, apply for Permanent Residence.

Does your partner intend to apply for Naturalisation as British? If so he can apply any time from one year after when he got his Permanent Residence in September 2006. Both the UK and Germany permit dual nationality.

If by the spring of 2010 when you get your Permanent Residence the two of you are married (or in Civil Partnership ... it is not clear from your post whether the two of you are an opposite sex or same-sex couple) you will be able to apply for your Naturalisation as British without having to work a further year.

Alternative route .... now that your partner has Permanent Residence you could apply for an unmarried partner visa under UK legislation. That would be a paid-for application ... currently £335 by post or £500 in person. Such UPV will be of 2 years duration, and near the end of that you could apply for ILR, again a paid-for application.

So switching to that route will get you ILR/Permanent Residence at least a year earlier than would otherwise be the case, but there is an expense involved.

[wolfiestar]

Hi John,
Thanks again for your reply. We've found the little blue "residence" booklet for my partner and it was issued by the same person who stamped and wrote in my passport and stamped and initialled the HO letter (but signed by someone else).
It is a Residence Permit for a National of a Member State of the EEC and has the Date of Issue in March 2005 and Valid until March 2010, the same date as written on the stamp in my passport.
I'm wondering if this means, that despite my partner handing in evidence of him living in the UK from Jan 2003 (although as I previously stated he has lived here since Sept 2001) that his residence only starts from March 2005.
The stamp in my passport states - "A right of residence in the UK as the family member of an EEA National (my partner's name handwritten) who is resident in the UK in the exercise of a Treaty right is hereby given until __ March 2010 (handwritten)
I've also managed to track down the lawyer that sent off our application in 2005 and he was surprised that the dates were different but thinks that it would be safer to stick with the date in the HO letter as opposed to the date in my passport. Accordingly his secretary has rung and asked me to make an appointment for an application for the renewal/continuation of my EEA Family Member permit.
If you could let me know how you came to the conclusion that the passport date is correct and the HO letter date is not that would be great. I would rather not have to send off another application at the moment, even if the HO has no fees, the lawyer does. Additionally I am supposed to be flying to the US at the beginning of April 2007 for work and need to apply to the US Embassy for a Non-Immigrant visa and am worried if my passport is with the HO I will be unable to go to the US Embassy and get my visa.
However, as much as I wish to save money and also to do this work in April, I do not wish to end up "overstaying" if there is some reason that the HO could state that the date on the letter takes precedence over the passport.
Thanks for your help.

[John]

........ despite my partner handing in evidence of him living in the UK from Jan 2003 (although as I previously stated he has lived here since Sept 2001) that his residence only starts from March 2005.

No his "EEA clock" starts when he started exercising his Treaty Rights in the UK. So it is in Jan 2008 (and not Sept 2006) that he will automatically get his Permanent Residence. That being the case, forget the idea of you applying for a 2-year UPV under UK law.

Why do I think the passport is right, and the letter is wrong? Simply when making the sort of application that was made to get you your sticker in your passport the length would have been 5 years, and not 2 years.

Why would you need to make an application now? You already have a valid Residence Card in your passport.

I think the confusion is thus. Until 30.04.06 there was no right for an unmarried partner to get an EEA Residence Permit, or the Residence Card that follows. But the UK used its discretion to issue such permits, applying exactly the same criteria as it used for UPVs under UK domestic immigration law, and such UPVs are issued for 2 years! So a simple confusion in the mind of the person dealing with your application.

You are going to work in the States ... for how long?

[wolfiestar]

Thanks again John,
I suppose it is just a bit confusing for me, having the two different dates and particularly as I've found this on the ind website -

295B. Leave to enter the United Kingdom with a view to settlement as the unmarried or same-sex partner of a person present and settled in the United Kingdom or being admitted on the same occasion for settlement may or, in the case of a person within paragraph 295A(I)(a), be granted for an initial period not exceeding 2 years

295 (i) (a) the applicant is the unmarried or same-sex partner of a person present and settled in the United Kingdom or who is on the same occasion being admitted for settlement and the parties have been living together in a relationship akin to marriage which has subsisted for two years or more;
or

295E. Leave to remain as the unmarried or same-sex partner of a person present and settled in the United Kingdom may be granted for a period of 2 years in the first instance provided that the Secretary of State is satisfied that each of the requirements of paragraph 295D are met.

The date in the HO letter is in keeping with this, but it seems from your recent post that the rules have changed since our application in 2005 and also that the HO uses it's discretion in whether handing out an UPV or an EEA Residence Permit.
So it seems that despite the letter from the same period from the HO telling me to reconfirm that I am still living with my partner in March 2007 -

Shortly before the date stated in the second paragraph above, (March 2007) you may apply for further leave to remain in line with your partner's residence permit. It is important that such an application is made to this Directorate before your leave expires. You should enclose your passport and your partner's passport and/or national identity card with your application. For this application to be granted, we will need to be satisfied that you both still intend living permanently with each other. If you provide a statement to this effect, signed by you both, and some documentary evidence of your co-habitation, e.g. bank statements, bills, etc. this will assist us in considering the application.

I have not got a two year UPV but a five year EEA residence permit. I do not have a residence card as such because from what I can find on the ind website it should bear a photo
An application for a residence card should be accompanied by 2 passport-sized photographs of the non-EEA national. One is featured on the residence card and the other retained in our case records. However the black ink stamp (not a sticker with a photo) in my passport serves as a five year residence permit.

Please let me know if I've got it right or correct me if I've misunderstood.

Hopefully I can ring the lawyer's secretary back tommorow and say there is no need for an appointment. It will certainly make my life a bit easier.
I'll be going to the States in April not to work in the States but as a short-term crew-member on board a ship. I'll only be on the ship for two weeks whilst it makes it's way around the US and then the transatlantic crossing. However, I've been informed that I need to obtain a C1/D visa for the US and this may only be done by appointment at the embassy, so at least if I don't have to send off my passport to the HO I will have plenty of time to apply for the C1/D visa.
Thanks again for your help. I've just been worried that I might inadvertently do the wrong thing if I disregarded the HO letter, especially if it is on file whilst my passport is not, and that it would have repercussions for me either entering/exiting the UK or with further applications at a later point.

[JAJ]

Does your partner intend to apply for Naturalisation as British? If so he can apply any time from one year after when he got his Permanent Residence in September 2006. Both the UK and Germany permit dual nationality.

Germany does insist that Germans obtain permission in advance to naturalise in another country,otherwise German citizenship is lost automatically.

If the "other" country is an EU member state, that permission is apparently quite straightforward to obtain.

http://en.wikipedia.org/wiki/German_nationality_law

Are there any UK born children, or children planned in future?

[wolfiestar]

Hi JAJ,
My partner hadn't thought of applying for British nationality, and is quite amused by the fact that it is possible for him to have dual nationality. We don't have any children, but plan to have children in the future. If it would make it easier for them, or us and them, for him to have dual nationality then of course he/we would apply.
However, I am not concerned about that at the moment, but would very much like to make sure, after giving as much information as I can think of, that I am safe to ignore the letter from the Home Office, and that even though they will have it on file, and it was in keeping with the current policies for an UPV in Jan 2005, that my passport rubber stamp (not a residence coloured sticker) would definately take priority both now and for future applications without any adverse effects.

[JAJ]

Hi JAJ,
My partner hadn't thought of applying for British nationality, and is quite amused by the fact that it is possible for him to have dual nationality. We don't have any children, but plan to have children in the future. If it would make it easier for them, or us and them, for him to have dual nationality then of course he/we would apply.

The date he obtains Permanent Residence (PR) is important.

Any child born in the UK after that date is automatically a British citizen. Because front-line Passport Office officials may not understand this, you could get a letter from the Home Office IND confirming the child's British citizenship. And then use it to obtain a British passport.

Any child born in the UK before PR is obtained is not automatically a British citizen. However, once PR is obtained then the UK-born child can immediately be registered as a British citizen under section 1(3) of the British Nationality Act. With a Certificate of Registration as a British citizen, obtaining a British passport would be straightforward.

There is no requirement for parents to become British citizens at the same time. However, if the plan was for child to keep German citizenship, then as this process involves a formal application for British citizenship, it would be important to check with the German Embassy whether the child also needed permission first to keep German citizenship.

However, I am not concerned about that at the moment, but would very much like to make sure, after giving as much information as I can think of, that I am safe to ignore the letter from the Home Office, and that even though they will have it on file, and it was in keeping with the current policies for an UPV in Jan 2005, that my passport rubber stamp (not a residence coloured sticker) would definately take priority both now and for future applications without any adverse effects.

The "European" immigration rules as implemented in the UK are fairly clear. Have you considered writing to the Home Office to ask for clarification?

Your lawyer should be able to give the answers you need.

[wolfiestar]

Thanks JAJ.
I havn't thought about the immigration/nationality laws for children and babies. It's interesting and thankyou for letting me know about it. I think we might have children before 2010, so then we will have to keep in mind the rules about citizenship for children born in the UK.

The "European" immigration rules as implemented in the UK are fairly clear. Have you considered writing to the Home Office to ask for clarification?

Your lawyer should be able to give the answers you need.

As to my current situation - I have spoken to two different lawyers over the phone now and have been given conflicting advice! However, I have rung and left a message with the lawyer who originally did our EEA Residence/Family Member application, saying that apparently the stamp in my passport overrides the HO letter, and that I would not have to come to see him early 2007 but in 2010. He hasn't rung back to tell me otherwise, so I hope that means he agrees. I didn't want to contact the HO and draw attention to myself, in case they say I definately do have to re-apply in Feb-March 2007, thus effectively cancelling my work in the US in April 2007. I don't think I will be able to get my passport back in time. Now that people on this board, and an immigration lawyer have said that my passport stamp is the more important date, I was hoping that if the HO did contact me to say that I should've sent in my passport in March 2007, that I could plead ignorance, as well as following legal advice, due to the stamp in my passport. Surely they would see that there is room for two interpretations of my LTR and it would be alright with them if I then handed in my passport and proofs of my partner and my relationship (?)
However, if you think it really would be best that I contact the HO so that there is no room for error, then perhaps I should.

[JAJ]

Thanks JAJ.
I havn't thought about the immigration/nationality laws for children and babies. It's interesting and thankyou for letting me know about it. I think we might have children before 2010, so then we will have to keep in mind the rules about citizenship for children born in the UK.

And remember that only one (not necessarily both) of you needs to have Permanent Residence for the child to acquire British citizenship. So some point in January 2008 when your partner gets Permanent Residence is likely to be the cutoff for automatic acquisition of British citizenship vs registration.

As to my current situation - I have spoken to two different lawyers over the phone now and have been given conflicting advice! However, I have rung and left a message with the lawyer who originally did our EEA Residence/Family Member application, saying that apparently the stamp in my passport overrides the HO letter, and that I would not have to come to see him early 2007 but in 2010. He hasn't rung back to tell me otherwise, so I hope that means he agrees. I didn't want to contact the HO and draw attention to myself, in case they say I definately do have to re-apply in Feb-March 2007, thus effectively cancelling my work in the US in April 2007. I don't think I will be able to get my passport back in time. Now that people on this board, and an immigration lawyer have said that my passport stamp is the more important date, I was hoping that if the HO did contact me to say that I should've sent in my passport in March 2007, that I could plead ignorance, as well as following legal advice, due to the stamp in my passport. Surely they would see that there is room for two interpretations of my LTR and it would be alright with them if I then handed in my passport and proofs of my partner and my relationship (?)
However, if you think it really would be best that I contact the HO so that there is no room for error, then perhaps I should.

I am not a lawyer but chapter 6 of the European Casework Instructions says:

"EEA nationals and their family members who have resided in the UK in accordance with the 2006 Regulations for a continuous period of 5 years acquire the right of permanent residence."

http://www.ind.homeoffice.gov.uk/documents/ecis/

I think your issue is that you were admitted to the UK under the Immigration Rules pre-30.04.06 under an EEA based concession. Had the 2006 Regulations not been introduced, then you probably would have had to reapply for FLR in 2007. But the 2006 Regulations should - by any reasonable meaning - override this.

The only variation I can think on all this is that if you do apply for FLR in 2007, you may be able to apply for ILR in 2008 (once your partner has permanent residence). But again - I don't know this for sure. As for processing time, a same-day service may be available if you apply in person (with full documentation).

With respect, you didn't help your case on the forum by mentioning a Sept 2001 start date for your partner's residence as that would have opened up other strategies. This is part of what has led to confusion. It's really important to give precise information if you want meaningful answers.

As to whether you should contact the Home Office now or not - sorry, no-one can tell you this. The problem with all this is that the interactions between the Immigration Rules and the European Immigration Rules are incredibly complex and you will end up relying on a Home Office interpretation of the rules in the same way. Unless you want to go to court which clearly you don't.

A good lawyer might have policy-level contacts in the Home Office which perhaps he could contact on a "no-names" basis for advice.

As for legal advice, the only lawyers that should be contemplated in a situation like this are ones who are specialists in the EEA immigration rules.

John, what do you think?

[John]

What do I think?

The only variation I can think on all this is that if you do apply for FLR in 2007, you may be able to apply for ILR in 2008 (once your partner has permanent residence).

I don't understand what type of application you are thinking of, especially as you seem to be implying that ILR would be available somehow in one year, well certainly less than two years.

And as the German partner will get his Permanent Residence in 2008, it is clearly not worth the OP switching tracks, as Permanent Residence is available in 2010 anyway. OK it would have been possible to move to an UPV based upon UK immigration law, but the ILR that might come 2 years later leads us to 2010 anyway. So clearly not worth switching routes as the only benefit would be to the Treasury .... the applications fees!