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Buachaill, Barrister
Category: Law
Satisfied Customers: 10527
Experience:  Barrister 17 years experience
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I am a 43yo woman from Colombia, resident in Spain, who is

Customer Question

I am a 43yo woman from Colombia, resident in Spain, who is married to a EEA national, and we are parents of a 3yo toddler (EEA national as well). They both are settled in the UK (my husband have just get a job offer, and my son started in a nursery), but I am in the UK with a tourist visa that is about to expire in September.
Since I want to apply to a Residence Card but I am already in the UK as a tourist, I have understood that I should use the EEA (FM) 06/16 form, and pay 65 pounds (my husband would be the sponsor). But I have three specific concerns:
1. Am I right that this is the right stream to apply in my case?
2. Is the Home Office going to evaluate my level of English to decide about my case?
3. What if my visa expires but I have not yet any answer from the Home Office... may I legally remain anyway in the UK while the Home Office makes a decision?
The point is that know that my husband is starting working in a private company, I would become the primary carer of my son, so I need to remain somehow, and I am very stressed because the visa is about to expire and my level of English is low if it make influence on the Home Office's decision.
Thanks very much,
Submitted: 10 months ago.
Category: Law
Expert:  Buachaill replied 10 months ago.

1. Dear Marge, firstly, you are correct in using the Form EEA(FM) to make your application. Secondly, there will be no English assessment carried out in relation to you. English tests do not exist in relation to Family members of EEA citizens. You have a right to live and work in the UK under the EU rules which do not include a language test. So there will be no English test.

Expert:  Buachaill replied 10 months ago.

2. Thirdly, in relation to staying in the UK DURING the visa application, you are not covered against deportation just because you have made a visa application. You have a grace period of 28 days before you become an overstayer and liable to deportation. So, you can stay this length of time. However, the sooner you make the application the quicker you will get a response.

Expert:  Buachaill replied 10 months ago.

3. Be aware that once you live in the UK under this visa for five years, you can then apply for UK citizenship. However, you need to have had private health insurance during this five year period. Additionally, you should get yourself a Permanent Residence card once you have been six months in the UK, as this will verify that you have the right to live and work in the UK. You must have held a Permanent Residence card for at least one year before you make your citizenship application.

Expert:  Buachaill replied 10 months ago.

4. Please Rate the answer as unless you Rate the answer your Expert will receive no payment for answering your question.

Customer: replied 10 months ago.
Dear Sir,
I am afraid there is something that I dont understand 100% in order to proceed to rate you. I would appreciate you could clarify. It is regarding your sentence "You have a grace period of 28 days before you become an overstayer and liable to deportation. So, you can stay this length of time".
The point is that for different reasons I will submit the application on Sep 20th and my tourist visa is expiring on Sep 26th. It is not possible for me to do it before.
I had heard that I had the chance to remain in the country legally till I had a resolution from the authorities, but according to your response, there is no relation at all with this, and the period of grace applies to me at the same way as to any other "overstayer" that is not applying to remain... is that right?
That is confusing for me, I read on some forums I could wait for the authorities' answer without worrying.
Besides, even though I understand each case is unique, mainly when the Home Office detects issues on an application. BUT I guess there is a known practice about what to expect from Home Office when there is no problem with an application, THEN do they usually answer within the 28days-period in this "easy cases"?
Thanks very much
Expert:  Buachaill replied 10 months ago.

5. The first point you should be aware of, is that the ability to stay in the UK pending a visa application is only given where you are applying for a visa in the same category in which you already hold a visa. As you have a visitor visa, you are now seeking a visa in a different category to that which you hold. So, you have no right to remain in the UK whilst your visa application is being dealt with. Whatever you heard is incorrect!

Expert:  Buachaill replied 10 months ago.

6. You would be best advised to make a visa application as soon as possible. Don't be delaying it until 20th Sept. However, be aware that you have violated the terms of your visa by staying beyond its expiry date. If you stay beyond this date you risk prejudicing any future visa application you make as this is grounds for refusal of a visa. The visa application normally takes up to six weeks to be dealt with. Not 28 days.

Expert:  Buachaill replied 10 months ago.

7. Be aware that you only have 28 days before you can be served with a deportation order. This is not the same as having a 28 day grace period during which you can stay. In point of fact, you should leave before your tourist visa expires. However, you can only be deported 28 days later.

Customer: replied 10 months ago.
Ok, thanks very much. I am proceeding to rate you 5 star. My husband says that taking into account your explanations, maybe it is easier for me in this moment to ask for a tourist visa extension, and postpone the residence card application, in order to remain in the same category of visas, so I benefit from the ability to stay in the UK pending the decision, since it is very risky to think about remaining during the grace period. However, the problem is that I am the carer of our son in this moment, so I would need to to it from here (London), and tourist visas are supposed to be applied for from outside the country. If you know any way to apply within the same category that I can apply to from inside the UK, I would appreciate very much you could suggest it to me. Thanks so much.
Expert:  Buachaill replied 10 months ago.

8. Be aware that if you seek a tourist visa extension, you can only stay a maximum of 180 days in total. Normally a tourist visa is only for 90 days. Finally, I don't know how you bring yourself within the same category. The simple thing to do is to apply immediately for your permanent EEA visa which will allow you to live and work in the UK. If you have to fly back to Spain for a short period, then so be it. However, you are better to operate within the law. Applying for a further tourist visa is not really the solution, as the question then arises as to why you were applying for these two tourist visas and now a permanent visa. You are simply better off to apply for what you want at the outset.

Buachaill and other Law Specialists are ready to help you
Customer: replied 10 months ago.
if I had not a toddler to care, that would be the solution, of course... But the problem is the child. Then, I think I am going to take a private medical treatment for three months, so I can ask for that extension over the 6 months from inside, and in the meantime, I will apply to the long-term one. I have already rated you, thanks very much!
Customer: replied 10 months ago.
I mean: I understand this visa to take a private medical treatment is considered in the same category, so I would not be violating my right to remain...
Expert:  Buachaill replied 10 months ago.

9. A visa for medical treatment is not in the same category as a tourist visa. I don't know what gave you that idea.

Customer: replied 10 months ago.
Here on this link: talks about hoy to extend a standard visitor visa, without changing, when you are already receiving a private medical treatment.
Expert:  Buachaill replied 10 months ago.

10. You are correct. Apologies for my error.

Customer: replied 10 months ago.
ok, thanks.
Customer: replied 10 months ago.
Last question on this topic (I promise!!): Once I submit the application with all the supporting documents required, may I stay in peace till I wait for the Home Office's answer, even if my current visa expires? or I should do any other complementary action to protect myself to be considered I am violating the time-limit to leave the country?
Expert:  Buachaill replied 10 months ago.

11. Yes, once you submit the application you may wait in peace for the Home Office's answer, even if your current visa has expired. You are not violating the time limit to leave the country as you have an application in the same category pending.

Customer: replied 10 months ago.
Okkkk, thanks so much, with this level of stress I was already hyperventilating !!
Expert:  Buachaill replied 10 months ago.

12. You are welcome. Best wishes!

Customer: replied 10 months ago.
Finally I am completing the FLR (O) form, explaining that after 6 months as a tourist I need an extension of 4 months for a private medical treatment. However, I have the following concerns, since it is the first time I fill in this kind of applications:- I am leaving blank all those boxes that are not-applicable to my case (other option is to write down N/A, but I guess it is better to leave them blank).- Regarding the payment, I am doing by Lloyds debit card, so I understand I just have to fill in the details on the form, so that the Home Office will proceed to charge me the corresponding fee when they get all the documents (other options imply paying in advance and enclosing the slip to the application, but I understand it is not the case when I am choosing the direct debit way).- I am asked about my IHS, NIN and RBS. Although I have a IHS number, I don’t have a NIN, and the GOV.UK site says that I don’t need to do a RBS since I am the spouse of a EEA citizen, so I wil leave blank both NIN and RBS boxes. All section 4 of the document is about RBP, so I understand I should leave it all blank.- The form apparently does not consider the situation of my family: My husband is living with my son in the UK, as EEA citizens, and I live in Madrid (Spain), as non-EEA citizen but with permanent residence. So I just come to the UK to visit my family, and now to follow a private medical treatment, taking advantage that they are in London and can give me support during the last of this treatment. The point is that the form asks me first my “UK address” under the logic that is a provisional (visitor) addres… but later it asks different questions about my husband’s address and our relationship that suggests it is our permanent address, since there is no option to differentiate that my permanente address is in Spain, and that is why I am managing my status in the UK as a standard visitor. I hope this is not a reason to make my application be denied, I am sure I am not the first case!!!- Another potential misunderstanding when the form says “In this section include any children under the age of 18 who are living with you in the UK and who are applying as your dependants.”. I am a visitor, asking a visitor’s visa extension, so I cannot understand that I am asked about anyone “living with me in the UK”. My child is effectively living in the UK with my husband (his parent), but not with me. I he neither needs to apply for a visa, since he is a EEA citizen. Then, should I leave blank this part or complete the details of my toddler?- About my finances, I don’t have any document to show since I don’t have properties or bank accounts, and just live with my spouse’s and his family’s resources. Of course I will attach bank proofs of my spouse’s economy, who is my sponsor/supporter, but I hope that the fact of not enclosing any proof of my personal finances is not treated as if I had forgot it.Thanks very much
Expert:  Buachaill replied 10 months ago.

13. You should file a separate question for these queries.

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