Does an EEA4 application trigger section 3C?

[manci]

Can someone please clarify if an EEA4 application for a permanent residence card triggers section 3C for a Tier 2 migrant, i.e. does it automatically extend his Tier 2 leave while the EEA4 application is under consideration?

[Jambo]

No it doesn't.

On what basis is the EEA4 application made? If he is a direct family member, he has automatic rights regardless if he has a valid visa/RC to prove that.

[manci]

Thanks for your reply.

The EEA4 application is made on the basis of PARTNER OTHER THAN SPOUSE OR CIVIL PARTNER, i.e. extended family member who has cohabited with the EEA national in a relationship akin to marriage for two years.

Section 3C generally applies if "a person who has limited leave to enter or remain in the United Kingdom applies to the Secretary of State for variation of the leave".

Could you please explain why an EEA4 application wouldn't count as an application to vary the extant limited Tier 2 leave?

[Jambo]

Section 3C only applies to applications under the UK immigration rules (limited leave to remain or enter). EEA applications are under the EEA regulations and are not subject to the UK immigrations rules.

Are you sure the application is EEA4 (PR confirmation) which is applied after living in the UK for 5 years under the EEA regulations and not EEA2 (a 5 years Residence Card) ? If the application is of durable partner then until the RC is issued, the HO won't be able to confirm the applicant right to work in the UK and strictly speaking would be an overstayer during that time (it's one of those odd cases in which you are in limbo and are caught between two stools).

[Obie]

In the circumstance you mentioned above, you cannot apply for PR under EEA4. The most appropriate application will be an EEA 2 application.

It is arguable, that on the basis of non-discrimination, that you should have a section 3C rights, if you currently hold a valid leave to remain.

[manci]

Section 3C only applies to applications under the UK immigration rules (limited leave to remain or enter). EEA applications are under the EEA regulations and are not subject to the UK immigrations rules.

Thank you.

I was just wondering if this distinction can be made in view of the fact that the EEA rules are also part of the national legislations of the member states incl. the UK.

In this case an application for PR under EEA rules would in effect be an application to vary (and replace) a temporary leave under the PBS akin to an ILR application to which section 3C would certainly apply.

There is no conflict between the UK's immigration rules and the EEA rules in this instance (if there were it would have to be resolved by the courts), it is just a question of the cross-application between the two sets of rules under the single umbrella of the UK's legislative framework.

Non-discrimination may also be a relevant issue, as Obie pointed out.

[Obie]

No they are not the same regime. The are very different, this has been identified in Kaba Judgement 1 and Kaba Judgement 2.

I think the discrimination case is stronger, as it involves worse treatment for EEA national durable partner, who is in similar position to British national common partner.

In those circumstances, i believe there will be a stronger case, than the one in Kaba. But if there is any doubt that the 2 regime are similar, then kaba has more or less addressed that.

[Jambo]

I suggest you read this thread - Resident card as Unmarried Partner