5-year visa "as a family member"-clarification &am

My husband was given a 5-year visa in August 2002, which says:-

"A right of residence in the United Kingdom as a family member of an EEA national, (my name), who is resident in the United Kingdom. In the exercise of the treaty right is hereby after given until 08 August 2007."

We were under the impression that this was a "spouse visa" but it says "as a family member".

Firstly, how long does he have to wait before applying for Indefinite Leave to Remain? I've seen on some of these discussion boards that someone with a spouse visa can apply for Indefinite Leave to Remain after two years, but I thought we were told four?

Secondly, what does applying for Indefinite Leave to Remain involve in this case (whatever "this case" is!!) ? I have tried to find this answer on the internet but without any luck whatsoever! If you can let me know of a link where I can find this information, that'd be fantastic.

Any information would be greatly appreciated.
Regards,
Sarah

There are two kinds of "spouse visa":

1) Those issued under UK immigration rules to partners of people settled in the UK (mainly British and Irish citizens and people with ILR). These lead to ILR after 2 years.

2) Those issued under EU regulations to spouses of non-British EU citizens. These currently lead to ILR in 4 years but it seems that this may soon be increased to 5 years. (The time required for work permit holders is being increased to 5 years on 3 April, I'm not sure if this applies to EEA nationals too.)

I think that the visa you refer to would have been issued in the UK after your husband entered the country on an EEA family permit. The clock starts on the date of entry to the UK, so your husband may already have completed 4 years and can apply straight away.

(The time required for work permit holders is being increased to 5 years on 3 April, I'm not sure if this applies to EEA nationals too.)

It does ... the increase from 4 years to 5 years also applies to these EEA applicants.

Sarah, before your husband got that 5-year permit, what did he have before? Can you detail his UK immigration please.

John wrote:It does ... the increase from 4 years to 5 years also applies to these EEA applicants.

Are you sure about that? I thought so too, but I checked the announcement and it doesn't mention them, and the immigrations rules on the IND website still say 4 years.

Yes, unfortunately, totally sure!

Download this document. It is the actual changes to the Immigration Rules. Having done so, look at no. 12. In that you will see that in many places in the immigration rules they are deleting "4 years" and inserting "5 years". That includes para 255.

If you go to the IND website and actually look at para 255 of the Immigration Rules you will see that it deals with Permanent Residence stickers for EEA applicants.

So whether or not this particular change is mentioned in any of the explanatory documents issued by IND, the relevant legislation is certainly being altered.

Sorry to be the bearer of this bad news.

We got married in Spain in November 2001, where we were living at the time. I am British and lived in Spain for 2.5 years. My husband is Colombian.

When we got married, we went to Madrid to apply directly for a visitor visa. Then, 3 months later we moved back to England and he applied for permission to stay, which he was granted in August 2002.

We have both lived here continuously since then, and he has been working permanently and studying NVQ examinations.

John wrote:Yes, unfortunately, totally sure!

My, that piece of information really is hidden!

As for Sarah, I think the key question is: exactly when did your husband enter the UK and on what visa (visitor or EEA family permit)? If it was an EEA family permit and he entered before the end of April 2002, hurry up and get your application in before the new rules take effect on 3 April. Otherwise you'll have to wait until he's been in the country for 5 years.

Sarah, as a UK citizen who has spent sufficient time in another EU country, you could have chosen to go down either of the two routes (UK and EU) and seem to have taken the EU route. Were you aware of these two options and if not how did you end up doing it this way?

Ooh - it's all getting very confusing!

We arrived in the UK in February 2002 on a plain simple visitor visa. (I'm not sure, but I think the visa was valid for a year, for multiple visits as a tourist)

We applied for this in person in Madrid, November 2001 (a couple of weeks after we got married) because we were just going to visit the UK to see my family for Christmas 2001.

Then we decided to come to the UK for a while in the February 2002, then ended up staying.

When he was given his 5-year visa by the Home Office, we were just going on what we had been told by the Home Office - we weren't given two options and, therefore, didn't know that there were two options. He was told that after 4 years of the 5-years he could apply for permanent residency (or words to that effect).

If it helps, the letter he received when the Home Office returned his passport to him with this 5-year "whatever" visa said:-

"I am returning your passport which has been endorsed to show that you have a right to residency in the United Kingdom with Sarah M****** L***** who is a European Area National exercising a treaty right in the United Kingdom under the treaty of Rome. You are free to take employment or to engage in business or a profession while your spouse continues to exercise her treaty right. At present your only claim to remain in the United Kingdom is as the family member of a European Economic Area national who is residing here.

If you wish to stay here without your spouse you would have to qualify to remain in the United Kingdom in your own right, under the current Immigration rules.

This directorate should be notified immediately if your spouse decides to leave the United Kingdom or ceases to exercise her treaty right here.

Please contact this directorate if you require any further advice."


I have no idea if I'm exercising my treaty right!!!

[Moderator edit (John) : Full name details deleted ... not a good idea to give so much information on the internet.]

Sarah, are you sure your husband entered as a visitor? If he indeed did that, and then got his 5-year sticker in August 2002 then I don't think he can apply for his ILR until just before August 2007.

However did he enter as a visitor, or did he, as he should have, entered the UK thanks to an EEA Family Permit? If he did that and indeed entered the UK in March 2002 or before, then I think he can apply for his ILR now.

Can you clarify? Do you need to look at his passport to make absolutely sure?

Sarah, just seen your post timed at 3.34.pm. To me that sounds like the original visa was an EEA Family Permit, which at the time were certainly issued for 12 months duration.

Was your husband in the UK in March 2002? If so he should use form EEA4 and apply for a Permanent Residence sticker. Given that the IND is so slow at the moment I have uploaded a EEA4 form to the internet. You can download by clicking here.

Yes, my husband was here in March 2002, but at that time we were only planning to stay for a month or two so he was still on his 12-month visitor visa.

From what we were told in August 2002, we were waiting until August 2006 (i.e. 4 years into his 5-year visa) in order to apply for his indefinite leave to remain.

But, following your last comment, I'll download the EEA4 and sort it out that way.

Thank you for all your help!
Sarah

Sarah, EEA applications are free, so there is no harm in him applying this month, given that he has now spent over four years in the UK ..... I think either on his original EEA Family Permit, or the extension to that granted in the UK.

But do ensure the application is made this month ... March! As from 3rd April he would need to have been in the UK for 5 years! ... due to the rule change.

Earlier in this topic you queried whether you were exercising your treaty rights. You said you lived in Spain for 2.5 years, and indeed while doing just that you were exercising your treaty rights. Ordinarily the family members of British Citizens cannot get permission to enter the UK using EU/EEA legislation. However because you had used your treaty rights for more than six months the UK Government is obliged to let you use those rights and get EEA rights for your non-EEA family members. There was a case .... Surinder Singh ... that decided this .. you benefited from the Court case.

Wow! Thank you everso much for all your help! I've been hunting on the internet for days to find anything remotely useful, and finding this site means that I've discovered exactly what's what within one day!

Actually Sarah, just to make sure about the visa granted in Spain, can you pull out your husband's passport and look at that visa. What does it actually say on the face of the sticker? (but don't quote his name)

Morning! The one-year visa says "EEA Family Permit......" - had a look at his passport yesterday but haven't got it at work with me... Do you think he might not be able to go through this route yet? We sorted the form out yesterday and I was going to send it off (unable to access the internet over the weekend!)

Sarah ... go for it! This month! Before the rules change early next month ... after which your husband would need five years in the UK (not four years).

As always with postal applications enclosing important documents like passports, send by Special Delivery! Well worth the circa £4 charge for that ... and hang on to the slip stamped by the Post Office ... proof of posting ... and indeed proof of when the application was posted.

Your husband is entitled to apply now given that he has been in the UK for more than four years, and during that period he either had the original EEA Family Permit, or the extension to that granted in the UK.

Great! I'll send it all off. Thanks for the advice about the Special Delivery, too.

Thanks again for all your help.