travel while UKRC is under process? - NonEU - Surinder Singh

[daleuk]

Hi All

I hope you can advise on a slightly complicated matter. Our aim is two fold, first eventually happily move to the UK and second do a little travelling somewhere in-between.

I am a British Citizen married with a non-eu spouse (for all my sins ). We currently are residents in an EU host state (cyprus), for which we have Article 10 residents cards (actually bits of paper here). Later this year, we intend to relocate to the UK to be closer to BC's family. We are able to travel to the UK simply with our Article 10 RC's or if we wish to do so obtain a 6mth EEA Family Pass. When we arrive to the UK, we make an application for non-eu spouse for a UK Residence Card and go through the process etc etc. We intend to move to the UK using EU SS regulations.

This is all the bit we understand. Now for the query, sometime in between this we wish to take a break, by going travelling for a while, maybe upto 6 months or maybe if possible even longer than 6 months.

1) We take up to 6 months away from Cyprus, no longer than 6 months as this is the limit in terms of continuing our residency in Cyprus, correct? Then briefly returning to Cyprus to wrap up a few things, then making the move to UK. Bearing in mind that we intend to move to the UK using EU SS regulations, when we quit our jobs in Cyprus (just prior to travel), as we understand the BC is officially no longer exercising his rights as a worker instead we shall show we were 'self-sufficient'. My concern with this option is the whole COL stuff, for the first part where we have jobs/apartment/car/insurance/medical and so on it is easy, but for self-sufficient part we will have less evidence as obviously we will no longer continue paying for our apartment etc whilst out of the country on an extended trip. we will still continue to have cypriot bank accounts etc.

Extract from Free movement rights: family members of british citizens version 2.0
""the British citizen exercised free movement rights as a worker, self employed, self sufficient person or student (a qualified person) in the EEA host country IMMEDIATELY before returning to the UK; or had acquired the right of permanent residence in the EEA host country""

The reason for nipping back to Cyprus, and claiming self-sufficiency during this time we are actually away from Cyprus travelling, is to satisfy the above statement, in particular the requirement for he stay in EEA host country to be immediately before returning to the UK.

2) We go directly from Cyprus to the UK, travel with Article 10 RC's or without a EEA FP. We apply for non-eu spouse UKRC. We obtain Certificate of Application and request back our passports. We then depart the UK off on travels.

a)As we understand it there is no requirement to be in the UK whilst application is under process?

b)i) How to gain entry to the UK after we come back from travels in the above scenario, as I understand, we can simply apply for a EEA FP (which is independent of our UKRC application), but this must be applied for in an EEA state in which we were resident (cyprus) correct? or can this be applied from anywhere worldwide? or any EEA state? when we are in the UK? again I presume we do not get back our documentation from UKRC application and only the passports? therefore this would be a difficult option.

ii) Another way, is again prove our relationship at the border (without a EEA FP), again I presume we do not get back our documentation from UKRC application and only the passports? therefore this would be a difficult option.

c) I understand that there is a 180 day limit per year when later applying for indefinite leave to remain, does this apply after the UKRC has been granted? as I understand applications can take upto 9 months or more, we maybe would like to use this time to satisfy our need of travel then head back to UK when there has been some decision made.

Thank you all for your kind input, it is very much appreciated in such a complex process! and yes acknowledge we are making it slightly more complicated but then we are young

[daleuk]

it will probably help to know that the no-eu spouse is a visa required national.

[Richard W]

I haven't been able to answer the questions about the logistics of evidence.

Be warned that UK regulations relating to Surinder Singh applications appear to be in breach of EU law, and it is by no means obvious that EU law will prevail.

The reason for nipping back to Cyprus, and claiming self-sufficiency during this time we are actually away from Cyprus travelling, is to satisfy the above statement, in particular the requirement for he stay in EEA host country to be immediately before returning to the UK.

That sounds like an abuse of the EEA Regulations, and I think there is a good chance that the return will simply be ignored as a contrivance to meet the letter of the regulations. This part of your residence would not be 'genuine', and would probably fall foul of Regulation 9(1)(c) in the Immigration (EEA) Regulations 2016.

2) We go directly from Cyprus to the UK, travel with Article 10 RC's or without a EEA FP. We apply for non-eu spouse UKRC. We obtain Certificate of Application and request back our passports. We then depart the UK off on travels.

a)As we understand it there is no requirement to be in the UK whilst application is under process?

Under the EEA Regulations, which are in breach of the case law of Eind, you would have to be a qualified person for the card to be granted. I strongly recommend that, if you have managed to enter the UK, you wait until you have your RC.

b)i) How to gain entry to the UK after we come back from travels in the above scenario, as I understand, we can simply apply for a EEA FP (which is independent of our UKRC application), but this must be applied for in an EEA state in which we were resident (cyprus) correct? or can this be applied from anywhere worldwide? or any EEA state?...

From anywhere.

... when we are in the UK?

No. In the UK the application would have to be for a residence card.

c) I understand that there is a 180 day limit per year when later applying for indefinite leave to remain, does this apply after the UKRC has been granted? as I understand applications can take upto 9 months or more, we maybe would like to use this time to satisfy our need of travel then head back to UK when there has been some decision made.

Under current law, which will probably not be applicable when the time comes, your spouse will automatically acquire permanent residence, rather than apply for ILR, after 5 years of residence with you being a 'qualified person'. Whether a residence card had been held would be irrelevant. Once the 5 years of continuous residence have been completed, you may take a long absence, but less than 2 years.

If your spouse is allowed to continue residing in the UK after Brexit, you may well find that one has to be resident for 5 years up to the date the application is considered, as opposed to being received. The laws may be different, and the details are unknown.