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Thomas
Thomas, Solicitor
Category: UK Immigration Law
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Experience:  BA (Hons), PgDip, Practising Solicitor
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For a French citizen married to a US citizen currently in the

Resolved Question:

For a French citizen married to a US citizen currently in the US (both of them) and planning to come to the UK for possibly 1 to 2 years
Is it easier to apply for a VA5 family permit or an EEA2 from inside the UK ?
Submitted: 2 years ago.
Category: UK Immigration Law
Expert:  Thomas replied 2 years ago.
Hi,

Thanks for your question.

The answer is that the US citizen should apply for both. They would need to apply before they left the US for a family permit before they travel by way of confirmation that they are the spouse of the EEA member state national and are therefore allowed to travel with them when they exercising their treaty rights:-
http://www.ukba.homeoffice.gov.uk/eucitizens/eea-family-permit/
Apply via VAF5

Technically there is no requirement for the US spouse to then apply for the residence card via EEA2 ,however it is strongly advisable to do so if the US citizen intends to leave the UK and return at any point during the time which they are based here (because upon return they would have to apply for a family permit again unless they had a residence card) AND because they may have difficult proving they have leave to remain in order to work without a residence card. Therefore it is advisable to apply for a residence card once the US spouse has come to the UK.

If this has been useful please kindly click accept so that I may be rewarded for my time. If you do not click accept your money stays with the site and I do not receive any credit for the time I have taken to answer your question.

I will answer your follow up questions you may have.

Kind regards,
Customer: replied 2 years ago.
I like the precision of your answer, is there any way I can direct further questions specifically to you? Also, am I allowed to engage you directly as an immgration attorney for my company? If so please let me have your contact info. or advise how I may contact you
Expert:  Thomas replied 2 years ago.
Hi,

Private contact is prohibited between customers/experts so you could not instruct me directly.

However, if you submit a question to the board you can request me via my profile but please also mark your question "FAO Tom".

Trust this clarifies, please click accept.

Kind regards,

Tom
Customer: replied 2 years ago.

One more clarification please. If the spouse of the EEA national entered the UK as a visitor (they travel to the UK together), the spouse has a US passport, can the spouse legally take up employment in the UK wothout applying for the EEA2? The UKBA website seems to suggest that the EEA2 is merely for convenience. It reads like a kind of contradiction, so please help me to clarify.

Expert:  Thomas replied 2 years ago.
Hi,

No they REALLY should not do this. Visitor's cannot work and cannot seek a more permanent stay. If they entered as a visitor then they could not switch to a residence card whilst in the UK, they would be forced to return to the US and make the application from there.

The process is family permit before travel, then residence card.

Only if they intend to enter, not work and leave within 6 months of entry should the US spouse use his visa waiver program rights.

Please click accept.

Kind regards,

Tom
Thomas, Solicitor
Satisfied Customers: 6295
Experience: BA (Hons), PgDip, Practising Solicitor
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Customer: replied 2 years ago.

FAO Tom

 

One further question related to the same scenario. What if the EEA National does not enter the UK at the same time as the spouse (will join later)?

 

The UKBA site seems to suggest that in this case a visa is needed. pls see

 

"The EEA national does not need to be present when you make your application. However, the EEA national must be travelling to the UK with you, or must already be in the UK. If they are not, you must apply for a visa instead of an EEA family permit."

 

Can you say what type of visa that is? also can you say whether it is advisable or better

for them to just get the VAF5 and travel together , even tough it is more costly ?

Expert:  Thomas replied 2 years ago.

Hi,

 

This means that if the EEA national is not travelling then the US spouse must apply without the benefit of EEA rights. This means that they would have to apply for one of the points based works visas that any foreign national would have to apply for if they weren't married to an EEA national.


It is much more difficult ot secure a visa in this way because the eligilibility criteria is much much stricter. For example, this is the most common worker visa applied for:-

http://www.ukba.homeoffice.gov.uk/visas-immigration/working/tier2/general/eligibility/

 

In the case of a family permit/residence card all you need to show is that you are married, so you can see it is hugely advantageous compared to a visa application in the normal way.

Kind regards


Tom

Thomas, Solicitor
Satisfied Customers: 6295
Experience: BA (Hons), PgDip, Practising Solicitor
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Customer: replied 2 years ago.

FAO Tom

 

Realted to the earlier questions , can you say whether the UKBA would be inclined to approve a VAF5 application if the EEA National did not travel or enter at the same time as the non EEA spouse? (the form has a facility to enter different dates)

The non EEA spouse has a job offer and would like to take it up, however the EEA National would like to join the spouse later bacause she has some thnigs to finsh up.

The timing is not convenient for them to go at the same time.

Expert:  Thomas replied 2 years ago.

If you are asking whether there is a chance that the non-EEA spouse would be granted the family permit on the basis of EEA rights without the EEA national spouse travelling the, I have to say, absolutely not.

 

The rights of a non-EEA spouse to to be in the UK on the basis of the EEA national treaty rights derive only from the EEA spouse actually being there. If the EEA spouse is not either travelling with or already in the UK then the non-EEA spouse does not derive any rights.

 

If the non-EEA spouse is determined to take the job then they shoudl investigate whether the employer is willing to and can apply for Tier 2 Sponsored Skilled Work VIsa but the eligilbity crtieria is quite demanding (see above link). Sponsorship details/requirements here for the employer:-

http://www.ukba.homeoffice.gov.uk/visas-immigration/working/tier2/general/sponsorship/

 

They can switch to a residence card once the EEA national comes.

 

Kind regards


Tom

Thomas, Solicitor
Satisfied Customers: 6295
Experience: BA (Hons), PgDip, Practising Solicitor
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Customer: replied 2 years ago.

FAO Tom

 

Please be patient with me, following up again, let says the following process is followed (as you suggested earlier)

 

1) Apply for the VAF5 and then they both travel to the UK

 

2) EEA2 is then applied for when in the UK by the nonEEA family (spouse)

 

Can the nonEEA spouse work immediately after arriving in the UK with the VAF5

or does he have to wait until the EEA2 is processed?

 

Can the EEA national return to the US within a few days after they entered the UK together ?

 

Does the EEA national need to be physically present with the nonEEA spouse in the UK to apply for the EEA2?

 

 

 

 

Expert:  Thomas replied 2 years ago.

No problem, it's fine.

 

Correct process.

 

The US spouse can work immediately provided they can prove to the employer they have leave to remain. Some employers are more aware than others, but provided he can show his wife's passport and his passport with the family permit in it he will be able to convince a reasonably knowledged employer of their right to work.

 

Returning to the US after entering on the family permit is more tricky because were they to do this without first having applied for the residence card they may face problems entering the UK again. They would be questioned upon re-entry but should probably be fine getting back in on the family permit, though the safest option is (without any doubt) to apply for the residence card first

 

The EEA national spouse shoudl really be in the UK.

 

Kind regards,


Tom

Customer: replied 2 years ago.

 

The nonEEA spouse would really like to do an IT software contract there for 6 to 12 months, while the EEA spouse essentially would like to travel back and forth to the US to take care of things they have there. The VAF5 / EEA2 process seems to be best way to get the nonEEA spouse the abilty to work in the UK (given that the visa/ sponsorship option is very difficult or maybe even impossible).

Based on our converations, I am think that this is reasonably ok , not necessarily 100% technically correct, while at the same time being essentially within the rules. Would that reasonably accurate?

 

Expert:  Thomas replied 2 years ago.
I will answer tommorrow

Tom
Customer: replied 2 years ago.
ok, thanks. I hope I am not at the point of repeating the same questions. It is a bit of a grey area it seems.
Expert:  Thomas replied 2 years ago.
No Problem
Expert:  Thomas replied 2 years ago.
Good morning,

It's a little bit of a shaky scenario. Basically the EEA spouse must be exercising treaty rights in the UK in order for the non-eea spouse to get their residence permit. Usually this means working. So, if the EEA spouse has a contract of employement in the UK but is required to on occasion go back to the US then they should be fine.

If the eea spouse has a contract of employment outside the UK and simply visits the UK then the ukba is much more likely to raise questions about the comings/goings of the US spouse and as a result the validity of the non-eea spouses right to a residence card.

Hope this clarifies.

Kind regards,

Tom
Thomas, Solicitor
Satisfied Customers: 6295
Experience: BA (Hons), PgDip, Practising Solicitor
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Customer: replied 2 years ago.

FAO Tom

 

Regarding Tier 2 visas, can an employer approved to issue Certificates of Sponsorship

assign it thru an intermedite company in the UK ...

 

e.g, Company A (approved to issue COS) has a supplier contract with Company B (not approved for Certificates of Sponsorship).

 

Comapny B would like to employ a person nonEEA via Tier 2

 

Can Company B use thier client's (Company A) COS for the potential employee?

 

Expert:  Thomas replied 2 years ago.
Hi,

I believe not, no. The employer company must have a COS, they are a separate legal entity and therefore treated as such by the UKBA.

If it were the case that companies were permitted to do this then they would be springing up everywhere and it would be much, much more difficult for the UKBA to regulate. They are overburdened as it is.

Kind regards,

Tom
Thomas, Solicitor
Satisfied Customers: 6295
Experience: BA (Hons), PgDip, Practising Solicitor
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Customer: replied 2 years ago.

FAO Tom

 

Can you provide some assistance/answers on completing a VAF5 form?

If, here is the scenario, and I will send the questions in a follow up

The scenario is:

 

EEA National - French , married to spouse, currently living and working in USA

Spouse of EEA National - they are married, living together, spouse is a US citizen, currently unemployed, just finished a contract in December 2011 , can show a contract offer for the UK if is allowed to work there - a software developer highly specialised

 

VAF5 is being applied for the spouse - they will travel to the UK together

They plan to spend maybe a year or more there in the UK to live and work

It is easier for them in the UK because of the language / possiblity for employment

They will be close to the EEA Natoial parent - getting older and able to spend more time with them , is easier from the UK

 

 

Expert:  Thomas replied 2 years ago.
Yes, that's fine. What would you like to ask?

I don't understand the final sentence of your post by the way...
Customer: replied 2 years ago.

Sorry, the final sentence was outlining the purpose for them wanting to be in the UK.

The EEA National will be closer to a parent(French) who is getting older etc.....

Here they are:

 

1) What is the main purpose of my visit to the UK?
Move, work, live?


2) How long do you intend to stay in the UK?
6 months? 6 months or more? The potential contract that he could get would be intially for 6 months - would this affect anything ....they have substantial savings of their own


5.1) What are your current personal circumstances? Put a cross in the relevant box

5.2 - 5.8

 

The NonEEA spouse is currently umemployed, he just finished a contract in December 2011. Woud this affect the application

5.9 Have you ever worked for ay organization of a type (state or non-state) listed below?
Spouse many years ago worked for the USAF
Do they mean USAF?
8.9 Your Life in the UK
I'm not sure how to answer this section.

 

 

Expert:  Thomas replied 2 years ago.
Hi,

1) To work.

2) Just be truthful. 6 Months certain, further time after that based on your plan to stay for 12 months. If there is an expecatation the contract might be extended then state this. If the employer is able to state likewise in a letter then include the letter as part of the application and refer to it here.

5.2 Enter 'other' then explain your circumstances in detail in covering letter. It will be fine provided you adequately explain the fixed term nature of your employment.

5.9. Tick yes. Provide details of service in covering letter.

8.9. It's about your accomomdation once you are to arrive in the UK. If you will rent in the area of your job then I would show that there is accomodation available and refer to the funds that you have available to fund this. Show details of where you are to live until you have found permanent accomodation if that is what you are doing.

Kind regards,

Tom
Thomas, Solicitor
Satisfied Customers: 6295
Experience: BA (Hons), PgDip, Practising Solicitor
Thomas and 2 other UK Immigration Law Specialists are ready to help you
Customer: replied 2 years ago.

FAO Tom

 

Picking up on the same scenario we have discussed so far.

 

The nonEEA spouse is ready to apply for VAF5 in the USA

 

Would it be ok to send as a supporting document an offer of employment from a US Company? The nonEEA spouse is a US Citizen so it is easier to hire him on the US company. Also for social security agreements between the UK and USA it makes sense.

NOTE: The shareholders/owners of the US company also has a separate registered UK company which has an order from the services of the nonEEA spouse (subject to his ability to work in the UK)

NOTE: The UK client requirement was a UK Registered Company in order to do business as they would not sign the agreement between them and a US company

This is all in place, fully registerd with Companies house etc

Expert:  Thomas replied 2 years ago.
Hi,

Yes, that should be fine but if the contract does not specify the that the location of employement will be in the UK then it should be accomopanied by a letter from the company (on letterhead) stating that he will be based in the UK with an explanation of why this is essential.

Should be fine.

Tom
Thomas, Solicitor
Satisfied Customers: 6295
Experience: BA (Hons), PgDip, Practising Solicitor
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Customer: replied 2 years ago.

FAO tom

 

continuing on the same topic:

 

The EEA national , will resign her current job in the US and will travel at the same time with the nonEEA spouse. They plan to take up residence there for at least 9 months

She will seek / started seeking a new job in the UK.

 

He has an offer to work in the UK from the date of thier arrival

 

Does this scenario qualify her to Exercise Her Treaty Right and thus allow him to get the VAF5?

What evidence / supporting documents are needed apart from the job offer to the nonEEA spouse?

 

 

Expert:  Thomas replied 2 years ago.
Hi,

You will see from the following link that all that is required to enter the UK is the EEA national's passport/IS:-
http://www.ind.homeoffice.gov.uk/eucitizens/rightsandresponsibilites/

So is not essential that she already has a job to walk in to. HOwever you should both take documentary evidence of the funds you have available so that you can show you won't be a burden on public expenses to be on the safe side.

The basic docuements are set out on the following link but you should also include the matters we have spoken about earlier (most relating to funds/offer of employement). The thing they are most concerned about is that you will not claim public funds so this is something you should ensure is documented with evidence int he application.

Kind regards,

Tom
Thomas, Solicitor
Satisfied Customers: 6295
Experience: BA (Hons), PgDip, Practising Solicitor
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