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

vinny wrote:There's also an exception in Long residence cases, where the directions instructs caseworkers to apply discretion:
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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.
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So, those with an uncurtailed (what's the right word?) right to reside under the EEA Regulations are not exempt from immigration control and are not subject to immigration control.

It would seem that someone with a right to enter under the EEA Regulations may be given leave to remain outside the rules.

None of this is relevant to eligibility for FLR(M).

A person who does not require leave to enter, cannot be granted leave outside the rules.

It will be nugatory.

The Secretary of state has discretion to grant leave like ILR, which confers greater rights and privileges than a residence card.

Such right are compatible under community law under the principle that was established in the case of Reeds.

Obie wrote:A person who does not require leave to enter, cannot be granted leave outside the rules.

It will be nugatory.

Not entirely. Having leave to remain can be a step on a route to indefinite leave to remain, which would not otherwise be attainable.

Also, what of an EU citizen in the UK who has no right to reside? The cited clause, IA 1988 Section 7(1), implies that such a person would require leave to remain in the UK. Would he automatically lack leave to enter? Would he be a person who requires leave to enter or remain in the United Kingdom?

(Without warning, you might regard the second question as a trick question. It related to the definition of illegal working in Section 24B of the Immigration Act 1971, a.k.a. Section 34 of the Immigration Act 2016.)

See also Alternative options for EU partners: making an application under Appendix FM.

Thank you.

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

Home Office – whether EEA nationals can apply under the UK Immigration Rules wrote: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.

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.