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frantzgregory, Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 574
Experience:  Over 5 years dealing with EEA Law, Nationality, Immigration and Asylum Law.
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I could really use some help with my fiance's UK residency

Customer Question

Hi :)
I could really use some help with my fiance's UK residency permit.
I am a British, Swiss and South African citizen. I was born in South Africa, my dad is British and my mom is Swiss. So I hold passports to all of these countries.
My fiance is South African and arrived in the UK in October 2015 on an EEA FP visa. This was what we were advised to do as it was the easiest and cheapest option for us. We have been dating since 2008.
We are trying to figure out what we need to do now - to get him a residence card to stay. His visa expires on the 21st of March 2016.
We are currently filling in the EEA(EFM) to apply for his residence card and are unsure of how to proceed. I am in a full-time job so am a qualified person, but I also have a permanent right of residence because of my British passport. What are we supposed to do? What would be the best option to have him stay? Would getting married help?
Also if his EEA FP visa is only valid until 21 March 2016 - is he still allowed to live in the UK with me - and is he able to work? Am I correct in saying that he just won't be allowed to leave the country and re-enter without a new visa. But he can stay on and work in the UK after the visa has expired?
What are our options in getting him to remain here.
Thanks :)
Submitted: 1 year ago.
Category: Immigration Law
Expert:  UKSolicitorJA replied 1 year ago.
In which country have you been employed and did you declare your British Citizenship when you applied for the EEA Family permit for your fiancée?
Customer: replied 1 year ago.
Hi :)I'm currently employed in the UK - in Edinburgh at the moment but will be transferring to London in the next couple of months with my company. I can't remember for sure about declaring British Citizenship - but I don't think so. We did everything on my Swiss passport.
Expert:  UKSolicitorJA replied 1 year ago.
Thank you.
As you are a British Citizen, your fiancée was not allowed to enter the UK under EEA regulations and the EEA Family Permit would not have been issued as it cannot be issued by law under the circumstances you mention.
Your fiancée should return back to South Africa and reapply for an entry clearance to come here as your fiancée under UK law, not EEA law.
You should have declared your British Citizenship as not doing so is misrepresentation for immigration purposes.
Hope this helps
Customer: replied 1 year ago.
Is this the only option? Is there no other recourse now that he's here?
If we get married - how would that influence things?
Expert:  UKSolicitorJA replied 1 year ago.
I am afraid marriage would not really change anything. You may renounce your British Citizenship however as the problem is because of the fact that you have British Citizenship.
He may apply for discretionary leave to remain on human rights grounds without leaving the UK but I would advise you to engage an immigration lawyer to assist with such an application as it is complicated.
All the best please leave feedback
Customer: replied 1 year ago.
Thanks so much for all your help.One final query - can he apply for a 'Remain in the UK with Family' visa with me using my British passport? We just want to understand if the Swiss is the problem or if the British is the problem.Thanks again :)
Expert:  UKSolicitorJA replied 1 year ago.
The thing is he should not be here in the first place on his current Family Permit, so switching to another visa in the UK is not allowed. He may return back home and apply for an unmarried partner visa based on your British citizenship.
All the best
Customer: replied 1 year ago.
Okay, thanks for this. We're really trying to find the path of least resistance. The partner visa takes 3 months and it's not really a great option for us. Would renouncing my British citizenship speed things up?
If I renounce my citizenship - are we then allowed to apply for an EU residence card on the visa he is currently on, so he can remain here? Or would the appropriate process be to renounce citizenship, he goes back to South Africa and then he applies for the EU Family Visa again (as this only takes 2 weeks)?The three months apart is really a problem for us - so we're just trying to figure out what our options are so we can weight up all the pros and cons and make the best decision for our situation.Also will the fact that he is on this visa (and shouldn't be) have a negative effect in any future applications?Thanks so much again - you really are helping clarify things for us.
Customer: replied 1 year ago.
Just following up on this please?
Expert:  frantzgregory replied 1 year ago.
HelloJust picking up from where previous Expert left off. The difficulty with your situation is that because you are a dual national, you cannot rely on treaty rights to keep your partner here in the UK unless you have previously exercised treaty rights in another member state. The law states as follows: dual nationals living in either country of their nationality and have not exercised treat rights could not rely on the Citizen's Directives or Article 21 TFEU. If you have worked or lived in another member state before and now working in the UK then it is less of a problem if you have the evidence to prove it. With regards ***** ***** in the UK to a family of a settled person visa (i.e applying in the UK without leaving), the applicant must not be in the UK as a visitor or with a valid leave granted for a period of 6 months or less unless the leave granted was as a fiancee. If your partner's current visa was granted for 6 months, your partner will not be able to switch in the UK. Renouncing any nationality is a big decision and shouldn't be done lightly. I hope this clarifies the situation. Please note we are only here to give general information and not to give advice. **********************************************************************This is a simple question and answer platform. Answers expressed by the author in this platform are solely base upon the information provided by you. Under no circumstances should answers be relied up as immigration advice. Please note that the author accepts no responsibility for any reliance and it is your responsibility to seek independent legal advice before making any immigration application.