PR or ILR

[Bing]

Hi everyone,

I am so glad I found this forum today. My situation is a bit awkward. I would be extremely grateful if anyone can give me any valuable information.

Please do accept my apologies for posting this long thread. Thanks so much for your patience and time!

In 2002, I came to UK on student visa as non-EU national.

In 2006, I finished study and worked on fresh talent visa.

In 2007, I married to an Irish (Rep of Ireland) and got residence card which expires in 2012.

Also in 2012, I will be in UK for 10 years which I am entitled to apply ILR based on 10 years' residence.

Both my husband and I have been studying and working in UK since 2002 until present. We have two kids who were born in UK. My son has Irish passport. My newborn daughter is yet to apply a passport. We receive child benefits and working tax credits.

My questions are:

1) In April 2012, I will be married for 5 years. I should be able to apply PR, despite my current residence card runs out in Oct 2012. However, we have been living together for 7 years. Can the two years before marriage be considered as part of continuous period of 5 years staying in UK? If yes, am I qualified to apply now itself?

2) In Sept 2012, I will have been living in UK for 10 years, I should be able to apply ILR. What is the difference between PR and ILR apart from PR has a valid date of 10 years and ILR doesn't?

We plan to move to my country in Oct 2012 for a few years. Therefore, I really don't want to wait to apply ILR if there is not much difference between them. The waiting time is so long.

3) I heard from other people that if a person holds a ILR, it could be cancelled if he/she doesn't spend 3 months in every 2 years in UK. Is that true?
Is there similar rule for PR?

4) Is my daughter entitled to apply British passport? The reason we are interested is because it has shorter processing time and the validity of passport lasts longer than Irish one.


Thanks again for your time!
Bing

[Jambo]

Some answers:

1) Your time under EEA regulations started when you got married (or entered the UK as married). There have been cases reported by members that they managed to get a PR based on a combination of marriage + cohabitation but this is not supported by the regulations. As you are so close to your 5 years anniversary, I would wait till April.

2) No difference at all. One is obtained via EEA regulations and the other via the UK immigration rules. The "10 years validity" of the PR is just an administrative restriction. It's is Infinite the same as ILR is. Once the 10 years are reached, a new 10 years extension is granted.

3) If you leave the UK for more than 2 years, the ILR/PR could be cancelled. Same rule apply to both. Visiting the UK for a few days every two years doesn't count. You need to live in the UK to keep the status.

4) As your husband is Irish, both children who were born in the UK are British from birth and entitled to a British passport. Irish enjoy a special privilege in the UK which means they are considered settled in the UK from day 1. UK born children to a settled parent are British from birth. You can directly apply for a passport using a form from the Post Office.

[vinny]

2) There are some differences. 

PR is automatic if eligible. Issue of a document certifying permanent residence and a permanent residence card is free. Loss of PR is subject to 15(2) & 15(3).

ILR requires KOL and is expensive. Returning residents (ILE/ILR holders) are subject to 18 & 19.

[Bing]

Some answers:

1) Your time under EEA regulations started when you got married (or entered the UK as married). There have been cases reported by members that they managed to get a PR based on a combination of marriage + cohabitation but this is not supported by the regulations. As you are so close to your 5 years anniversary, I would wait till April.

2) No difference at all. One is obtained via EEA regulations and the other via the UK immigration rules. The "10 years validity" of the PR is just an administrative restriction. It's is Infinite the same as ILR is. Once the 10 years are reached, a new 10 years extension is granted.

3) If you leave the UK for more than 2 years, the ILR/PR could be cancelled. Same rule apply to both. Visiting the UK for a few days every two years doesn't count. You need to live in the UK to keep the status.

4) As your husband is Irish, both children who were born in the UK are British from birth and entitled to a British passport. Irish enjoy a special privilege in the UK which means they are considered settled in the UK from day 1. UK born children to a settled parent are British from birth. You can directly apply for a passport using a form from the Post Office.

Thank you soooo much for your comprehensive reply. I appreciate it a lot.
Please can I ask one more question

If I am to live in a different country for a few years, there is no point to apply this PR then? But it would be a complicated application process again on my return here again, wouldn't it? Do you know if there is a way that I can tackle that, apart from becoming British citizen? Basically, my husband, kids and I want to spend a few years with my parents before kids start school. We still intend to have them attend school in UK.

[Jambo]

Do you require a visa to travel to the UK? If you do and you might visit the UK after moving away, having a PR will ease your travels.

As you husband is a EEA national, when moving back, you can always apply again under the EEA regulations (EEA Family Permit and/or EEA Residence Card) so you should not have problems returning to the UK.

[fysicus]

3) If you leave the UK for more than 2 years, the ILR/PR could be cancelled. Same rule apply to both. Visiting the UK for a few days every two years doesn't count. You need to live in the UK to keep the status.

I don't agree here. I think the text in bold is only true for ILR under national immigration rules.
PR under EEA rules can only be lost by a continuous absence of more than two years, so visiting UK just for one day every two years should be sufficient to maintain it. It may sound unbelievable but I can see no other interpretation of the law.

[Bing]

Do you require a visa to travel to the UK? If you do and you might visit the UK after moving away, having a PR will ease your travels.

As you husband is a EEA national, when moving back, you can always apply again under the EEA regulations (EEA Family Permit and/or EEA Residence Card) so you should not have problems returning to the UK.

Yes, I do require a visa to travel to UK.
I really want to keep this PR, so every time when I come back to visit or live, I don't need to go through the process again. The waiting time is soooo long and can be frustrating at the time.
Thank you for your answer!

[Bing]

3) If you leave the UK for more than 2 years, the ILR/PR could be cancelled. Same rule apply to both. Visiting the UK for a few days every two years doesn't count. You need to live in the UK to keep the status.

I don't agree here. I think the text in bold is only true for ILR under national immigration rules.
PR under EEA rules can only be lost by a continuous absence of more than two years, so visiting UK just for one day every two years should be sufficient to maintain it. It may sound unbelievable but I can see no other interpretation of the law.

From the link provided by Vinny, the legislation states

(2) Once acquired, the right of permanent residence under this regulation shall be lost only through absence from the United Kingdom for a period exceeding two consecutive years.

To my understanding, I am on your side.

Does anyone have similar experience to share?

[Jambo]

I'm not sure you will find someone active on this forum who had a PR and left the UK for more than 2 years.

I would trust vinny and fysicus comments (and it is also supported by the legislation).

[Bing]

I'm not sure you will find someone active on this forum who had a PR and left the UK for more than 2 years.

I would trust vinny and fysicus comments (and it is also supported by the legislation).

Thank you Jambo!!!

I called a lawyer today and asked if there is similar rule for leaving in UK for more than 2 years. She said it was the same rule for PR. But they can do something technical before application so I would be able to stay outside of UK for more than 2 years. REALLY???? I doubt it very much..Do lawyers not need to obey the law?

[Jambo]

And I guess this lawyer will just charge a "small" fee for this technical thing?

I find that lawyers are very familiar with UK immigrations rules but not with EEA regulations (I guess a combination of newer rules and a smaller number of applicants using their services). You don't need a lawyer. Apply for PR in April. Don't worry about losing it.

Anyway, in order to revoke the PR, the HO needs to know you have left the country for more than 2 years. The only way they will find that out would be if they ask you when you enter the UK - how long have you been away. As long as you haven't been away for more than 2 years, you should be fine.

[Bing]

Thanks a lot Jambo. I will update this thread to in due course..
Hope you had a nice Xmas and NY!

And I guess this lawyer will just charge a "small" fee for this technical thing?

I find that lawyers are very familiar with UK immigrations rules but not with EEA regulations (I guess a combination of newer rules and a smaller number of applicants using their services). You don't need a lawyer. Apply for PR in April. Don't worry about losing it.

Anyway, in order to revoke the PR, the HO needs to know you have left the country for more than 2 years. The only way they will find that out would be if they ask you when you enter the UK - how long have you been away. As long as you haven't been away for more than 2 years, you should be fine.

[5yrstoday]

Bing... it is an old post but do you have an update?

[Obie]

2) There are some differences. 

PR is automatic if eligible. Issue of a document certifying permanent residence and a permanent residence card is free.

Well in light of the changes, this might no longer be correct. Whether it is legal is another thing.

[Bing]

Bing... it is an old post but do you have an update?

Hello Vinny, hope you are well. I have not been on this site for a long time. There won't be any updates until the end of this year, as we are moving back then. I will keep this thread updated!!

Thanks
Bing

[Bing]

Bing... it is an old post but do you have an update?

Hello Vinny, hope you are well. I have not been on this site for a long time. There won't be any updates until the end of this year, as we are moving back then. I will keep this thread updated!!

Thanks
Bing

Hi everyone, I have an update now. We moved back to UK at the beginning of October 2015. However, we flew to Ireland directly visiting families. When I flew from Dublin to Scotland, there was no boarder control. So I got in without any problem. I am not sure what would happen if we flew direct to UK.
Hope this can be helpful to some people.

Bing