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I'm an EEA citizen and my wife is not. We co-habited in the UK from Oct 2002 to Aug 2009 (so a bit less than 7 years) but got married in the UK in December 2004. We can prove co-habitation through bank statements and council tax bills etc. throughout the period. Under European law it is my understanding that we both obtained PR automatically in Oct 2007.

As an aside, the UK passport office has seen the evidence of my residence and exercise of Treaty Rights and deemed it satisfactory as our son is a British citizen by birth from March 2008.

Based on my reading of the regulations for naturalisation now, we were both also eligible for naturalisation from Oct 08. However, based on earlier bad advice on these boards (or perhaps bad question-asking on my part) we did not think this was the case. We left the UK in Aug 09 due to childbirth. Prior to this we had been away for about 150 days in the preceding 5 - 6 years.

My question is, as we have been away from the country for more than 90 days in what'd be the "final" year prior to presenting an application - has my wife lost the "right" to naturalisation (even though she had been eligible at an earlier point in time)? Is this an area where we might hope HO would exercise their discretion? Would a good immigration lawyer make a difference? I'm obviously hoping that naturalisation is possible now if we went back to apply.

Youl should not have relied on advice given on these boards, you should have looked for professional advice.
There is no one to blame for your error except yourself

Automatic PR? Are you sure?

I just spent 1 minute looking at the UKBA website and from what I make out even EU citizens have to apply for confirmation of permanent residence.

roaaad, why don't you and your family get back to the UK. After all, as you say, you already have PR status. That PR status will only disappear if you do not exercise EU Treaty Rights in the UK for 2 years.

But as regards applying for Naturalisation, your problem is that you have been outside the UK for more than 90 days. So you would need to wait to apply for Naturalisation only when you can show less than 90 days outside the UK in the year up to the application date.

Also appreciate that you and your spouse would both need to pass the Life in the UK Citizenship test, before applying for Naturalisation.

winber, confirmation is exactly that. Confirmation of something that happened automatically. This change of legislation took effect on 30.04.06.

Thanks John for the clarification, I know nothing about migration for EU citizens...