Academic debate on status of non-EU family member in UK

[vinny]

Apparently, the Home Office’s interpretation of paragraph 5.:

EEA Nationals: Home Office Interpretation of Paragraph 5 of the Immigration Rules

Questions have been raised regarding the Home Office’s interpretation of paragraph 5: “save where expressly indicated, these Rules do not apply to those persons who are entitled to enter or remain in the United Kingdom by virtue of the provisions of the 2006 EEA Regulations. But any person who is not entitled to rely on the provisions of those Regulations is covered by these Rules.”

It was confirmed that: “paragraph 5 of the Immigration Rules is intended to reflect section 7 of the Immigration Rules 1988, by virtue of which a person with an enforceable EU law right cannot be required to seek leave to enter or remain under the Rules. However, if they wish to apply under the Immigration Rules, and they meet the requirements, there is nothing to prevent them from doing so.

The correspondence between Clive Peckover (Home Office) and Chris confirmed the following facts:

a) Could a person switch from exercise of EU treaty rights as a self-employed to spouse of a British Citizen Under the Immigration Rules? Yes, it is allowed.
b) Can EEA nationals apply under the Immigration Rules? Yes. If an EEA National wishes to apply under the Immigration Rules, they are entitled to do so.
c) Do a family members of EEA nationals have to apply under the EEA regulations? No, they can choose to apply under the Immigration Rules.

[Obie]

It seems to me that Paragraph 5 is significantly less broader than the Home Office indicates in their interpretation.

If they are not covered by virtue of Paragraph 5, then they really cannot apply under it.

I understand that under the previous rules pre 09-07-2012, the Home Office acknowledged that Eu spouse of British National can be issued a form of Registration Certificate granting leave for 2 years, to enable them to apply for ILR and then British Citizenship in 2 years, to prevent discrimination.

This was again problematic as it breaches EU law, in that the passport of an EU citizen should not be stamped with a leave.

However as in that case the national law makes slightly more favorable provision, they were entitled to explore it.