Official , Section 3C don't Apply to Residence Card Apps

Time spent in the UK with a right to reside under EEA regulations This page tells you how to consider a long residence application when a person has spent time in the UK with a right to reside under the European Economic Area (EEA) regulations. Time spent in the UK does not count as lawful residence under paragraph 276A of the Immigration Rules for third country nationals who have spent time in the UK as: • the spouse, civil partner or other family member of a European Union (EU) national • an EEA national exercising their treaty rights to live in the UK but have not qualified for permanent residence • former family members who have retained a right of residence During the time spent in the UK under the provisions of the EEA regulations, the individuals are not subject to immigration control, and would not be required to have leave to enter or leave to remain. See EEA Nationals guidance for further information. However, you must apply discretion and count time spent in the UK as lawful residence for an EU or EEA national or their family members exercising their treaty rights to reside in the UK. Sufficient evidence must be provided to demonstrate that the applicant has been exercising treaty rights throughout any period that they are seeking to rely on for the purposes of meeting the long residence rules. This does not affect the rights of family members of EEA nationals to permanent residence in the UK, where they qualify for it after a period of 5 years residence in the UK - Regulation 15 of the Immigration (European Economic Area) Regulations 2006. More information can be found on the GOV.UK website – apply for a UK residence card. If an applicant was in the UK with a right to reside under European Economic Area (EEA) regulations, continuous residence is not broken if they leave the UK and are then re-admitted under the EEA regulations. When granting a Long Residence application in which a person has relied on a period of leave in the UK exercising treaty rights as an EEA national or their family member, any grant of leave must be made outside the Immigration Rules.

Yes, we all know the rules, no need to retype the guidance notes. The point is, I have you asked you a question about who your EEA/EU sponsor is, which you have chosen not to answer.

You do not have the right to reside under the EEA/EU rules as you DO NOT have an EFM yet, so do not have continuous residence at this point.

@cr001
My brother in law italian

In that case, you have no automatic rights. Your status will only be legal once an EFM residence card has been issued to you if it is approved.

For ILR 10 year long residence, you currently have no status and are not protected by Section 3C since your last visa expired.

Is there any chance if i apply for a private life application?

Hi Obie and all,

I need your advice

My ilr application was refused last year in June 2016 bcz I had 4 month gap to reach to 10 years but I got right of appeal. I applied (June 2016) for my appeal on time and got hearing date after 10 months (April 2017). My 10 years were completed in September 2016 while I was waiting to attend my appeal hearing date. This year in April my Ist tribunal appeal was refused with the right of further appeal to Upper tribunal. As my 10 years were already completed therefore, instead of applying for further appeal to Upper tribunal, I applied for ilr and waiting for the application outcome.

Could you please help me with the following questions

Is my 3c still valid or not? if not will it effect my ilr application?

What is my current status?

Am i allowed to work or not?

thanks,

Shujah wrote: ↑

Sun Sep 10, 2017 10:01 am

Hi Obie and all,

I need your advice

My ilr application was refused last year in June 2016 bcz I had 4 month gap to reach to 10 years but I got right of appeal. I applied (June 2016) for my appeal on time and got hearing date after 10 months (April 2017). My 10 years were completed in September 2016 while I was waiting to attend my appeal hearing date. This year in April my Ist tribunal appeal was refused with the right of further appeal to Upper tribunal. As my 10 years were already completed therefore, instead of applying for further appeal to Upper tribunal, I applied for ilr and waiting for the application outcome.

Could you please help me with the following questions

Is my 3c still valid or not? if not will it effect my ilr application?

What is my current status?

Am i allowed to work or not?

thanks,

You already have a topic in the ILR sub forum where you have received advice. Please continue your questions in your existing topic rather than posting in a topic in the sub forum which is for EU and EEA family members route.

indefinite-leave-to-remain/long-residen ... l#p1532091

ok, I 'll,

thanks

Obie wrote: ↑

Fri Aug 05, 2016 12:45 pm

This Authority appear to have slipped my attention, but it confirmed what many of us knew already, which is that Section 3C of the Immigration Act 1971 does not apply to Residence Card Application.

I believe it was a missed opportunity for the Court of Appeal not to have dealt with the question of whether this is acceptable under EU law principle, that similar protection that Section 3C confers is not extended to EEA nationals and their family, especially in the case of Durable partner of EEA nationals, who apply for Residence Card before their leave expires.

If these people where in a Durable relationship with a British or Settled person, they will be able to apply under the rules and obtain Section 3C rights, but because they are in a relationship with an EU citizen, they are precluded from working for 6 months, and their career opportunities or interest may be disrupted. There lawful residence may come to an end, and they may be refused citizenship for unlawful residence.

In my opinion,such situation is beyond any degree of absurdity.

AS (Ghana) v Secretary of State for the HomeDepartment [2016] EWCA Civ 133 (20 January 2016) was bound to fail on its fact, as he did not have any rights under the regulation, and the subsequent FLR(O) application could not cure that, after his appeal had failed.


Interesting Article from Freemovement.

4. The question before us is whether a person who at one stage was the spouse of an EEA citizen with a right of abode in the United Kingdom but no longer has that status and right is to be treated as having leave either under the Immigration Act 1971 or otherwise after his application for permanent residence as the former spouse of an EEA citizen has been rejected.
The answer is a firm “no”.

Under the Immigration Act 1971 sections 3C and 4, someone applying for variation of leave under that Act — that is under UK immigration law, rather than the 2006 Immigration (EEA) Regulations — has their leave extended pending a decision on whether to vary the leave or not. However, states Lord Justice Beatson, that is the 1971 Act. The Immigration (European Economic Area) Regulations 2006 are a different matter, and a different procedural system applies to them.

Mr Kannangara’s submission that a person “should” have a status in effect similar to that given by section 3C of the 1971 Act is in effect a submission as to a reform designed to put such a person in a similar position to a person with leave under the 1971 Act. That process, however, is one for the legislature and not for the court.
The final nail in the coffin is the point that the 2006 Regulations themselves recognise the distinction between the processes under the different immigration systems.

As well as the provisions to which I have referred, paragraph 4(2) of schedule 2 to the 2006 Regulations expressly provides that a person who has been issued with a residence card shall have no right of appeal under section 82(1) of the 2002 Act, and regulation 19(5) recognises the distinction between the right to reside under EU law and the right to remain under the 1971 Act. It provides that a person must not be removed as a person who does not have or ceases to have a right under the 2006 Regulations it he has a right to remain by virtue of leave granted under the 1971 Act.

First of all sorry obie .i am writing about my situation here..i heard tht lot of people wrote thanks to obie on their timeline bcoz you helped them.

Please help me..
I applied my retain rights
Married dec 2011.lived together 2 yrs ...
Rc issued as family member jan 2013. .
From long time we were lived separate..
My ex applied for divorce...
I dont hv any contact with her..just had her some old document when we were lived together..
On divorce letter she wrote in occupation that she is currently working.
I dont hv her other proof of work bcoz dont hv contact with her..
I applied for retain rights 28 feb.
Got COA in May.
Yesterday 11 sept my retain rights application got refusal...
Reason i did not provide orignal passport of my ex...but how can i provide if dont hv any contact..i sent her passport copy along with me application but they refused my application .but i hv right of appeal..
..
My solicitor told me that it is stupid reason of refusal so he said that better if he will send court notice or other notice (dont know exactly what he means) to review their decision again.and he asking me to pay 500 fee for notice include his fee..he said that home office have to reply this notice in 14 days
..i dont understand..
Just want to know what can i do give him 500 pounds that he will send notice letter to home office or appeal.
???

Other side my current partner is european and we are living together from 1 year but we have a baby together ..or best if i apply for EFM unmarried partner ? But we are living together less than 2 year but hv a child...

Please advise me what to do.
Now i hv very good job and i dont want to lose my job also...

Please help me and suggest me a good idea ..


Please dont move my thread ...

My question is as an EU citizen currently emplyed on a zero hour contract and paid on weekly basis. If i am not working for 2 weeks does this effect my non EU FM (spouse) application for Set LR which is due in couple months.


I have already posted this question in ILR set lr thread 2 days ago, I apologise to admin in advance for trying my luck here
Thanks

Amyski04 wrote: ↑

Sun Sep 17, 2017 12:33 pm

My question is as an EU citizen currently emplyed on a zero hour contract and paid on weekly basis. If i am not working for 2 weeks does this effect my non EU FM (spouse) application for Set LR which is due in couple months.


I have already posted this question in ILR set lr thread 2 days ago, I apologise to admin in advance for trying my luck here
Thanks

Please continue in your topic in the ILR sub forum as that is what your question relates to. Also refrain from posting multiple posts asking the same questions in sub forums not relevant to your question.