F&C Frequently Asked Questions
For Citizenship FAQs click here.
On this page:
Brexit – what about spouses of soldiers?
How can I get my passports returned quickly from UKVI?
Do I need to apply for ILR if I have ILE?
Do I need to get my visa transferred to my new passport or a Biometric Residence Permit (BRP)?
Do I need to take the Life in UK test and ESOL test to apply for ILR?
Can I spend more than two years outside the UK if I have ILR?
Can I bring my parents to the UK to live with me?
Information taken from Free Movement Blog written by respected immigration lawyer Colin Yeo. Monthly membership only £6.99.
- What is going to happen?
- How do I qualify for a right of residence?
- How do I apply for a right of residence?
- How do I apply for permanent residence?
- How do I apply for Citizenship?
‘The first point to make here is that the referendum on 23 June 2016 has no immediate legal effect and does not change anybody’s legal status. The UK is still a Member State of the European Union and free movement laws continue to apply at the moment. Citizens of other EU countries and their family members living in the UK are still living here lawfully and can freely leave and re-enter the country.
However there have been no assurances on what will happen to EU nationals currently living in the UK once Article 50 of the Treaty of the European Union is invoked. The latest the Government is able to offer is this:
When we do leave the EU, we fully expect that the legal status of EU nationals living in the UK, and that of UK nationals in EU member states, will be properly protected.
So, we do not know what sort of settlement the next UK Government will seek with the EU nor what sort of residence rights might be offered on what legal basis. We can be confident that something will be offered, but we do not know what or to whom. Will arrangements only be made to those with permanent residence or to those with lesser residence rights as well? What will be the arrangements for family members? What about EU nationals living in the law lawfully but who have not acquired rights of residence under EU law, perhaps because they do not have comprehensive sickness insurance? I don’t know and nor does anyone else’. Colin Yeo, 12 July 2016.
A key concept in making use of ‘free movement’ rights is that of the “exercise of Treaty rights”. To be considered a ‘qualified person’ you need to be exercising one of these ‘treaty rights’. You will then be granted additional rights, such as the right to welfare benefits. You will also have the ‘right of residence.’
If you are an EEA national living in the UK, married to a serving soldier and you do not have a visa under UK immigration law, you are in the UK under EU free movement law. If you have not worked during your time in the UK and you are not claiming comprehensive sickness insurance then this could leave you vulnerable as you do not qualify for a right of residence.
Free movement/treaty rights
- the right to work - can be part-time, also includes job-seeking and temporary unemployment (up to 6 months)
- to be self-employed - Some sort of economic activity is necessary to count as self- employment, any activity must be ‘genuine and effective’
- to be self-sufficient - have sufficient resources not to become a burden on the state (income from the soldier can be used as evidence) and have comprehensive sickness insurance cover in the UK
- to study - be enrolled on a course and have comprehensive sickness insurance
What is comprehensive sickness insurance and why do I need it?
- The NHS does not qualify as comprehensive sickness insurance.
- You can only use your EHIC as evidence of comprehensive sickness insurance if you make a declaration that you do not intend to stay in the UK permanently.
- Insurance should “cover you for the majority of risks while you are in the UK”.
If you do not hold private health insurance then you can apply for it but it will not be retrospective, so you will only be considered to have been exercising treaty rights from the point at which you took out the insurance.
So am I illegally in the UK if I am not working and I do not have sickness insurance?
We spoke to Julian Bild, immigration lawyer and regular AFF advisor, who said:
‘I don't think an EEA national who is not exercising their Treaty rights is here illegally as they are not breaking any laws, however they are removable because they require leave and do not have it. The Home Office do not usually remove them, unless they are causing trouble. If such a person is facing removal, and didn't want to leave, they can simply register with the Job Centre as jobseekers or apply for comprehensive private health insurance. This might be advisable, particularly if they want to settle here at some stage’.
Why do spouses of soldiers need sickness insurance?
Good question. Spouses of soldiers are exempt from NHS charges as stated in the National Health Service (Charges to Overseas Visitors) Regulations 2015. Given this very specific exemption the Home Office could not reasonably argue that without health insurance the families would be an unreasonable burden on the social assistance system. AFF has raised this point to the Home Office and awaits clarification.
Form EEA(QP) £65
If you have not spent 5 years in the UK then the advice is to apply for a residence certificate as soon as possible. You do not need a lawyer to do this. If you are not working then you will need comprehensive sickness insurance, unless we hear otherwise. Read the guidance carefully.
Colin says ‘I would advise anyone who thinks they qualify for permanent residence to make an application for a permanent residence certificate or card. This is partly to get ready for any transitional arrangements but is also to give people who do not qualify now a chance to make sure they do qualify. To put it another way, it will be at least two years before EU free movement law ceases to apply and that may be enough time for some people to ensure they do qualify for permanent residence, or at least are on the road to doing so’.
Many lawyers are not recommending that you complete the current form EEA(PR) because it requests information that you are not required to give and is 85 pages long! Instead you should print out and complete page 6 of the form EEA(PR) and then complete the sections below of form EEA3.
Form EEA(PR) £65 - Use page 6 only
Form EEA3 - complete sections 1, 7, 8, 9, 10, 11, 12.
When applying for permanent residence, the applicant will need to submit five continuous years’ worth of evidence. It doesn’t matter how the person has exercised their rights i.e it can be a mixture of any of the 4 rights listed above.
If applying as a self-sufficient person there is no set minimum income required, other than that the person and any dependents must have enough to live on without having recourse to public funds. A level of income equivalent to income support might tentatively be suggested as guidance, but there is no authority on this. The old guidance notes are recommended reading.
The average time for family members applying for either residence cards or permanent residence cards is just over 4 months, though it is likely that the waiting times have lengthened since the referendum was announced.
Citizens of EEA countries and their family members were, until 12 November 2015, able to qualify once they have achieved the required five or three years of residence, possessed permanent residence for the last 12 months of that period and met all the other requirements. They were not required to have a document stating that they had permanent residence, unlike other non-EEA nationals who are required to have a visa stating that they have ILR (or an exempt stamp) before they can apply.
From 12 November 2015, however, if a person with permanent residence wishes to apply for British citizenship he or she will have to first apply for a permanent residence certificate or card.
You are not required to have had the permanent residence card for a year before you can apply, the regulations only require that
- the applicant has had permanent residence for at least 12 months; and
- the applicant possesses a permanent residence certificate or card
Therefore if you had already had 5 years permanent residence prior to being sent the residence certificate, you will be eligible to apply for Citizenship immediately if you meet the other main requirements.
For information on how to apply click here.Back to top
You should click here and complete the form. It should take approximately 10 working days. You may have to withdraw your application.Back to top
No. The UKBA website says:
Applicants who are granted Indefinite Leave to Enter (ILE) at a visa issuing post should have no time restrictions on their stay in the UK, that is, they can stay indefinitely. ILE carries the same entitlement as 'Indefinite Leave to Remain' (ILR) which is issued by the UK Border Agency to those who have already travelled to the UK. Anyone who has ILE does not have to apply for ILR when in the UK.
Although indefinite leave, by definition, will not expire, the Entry Clearance Officer is unable to issue a visa to those who meet the criteria for ILE without putting a 'validity date' on the visa. In cases of ILE, the 'validity date' on the visa should match the expiry date on the passport. When the applicant gets a new passport, they can apply to UK Border Agency for a transfer of conditions into their new passport. They do not need to apply for Indefinite Leave to Remain (ILR).
However, the problem with ILE is that many employers and government officials do not understand or recognise it and a number of spouses have had problems trying to seek employment or convince their employer that their ILE hasn’t expired. It can be easier in such cases to apply for a Biometric Residents Permit (BRP) instead. See below for information.Back to top
You can’t transfer your visa to your new passport if you are in the UK. Instead, you’ll need to apply for a Biometric Residence Permit (BRP). A BRP is a separate document and will replace the visa you had in your old passport.
Soldiers: speak to your unit to have your exempt stamp transferred. Your unit should consult the ‘PS4 (A) unit guide to supporting non-British nationals’ available on Dii. Para 4 and Annex A of the guide provides information.
Spouses and children: you can carry your expired passport with you whenever you travel, or you can choose to apply for the visa to be transferred to the new passport. Find details on how to do this by clicking here. You will receive a Biometric Residents Permit (BRP).
If you wish to work in the UK and you have a valid visa on an expired passport you will need to transfer this to a BRP. Click here for further information, click on Employment.Back to top
It is important to note that every immigration case is different. Below you will see who needs to take the test:
You do need to take the test if you:
- Are a spouse of a British citizen and hold a two year spouse visa (or entered the UK on a 27month visa) before December 2013.
You do not need to take the test if you:
- Are the spouse of a commonwealth soldier (or the spouse of a British soldier who still has the visa issued prior to the soldier naturalising). Your initial visa on this route was issued before December 2013.
You won’t lose your Indefinite Leave to Remain (ILR) after two years outside the UK if your spouse or partner is a member of the UK Armed Forces and you’ve joined them on an overseas posting. You are advised to provide evidence of the overseas assignment on your return.
If you have not been out of the UK on assignment, you will need to apply for a returning resident visa. It costs £324 to apply.
You won’t get a Returning Resident visa unless you’re also able to show what exceptional personal circumstances have led to you being out of the country for this long.
You must provide enough evidence to show:
- your strong family ties to the UK
- you lived in the UK most of your life
- your current circumstances and why you’ve lived outside the UK
Find further guidance at www.gov.uk/returning-resident-visaBack to top
UKVI guidance has confirmed that anyone who hopes to bring an adult dependant relative to the UK to join them indefinitely must meet the following requirements:
The relative must:
- require long-term personal care as a result of age, illness or disability
- be unable to receive the required level of care in the country where they are living
- have no one in their country that can provide that care, or it is unaffordable
Should be able to prove that they can adequately maintain, accommodate and care for the relative.
To apply you will need to provide evidence:
- in support of the application
- of the family relationship
- that the applicant requires long-term personal care
- that they are unable to make arrangements for the required level of care in the country where they are living
- of adequate maintenance, accommodation and care in the UK, and sponsor undertaking.
The rules are now so tough that it is thought only a handful of cases have succeeded since they were introduced. AFF is unable to offer advice on these applications; you should seek advice from a registered and reputable advisor.
Find further guidance here.Back to top
If you have been waiting for a long time for your visa to be processed, you can make a complaint. Find everything you need to know here.
The quickest way is to send an email to email@example.com with all details. You should receive a response within 20 days.