Permanent Residence In Uk. Eea Permit Question

[scorpio]

hi,

my wife wants to apply for PR in uk , i have been told by my doctor that i have serious liver disease and he has given me a letter to styate that i will not work in future in his view. her resident stamp is due to expire in march 2013. immagration lawyer from law centre in uk has advised me that based on my doctors letter to say im permantley incapacitated then my wife can apply for ILR or PR ?

the thing is my wife has been out of uk now since june and is due to be back in uk in early september 12. is it true that she has to not be outside uk for more than 90 days in the year before she can apply for either PR ou ILR ?

can someone give me advice on this if true or not, my wife and also i want her to stay in thailand to be with her kids for a longer break and maybe come back to uk in october but that will leave her outside uk for more than 90 days, surely if she remained in thailand longer then this would go against her PR / ILR application , or would it ?

what is the best thing to do now in this situation please ?

thankyou

[7by7]

If your wife is living in the UK with an EEA permit she cannot apply for ILR; this is for those living in the UK under the UK's immigration rules.

If she is living in the UK with an EEA family residence card then I think she would still have to be resident for at least 5 years before she could apply for permanent residence, even though you have had to cease work due to permanent incapacity. I can't find anything on the European nationals pages to say otherwise.

She is allowed out of the UK during the 5 years, but will need to show that she is living in the UK with you, her EEA spouse, when applying for PR; difficult to do if she has spent most of her time in Thailand.

I am no expert on EEA rules, but that's my opinion based on what I do know. I stand to be corrected.

The 90 days comes from the residential qualification for British citizenship.

[7by7]

Something stirred in the back of my mind, and a quick look through your posting history shows that, once again, you have changed your story!

As I said to you here last May

What you need to do is decide what it is you are going to do, what is the truth and what is fantasy. Then start a new topic asking the questions you need answers to.

If you are asking hypothetical questions so you can decide what is best for you and your family, say so! That way you may actually get some useful replies rather than the flames your current approach has prompted.

Is this the truth, this time?

[Eff1n2ret]

If she is living in the UK with an EEA family residence card then I think she would still have to be resident for at least 5 years before she could apply for permanent residence, even though you have had to cease work due to permanent incapacity. I can't find anything on the European nationals pages to say otherwise.

She is allowed out of the UK during the 5 years, but will need to show that she is living in the UK with you, her EEA spouse, when applying for PR; difficult to do if she has spent most of her time in Thailand.

5 years continuous residence is the basic criterion for an application under EEA Regulations, which give this definition:-

3.—(1) This regulation applies for the purpose of calculating periods of continuous residence in

the United Kingdom under regulation 5(1) and regulation 15.

(2) Continuity of residence is not affected by —

(a) periods of absence from the United Kingdom which do not exceed six months in total in

any year;

( periods of absence from the United Kingdom on military service; or

© any one absence from the United Kingdom not exceeding twelve months for an important

reason such as pregnancy and childbirth, serious illness, study or vocational training or an

overseas posting.

However, Reg. 15 also grants Permanent Residence to " the family member of a worker or self-employed person who has ceased activity;" and if the OP is signed off for the duration she might well qualify without serving the full 5 years, subject to being able to show that, a few absences in Thailand notwithstanding, she has been living with him in the UK.

I also recall some of the OP's previous requests for enlightenment, which seemed confused to say the least. If I remember rightly, he is a "McCarthy-type" case, i.e. a dual UK/Irish National living in Northern Ireland who has used the EEA Regulations in preference to the Immigration Rules to secure UK residence for his wife. This loophole is now closed to new applicants w/e/f 16th October. However, as best I can understand the transitional arrangements, the OP's wife should retain her rights, but she would be well advised not to hang about in Thailand too long or it may get very complicated.

[scorpio]

Something stirred in the back of my mind, and a quick look through your posting history shows that, once again, you have changed your story!

As I said to you here last May

What you need to do is decide what it is you are going to do, what is the truth and what is fantasy. Then start a new topic asking the questions you need answers to.

If you are asking hypothetical questions so you can decide what is best for you and your family, say so! That way you may actually get some useful replies rather than the flames your current approach has prompted.

Is this the truth, this time?

what is your problem 7x7 ????? i came out of work due to sickness !! i am now long term sick !!!! my wife is still in thailand waiting for kids visa,s.

can peoples circumstances not change ? we all do not have perfect " normal " lives such as you unfortunately ;-)

[scorpio]

THANKYOU very much eff1 . thats all the advice i needed cheers. i think i,ll just get onto law centre in n,ireland also from now on.

[bobrussell]

If you qualify for certain specified disability-related benefits or carers allowance your wife would be exempt from meeting the financial requirements under the new arrangements and this may allow a more straight forward settlement process to be followed.

[scorpio]

If you qualify for certain specified disability-related benefits or carers allowance your wife would be exempt from meeting the financial requirements under the new arrangements and this may allow a more straight forward settlement process to be followed.

thanks a lot bob though its the fact that if she is outside UK in her final year of residence more than 90 days then i fear she will find it difficult to get her permanent residence on her return, ( she has allready been in thailand around 65 days allready ) i have read up somewhere some time ago that this is the case though do not know for certain. my doctor has certified me as having a serious liver problem and after i told immagration lawyers this situation they told me my wife can go ahead and apply for PR based on the fact im long term incapacitated. as i say its this 90 day outside UK in her final year that may go against her. new rules have also came into play within the last few months ive been told . ?

thanks

[7by7]

If you qualify for certain specified disability-related benefits or carers allowance your wife would be exempt from meeting the financial requirements under the new arrangements and this may allow a more straight forward settlement process to be followed.

The new financial arrangements are changes to the UK immigration rules. The EEA regulations have not been affected by them.

.....as i say its this 90 day outside UK in her final year that may go against her......

Eff1n2ret's post above quotes the EEA regulations on how much time a person living in the UK with an EEA family permit is allowed out of the UK per year without affecting their PR application

5 years continuous residence is the basic criterion for an application under EEA Regulations, which give this definition:-

3.—(1) This regulation applies for the purpose of calculating periods of continuous residence in

the United Kingdom under regulation 5(1) and regulation 15.

(2) Continuity of residence is not affected by —

(a) periods of absence from the United Kingdom which do not exceed six months in total in

any year;............

(My emphasis)

As I said before, the 'no more than 90 days in the final year' applies to British citizenship applications. If she does wish to apply for British citizenship, as your wife is in the UK with an EEA permit she must have held PR for at least 1 year before she can apply, been in the UK on the exact day 5 years before applying and during the intervening five years have spent no more than 450 days in total out of the UK with no more than 90 days in the final year.

And yes, people's circumstances do change, but yours seem to change every time you post! Having said that, I am sorry that your illness has become so serious and wish you the best for the future.

[scorpio]

thanks guys,

i know some of my posts are somewhat contradicting but my heads all over the place at the moment with visa,s and immigration issues with my wife and kids. seems that i never have time to myself anymore since getting married ;-)) beware LOL