Residence card for nonEEA spouse of Irish national

[Jess42]

I am the American spouse of an Irish national, and we moved over from Ireland for his job several months ago. Because we came over from Ireland (where I still have a valid residence card), there was no passport control, and I did not apply for a family permit. I have not been working, nor receiving any benefits since moving, but now that I would like to start job-searching, I am hoping to get a residence card quick-ish.

Could someone clarify a few points for me:
1) Do I need a residence card in hand to work?
2) In completing the EEA(FM) application form, am I the family member of an EEA national who has a permanent right of residence (does he have that automatically as an Irish citizen, or does the same 5-year rule apply?) OR of an EEA national who is a qualified person (worker)?
3) Is the fact that I've been here without a special visa for 5 months a problem?

[noajthan]

I am the American spouse of an Irish national, and we moved over from Ireland for his job several months ago. Because we came over from Ireland (where I still have a valid residence card), there was no passport control, and I did not apply for a family permit. I have not been working, nor receiving any benefits since moving, but now that I would like to start job-searching, I am hoping to get a residence card quick-ish.

Could someone clarify a few points for me:
1) Do I need a residence card in hand to work?
2) In completing the EEA(FM) application form, am I the family member of an EEA national who has a permanent right of residence (does he have that automatically as an Irish citizen, or does the same 5-year rule apply?) OR of an EEA national who is a qualified person (worker)?
3) Is the fact that I've been here without a special visa for 5 months a problem?

I assume you mean moved over to UK and are now in UK (?)

1) No, RC is optional.
But some employers may not employ you without what they think is evidence of your right to work.

2) Good question. Is hubby a dual national? (British too?)

3) No, if you sponsor is valid ie Irish only (and not British) and is exercising treaty rights then you are here by virtue of EU law.

If hubby is British (so, under current UK law, cannot sponsor a family member on the EU route) then you have been a visa-free visitor up until now.

Can you clarify if sponsor is a sole-national or dual-national (British)

[secret.simon]

Does your spouse by any chance have dual British (through either parent or birth in Northern Ireland) and Irish citizenship or is s/he purely an Irish citizen? My advice below is predicated on the basis that s/he is the latter.

1) Do I need a residence card in hand to work?

Technically, you don't. But your employer can be jailed and/or be subject to an extortionate fine if s/he can't prove that you have the right to work in the UK. So, s/he is likely to insist on having an RC in hand.

2) In completing the EEA(FM) application form, am I the family member of an EEA national who has a permanent right of residence (does he have that automatically as an Irish citizen, or does the same 5-year rule apply?) OR of an EEA national who is a qualified person (worker)?

As an Irish citizen, your spouse is considered "settled" on arrival under UK law. But s/he only acquires PR under the EEA Regulations after five continuous years of exercising treaty rights in the UK.

If he is working in the UK at the moment, he is a Qualified Person and you can apply accordingly.

3) Is the fact that I've been here without a special visa for 5 months a problem?

No, because your right to reside in the UK as the spouse of an EEA citizen is automatic under EU law.

Imagine how interesting the US position would be if non-US citizens married to Mexican citizens had an automatic right to US residence.

[Jess42]

I assume you mean moved over to UK and are now in UK (?)

1) No, RC is optional.
But some employers may not employ you without what they think is evidence of your right to work.

2) Good question. Is hubby a dual national? (British too?)

3) No, if you sponsor is valid ie Irish only (and not British) and is exercising treaty rights then you are here by virtue of EU law.

If hubby is British (so, under current UK law, cannot sponsor a family member on the EU route) then you have been a visa-free visitor up until now.

Can you clarify if sponsor is a sole-national or dual-national (British)

Thank you! Yes, moved to the UK. Husband is sole-national.

[noajthan]

Thank you! Yes, moved to the UK. Husband is sole-national.

So all good. You are in clover.

My brief answers and member secret.simon's erudite answers would all appear to hold good.

[Jess42]

Imagine how interesting the US position would be if non-US citizens married to Mexican citizens had an automatic right to US residence.

Indeed.

Thank you both for your responses. I was flailing, afraid to send in the application for fear of having misunderstood my position.

Now my main concern (besides the referendum) is how long they'll keep our passports once they've received my application. We're hoping to do some traveling during the summer. Does anyone know?

[noajthan]

Indeed.

Thank you both for your responses. I was flailing, afraid to send in the application for fear of having misunderstood my position.

Now my main concern (besides the referendum) is how long they'll keep our passports once they've received my application. We're hoping to do some traveling during the summer. Does anyone know?

Make sure you have good, rock-solid documentary supporting evidence to back your case.
Suggest keep scans/copies of all docs and form submitted.

HO are not heartless philistines. You can request return of passports a short while (few weeks) after filing the application.
(Request via Gov UK website).

[Jess42]

Fantastic. Thank you.

[Jess42]

When they ask if you have any previous biometric residence cards or permits, do they mean just for the UK, or for any country? The wording on the application form is:

Have you, or has anyone included in this application, been issued with a residence card (biometric format) or biometric residence permit (BRP) in connection with a previous application under the EEA Regulations or for leave to remain?

My instinct is that they mean previous applications to the Home Office, not previous applications elsewhere in the EU, but it's not clear. I have a residence card, which is possibly biometric(?), for Ireland, but would rather not send that if it's unnecessary.

[noajthan]

When they ask if you have any previous biometric residence cards or permits, do they mean just for the UK, or for any country? The wording on the application form is:

Have you, or has anyone included in this application, been issued with a residence card (biometric format) or biometric residence permit (BRP) in connection with a previous application under the EEA Regulations or for leave to remain?

My instinct is that they mean previous applications to the Home Office, not previous applications elsewhere in the EU, but it's not clear. I have a residence card, which is possibly biometric(?), for Ireland, but would rather not send that if it's unnecessary.

Your instincts appear sound.
The EEA Regulations or for leave to remain are both parts of UK legislation so my spidey sense is telling me: just for UK.

[Richard W]

HO are not heartless philistines. You can request return of passports a short while (few weeks) after filing the application.

While what you say is technically true, the request may be declined. The government position is that they may retain the OP's passport in case they decide the she is not the spouse of an EEA citizen exercising treaty rights, in which case the OP will have no basis of stay in the UK, and the government will need the US passport so as to administratively remove her.

[noajthan]

HO are not heartless philistines. You can request return of passports a short while (few weeks) after filing the application.

While what you say is technically true, the request may be declined. The government position is that they may retain the OP's passport in case they decide the she is not the spouse of an EEA citizen exercising treaty rights, in which case the OP will have no basis of stay in the UK, and the government will need the US passport so as to administratively remove her.

It is more than technically true as hordes of members have attested in these forums.

I didn't say its guaranteed but, Kafkaesque bureaucracy and giant meteorites notwithstanding, (and presuming OP is not an international spy in disguise), the OP may get her passport and go on holiday which is all she wanted to know here.

[Richard W]

HO are not heartless philistines. You can request return of passports a short while (few weeks) after filing the application.

While what you say is technically true, the request may be declined. The government position is that they may retain the OP's passport in case they decide the she is not the spouse of an EEA citizen exercising treaty rights, in which case the OP will have no basis of stay in the UK, and the government will need the US passport so as to administratively remove her.

It is more than technically true as hordes of members have attested in these forums.

There are also a good many examples of RC applicants being inappropriately warned that they should depart the UK when they request their passports. As far as I can discern a pattern, those covered by an existing immigration document (including unexpired family permits and also tier 2 visas) have their passport returned, while others don't.

The following exchange may be relevant:

I am the American spouse of an Irish national, and we moved over from Ireland for his job several months ago. Because we came over from Ireland (where I still have a valid residence card), there was no passport control,...<snip>
3) Is the fact that I've been here without a special visa for 5 months a problem?

3) No, if you sponsor is valid ie Irish only (and not British) and is exercising treaty rights then you are here by virtue of EU law.

I think Jess42 entered the UK in her capacity as a non-visa national (to wit, a US citizen) as a visitor for 3 months in accordance with the Immigration (Control of Entry through Republic of Ireland) Order 1972 Article 4 - and did not have the initial 3-month right of residence. As soon as her husband started working in the UK, her presence was indeed (also) sanctioned by the UK transposition of EU law. However, the 3 months as a visitor have now expired. She fits the pattern of some of those who have been refused the early return of their passports.

Now my main concern (besides the referendum) is how long they'll keep our passports once they've received my application.

I didn't say its guaranteed but, Kafkaesque bureaucracy and giant meteorites notwithstanding, (and presuming OP is not an international spy in disguise), the OP may get her passport and go on holiday which is all she wanted to know here.

I believe she actually wanted to know whether she would get her passport back fairly quickly. (Applications currently take 5½ months.) It's certainly possible that she might get her passport back quickly - it's been argued that the current retention policy is unlawful.

[noajthan]

Inappropriate boiler-text Capita-style warnings may be ignored due to being inappropriate.

However OP entered Blighty, by virtue of free movement and treaty rights s/he can certainly enjoy a 3 months grace period tout suite.
That's the whole point of unfettered, laissez-faire free movement.

You & s/he can get up to speed on free movement concepts here:
http://ec.europa.eu/justice/citizen/doc ... 013_en.pdf
- page 13

[Richard W]

However OP entered Blighty, by virtue of free movement and treaty rights s/he can certainly enjoy a 3 months grace period tout suite.
That's the whole point of unfettered, laissez-faire free movement.

Nothing in this case hangs on the 3 month grace period. Under British law, it depends on whether the sponsor was admitted to the UK. They just waltzed in without any examination. You might think Metock and Article 6 of Directive 2004/38/EC would establish the right, but Metock doesn't preclude a visa or substitute being a prerequisite. In truth, I'd got it into my head that the 3-month right depended on the family member being admitted as a family member , and had coupled that with the fact that the OP didn't have the right to enter the UK as the family member of an EEA citizen (unless she'd Surinder Singhed her way to Ireland, but then I think she'd fail because she didn't show anyone her Irish residence card).

I'm now beginning to wonder if Jess42 might in future be accused of illegally entering the UK with the intention of settling. I think this is only likely to be relevant should she ever consider naturalising as British.

On the passport issue, I recall a poster saying that US citizens could get a second passport if the Home Office kept their US passport too long - the US consulate regards passport retention by the HO as a known problem!

[noajthan]

The OP is a visa-free national she won't have arrived in the boot of a car or a rubber dinghy.
Its not her problem if the border was unmanned or all on comfort breaks or all the entry gates broken and on override.

Case law has established visa status (or any status) is immaterial for EU rights to be engaged. I leave that as an exercise for the interested reader.

Intent to settle or not settle is not a factor in the context of treaty rights; settlement is not what free movement is for.
Long story short, OP may file for RC (if she so wishes) and live happily ever after.

[Richard W]

The OP is a visa-free national she won't have arrived in the boot of a car or a rubber dinghy.
Its not her problem if the border was unmanned or all on comfort breaks or all the entry gates broken and on override.

OK, needing a visa doesn't reduce one to the status of a visa national.

It's an interesting contrast. A visaless American intending to settle in the UK is refused admission if he travels direct to the UK, but if he travels via the Republic he is allowed in for 3 months.

[Richard W]

You & s/he can get up to speed on free movement concepts here:
http://ec.europa.eu/justice/citizen/doc ... 013_en.pdf
- page 13

It's not a very trustworthy document. For example, on p28:

Access to the labour market
Your family members, irrespective of their nationality, are entitled to take up employment or self-employment in the host EU country. It does not matter whether you work, study or just reside there, your family members can start their economic activity with the same paperwork as nationals.

So all the OP has to do to show she is allowed to work is to show her passport? I don't think so!

[noajthan]

@R,
This is not a general debate on the world, the universe and everything.

OP clearly entered UK accompanied by EEA sponsor/spouse, all above board. As good as entering LHR from outside CTA.
OP's intentions after 3 months are their own business.
Reread the EU doc if you are still unclear.

Consumer information documents are not itemised statements of the letter of the law, they are pitched at the general public.
That is the level of information appropriate for the readership of this question (including you and yours truly) hence it was shared to clear up some basic misconceptions.

It is not the only source, interested parties and self-motivated parties can dig deeper for themselves.
I have not the time to do all the heavy lifting.

OP who only wanted answers to 3 simple questions) has lost interest in debating EU law and gone off to live her life.

The OP has been advised on next steps and relevant information shared, hopefully that's enough.

Locked.