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I am asking this question on behalf of one of my friend in his wording;
"I was married to an EU National, residence card was issued foe 5 years and it has 3 years to my marriage but unfortunately my wife is in the jail as she was sentenced for 2 years.

My question is that my wife is in the jail and obviously she is not exercising her treaty rights for last 6 months and I’m bit concerned that how I will prove or cover these 2.5 years gap when I would apply for PR that my wife has been exercising her rights continuously for 5 years.
Please advise best course of action in these awkward circumstances?
Your advise will be highly appreciated and it will be big help
Many thanks in advance"

innovation2000 wrote: ↑

Sun Apr 29, 2018 8:37 am

"I was married to an EU National, residence card was issued foe 5 years and it has 3 years to my marriage but unfortunately my wife is in the jail as she was sentenced for 2 years.

My question is that my wife is in the jail and obviously she is not exercising her treaty rights for last 6 months and I’m bit concerned that how I will
prove or cover these 2.5 years gap when I would apply for PR that my wife has been exercising her rights continuously for 5 years.

How long has his wife, the EEA citizen, lived in the UK? Has she acquired PR in her own right? The advice below is premised on the basis that she has not acquired PR.

Broadly, for the period of time that your friend's EEA citizen spouse is in prison, your friend's PR clock has stopped and reset to zero. It will restart when his EEA citizen spouse is released AND restarts exercising treaty rights.

Indeed, your friend may also have lost his right to reside in the UK itself as his rights spring from his EEA citizen's spouse exercising treaty rights. No treaty rights, no residence rights.

Are there any children from the marriage? Or any children having the mother's EEA citizenship in the family? Your friend may be able to acquire a rigt to reside based on the EEA child (if any). But any time spent on that will not count towards PR, which will only restart from zero, when his EEA citizen spouse exercises treaty rights.

Also see this very old thread from 2010.

Obie wrote: ↑

Fri Apr 02, 2010 1:54 pm

It is settled caselaw that a Union Citizen in penal custody, cannot be exercising treaty right.