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 AFF doing?
- Why is an EU spouse in a different position to a Commonwealth spouse in the UK?
- The current position of EU spouses who are lawfully resident
- Are you lawfully resident?
- Why wasn’t I told that I need Comprehensive Sickness Insurance and what is it?
- Can I count time spent on overseas assignments?
- What can I do?
- How do I apply for a right of residence?
- How do I apply for permanent residence?
- How do I apply for Citizenship?
The current situation regarding the rights of EU spouses in the UK is naturally causing a lot of concern. AFF is receiving regular emails from EU spouses and their soldiers who are frightened and upset by the current political situation in the UK. Many of you want to know what we are doing to support you and to highlight the issues that you are facing.
EU spouses married to serving personnel are in the same position as all EU nationals in the UK. All EU nationals without permanent residency are naturally concerned about their future. It is clear from the news that protecting the rights of EU nationals in the UK is high on the agenda of the Brexit negotiations. AFF cannot influence these negotiations.
However, one area of disadvantage which we feel should be raised and highlighted is when an EU spouse has spent time overseas accompanying a soldier on assignment and is prevented from applying for permanent residency in the UK as a result. We have therefore raised this issue with the Armed Forces Minister and with the Armed Forces policy team at the Home Office. We have asked that special consideration is given to military EU spouses and will ensure that this issue is kept on the table during the coming months whilst the Government develop the new rules to determine the future of EU nationals in the UK.
We will provide updates to this specific issue and any news which affects EU spouses on this website.
Commonwealth spouses (or other foreign spouses) with valid visas married to soldiers are in the UK under UK Immigration Law (Immigration Act 1971). The UK Immigration Rules allow for F&C spouses of soldiers to enter and remain in the UK as long as they meet a specific set of requirements. The rules for Armed Forces spouses and the requirements that have to be met are unique and differ from the rules and requirements for non-military spouses. As a result, legal professionals and Home Office staff often give incorrect advice. The role of F&C Specialist was created to prevent so many spouses from being given incorrect advice and to assist them in making the correction applications to enter and remain.
EU spouses in the UK are usually here under EU law (specifically the Immigration (European Economic Area) Regulations 2016). If you are married to a British Citizen and came to the UK without getting a visa then you are covered by these regulations. There are no specific discretions written into these regulations for spouses of soldiers. You are in the same position as every other spouse, whether military or not.
The UKVI website states as follows ‘There has been no change to the rights and status of EU nationals in the UK, and UK nationals in the EU, as a result of the referendum’.
As was the case before the referendum, EU nationals can only be removed from the UK if they are considered to pose a genuine, present and sufficiently serious threat to the public, if they are not lawfully resident or are abusing their free movement rights.
This link goes on to give further details about your options to apply for permanent residency if you are lawfully resident.
Recent guidance issued by the Home Office (1st February 2017) shows that they are taking a harder stance on those who are not lawfully resident. New powers have been assumed to remove an EU Citizen who has no right to reside.
The main group affected are EU citizens who are self-sufficient but who do not have comprehensive sickness insurance. This would include an EU citizen married to a British citizen where the EU citizen does not have comprehensive sickness insurance, is not currently working or self-employed and has not worked or been self-employed for five continuous years.
Colin Yeo from the Free Movement blog states that ‘the tougher approach, which has been building up for some time but on a previously informal legal basis, is probably aimed at street homeless Eastern European and Baltic state nationals. There has been a dramatic increase in detentions and removals of this group, and some reports of others being caught up in the same scheme. It is highly unlikely that the Home Office will begin a programme of mass explusion of EU citizens even where they do not have a right of residence. There is a very strong argument in EU law and UK law that the Home Office position is incorrect’.
Recent Government statements in March 2017 has further confirmed that EU citizens are not in danger of being removed from the UK:
"EU citizens will not be removed from the UK or refused entry solely because they do not have comprehensive sickness insurance,” said a spokesman.
It is “longstanding Home Office practice” not to seek removal because “it is relatively straight forward to rectify.”
The implication is that those without CSI are supposed to rectify the situation by taking out the relevant insurance.
As it stands you are required to get CSI in order to become lawfully present in the UK if you are not working. However this has never been specifically made clear to EU spouses and it is not something you would have found out unless you started looking into applying for permanent residency. The Home Office and the MoD have been turning a blind eye to this situation for years.
- The NHS does not qualify as comprehensive sickness insurance even though EU Citizens are allowed to use the NHS
- 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”.
The EU Commission says that access to the NHS should count as comprehensive sickness insurance and as long ago as 2012 began infringement proceedings against the UK for failing to respect EU law on this, the case is ongoing
The Immigration (European Economic Area) Regulations 2016, stipulate that ‘continuity of residence is not affected by one absence from the United kingdom not exceeding 12 months for an important reason such as pregnancy and childbirth, serious illness, study or vocational training or an overseas posting’
Spouses who would otherwise have been eligible for permanent residency will be unable to apply if more than 12 months of the 5 year residential requirement has been spent outside of the UK. As most postings are for more than 12 months, this puts our spouses at a disadvantage to those who have been in the UK exercising their treaty rights and counting their time towards the 5 years. As explained above, AFF are currently raising this with Ministers and our Home Office contacts.
- Wait and see what happens with the UK’s negotiations to leave the EU. It is highly likely that some arrangement will be made for EEA nationals who happen to be living in the UK at a certain date but do not have a right of residence or permanent residence. We simply do not know. This does not seem at the moment like a very safe way of approaching the issue, and it also risks wasting time that might otherwise be spent building up a right of residence to acquire permanent residence further down the line.
- Become a worker or self employed person. Neither requires comprehensive sickness insurance.
- Buy comprehensive health insurance now and start building up a right of residence. This could be a very expensive waste of money, though, depending on what arrangements are ultimately made for existing EU residents of the UK.
- Get involved with a campaign group like The3Million, contact your MP and MEP, make a complaint to the EU Commission and generally make some noise.
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 firstname.lastname@example.org with all details. You should receive a response within 20 days.