EEA2 SURINDER SINGH - Transitional Provisions

[Robert86]

Hello, my wife received her UK Family permit on the 29th October 2013, we arrived back in the UK from Ireland on the 2nd of December and we sent off her application for the UK residence card on the 17th March. I'd like to know will my wife fall under the "old rules" or "transitional rules" regarding the new regulations for those applying for UK residence cards under Surinder Singh? thanks.. :Erm:

[Terpe]

Hello, my wife received her UK Family permit on the 29th October 2013, we arrived back in the UK from Ireland on the 2nd of December and we sent off her application for the UK residence card on the 17th March. I'd like to know will my wife fall under the "old rules" or "transitional rules" regarding the new regulations for those applying for UK residence cards under Surinder Singh? thanks.. :Erm:

Hi Robert, glad to learn your wife received her Family Permit :xxgrinning--00xx3:

Since your wife entered the UK via a valid EEA family permit issued under Surinder Singh I don't forsee any issues securing the Residence Card as most of the key information required on the EEA2 form is not needed as she has her FP

I'm not sure what the 'old rules' or 'transitional rules' are in terms of application for Residence Cards......do you have any useful links for that?

I'm aware of the latest requirements by UKVI in terms of 'Centre of Life' and their non-conformance with either the previous 'SS' or the newly established caselaw of 'O v Netherland (Case C-45612)'. But that is now largely impacting Family Permit applications and those folks who try to enter UK by without FP (Code1A stamp)

Processing times for EEA2 applications are really unpredictable and can often take quite some time. The COA is usually issued in a matter of weeks rather than months. Has your wife received her Certificate of Application (COA) from the Home Office yet?

Just for your info, there's actually no legal requirement for non-EEA family members to obtain a residence card.
Having said that though, it really does make life so much easier..... especially when it comes to leaving and returning UK and proof of the right to work. (Although the COA will already give written right of work)

Would be great if you could keep us updated here. :xxgrinning--00xx3:

[Robert86]

Hi Terpe :Wave: yessssss eventually, we got there.. in the end LOL :xxgrinning--00xx3: my wife received her COA on the 10th April, so hopefully it doesn't take too long to process the residence card.. I'm not completely sure of these new rules or transitional rules but like you said it seems to be focusing on the "centre of life"... i got this response from the european operations at the home office:

Dear Robert,

Thank you for your enquiry.

As you say, the rules for family members of British citizens relying on the ‘Surinder Singh’ judgment, contained in regulation 9 of the Immigration (European Economic Area) Regulations 2006, were amended with effect from 1st January to require the British citizen to have moved their ‘centre of life’ to the EEA state where they were working or self-employed. The amendments are set out in paragraph 5 of Schedule 1 to the Immigration (European Economic Area) (Amendment) (No. 2) Regulations 2013.

However, this is subject to the transitional provisions contained in paragraph 2 of Schedule 3 to those Regulations. The transitional provisions state that if a family member of a British citizen was issued with an EEA family permit under regulation 9 before 1st January 2014, and they enter the UK before the expiry of that family permit, then they will qualify under the transitional provisions (subparagraph (1), read with (3)(a) and (4)(a)).

In other words, if your wife was issued with an EEA family permit before 1st January 2014 and entered the UK before it expired (as appears to be the case), she will continue to have a right to reside on that basis for as long as she remains your family member. Her application for a residence card would therefore be considered under the version of regulation 9 in force before 1st January 2014.

You can view the relevant amending regulations at the following link:
http://www.legislation.gov.uk/uksi/2013/3032/contents/made

I hope this has answered your query but if you require any further clarification, please do not hesitate to contact us again.

Kind regards,
PG


Peter Grant
European Operational Policy Team
Operational Policy & Rules Unit
Immigration & Border Policy Directorate
Home Office

So I'm hoping that my wife wont face any issues with them issuing her the residence card.. like you said its not a legal requirement but we will need it if we were to return to the Philippines or to go out of the country etc.. we have both settled in well, both working, Maria didnt face any issues at regarding finding employment even without the COA which was good.. so everything is going really well, so far so good !!!

:biggrin: I hope you are also keeping well, good hearing from you :xxgrinning--00xx3:

[Terpe]

Robert, it all bodes very well IMHO.

1. You wife already got issued with the UK Family Permit.......(good signal)
2. You arrived to UK within the FP validity period.....
3. Your wife has already received her COA

Based on this I would expect the Residence Card to be issued pretty soon.

Robert, well done you both.......count yourselves lucky on your timing :Jump:

UKVI (UKBA/Home office) are constantly looking at ways to tighten the rules of the SS route.
Despite recent EU caselaw {'O v Netherland (Case C-45612)'} UKVI have already made a big effort to really make the SS route as challenging as possible.

Despite the quite small numbers of people applying under SS UKVI are determined to block what they see as a loophole to circumvent UK immigration rules.

It certainly does not apply in your case Robert, but in my personal opinion, despite the UKVI new position being arguably non-enforceable/illegal under EU law it would lead to refusal and legal appeals. Until such a court judgement overturns the UKVI decision then their position will stand. Period.
No-one wants to go through the nightmare and long long period of stress and expense.

I suspect that the EEA route/SS route will require somewhere between 9 months -12 months under treaty rights and a whole raft of proofs towards 'Centre of Life'.

Robert, please do let us when your wife secures her Residence Card :xxgrinning--00xx3:

[waynedaisy]

Under the new case law it was set as three months!! Plus a day to be safe, the centre of life from this case became incompatible with the new case law, so the UK will have to change this. Head home enjoy life forget EEA 2 until the UK starts to follow EU law

[Terpe]

Under the new case law it was set as three months!! Plus a day to be safe, the centre of life from this case became incompatible with the new case law, so the UK will have to change this. Head home enjoy life forget eea2 until the UK starts to follow EU law

Hi there waynedaisy and welcome aboard :welcomex:

EEA2 is the application form for UK Residence Card....why should folks forget that process?
Although not mandatory, life can become complicated and messy without a valid residence card....especially relating to travel outside UK.

[Robert86]

Hi there Terpe! I received this email today from Your Europe Advice:

Thank you, Mr McClure, for contacting Your Europe Advice once more.

We understand that you and your wife returned to the UK in December 2013 and your wife submitted her application in March 2014.

You mention that your wife was issued with an EEA family permit in October 2013 and she was admitted to the UK on 2 December 2013.

In accordance with the Immigration (European Economic Area) (Amendment)(No. 2) Regulations 2013, SI No 2013/3032, Schedule 3 para.2(2), the new regulation 9 (which contains the new transfer of the centre of life test) does not have effect if your wife held a valid EEA family permit issued under the 2006 Regulations before 1 January 2014. Your wife s situation should therefore continue to be assessed under the conditions of the former regulation 9 until such a time as any appeal she may lodge is completed by virtue of the Immigration (European Economic Area) (Amendment)(No. 2) Regulations 2013, SI No 2013/3032, Schedule 3 para.2(4):

(4) Where met, the criteria in subparagraphs (2) and (3) remain satisfied until the occurrence of the earliest of the following events—
(a) the date six months after an EEA family permit has been issued if F has not within that period been admitted to the United Kingdom;
(b) the date on which an appeal against a decision referred to in subparagraph (3)(c) can no longer be brought (ignoring the possibility of an appeal out of time with permission) where no such appeal has been brought;
(c) the date on which any appeal against a decision referred to in subparagraph 3(c) is finally determined, is withdrawn or is abandoned (within the meaning of regulation 25(2) of the 2006 Regulations), save where the outcome of the appeal process is that the document in question falls to be granted;
(d) the date on which F ceases to be the family member of an EEA national or a family member who has retained the right of residence, within the meaning of regulation 10 of the 2006 Regulations; or
(e) the date on which F s right of residence under regulation 15 of the 2006 Regulations (permanent right of residence) is lost in accordance with paragraph (2) of that regulation (right of permanent residence lost through more than two years consecutive absence).


So the European Operations at the Home Office and the EU are both telling me that my wife should be considered under the old regulations/ transitional provisions.. fingers crossed they can issue it quickly and without any hassle.. :xxgrinning--00xx3:

[Terpe]

....So the European Operations at the Home Office and the EU are both telling me that my wife should be considered under the old regulations/ transitional provisions.. fingers crossed they can issue it quickly and without any hassle.. :xxgrinning--00xx3:

Hi Robert, I'm sure it will be issued soon.
As you know sometimes it can be longer than the EU suggested.
The good news is that your wife already received her COA which should clearly state her status and that she is allowed to work. :xxgrinning--00xx3:

[Robert86]

Hi Terpe, many thanks! my wife is working full-time and never had an issue finding employment even without the COA which was good.. Once my wife receives the residence card I will post back here and let you all know! thanks for all your help, will keep you posted :xxgrinning--00xx3: