When should you apply for RC/EU Settlement from a RC as Extended Family member? Should you leave the UK in between?

[kamoe]

Addressing the valid (although slightly off-topic) questions of @Magus1984 in a previous post regarding the options for extended family members:

So in your view when should a Non-eu extended family member (unmarried partner) with a residence card (5 year validity) apply for permanent residency (under EU law) or EU Settled Status?

If you apply before completing the qualifying period of 5 years then Home Office might refuse the permanent residency application (or give you pre-settled status if under the EU Settlement Scheme).

If you wait till you complete your qualifying 5 years period (your residence card would expire) and then you will have to leave the UK to apply for permanent residency (or settled status)?

Great questions, something I have asked myself sometimes as well. But I'm afraid, the available documentation is crystal clear and unambiguous on Free Movement Rights: extended family members of EEA nationals:

Rights of an extended family member
Extended family members do not have automatic rights to enter and reside in the UK. Under regulation 7(3) of the 2016 regulations, an extended family member has the same rights as a direct family member. They must continue to satisfy the conditions of regulation 8 and have been issued with one of the following documents which remains in force:
• an EEA family permit
• a registration certificate
• a residence card
• a permanent residence card
• a document certifying permanent residence

So... no valid FP, RC, RC, PRC... no rights of residence for extended family members.

Now, regarding your latest comment:

Surely it does not make sense to expect that an extended family member that has lived in the UK for 5 years, working, paying taxes, etc has to leave whilst the permanent residency/settled status is approved?

The Home Office is not precisely known for making life easy. If people are prevented from leaving the UK while their non EEA applications are processed (non EEA and non EU Settlement applications are considered withdrawn if you leave the UK), why would people not be required to leave while their EEA/EU Settlement applications are processed, if they cannot justify a right to stay in the meantime?

I am more than happy to be corrected, but I have the feeling that somehow the Home Office expects people to somehow become direct family members (through marriage, for example), obtain permanent residence by other means, or, really just arrange to leave the UK in the meantime. Personally, I am seriously considering timing this with actual holiday abroad back at home, then just applying for Settled Status abroad.

Now good news is, if you apply now for Pre-Settled status you are covered for another 5 years, so that will bridge it

[Obie]

It is reasonable for an Extended family member to apply for a Permanent residence card prior to completion of their 5 years.

Extended family member who maintains their durable relationship for 5 years after issue of a card, will have a right to permanent residence anyway, irrespective of whether their durable relationship ended after this 5 years.

[kamoe]

It is reasonable for an Extended family member to apply for a Permanent residence card prior to completion of their 5 years.

What happens if the card expires before the PR is issued?

Extended family member who maintains their durable relationship for 5 years after issue of a card, will have a right to permanent residence anyway

Can you please refer to an authoritative source for this?

[Obie]

If the card expires before the PR is issued the period would have accrued right if Permanent residence under the regulations (15)(1)(b), based on regulation 7(3)* residence. Provided a durable relationship existed in the 5 years following the issuance of the Residence card.

Once permanent residence is acquired, it can only be lost following an absence of 2 years from the UK.

[kamoe]

If the card expires before the PR is issued the period would have accrued right if Permanent residence under the regulations (15)(1)(b), based on regulation 7(3)* residence. Provided a durable relationship existed in the 5 years following the issuance of the Residence card.

Oh, OK... so on midnight of the 5th anniversary of the Extended family member having been issued with EEA documentation they will acquire the right of permanent residence, which means, even if their EEA RC lapses, they are automatically lawfully in the UK! wonderful.

Thing is, this will be a non-issue for people staying within the UK while in-between Residence Cards. if this happens while the non-EEA extended family member is abroad, they will need to apply for documentation (another FP perhaps) in order to re-enter the UK.

Also, curious to see how Brexit and the December 2020 cut-off date for RC validity plays into this.

[Obie]

If they are outside the UK, they can apply as family member with a right of permanent residence, for a family permit. Upon entry they can apply for permanent residence card.

Permanent residence acquire under regulation 15 is protected under the regulations.

Those durable relationship that was formed before the end of transition will qualify even if a document has not been issued.

[Magus1984]

It is reasonable for an Extended family member to apply for a Permanent residence card prior to completion of their 5 years.

Well I can speak from experience that my Permanent Residence application was refused because I applied too early. I thought that the 2 years living together with my unmarried partner (with a tier 2 visa) would count towards the 5 year qualifying period but the response from HO stated that the time started counting from when I was 'accepted' as an unmarried partner when I was issued the residence card (even though I had to proof 2 years of relationship akin to marriage)

Extended family member who maintains their durable relationship for 5 years after issue of a card, will have a right to permanent residence anyway, irrespective of whether their durable relationship ended after this 5 years.

I think this is the case for Direct family members. If they have lived in the UK lawfully for a continuous period of 5 years, direct family members of an EEA national sponsor are allowed to live in the UK on a permanent basis. And do not need a permanent residence card to confirm residence status in the UK unless:

you’re an extended family member of someone from the European Economic Area or Switzerland and are yourself not an EEA or Swiss national

Link

See gov.uk - https://www.gov.uk/apply-for-a-uk-resid ... dence-card

[Magus1984]

Oh, OK... so on midnight of the 5th anniversary of the Extended family member having been issued with EEA documentation they will acquire the right of permanent residence, which means, even if their EEA RC lapses, they are automatically lawfully in the UK! wonderful.

I am currently in this scenario. My 5 year residence card has expired whilst waiting for settled status confirmation. I thought applying 1 month before expiry date was enough time for case workers to process the application.

I understand that I have 'gained' the right of permanent residency / settled status but I don't have a valid BRP to prove this. So I won't be travelling abroad or changing jobs as I would struggle to show that I have the right to live/work in the UK.

Hopefully I get a response from EUSS soon.

[kamoe]

Well I can speak from experience that my Permanent Residence application was refused because I applied too early. I thought that the 2 years living together with my unmarried partner (with a tier 2 visa) would count towards the 5 year qualifying period but the response from HO stated that the time started counting from when I was 'accepted' as an unmarried partner when I was issued the residence card (even though I had to proof 2 years of relationship akin to marriage)

I think it is reasonable to interpret that Obie is referring to the case where people apply near the completion of a valid period of 5 years (a month or a few weeks before, I assume?), not the case where you simply don't yet qualify for permanent residence.

Cases like yours (and mine, for that matter) have been discussed at length here and have always been met with the same answer: UK Residence time spent outside the EEA regulations doesn't count towards the 5 years needed for EEA PR. Your application being refused is a completely different matter than applying slightly before your valid 5 years.

Extended family member who maintains their durable relationship for 5 years after issue of a card, will have a right to permanent residence anyway, irrespective of whether their durable relationship ended after this 5 years.

I think this is the case for Direct family members. If they have lived in the UK lawfully for a continuous period of 5 years, direct family members of an EEA national sponsor are allowed to live in the UK on a permanent basis. And do not need a permanent residence card to confirm residence status in the UK unless:

And Obie duly responded to my question as to where can we authoritatively verify that this also applies to EFM: Obie refers to regulation 7(3):

(3) A person (“B”) who is an extended family member and has been issued with an EEA family permit, a registration certificate or a residence card must be treated as a family member of A, provided—

(a)B continues to satisfy the conditions in regulation 8(2), (3), (4) or (5); and
(b)the EEA family permit, registration certificate or residence card remains in force.

Which pretty much means that as long as your RC is valid you, as an extended family member, wi'll benefit from the same rights as a direct family member,including acquiring the right to permanent residence at the stroke of midnight of your 5th anniversary, since up until that very second, your RC is still valid.

[Obie]

You pretty much encapsulate in a summarised manner, what I was seeking to convey.

The applying about a month is not set in law, but given the time it takes for biometrics and COA to be issued, and to ensure continuity of a person's work right, I believe the 28 days or 2 months will do no harm.

By the time the case worker assesses the application, that 2 months would have elapsed, the person will have a full COA, and there would not have been any disruption to their livelihood.

[Magus1984]

Fresh from the press. I've just received an e-mail from HO confirming my ILR/Settled Status as the unmarried partner of a EU citizen. It took around 7 weeks to process my application.

I spent the last week laying low and worrying (perhaps unnecessarily) as my 5 year residence card (passport vignette sticker) had expired on 12-Dec-19.

You can draw your own conclusions. Cheers for all your help.