Advice on EEA4 application

[kenc]

Hopefully this will be an easy question for you 'experts' to answer. I haven't been around for some time, not since we received our EEA2. During that time the advice received on this forum was invaluable.

Background: I am British, my wife is Indonesian. We were married in UK and went to live in Cyprus. When we sold our property in Cyprus we decided to settle in UK.

My wife entered UK on a Family Visit Visa. Once here she applied for EEA2 and eventually received her ISD - Residence Card of a Family Member of an EEA National. This has on occasion caused immigration to question this particular document since I am British. Once explained no problem although on a couple of occasions we have been told that it is the wrong document and we should get it changed.

Anyway I digress. I have been looking at the EEA4 Application Form and it raises a few questions for me.

It states: If you are applying for a residence card on the basis that your UK national family member is treated as an EEA national under the judgment in the case of Surinder Singh, please complete section 5. (I think that should actually be section 6) Please go straight to section 6 (7?) for all other applications.

Simply put I do not know what sections to complete. I obviously need to complete Section 3 – YOUR EEA NATIONAL FAMILY MEMBER.
Do I need to complete Section 6 - PERMANENT RESIDENCE IN SURINDER SINGH CASES.
Section 7 I think I can simply tick the box 'has a document certifying permanent residence'. - my UK passport.

Thanks for your advice.
Ken

[Jambo]

When they added the Surinder Singh section (section 6), they haven't corrected all the references accordingly. That's the reason for the confusion.

She will need to fill in section 1, section 3, section 6 and section 8 onwards. Section 7 is not required.

[kenc]

Thanks for that Jambo.

Next question! Section 6.1 asks :Has your UK national family member exercised treaty rights as a worker or self-employed
person in another EEA member state?
The options are: Yes - as a worker, Yes - as a self-employed person, or No.
I was retired and self sufficient. Doesn't seem to be an option for that (other than No).

Paras 6.2 and 6.3 both include the statement: when they were exercising
treaty rights as a worker or self-employed person in another EEA member state.

Paras 6.5 & 6.6 ask for details of commencement and termination of employment/self employment.

6.10 to 6.17 ask for details about employment/self employment including wages, business address etc.

Pars 6.2 thro 6.17 are not applicable to me so is the answer to tick NO in answer to 6.1. Seems obvious but of course I don't want the application to be rejected.

Final question. My wife's residency card is on A4 paper. There is actually no mention that I see of having to submit this with the EEA4.

Thanks for your time and patience.

[Jambo]

The UKBA view is that only returning residents who exercised treaty rights by employment in another EEA state, can make use of the EEA route. I'm surprised that your wife was issued EEA Family Permit and Residence Card if you did not meet those requirements. Didn't you provide any evidence of employment in Cyprus when she applied?

[Obie]

I believe if OP was an employed or self-employed person who ceased activity, and was residing in another memberstate, where the activity was undertaken. Then it is arguable that he falls within the ambit of Surinder Singh.

You may need to mention this to an HO caseworker, as your wife risk being denied a PR if yu case is looked at, by an inexperienced person.

[kenc]

Now I am very worried. Moreover I am annoyed at this unnecessary worry since I believe at the time we complied with all the requirements.

Whilst we lived in Cyprus (me being retired and my wife not working) we applied for 3 EEA Family Permits (VAF5). The purpose of the visit on each occasion was to visit my children and brother in UK. Nowhere on this form is there any mention of 'exercising treaty rights'. The only question about employment was 8.4 - To be completed if the EEA National is employed/self employed in the UK which I was not. Other than that I stated that I was retired and self sufficient, and we both had Residence Cards for Cyprus.

On each occasion the procedure was very straightforward and since 3 applications on 3 separate occasions were made to the British High Commission in Nicosia the probability, since they spanned a few years, is that they would each have been dealt with by a different member of staff. How these could have been issued 'in error' beats me.

It was whilst in possession of the third Family Permit that we decided to stay in UK in a property we already owned here. My wife then applied for residency on EEA2 using existing Family Permit. At that time there was no Surinder Singh section and no mention of 'exercising treaty rights'. I see that the EEA2 application form has now been changed.

None of the above changes the situation we now find ourselves in. Under the guidelines I cannot claim on EEA4 to have been exercising treaty rights if I was neither working nor self-employed.

In reply to Jambo, no evidence of employment in Cyprus was ever requested.

Just 2 questions. Obie suggested mentioning this to an HO caseworker. How is this possible prior to submitting an application which might be rejected? After submitting an application it is impossible to speak to anyone in Liverpool.

If the application for PR was rejected what alternative route is there? We've lived in UK for 5 years, we jointly own property here and my wife works here.

I get so annoyed (like so many others) that UKBA make life so difficult for genuine applicants. Maybe it would have been better to come here on the back of a lorry LOL.

Sorry for the long-winded post.

Thanks

[Obie]

Where you a worker in cyprus, who retired?

[kenc]

Obie. No. I was resident in Cyprus and working self-employed on a contract basis in the Far East. At the time I was actually not resident in UK for tax purposes.

Thanks for taking the time and trouble to read my outpouring.

Cheers

[Obie]

Was this for a Cypriot company, and were you paying taxes to Cyprus?

Are you receiving pension from the Cypriot authorities?

[Jambo]

During gour stay in Cyprus were you registered as self employed in Cyprus? Did you pay tax from income while living in Cyprus? It doesn't need to be a lengthy period. Even a few months might be enough.

Will your wife apply for British citizenship after PR is confirmed?

[Obie]

In any event, I believe your wife might find it difficult to qualify under regulation 9. The wording of that regulation, seem to limit its scope considerably. I believe you could argue that given the caselaws, the UK has not given full effect of the scope of Singh and Eind, such that, you intend to rely on community law directly.

I believe you should wait for the outcone of the application first, and take it from there.

Due to past mistakes, they may just close their eyes and issue the PR to your wife.

[kenc]

Obie.

It was not for a Cypriot company and I was not paying Cyprus tax.
I don't receive a pension from Cyprus only my UK state pension.

What is regulation 9? What is Sing and Eind? Please forgive my ignorance.
Could you please expand on what you mean by 'intend to rely on community law directly'.

Jambo.

No I was not registered as self-employed in Cyprus. I paid no tax whilst in Cyprus. Yes, my wife will probably apply for British Citizenship after PR.


What would be a suggested procedure should the application be rejected? How does one appeal the decision?

I am still left with the dilemma of how to answer EEA4 Section 6.1. The only option is to tick NO or put Retired where it says self-employed.

Once again, thanks guys. Whilst the problem still remains I am most grateful for your input.

Ken

[Jambo]

This is Regulation 9. It's the UK implementation of Singh into the EEA Regulations.

There is no legal requirement to complete the form. You can just attach a cover letter or fill in part of the form. As there is no new evidence required for PR compared to RC with regards to your time in Cyprus, you can claim it is not required to be provided this time as this has been acknowledged by the HO already. There would be some element of luck here if a senior casework would review your case (and understand the issues) or not.

[Obie]

No. Nothing was acknowledge by HO. This is a question of someone issuing a document by mistake. It cannot be argued that the HO had been provided evidence that the OP was exercising treaty rights in Cyprus, , when in actual fact, he wasn't and no such evidence could not be traced on file. In fact no evidence of this existed in past, doesnt exist at present, and is highly unlikely to come into existence in future.

In the circumstance of this case, I dont believe there is any obligation on the HO to issue a PR. You wife may qualify under article 8. Question of Naturslusation is not on the table at present.

[kenc]

Thanks guys.

Really really worried now. It is a pity (for us) that the Surinder Singh section was added to the EEA4, since previously when that section wasn't included I imagine the application would have been processed the same way as the EEA2 application which caused us no problems.

Cheers

[Jambo]

Maybe my wording wasn't the best. I didn't mean he has a claim for a PR.

What I meant to say is that he can try and apply with what he got (with or without a form, with or without evidence from Cyprus) and hope that a mistake is made again (based on the fact it already happened several times in the past) or that they close their eyes.

If the PR is confirmed, I don't see the nationality team challenging it when applying for naturalisation.

[kenc]

Obie. Again, please excuse my ignorance. What is article 8?

I think, under the circumstances we will complete the following sections:

SECTION 1 – APPLICANT’S DETAILS - ok
SECTION 3 – YOUR EEA NATIONAL FAMILY MEMBER (Me) - ok
Ignore SECTION 4 – RETAINED RIGHT OF RESIDENCE IN THE UK (N/A)
Ignore SECTION 5 – PERMANENT RESIDENCE DUE TO DEATH OF EEA NATIONAL FAMILY MEMBER (N/A)
Ignore SECTION 6 – PERMANENT RESIDENCE IN SURINDER SINGH CASES (Take a chance on this).
Ignore SECTION 7 – DETAILS OF THE EXERCISE OF TREATY RIGHTS FOR 5 YEARS
SECTION 8 – TIME SPENT OUTSIDE THE UK - no problem
SECTION 9 - PERSONAL HISTORY - no problem
SECTION 10 – PHOTOGRAPHS - no problem
SECTION 11 DOCUMENTS - Provide whatever is available

Thanks again

[kenc]

Reply to my own question.

Article 8 refers to Article 8 of the European Convention on Human Rights

Thanks

[kenc]

I have just found my wife's old passport and what I have discovered changes our situation I believe.

My wife first entered UK in Sept 2004 on a C-Visit 6 month multi-entry visa. That was to visit my family prior to us getting married.
In January 2005 (from outside UK) she was given an ILE settlement visa and it was on this visa we entered UK a couple of months later and got married here in UK.

The visa was issued on 24/01/05 with an expiry date of 24/01/07. We bought a house in UK and another 'holiday home' in Cyprus. Each time we visited Cyprus my wife obtained a visit visa for Cyprus and returned to UK on her ILE Visa. When the ILE visa expired, each time we left Cyprus we returned on a Family Visit Visa. Eventually applying for residence on EEA2.

This was all due to my ignorance. I have only found out today that the expiry date on the ILE visa is the final date that the visa can be used for initial entry to UK. It was my belief that the visa was invalid after that date no-one having explained it to us. Am I correct that it does not actually expire?

So the situation is that my wife has an ILE visa in an old passport as well as a residence card (EEA2) issued by UKBA.

What to do now? Because of the problems surrounding EEA4 application it would be far better to revert to the ILE visa. Is this possible and how is it suggested we go about it? Further, is it still possible to use it even though the passport has expired?

On reflection I wonder if the Family Visit Visa was so easily granted because she already had ILE.

Oh the confusion!! Sorry about all this.

Thanks

[Jambo]

That changes everything. I'm not expert on UK immigration rules (and definitely not those which are relevant to 2005) but I would imagine the ILE status is still valid which would mean the EEA2 application was not needed and that if she wishes, she can apply for BC as soon as she passes Life in the UK test (if less than 65 years old).

I suggest you wait for comments from other members.

[Obie]

I thought I had a good hang of your case , but anytime I am notified of a new post I seem to get more confused than before.

ILE was previously issued to spouse/CP or common law partner who had lived outside the UK with that status for 4 years or more. It was of course subject to KOL in UK test , and once the holder has passed the test ILR is issued , or if the test had been passed prior to application, then ILE is issued without any condition. There is then no need for the person to make subsequent application to the HO.

In your wife's case what should have been issued is Settlement :join/ acc spouse/CP.

I am puzzled why ILE was issued, except your relationship had endured or had been subsisting for 4 years or more, and the 27 months was issued , to enable her sufficient time to study and pass KOL, and depending on the actual circumstance of your case.

To my understanding someone with ILE are not subject to the 2 years probationary restriction, and can apply for ILR immediately on passing their life in the UK test.

Depending on the circumstance, you wife may be able to apply for ILR based on old rule, provided she takes and passes the knowledge of life in the UK test.

[kenc]

My wife would like a Biometric Residence Permit so I am wondering if we should be upfront with UKBA. Explain our ignorance about the expiry date on the ILE and point out the fact that we applied for a Family Visit Visa on 3 occasions and at no time were we told that the ILE was still valid. On each of the applications we provided full details of all previous travel to UK and all previous UK Visas issued. So I guess there were errors on both sides.

Obviously we would prefer to retain ILE rather than the residence visa (which could throw up the problem previously discussed). My main concern is that at one time, after we thought the ILE had expired we were out of UK for 12 months, because we thought the ILE was no longer valid. How stupid can one be!! I wonder how UKBA would view this.

I would welcome any thoughts. Yes, I realise that we can still travel using the ILE in the old passport but my wife would prefer a BRP. She has already had fingerprints and facial recognition done on 2 occasions in Cyprus.

Will it pay me to be honest I wonder. If I decide to write a letter to UKBA anyone any idea where I should address to?

Thanks yet again guys.

[kenc]

Hi Obie. My wife's ILE was issued in January 2005, before KOL was introduced. It was valid for exactly 2 years to the day, not 27 months. My understanding, gained recently, is that for an application from outside UK an expiry date must be entered and is in fact the final date by which first entry to UK must be made, not expiration as I previously thought. You are correct about the enduring relationship.

KOL/Citizenship test was introduced at some later date. I do not know exactly when.

Getting a hang of it now LOL

Cheers