5 YEAR RULE AND EEA FAMILY MEMBERS

[alpha1]

hi All,
Thanks for this very informative website.
I will be very brief.
I have been with my wife for 5 years 2 months.
we actually got married in June 2003.(3years 6 months)
She has been living in UK for 5 years 6months (working full time)

I finally got given a 5 year permit (EEA permit based on her excercising her treaty rights) in March 2005 due to expire in March 2010 from the HO.
At the point of application( under UK domestic rules 5 year rule) she does not qualify for ILR ( or what is called Permanent residence under EEA 2006 act).
The questions I have is.

Does she have to wait for the residence permit given to her is about to expire before applying for permanent residence or she can still apply?
When she is applying can I just be part of her application of I will still need EEA4 form since I am not a EEA national. ( I think yes I will need)

Finally when am applying do I have to wait for my current leave to remain is about to expire?

From my understanding s the case is now (correct me if am wrong) She qualifies for permanent residence and once she has been granted then I get it automatically, satisfying a few rules regardless of my current leave to remain or its duration.

or Does it mean also that from April 2006 eventhough I have the 5 year residence in my passport it automatically turns in to permanent residence. (but I will still need to apply).

My 5 years is due to expire in 2010 can I apply before then.


please help

[John]

Hi, so your wife is an EEA national ... from which country, by the way .... who has been exercising Treaty Rights in the UK for 5 years 6 months. Accordingly under the terms of the EEA/EU regulations that came into force on 30.04.06, she automatically got Permanent Residence as soon as she hit the 5 year mark ... about 6 months ago. She got that status even though she has not completed a form EEA3. OK she can complete such a form at any time, but the ensuing Permanent Residence sticker in her passport would merely confirm the status she already has.

You got married in June 2003 but did not get a Residence Card until March 2005? The reason for the delay? Indeed what is your UK immigration history? Anyway if you do not change tracks it will not be until March 2010 that you can apply to acquire your own Permanent Residence status.

However now that your wife has her Permanent Residence status, That is she is "settled" in the UK, it is now possible for you to apply under UK immigration law for a 2-year spouse visa, and near the end of that you could apply for ILR .... about one year earlier than would otherwise be the case.

But whereas applying for Permanent Residence status in 2010 would be free, getting a spouse visa and then ILR would be paid-for applications. Currently each application costs £335 by post or £500 in person at a PEO, so that price for the 2-year spouse visa ... but the ILR in 2 years time? Who knows?

As the saying goes, you pays your money and takes your choice!

[alpha1]

Hi John,
My wife is Italian, also the reason why I did not apply till that late is I was out of the country, I joined her in August 2003 by then I had a visa which will last for 1 year (EEA fality permit) at the end of that round about October 2004, I put in the application it took about 6 months, but they replied finally.

I want to give you a bit og my background. I came to UK 6 March 1997 as a student. I was studing untill April 2001 when my final student visa expired, I then continued to stay (even though things were very hard) I was calssed as an overstayer by then. So Travelled back home in April 2003 and she joined me there in May 2003 and we got married in June 2003, I then applied for the EEA family permit and finally joined her in the UK.
I will like the best route.
Currently If I decide to change route to the spouse visa, that will last for 2 years, this will take me to say January 2009, then I can apply for ILR, is that right?

So that means I can obtain my naturalisation by 2010. In this case I save one year but it will cost me money.

I think first of all i will ask her to put in the EEA3 application or I can just apply straight for the spouse visa?

please advice.

[John]

I joined her in August 2003 by then I had a visa which will last for 1 year (EEA fality permit) at the end of that round about October 2004, I put in the application it took about 6 months, but they replied finally.

Ah, that is much better, and very relevant!

Your 5-year period starts with the issue of the EEA Family Permit in August 2003, and accordingly you will be able to apply for your own Permanent Residence in August 2008.

So absolutely no point in switching routes to a UK 2-year spouse visa. That would delay matters and be an unnecessary expense.

One year after you get your own Permanent Residence you will be able to apply for Naturalisation as British .... or instantly you have that if your wife has become a British Citizen before then.

[alpha1]

Thanks John,

Now so the bets option is to wait till 2008. Fina l question is how will i qualify for British citizenship if my Itanian naturalises as a british citizen?

Pleas advice I have no idea whet this is all about, if so will you advice my wife to apply for permament residence now so when I obtain my permanenet residence in 2008 then automatically I qualify for citizenship?
Please advice, am not sur if am making sense now but point me in the right direction

[John]

A number of points here. Firstly your wife already has Permanent Residence status in the UK. It happened automatically on the 5th anniversary of her starting to exercise her Treaty Rights in the UK.

Now if she wants she can complete a form EEA3 and get a Permanent Residence sticker in her passport, but doing that is entirely voluntary.

Once she has had Permanent Residence status for one year .... in about 6 months time ... she can apply for Naturalisation as British. Both Italy and the UK allow dual nationality. She will need to pass the Citizenship Test before applying for Naturalisation.

You can apply .. and you will need to apply ... it is not automatic .... for Permanent Residence 5 years after entering the UK using your EEA Family Permit. Once you have your Permanent Residence sticker in your passport (and assuming you also have passed the Citizenship Test when you apply) you can apply for Naturalisation as British :-

• if you are then married to a British Citizen ... immediately you have your PR
• otherwise, 1 year after getting your PR

In other words your wife getting British Citizenship, let's say, in the second half of this year or the early part of 2008, means that you will be able to apply for Naturalisation 1 year earlier than would otherwise be the case.

The Citizenship Test .... both you and your wife could study for and take the test at the same time. You can help each other study and pass. Pass certificates do not expire with time.

Does that help?

[alpha1]

thanks John.

That makes it alot clearer now. I will just get the paper work ready , I dont think there i sthe need for her to apply for the sticker but I will rather convince her to take the citizenship test (it will not be aesy though) and then she can apply for British citizenship later.

For me I will wait untill August 2008 Then put in my application, such a shame under the old rule I would have been eligible bu August 2007 (EEA 2000 uk domestic rules) 4 years. well lets see where I end up though.

Thanks for your advice.

[JAJ]

thanks John.

That makes it alot clearer now. I will just get the paper work ready , I dont think there i sthe need for her to apply for the sticker but I will rather convince her to take the citizenship test (it will not be aesy though) and then she can apply for British citizenship later.

Applying for her Permanent Resident sticker is advisable as it will simplify her naturalisation application. It will also be useful to prove her Permanent Residence should this ever be needed for other reasons, eg maybe claiming social benefits.

Have you any children born in the UK, or are any children planned in future?

And what's your nationality?

[alpha1]

Hi JAJ
I do not have any kids at present, not sure if we want as yet may be in the future, who knows?
I am from Senegal.
I have one more question. I understand that from when the 5 year rule starts to count, I should have not spent more that 3 months out of the country, is this cummulative (i.e all the travels I have done, time spent on holidays outside the UK will be added with in the 5 year period) or one single trip out of UK should not last more than 3 months.
I was not very clear on this also could you shed some light on this issue.
Thanks a lot

[John]

Applying for her Permanent Resident sticker is advisable as it will simplify her naturalisation application.

Will it? Would that not depend upon when the Naturalisation application is made? That is, let's suppose that the EEA3 form is sent off soon and in a couple of months the shiny new Permanent Residence sticker is in the passport. That will be dated let's say in March 2007.

But the person wishes to apply for Naturalisation in 6 months time .... say July 2007 .... so won't they still need to supply the evidence that they got their Permanent Residence status months before the appearance of the Permanent Residence sticker in their passport?

[alpha1]

well am a bit confused, but all the same since the permanent residence is automatic the i dont think it should be a problem when you apply for naturalisation. Surely the permanent residence sticker will make it a lot easier, you will have to present the same documentation twice sort of if am right, please advice.

[JAJ]

Applying for her Permanent Resident sticker is advisable as it will simplify her naturalisation application.

Will it? Would that not depend upon when the Naturalisation application is made? That is, let's suppose that the EEA3 form is sent off soon and in a couple of months the shiny new Permanent Residence sticker is in the passport. That will be dated let's say in March 2007.

But the person wishes to apply for Naturalisation in 6 months time .... say July 2007 .... so won't they still need to supply the evidence that they got their Permanent Residence status months before the appearance of the Permanent Residence sticker in their passport?

John
Presumably the Permanent Residence sticker - or some other documentation from the Home Office - will make it clear when Permanent Residence took effect.

This should avoid a delay with the Home Office Nationality Directorate, I would think. After all, they won't then have to work out when Permanent Residence came into effect.

It might also make it easier to lodge through Nationality Checking Service (NCS). I am not sure if NCS would accept an application from an EEA/Swiss national claiming permanent residence without a passport stamp or Home Office letter to that effect.

[John]

Presumably the Permanent Residence sticker - or some other documentation from the Home Office - will make it clear when Permanent Residence took effect.

Well that is the question, isn't it! I think I am saying ... I am not making that presumption. Simply, I wonder whether IND will have adapted to this new automatic Permanent Residence situation. Unless and until someone posts on a Board such as this that IND is indeed confirming that Permanent Residence took place on an earlier date than the date of issue of the Permanent Residence sticker, well I am going to assume that they are not issuing such confirmation.

The NCS point is totally taken! I wonder whether staff in NCS offices will have been trained as regards the new EU/EEA regulations that came into effect on 30.04.06?

[JAJ]

Well that is the question, isn't it! I think I am saying ... I am not making that presumption. Simply, I wonder whether IND will have adapted to this new automatic Permanent Residence situation. Unless and until someone posts on a Board such as this that IND is indeed confirming that Permanent Residence took place on an earlier date than the date of issue of the Permanent Residence sticker, well I am going to assume that they are not issuing such confirmation.

If it's not obvious from the passport sticker, then I would hope they would be willing to issue a letter upon request confirming that fact. Provided of course that enough evidence was provided to show that Permanent Residence was acquired on the "earlier" date.

[alpha1]

2008 is round the corner and I'll need to apply for my permanent residence. Do I have to wait untill August before applying or I can apply before then (bearing in mind my current leave to remain is still valid untill March 2010)
NB: please refer to my earlier postings

Do i need to pass the nationality test before applying for my ILR?

Finally if my wife has qualified for ILR (Residence permit) do I automatically qualify for ILR also?

Finally can I apply in person to the HO (Croydon) and pay the premium eventhough my application is a EEA application? (Not the initial 5 years the final ILR)
thanks for all your assistance

[JAJ]

2008 is round the corner and I'll need to apply for my permanent residence. Do I have to wait untill August before applying or I can apply before then (bearing in mind my current leave to remain is still valid untill March 2010)
NB: please refer to my earlier postings

Do i need to pass the nationality test before applying for my ILR?

Finally if my wife has qualified for ILR (Residence permit) do I automatically qualify for ILR also?

Finally can I apply in person to the HO (Croydon) and pay the premium eventhough my application is a EEA application? (Not the initial 5 years the final ILR)
thanks for all your assistance

With respect, you forget the idea of ILR - you'll only confuse yourself and everyone else. You are applying for Permanent Residence (PR) which is similar to ILR but granted under a completely different set of rules.

1. You need to wait until August.
2. You qualify for PR when you have clocked up 5 years on EEA family member status, not necessarily at the same time as your wife.
3. Life in UK test not needed for PR but is needed for naturalisation (unless age exempt).
4. No premium or in-person service for EEA applications.

Has your wife decided whether or not she wants to apply for British citizenship?

[John]

Alpha1, I agree with JAJ's comments.

Earlier in this topic I asked if your wife is going to apply for Naturalisation as British. Any decision about that yet? The advantage to you if that it will bring forward, by one year, the date when you can apply for your Naturalisation as British. That is, either immediately you have PR status .... or one year later!

[alpha1]

John and JAJ thanks to you both. I'm a novice in these things thanks once again for putting me right on the confusion b/n PR and ILR.

Secondly she has not decided yet, at present she is not interested in naturalising as a British Citizen, she is happy as she is now.

I will explain the situation to her that might make her change her mind.
thanks