EEA EFM - What are my Treaty Rights? and best time to apply?

[CanadianCanuck]

Hi all,

I am new to all this, and have tried to find the answers looking through the forum before writing, but was unsuccessful.

I am Irish/Canadian.
My Partner is Canadian. Holds a Youth Mobility Visa expiring April 2017.
We have been together for 4 years, living together for 3 years (2 years in Canada, and 1 year in England).
We want to stay longer than April 2017 (I would not stay here without him, we would both move back to Canada together if he couldn't stay)
We both currently have permanent jobs in England.

I feel like we cover everything for successfully applying for a EEA EFM Unmarried Partner residence card.
I would be applying for a EEA QP at the same time.

(1)My question is, what exactly are my Treaty Rights? There is a part in the form that we are unsure exactly how to answer:

6.27 You must show that your EEA national sponsor would be prevented from exercising their
Treaty rights in the UK if we refuse your application for a registration certificate or residence
card. As part of this consideration, please give any other relevant information in the box below.
This could include:
• any further information about your financial circumstances before or after coming to the UK
• details of any emotional or physical support you receive, or have received, from the EEA
national
• details of any family in your home country
• details of any compelling or compassionate circumstances which would make it difficult for
you to live in your home country without your EEA sponsor
• any other information which would mean your EEA sponsor would be prevented from
exercising their Treaty rights in the UK if your application is refused.

Of course I don't want to live in England without him. Am I right in thinking that by them not giving him a residence card, which forces me to go home as a by product, count as preventing me from exercising my treaty right?


(2)Also, what is the best time to apply? If his Visa expires in April 2017, and we were thinking of applying in October 2016. Can you apply in April? does that extend this Visa/Right to work here longer?

(3) If he has a job now, and applies, and gets a COA without right to work, does he have to leave his job??

Thank you all so much, I appreciate any information/wisdom that you can share!

[noajthan]

Hi all,

...

I feel like we cover everything for successfully applying for a EEA EFM Unmarried Partner residence card.
I would be applying for a EEA QP at the same time.

(1)My question is, what exactly are my Treaty Rights? There is a part in the form that we are unsure exactly how to answer:

6.27 You must show that your EEA national sponsor would be prevented from exercising their
Treaty rights in the UK if we refuse your application for a registration certificate or residence
card. As part of this consideration, please give any other relevant information in the box below.
This could include:
...

Of course I don't want to live in England without him. Am I right in thinking that by them not giving him a residence card, which forces me to go home as a by product, count as preventing me from exercising my treaty right?


(2)Also, what is the best time to apply? If his Visa expires in April 2017, and we were thinking of applying in October 2016. Can you apply in April? does that extend this Visa/Right to work here longer?

(3) If he has a job now, and applies, and gets a COA without right to work, does he have to leave his job??

Thank you all so much, I appreciate any information/wisdom that you can share!

Welcome.

1) Yes, sort of.

However section 6 doesn't apply in your case. That's for other types of EFM relatives of sponsor.

The form is a bit of a monster and is generic, covering a multitude of types of applicants.

See page 17 of form.
Sponsor is

EEA national who is a qualified person (worker, self-employed, self-sufficient, student or jobseeker) – complete section 9, then sections 10-15 as required, then sections 16, 17, 18, and 19.

Only complete the sections of the form that are relevant to you. If a section does not apply to you, leave it blank.

fyi - the aim of the EU Directive (2004/38EC) is to promote and facilitate economic activity and movement for Union citizens throughout EU(/EEA).
If your family member can't join or remain with you then you may be constrained in that endeavour. And the whole system will suffer.

However unmarried partners are extended family members of their EEA sponsor, not direct family members (such as a spouse).
You will have to prove your are in a durable relationship 'akin to marriage'.

Get up to speed on free movement here:
http://ec.europa.eu/justice/citizen/doc ... 013_en.pdf

See how a caseworker will weigh up and assess your partner as an extended family member (& your relationship) in HO guidance, here:
https://www.gov.uk/government/uploads/s ... _clean.pdf

2) Do not leave this to April
That is the first step to a world of pain. The T5 visa will expire and partner will become an overstayer.

A T5 visa is issued under UK Immigration Regulations.
A RC is not a visa (its just a confirmatory document) and there is no 'carry over' into the EU route.

If you are exercising treaty rights now (and have been in a durable relationship for at least 2 years as you may have) your partner can apply now (or soon).
That way any issues can be caught before the T5 expires and you hit the rails.

(The application may take several months to process).

3) Depends on the employer.

Under the UK's EEA Regulations an EFM needs to hold a RC.
And as an unmarried partner the interim COA won't confirm any right to work.

Sanity check: you are not a tri-national are you? (with British nationality too?).

[CanadianCanuck]

Thank you for your reply.

No I am not a tri national.

Regarding COA and working. So if we apply now, and we are refused, that doesn't cancel out his current Visa?
He can still work/stay till April? And I am still unclear as to what happens when we are waiting for the application to go through. He currently has the right to work, but that would be stripped from him if we start the application process? I just don't want him to have to stop working while we wait for an answer for 6 months....

[vinny]

He still retains his right to work until expiry of his leave or until his leave is curtailed, which is unlikely. Applying under the EEA regulations shouldn't affect his leave under the Immigration rules.

[noajthan]

Thank you for your reply.

No I am not a tri national.

Regarding COA and working. So if we apply now, and we are refused, that doesn't cancel out his current Visa?
He can still work/stay till April? And I am still unclear as to what happens when we are waiting for the application to go through. He currently has the right to work, but that would be stripped from him if we start the application process? I just don't want him to have to stop working while we wait for an answer for 6 months....

You are working with two different migration frameworks: UK and EU. They are not designed to be compatible or even to be aware of each other.

Yes, apply now and if the RC is refused you still have the T5 until April. There's no connection to or impact on the T5.

The right to work is not "stripped".
If someone is here with leave and a right to work then that is what they have.

If someone chooses to apply as an EFM under EEA regulations then their right to work (based on EU-related rights from their sponsor) is not confirmed until the RC is issued.
So a COA doesn't confirm the right.

But 'as it happens' (and 'luckily') your partner has a current right to work for now from the T5.

If there is delay or a problem and you fall through the gaps (RC refused) then that is your problem.
HO is not going to make this seamless for you as the two frameworks and the two migration routes are separate.

If you apply for the RC and fail then I do not know how future visa applications under UK route may be viewed. As by applying you have declared your hand and shown an intent to stay on in UK.

[noajthan]

If you are risk-averse the best bet is to "work with the universe"...

Safest option is partner leaves UK.
Partner applies for FP.

"But partner is a visa-free national for UK" I hear you say.

A FP is essentially an entry visa for family of EEA nationals and comes with a right to work. Valid for 6 months.
Then shoot for EFM RC once in UK again.
Live your life.

[CanadianCanuck]

Thanks for your reply.

Do we need to apply for a family permit before applying for a RC?

Or can we just go straight for the RC.

[noajthan]

Thanks for your reply.

Do we need to apply for a family permit before applying for a RC?

Or can we just go straight for the RC.

A FP is a visa with added bonus it comes with right to work. Apply from outside country.

if in country with sponsor who is a qp (etc etc) apply for RC.