An answer to an earlier post of mine clarified the position of my non-EU wife entering the UK with an Article 10 Residence card. AS a follow-on question, I would like to know if she is required to apply for a UKRC or can reside with me as a family member. If so, does she need to make the application within 6 months ( the comparable time that a FP runs for) or can she do so at any point during its 5 year validity? I am wondering if the card may lose its own validity from the originating country, Spain, if she is out of that country for a given period of time, thus invalidating its use in the UK.
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1 Answer
The UK is in the process of leaving the EU. You write about the Spanish residence card's "5-year validity," but you should realize that the legal framework at issue here will very likely cease to be applicable in the UK in two years or so.
In your earlier question, you note that you are a British citizen. As such, your family members do not qualify to reside with you under EU law unless you can qualify under the Surinder Singh ruling. The UK guidance on the application of that ruling keeps changing, but at the moment you must show that you have
... genuinely made your home in another EEA country. Both of you must prove that:
- it’s been your main residence or base for the ‘centre of your life’
- you’ve lived there together
- you’ve integrated there
Since you wrote just over a month ago that you are "currently in Spain and undergoing the residency process," I wonder whether you will be able to show that you've integrated in Spain before the UK leaves the EU.
With that in mind, let us look at your specific questions:
I would like to know if she is required to apply for a UKRC or can reside with me as a family member.
She is not required to apply for a residence card. She can reside with you as a family member, but without the residence card she will have difficulty finding work and entering the UK. At any time, you might be required to prove your relationship and your eligibility for the Surinder Singh ruling. The Spanish residence card might be of some help in that regard, but it might not. It is certainly not enough by itself.
The point of the British residence card is to show that the British authorities have considered evidence of her circumstances and found that she (and you) meet the criteria for her to reside in the UK under EU law. Her right to do so derives directly from the law if and only if the UK accepts your Surinder Singh claim. You can press that claim at any point, but it makes the most sense to do that when you are ready to move to the UK, and before you move to the UK.
If so, does she need to make the application within 6 months ( the comparable time that a FP runs for) or can she do so at any point during its 5 year validity?
She doesn't need to apply for a residence card at any particular time. See https://www.gov.uk/apply-for-a-uk-residence-card/overview, which states in part: "You don’t need to apply for a residence card as a family member but..."
I am wondering if the card may lose its own validity from the originating country, Spain, if she is out of that country for a given period of time, thus invalidating its use in the UK.
As far as the UK is concerned, the Spanish residence card is valid for only one thing: excusing your wife from the requirement to have a visa when traveling to the UK under certain circumstances. It does not permit her to remain there (rather, her right to do so derives from EU law and depends on certain facts).
Spain probably considers that the card is invalid after you move away from Spain for one or two years. After a cursory web search I was unable to find specific information. But that is not particularly relevant to your wife's status in the UK.
Because it is of critical importance, let me stress once again:
- your wife cannot reside in the UK under EU freedom-of-movement law unless you qualify under the Surinder Singh ruling.
Furthermore, your wife's Spanish residence card
- does not automatically qualify you under the Surinder Singh ruling.
If you and your wife want to move to the UK under the Surinder Singh ruling, your wife should probably apply for an EEA family permit before doing so. If she chooses not to, she can enter without one and apply for a residence card after she arrives. I am skeptical about her chances, however. Trying to settle there without a UK residence card would likely be fraught with peril. If your goal is to move to the UK, you really ought to talk to a lawyer.
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Thanks for the info. Taking things a stage further, many people even with a family permit are still refused a UKRC based on Surinder Singh, hence the reason why people just enter on the Article 10 card. You just supply the same info at that stage, probably get refused and then appeal to the First Tier Tribunal. This is where it gets interesting because the UK govt is not compliant with EU law in all aspects of Surinder Singh, even less so since the Nov 2016 changes. It remains to be seen what happens at this next level and possibly the Upper Appeals Tribunal. Jun 19, 2017 at 17:20
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@KevinArmstrong thanks for your comment. Do you know what happens to people who try this approach if unsuccessful? What happens if they travel outside the UK while the Surinder Singh determination is pending? It seems risky, and that potential costs of failure could far outweigh the cost of applying under the (non-EU) immigration rules (which would also relieve you of any worries related to Brexit, of course).– phoogJun 19, 2017 at 17:34
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I suppose it depends on how far you want to push for what should be legally yours via EU law. If you are refused the UKRC you can appeal, that takes anything up to a year and the non-EU is protected by a Certificate of application during that process. Of course, you could always reapply and address the refusal points of the ECO. What I'm saying is that it can take years and for someone of my age, almost 65, playing it that way when I can never, on two pensions, meet the UK immigration rules, is a decent option. Not too worried about inability to travel abroad. Jun 20, 2017 at 19:58
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@KevinArmstrong in that case you seem to know what you're doing. Just be careful to avoid stretching it out so far that she doesn't claim freedom of movement rights before Brexit. If you don't already know it, have a look at Colin Yeo's blog at freemovement.org.uk– phoogJun 21, 2017 at 3:06
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Thanks phoog. I am a complete novice with this and the more I read, the more twists and turns there seem to be. I'm aware of the excellent Colin Yeo but I always seem to be up against a paywall when looking at his stuff nowadays. I do have a couple of his ebooks and look at his tweets and links to others. However, let's be honest, nobody of sound mind would do this SS route unless they were circumventing UK rules, the difficulty is getting over that 51% line for the First tier tribunal. After that, I think it all becomes far too legalistic for a layman but solicitors are far too expensive. Jun 21, 2017 at 17:20