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I am an Albanian national (non- EU\EEA) , actually residing

in Italy with a permit...
I am an Albanian national (non- EU\EEA) , actually residing in Italy with a permit to stay for working reason without expiry (Long residence Permit of Stay – Carta di Soggiorno). Last year I graduated in Medicine and Surgery here in Bologna , and I am now undertaking a PhD in Surgical Sciences (always here in Italy).
My future plans are to join my fiancée in UK and continue to Specialty training as a Surgeon in UK. She has just got her Indefinite Leave to Remain in UK (and before that she was holding a Tier 1 visa). With the changes applying after 9 july 2012, partners of settled persons in UK (who have been previously under a tier category – and my fiancée has been in tier 1 previous her settlement) will have to apply through the category of dependants of Point Based System. ( For me this would mean that I will have a restriction as a Doctor in Training – so I would be granted a visa as a partner which permits me to work any other job except the one I studied for and it doesn’t matter at all that I graduated in a European University).
In order to find a solution for this I searched under the laws of the EC rights and I found out that could be possible for me to exercise the EEA family member rights if we wait till she gets her British Citizenship. (Now that she has Indefinite Leave to Remain in UK she will be eligible to the British Citizenship in about a year – the time that I would finish my PhD here in Italy).

So my questions are as follows :
First of all I would like a confirmation if this could be possible and I would be granted a visa without any restrictions as a doctor in training?
Secondly, I am aware that in order for a British citizen to exercise the EEA treaty rights (under Singh law) my fiancée will have to come in Italy and work here for a determined period of time and moreover we should be married. So my question is related about the marriage : should we necessarily marry on the period of time that she comes here in Italy to work, or it doesn’t matter if we marry from now in Albania ( so before the period of time that she comes in Italy to work) and than after when she comes in Italy we declare our marriage to the Italian authorities. ( Will the homeoffice forbid us to apply under EEA family members if we were married even before she came to Italy to work and stay with me?)
This question is just to be sure if we could marry now in Albania or we MUST marry in Italy in the period she comes to work and then apply for a EEA family member visa exercising the Treaty rights.
My last concern is how long should be the period of time she will have to work in Italy, what should be her minimal wage, and will she be considered equally to the native British Citizens in applying for the Treaty rights ( though she is an Albanian gaining British Citizenship after a long residence in UK).
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Answered in 1 minute by:
3/5/2013
Thomas
Thomas, Solicitor
Category: UK Immigration Law
Satisfied Customers: 7,630
Experience: BA (Hons), PgDip, Practising Solicitor
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Hi,

When would you like to move to the UK?

Have you cohabited with your partner for any length of time?

When would you plan to marry?

Tom
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Customer reply replied 4 years ago

Actuall we are talking only about our future plans, I am still in Italy doing my PhD and my fiyancèe is in UK , we aere planning to marry this summer in Albania, but in UK if everything is ok I would move after one year.

Customer reply replied 4 years ago

And we haven't lived together except my short visits in UK and hers here in Italy.

Hi

Thanks for your patience.


If you are married at the time at which you wish to return to the UK then you will need to apply for a spouses visa (ie. Settlement) if you are to come here to settle permanently.

If the application is well prepared and you meet the following eligibility criteria then it will make the application easy and quick to decide upon for the UKBA. To be eligible, you must show:-

• 1. That you are legally married to each other
• 2. You are present and settled in the UK
• 3. You intend to live permanently together here in the UK as husband and wife
• 4. You can support each other without the need for public funds
• 5. You have suitable accommodation which is owned or lived in only by you or your household and where you and your dependents can live without any help from public funds
• You must meet the financial requirement:-
• http://www.ukba.homeoffice.gov.uk/visas-immigration/partners-families/citizens-settled/spouse-cp/can-you-apply/financial/
• Further guidance:-
• http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/IDIs/chp8-annex/section-FM-1.7.pdf?view=Binary

• This means that the UK based spouse must earn a minimum income threshold of £18,600. Alternatively, if you have savings of £62, 500.00 then you would not have to prove any salary. You can also use a mix of the two.
You have to produce to the UKBA documentation that proves the above. This would be some of the following:-
• Bank statements from both you and your spouse going back 6 months showing the income/capital you have available
• Payslips (6 month of) and a letter from your employer stating that you have a permanent job, contract of employment
• Documentary evidence of any other assets you hold (eg. Shares, evidence of ISAs or bonds)
• Marriage certificate, Birth Certificate, passport
• Evidence of correspondence between you and your spouse showing that the relationship is credible and genuine (eg. Emails, letters, evidence of previous trips, photos showing you together, phone records
• Evidence of the accommodation where you will live or that you can afford to accommodate yourselves once here.

• Further information here:-
http://www.ukba.homeoffice.gov.uk/visas-immigration/partners-families/citizens-settled/spouse-cp/documents/maintenance/


You will need to apply for settlement (ie. spouses visa) by using form VAF4A Settlement, available for download from UKBA's website.

This is the first option. If you do not meet the financial requirements at the time you make the application (or the financial requirements have not been withdrawn) then there is a second option under what is called the surinder singh ruling.

This is where a UK spouse has moved to another EEA country with their non-EEA spouse (ie. you) and exercise their treaty rights by working in the EEA country. If they then plan to return to the UK then the non-EEA spouse can apply on the basis of EC Law, rather than under the Immigration Rules which impose the financial requirement. Details on this are contained at 2.5.1 on the following link:-
http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/ecis/chapter2.pdf?view=Binary

The UKBA are loath to advertise this method but it is a legitimate way of getting around the financial requirement and if your spouse is prepared to relocated for at least three months with you to another EEA country then it is an option for you.

Please remember to RATE my answer OK SERVICE, GOOD SERVICE OR EXCELLENT SERVICE or above if you are satisfied that you have received the correct legal advice (even if it is not the answer you wanted to hear), otherwise I do not receive any credit for answering your question.

If you are not willing to rate my answer as OK SERVICE, GOOD SERVICE OR EXCELLENT SERVICE then allow me to assist further by replying asking what clarification you require rather than rating my answer at levels below.

If you wish for me to provide you with further guidance on any question you may have in the future then please submit a further question to the board requesting me either by my profile or by marking your question. “FAO Tom”.

Kind regards,


Tom
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Customer reply replied 4 years ago

I suppose you haven't completely understood my questions, regarding the settlement visa as a spouse, according to the new changes after 8 july 2012 you shoud see better in the section " Can you apply?" , the following ling states (http://www.ukba.homeoffice.gov.uk/visas-immigration/partners-families/citizens-settled/spouse-cp/can-you-apply/) :


 


This section is for those who applied for, or are applying for, leave to enter or leave to remain as a partner of a British citizen or a person who is settled here.


You cannot apply in a partner category if you:



  • are the spouse or partner of a person who is settled in the UK or has British citizenship if their most recent permission to stay was under tiers 1, 2, or 5 of the points-based system; and

  • you do not qualify for settlement yet.


Instead, you must apply as a dependant under the relevant category of points-based system.


 


furthermore, our problems are not that she doesn't earn taht much to fulfill the conditions but because by applying as a dependant under the relevant category of points-based system I would have the restriction that I cannot work as a doctor in training. (more info: http://www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/pbs/pbsdependantspolicy1.pdf)


 


Thus my question is how can I turn over this, and be able to work as a doctor in training in UK.


 

Hi,

I note the passage on the UKBA website. I believe it is incorrect. I have just consulted with two of my colleague on the matter and both agree that it appears to be an incorrect statement of law.

It is not the first time that the UKBA would have made a mistake on their website.

It doesn't make sense in the way that is is drafted and we consider that (though it woudl still be poorly drafted) it would be correct if there was a first bullet point which stated "- You are in the UK" and so covered the position where a spouse was in the UK on a dependent visa and is therefore required to apply for settlement on the basis of the complying with the dependent eligiblity criteria.

They have made these mistakes before, I believe this is one.

My answer stands unamended.

PLease remember to rate my answer.

Kind regards,

Tom
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Customer reply replied 4 years ago


So you mean that in the homeoffice official website should be a mistake, but why then implement the same mistake in the guide under the category of PBS (Dependant) Policy guidance http://www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/pbs/pbsdependantspolicy1.pdf:


 


(page 5 of the guide):


 


2.You can apply as a PBS Dependant if you meet the criteria set out in this guidance and the Immigration Rules, and you are:



- the spouse or partner of a person with indefinite leave to remain or British Citizenship who last held leave in Tier 1, 2, or 5 of the Points Based System and you do not yet qualify for indefinite leave to remain;


 


Anyway, leaving the british immigration rules appart, if my fiancèe decides to come work and live with me together here in Italy next year, (once she gets the British citizenship) does it matter if we are already before the time she gets here in Italy or we must neccessarily marry here in Italy in order to be able to apply for a EEA family permit (which I guess has no restriction for doctors in training)?

Hi,

Again, I think that is referring to a situation where the person is in the UK already on the basis of being a dependent of a PBS migrant but before the dependent has reached the residence requirement for ILR. This doesn't cover a situation where a person has never been a dependent on a pBS dependent visa in the UK 9as with you because you have not applied whilst your partner was under immigration control.

If applying under the surinder singh ruling then you would have to be married before you applied for the family permit. I woudl suggest marrying immediately when she arrive in Italy, if not before.

Please remember to rate my answer.

Tom
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Customer reply replied 4 years ago

Thank you very much for your service, I read once more and I could interpret what they have written like the statement of previous Tier 1... holder it refers to the person that is applying (so to me) not to my fiyancèe (who is settled in UK)


 


--the spouse or partner of a person with indefinite leave to remain or British Citizenship who last held leave in Tier 1, 2, or 5 of the Points Based System and you do not yet qualify for indefinite leave to remain;(meaning my fiyancèe would have previously held a tier 1..)




all this would be interpreted differently if one comma would be present:


 


--the spouse or partner of a person with indefinite leave to remain or British Citizenship, who last held leave in Tier 1, 2, or 5 of the Points Based System and you do not yet qualify for indefinite leave to remain; (meaning I would have previously held a tier 1..)


 


anyway in neither ways it appears clear to me.


 


My last question and I will rate you immediatily after:


if I apply as you adviced, as the spouse of a settled person in UK, will my visa have any restrictions for work as a doctor in training and for how long will it be granted?


 


Thank you for your help.

Hi,

No. If you obtained a spouse visa then there would be no restrictions whatsoever on the work you could do.

The visa would be granted initially for 2.5 years and you would be required to extend it just before it expires. It would then be granted for a further 2.5 years and at the end of this time you would be able to apply for indefinite leave to remain.

Please rate my answer.

Kind regards

Tom
Thomas
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