Eea Permit, Can Wife Come Back To Live In Uk

[dmax]

we are in process of buying a house in thailand my wife wants to go back and live in it. my wife is living in uk at present . we are seperated but " not divorced " so therefore she still has right to remain in uk. we have a 2 yr old baby who has a uk passport and was obviously born in uk, my wife has 2 more yrs remaining on her resident stamp , her 5 yr is up on march 2013. then she can apply for leave to remain.

question : she wants to go back to thailand to live for a year or so , she is just back from thaiand and misses her family and her kids too much, im unemployed and we are seperated so i cannot make a visa for her sons, she is also unemployed now since 3 months ago when she was paid off due to no work.

since baby and mother cannot be seperated, can she re enter uk in say 2 years time " when resident visa has expired " with our daughter or will she need to make a new visa application ? as i say baby is uk citizen. we are seperated but working on getting things sorted out and we have never spoke about divorce so i wont be divorcing her .

this is only a thought at the minute, if she has to make another visa application then she will have to stay in uk for time being until she can apply for LTR but even if after LTR is granted am i right in saying that she still cannot go out of the uk for more than 1 year ? anyway round this problem ? can she apply for uk passport after 5 years when her resident visa is up ?

thanks in advance

[Thai Visa Express]

Your wife is on a EU Family permit ?

Then her dependents can join her in the UK and the visa is free.

She may stay outside the UK for up to 6 months per year.

[Eff1n2ret]

See this from the UKBA European Casework instructions:-

"EEA nationals and their family members who have resided in the UK for a continuous period of 5 years .... will acquire the right of permanent residence.....

Continuity of residence is not affected by temporary absences (generally not exceeding 6 months per year).

Once an EEA national (or their family member) has acquired permanent residence in the UK it can only be lost if they leave the UK for more than 2 consecutive years."

A British citizenship application could be made after one year's permanent resident status, but but the requirements for absences from the UK during the previous years are more restrictive.

[VisasPlus]

I'm not sure what dmax's situation is in the UK. I seem to remember numerous posts a couple of months ago about him being British, working in Norway or somewhere. How his wife has an EEA Family Permit ( unless it is on the strength of his employment and former residence in an EU country, or Norway ?), I really don't know as dmax seems to be living in UK and Thailand.

[dmax]

I'm not sure what dmax's situation is in the UK. I seem to remember numerous posts a couple of months ago about him being British, working in Norway or somewhere. How his wife has an EEA Family Permit ( unless it is on the strength of his employment and former residence in an EU country, or Norway ?), I really don't know as dmax seems to be living in UK and Thailand.

i had an offer of work 6 mths ago in norway but it fell through, me and m wife have had fall outs and we have seperated on several occasions in the past, we are not divorcing mainly because i want things to work out and also if i do divorce her then she will not be able to remain in uk, thinking of my child and i dont want my child going to live in thailand with her mum !!! we now have 2 houses in thailand and we want to go stay in thailand maybe next year considering we are still together. btw im from belfast with a british and irish passport . can my wife apply for uk passport after 5 yrs ? and if after 5 yrs she did stay out of thailand for say 4 years could she go back with my daughter or what would the case be with her ?

thanks

[7by7]

As Eff1n2ret says above

EEA nationals and their family members who have resided in the UK for a continuous period of 5 years .... will acquire the right of permanent residence.....

Continuity of residence is not affected by temporary absences (generally not exceeding 6 months per year

So if she spends more than 6 months in one year out of the UK she will lose her continuity of residence and have to start the 5 years qualifying period again when she returned to the UK.

To apply for British citizenship she must have held permanent residence for at least 1 year; so that's a total of at least 6 years.

The residential requirements for British citizenship are that she must have been physically present in the UK on the exact day 5 years prior to applying and during the intervening 5 years have spent no more than 450 days in total out of the UK with no more than 90 days in the final year.

(BTW, the residential requirement for Indefinite Leave to Remain as the spouse or partner of a British citizen is 2 years plus a further 1 year for British citizenship. But as she entered with an EEA permit using your Irish nationality she must follow that route and cannot now switch to using your British nationality.)

Once she has British citizenship she can, of course, spend as much time as she wishes out of the UK and return at any time; the same as any other British citizen.

As an aside, you say that the job offer in Norway fell through; does this mean that you are now unemployed? Your wife obtained her EEA permit as the spouse of an EEA national who was exercising an economic treaty right to live and work in the UK. If you are now unemployed then you are no longer exercising an economic treaty right (unless you have independent financial resources) in which case technically she no longer has any right to remain in the UK; I think.

Anyone have any ideas on this point?

[Eff1n2ret]

As an aside, you say that the job offer in Norway fell through; does this mean that you are now unemployed? Your wife obtained her EEA permit as the spouse of an EEA national who was exercising an economic treaty right to live and work in the UK. If you are now unemployed then you are no longer exercising an economic treaty right (unless you have independent financial resources) in which case technically she no longer has any right to remain in the UK; I think.

Anyone have any ideas on this point?

The 2006 Regulations define a worker as follows:-

(2) A person who is no longer working shall not cease to be treated as a worker for the purpose

of paragraph (1)B if—

(a) he is temporarily unable to work as the result of an illness or accident;

B he is in duly recorded involuntary unemployment after having been employed in the

United Kingdom, provided that he has registered as a jobseeker with the relevant

employment office and—

(i) he was employed for one year or more before becoming unemployed;

(ii) he has been unemployed for no more than six months; or

(iii) he can provide evidence that he is seeking employment in the United Kingdom and

has a genuine chance of being engaged;

© he is involuntarily unemployed and has embarked on vocational training; or

(d) he has voluntarily ceased working and embarked on vocational training that is related to

his previous employment.(3)

If the OP wants to preserve his status as an EEA national exercising his treaty rights in the UK, he should take care not to be unemployed for too long - even a part-time job would be sufficient to maintain his qualification. If he has no expectation either of becoming re-employed or of remaining in the UK, his missis might be advised to exercise her "retained rights" as a family member, if she is so entitled - i.e. the marriage has lasted for at least 3 years and they spent at least 1 year together in the UK. However, she should take qualified legal advice about that, as I think they would have to initiate divorce proceedings to trigger that right.

But really, the only sensible advice to the OP is that for the next 2 years, until she is entitled to apply for Permanent Residence in March 2013, his wife should not spend more than 6 months in any 12 outside the UK, after which she could spend a year at a time in Thailand without endangering her PR status. On no account should she let this lapse, as it's by no means certain that she could resurrect her status as an EEA Family member given the circumstances described. If she wants to spend extended periods outside the UK during the next few years she can kiss goodbye to a British Citizenship application.

[dmax]

As an aside, you say that the job offer in Norway fell through; does this mean that you are now unemployed? Your wife obtained her EEA permit as the spouse of an EEA national who was exercising an economic treaty right to live and work in the UK. If you are now unemployed then you are no longer exercising an economic treaty right (unless you have independent financial resources) in which case technically she no longer has any right to remain in the UK; I think.

Anyone have any ideas on this point?

The 2006 Regulations define a worker as follows:-

(2) A person who is no longer working shall not cease to be treated as a worker for the purpose

of paragraph (1)B if—

(a) he is temporarily unable to work as the result of an illness or accident;

B he is in duly recorded involuntary unemployment after having been employed in the

United Kingdom, provided that he has registered as a jobseeker with the relevant

employment office and—

(i) he was employed for one year or more before becoming unemployed;

(ii) he has been unemployed for no more than six months; or

(iii) he can provide evidence that he is seeking employment in the United Kingdom and

has a genuine chance of being engaged;

© he is involuntarily unemployed and has embarked on vocational training; or

(d) he has voluntarily ceased working and embarked on vocational training that is related to

his previous employment.(3)

If the OP wants to preserve his status as an EEA national exercising his treaty rights in the UK, he should take care not to be unemployed for too long - even a part-time job would be sufficient to maintain his qualification. If he has no expectation either of becoming re-employed or of remaining in the UK, his missis might be advised to exercise her "retained rights" as a family member, if she is so entitled - i.e. the marriage has lasted for at least 3 years and they spent at least 1 year together in the UK. However, she should take qualified legal advice about that, as I think they would have to initiate divorce proceedings to trigger that right.

But really, the only sensible advice to the OP is that for the next 2 years, until she is entitled to apply for Permanent Residence in March 2013, his wife should not spend more than 6 months in any 12 outside the UK, after which she could spend a year at a time in Thailand without endangering her PR status. On no account should she let this lapse, as it's by no means certain that she could resurrect her status as an EEA Family member given the circumstances described. If she wants to spend extended periods outside the UK during the next few years she can kiss goodbye to a British Citizenship application.

thanks eff fr your reply but surely because my daughter was born in uk ( belfast ) and holds a uk passport then her mother can return with her ? on hindsight i should of went for a uk marriage visa or something different. then i think she could of got citizenship faster, maybe i can try for a marriage visa if and when i get a new job ? i dont know , so many rules and regulations