Academic debate on status of non-EU family member in UK

[Richard W]

2. Would he need to apply from outside the UK for the so called UK Spouse Visa and how long would it take? If he switches to a UK spouse visa, would the 3 years he already spent in the UK under EEA rules count towards his permanent residence application later on? (i.e. can we combine time spent under EEA rules + time under UK spouse visa)

I believe a more appropriate, less difficult and slightly cheaper alternative, would be for him to apply for leave to remain using form FLR(M) once you were certain you had achieved permanent residence - but try to check whether the DCPR is required to prove that you are settled. The advantage would be that he would not have to leave to the UK, and the income from his employment would count towards the financial requirement.

In terms of immigration status, he would be qualified to apply for FLR(M) because he would be lawfully resident and not have leave to remain under a visa valid for 6 months or less (satisfying Rules E-LTRP2.1 and E-LTR2.2, which rule out visitors and overstayers).

In both cases, it takes 60 months on the route to obtain ILR.

It may be argued that I am wrong because someone with an enforceable EU right to enter the UK cannot demand leave to enter or remain:

5.Save where expressly indicated, these Rules do not apply to those persons who are entitled to enter or remain in the United Kingdom by virtue of the provisions of the 2006 EEA Regulations. But any person who is not entitled to rely on the provisions of those Regulations is covered by these Rules.

That would have the interesting consequence that the minor EEA child of British parents could only settle in the UK by being 'self-sufficient' and having CSI.

[Obie]

With the utmost respect, all of what Richard W said is simply wrong.

1. Contrary to what he said FLR (M) is more expensive.

2. That will not be an option as contrary to what Richard said, he will need leave to remain under the rules to qualify for it.

3. Contrary to what Richard said, E-LTRP 2.1 and 2.2 are not met. Residence card is not leave. It is issued under the regulations.

Without being disrespectful to you, I believe it will cause numerous problems if op followed your advice.

I know you have good intension and I am not disputing that for a minute.
However your advise are mostly removed from reality.

I am sure you will not wish the unintended consequences of your advise on its recepient. Read and observe and you will learn a lot.

[Richard W]

With the utmost respect, all of what Richard W said is simply wrong.

1. Contrary to what he said FLR (M) is more expensive.

Settlement visa - £1195+ v. FLR(M) £811
The IHS surcharge applies in both cases.
There will then be the need for FLR(M) at the mid-way stage and ILR at the end.

2. That will not be an option as contrary to what Richard said, he will need leave to remain under the rules to qualify for it.

3. Contrary to what Richard said, E-LTRP 2.1 and 2.2 are not met. Residece card is not leave. It is issued under the regulations.

Immigration status requirements

E-LTRP.2.1. The applicant must not be in the UK-

(a) as a visitor; or
(b) with valid leave granted for a period of 6 months or less, unless that leave is as a fiancé(e) or proposed civil partner, or was granted pending the outcome of family court or divorce proceedings

E-LTRP.2.2. The applicant must not be in the UK –

(a) on temporary admission or temporary release, unless:
(i) the Secretary of State is satisfied that the applicant arrived in the UK more than 6 months prior to the date of application; and
(ii) paragraph EX.1. applies; or
(b) in breach of immigration laws (disregarding any period of overstaying for a period of 28 days or less), unless paragraph EX.1. applies.

I see no problem with E-LTRP.2.1.
No problem with E-LTRP.2.2(a).
No problem with E-LTRP2.2(b), for

“in breach of immigration laws” means without valid leave where such leave is required, or in breach of the conditions of leave.

The OP's partner is present by the EEA Regulations, so no leave is required.

I am sure you will not wish the unintended consequences of your advise on its recepient. Read and observe and you will learn a lot.

What is your evidence that FLR(M) would automatically be refused? Is it just your reading of the rules?

[Richard W]

As Obie concluded, FLR(M) will probably fail because of partner's lack of leave under the Immigration rules.

Aha! That may explain the disagreement. Rule 295D(i) would indeed stop FLR(M) if the pre-2012 rules applied. They don't - the OP would be subject to Appendix FM, where the rules are different! The first vaguely relevant application in the OP's husband's case was in 2013, and I don't believe that even counts as an 'application' for deciding which rules apply.

[vinny]

Oops!

[vinny]

However, the problem with 5 remains?

[Richard W]

However, the problem with 5 remains?

I've tried in vain to find an example where this rule has been clearly overridden.

The nearest I could come was the case of the Swiss girl living in the UK with a naturalised British mother and native British stepfather who had never held any other 'EEA' nationality. They had been advised that she should apply for ILE from outside the UK. If Rule 5 applied as a rigid bar, she could not apply for ILE, for she would have the right to enter for a period of 3 months. Is it conceivable that she was supposed to repeatedly re-enter for 3 months until she got a 12 month exclusion for abusing the right, and then apply for ILE?

This set me to thinking about non-working medically 'uninsurable' EEA national visa applicants with British national sponsors, but are they perhaps excluded anyway as public policy?

However, I can think of what ought to be a likely scenario. Should someone applying for ILR who has just married an EEA national be refused the ILR on the basis that they now have a right to enter or remain in the UK under the 2006 EEA Regulations? Given how often marriages break down, that would be harsh.

[Richard W]

However, the problem with 5 remains?

No!

10. EUN1.10 Can EEA nationals apply under the Immigration Rules?
Yes. If an EEA national wishes to apply under the immigration rules, they are entitled to do so.

11. EUN1.11 Do family members of EEA nationals have to apply under the EEA regulations?
No, they can choose to apply under the Immigration Rules.

[vinny]

However, the problem with 5 remains?

No!

10. EUN1.10 Can EEA nationals apply under the Immigration Rules?
Yes. If an EEA national wishes to apply under the immigration rules, they are entitled to do so.

11. EUN1.11 Do family members of EEA nationals have to apply under the EEA regulations?
No, they can choose to apply under the Immigration Rules.

This appears to make 5 redundant?

[Richard W]

This appears to make 5 redundant?

I think Rule 5 is a poor attempt to say that the permissions under the EEA Regulations apply and override those under the immigration Rules.

If you look carefully at the Immigration Rules, most of them actually apply to immigration officers, entry clearance officers and various other home Office officials. Rule 5, taken literally, seems to say that an Australian UK Immigration Officer with a working Polish wife is not required to work in accordance with the rules! (I'm not sure if such can exist - is British citizenship required to be an immigration officer?)

Rule 5 works cleanly with the requirement to register with the police (Rules 325 to 326, in Part 10). Home Office guidance on Police Registration explicitly excludes family members of EEA nationals.

[vinny]

I assume that the Rules are intended for both the applicant and the decision maker to follow. Moreover, that the applicant and decision maker is not the same person.

An example.

[Richard W]

I assume that the Rules are intended for both the applicant and the decision maker to follow. Moreover, that the applicant and decision maker is not the same person.

As I say, Rule 5 is poor, though that does not mean I could do any better.

An example.

I need to know more about how the conditions are conveyed. Is the visa holder expected to find a copy of the Immigration Rules, or are the conditions set out in some document provided to the holder?

I would have read the conditions as the conditions to be imposed on the successful applicant. Is this reading untenable?

I did see some general statements in the Rules that looked like conditions imposed on people subject to immigration control under the regulations, but I think they are commentary rather than secondary law imposed on both applicants and non-applicants. The Immigration Rules are supposed to be "the Rules laid down by [The Home Secretary] as to the practice to be followed in the administration of the Immigration Acts for regulating entry into and the stay of persons in the United Kingdom".

[vinny]

...
It is thus in the nature of the Immigration Rules that they include no over-arching implicit purposes. Their only purpose is to articulate the Secretary of State's specific policies with regard to immigration control from time to time, as to which there are no presumptions, liberal or restrictive. The whole of their meaning is, so to speak, worn on their sleeve...

In my view the same principle applies here. The responsibility in law on the Claimant was to ensure that his conduct was four-square within the rules. The rules were not hidden from him...

Unfortunately, the rules are too complex.

[Obie]

Rule 5 is the law of the land, and it is difficult to Understand how this individual is proceeding in total ignorance of its existence.

There is so much that one can take.

The CJEU in KABA made clear that the right of residence of a Person under EU law is different from a person who is Present and Settled.

As a matter of Law, if a person does not require leave or subject to the 1971 Act, any leave issued under that provision is ultra vires.

[Richard W]

Rule 5 is the law of the land, and it is difficult to Understand how this individual is proceeding in total ignorance of its existence.

The problem lies in what it means. EUN01 certainly doesn't agree with your interpretation, and that is guidance to the officials who should apply Rule 5.

One unattractive interpretation, which you do seem to reject, is that there is for instance no rule as to when an EEA national with an enforceable EU right to enter the UK may be granted leave to remain (or enter). All such actions would necessarily be outside the rules!

The CJEU in KABA made clear that the right of residence of a Person under EU law is different from a person who is Present and Settled.

I don't see where that observation takes us. Yes, to update to present circumstances, there is a difference between the extended right of residence of the EEA Regulations and leave to remain, and indeed, how one was granted leave to remain (or to enter) can make a big difference. Have I disputed this?

As a matter of Law, if a person does not require leave or subject to the 1971 Act, any leave issued under that provision is ultra vires.

Is this an immediate deduction from the judgement that effectively said that having British citizenship removes ILR? Does it derive from some 21st century legislation? If this is a more specific ruling, I would appreciate more of a hint as to where I can find that ruling. I am not as good at googling as Secret Simon. I couldn't even find the statement by Hollande on the status of Britons in France.

I would also like to check my understanding of what you say about grants of leave being ultra vires. (I take it you don't just mean the 'outside the rules'?) The first case is hypothetical, though there ought to be real life examples:

1. Should someone applying for ILR who has just married an EEA national be refused the ILR on the basis that they now have a right to enter or remain in the UK under the 2006 EEA Regulations? Would any such grant of ILR be null and void?

2. We often hear on the EEA-route forum that EEA nationals used to be granted ILR. What is the actual status of such people if they have not obtained EEA Permanent Residence under the 2006 regulations?

[Obie]

EUN 1.10 is not law of the land, does not have any force of law, and must not be seen as such.

It is settled law that guidance is not the law, and cannot be applied to individual, unless it has been through parliament and inserted into the immigration, which Paragraph 3(2) of the 1971 act empowers the Secretary of State to do.

Just in passing, I will state that EUN 1.10, was put in place as a concession for EEA national who are married to British Citizen, during a time when Spouse of British can qualify for ILR within 2 years of Marriage and citizenship in the 3rd.

What use to happen is, the Spouse of British Citizen can apply under the rules, no stamp is placed in their passport, but a separate registration Certificate is granted to them, and it enables them to apply for Indefinite leave, and then citizenship.

The purpose of this is to put EEA national and non EEA on a level footing, so as to prevent a person from being disadvantaged by virtue of being an EEA national married to a British Citizen.

A person can clearly waste their money if they so wish, and the UKVI will utilise it, but the fact remain that they don't require leave, and don't require the Secretary of State to grant them leave, as they are exempted from immigration rules, and their right derive directly from the treaty.

EUN. 1.9 clearly confirms that EU national are exempted from immigration Control under the immigration rules. But i don't think anyone is saying they can't apply if they want to.

[Richard W]

Just in passing, I will state that EUN 1.10, was put in place as a concession for EEA national who are married to British Citizen, during a time when Spouse of British can qualify for ILR within 2 years of Marriage and citizenship in the 3rd.

What use to happen is, the Spouse of British Citizen can apply under the rules, no stamp is placed in their passport, but a separate registration Certificate is granted to them, and it enables them to apply for Indefinite leave, and then citizenship.

I can remember the Zimbabwean wife of a Frenchman using that route as far as indefinite leave.

A person can clearly waste their money if they so wish, and the UKVI will utilise it, but the fact remain that they don't require leave, and don't require the Secretary of State to grant them leave, as they are exempted from immigration rules, and their right derive directly from the treaty.

EUN. 1.9 clearly confirms that EU national are exempted from immigration Control under the immigration rules. But i don't think anyone is saying they can't apply if they want to.

We now have common ground. It is now usually the case that, if available, the EEA-route is cheaper and easier. However, for non-working EEA spouses intending to naturalise, the cost ordering seems to be Aviva < UKVI < BUPA; at least, I can find figures that say that. As one gets older, insurance becomes dearer.

The other issue is that there is a significant probability that the UK will soon withdraw from the EEA. This is why people are looking for a Plan B.

Where we have disagreement is on the requirements of individual Immigration Rules if one choses to use them. The details of the rules have changed quite a bit over the years - I was startled to discover that planning to retire abroad seems to disqualify one from sponsoring a wife! - "E-ECP.2.10. The applicant and partner must intend to live together permanently in the UK". I'm glad my wife and I didn't face that requirement.

[Obie]

For Completeness I believe it is necessary for me to Quote Section 7 of the Immigration Act 1988, which provides :

(1)A person shall not under the principal Act require leave to enter or remain in the United Kingdom in any case in which he is entitled to do so by virtue of an enforceable Community right or of any provision made under section 2(2) of the European Communities Act 1972.

(2)The Secretary of State may by order made by statutory instrument give leave to enter the United Kingdom for a limited period to any class of persons who are nationals of member States but who are not entitled to enter the United Kingdom as mentioned in subsection (1) above; and any such order may give leave subject to such conditions as may be imposed by the order.

(3)References in the principal Act to limited leave shall include references to leave given by an order under subsection (2) above and a person having leave by virtue of such an order shall be treated as having been given that leave by a notice given to him by an immigration officer within the period specified in paragraph 6(1) of Schedule 2 to that Act.

Therefore section 7(1) is consistent with rule 5.

If a person is removed by virtue of Public policy, and hence looses their enforceable right to enter and remain, the Secretary of State may be order grant leave.

But an EEA citizen who has enforceable rights , can not as a matter of law, be required to have leave or be given leave.

[Richard W]

For Completeness I believe it is necessary for me to Quote Section 7 of the Immigration Act 1988, which provides :

(1)A person shall not under the principal Act require leave to enter or remain in the United Kingdom in any case in which he is entitled to do so by virtue of an enforceable Community right or of any provision made under section 2(2) of the European Communities Act 1972.
<snipped here by Richard W>

Thanks for the link, I was looking for something like this. Does this have the result that EEA nationals and their family members with the relevant EEA rights of entering or remaining are not 'exempt' persons in the sense of IA 1971 Sections 8(2) and 8A? The question seems relevant when one's status as a qualified person rapidly comes and goes, though I think the difference only matters for those already in the UK.

But an EEA citizen who has enforceable rights , can not as a matter of law, be required to have leave or be given leave.

Unfortunately, there are several ways of reading that statement, and I'm not sure which ones you mean.

Do you mean any of the following? If so, I would like to know the legal source.

1. An EEA citizen present in the UK who entered with the right to enter and has the right to re-enter, but does not have the right to reside in the UK, does not need leave to remain in the UK.
   (This gels with EEA Regulation 19(3)(a), and would usually make an EEA citizen's marginal or ancillary working in the UK legal.)
2. No court can compel an EEA citizen to be granted indefinite leave to enter.
   (This would apply to the case of ToonBarmy's Swiss stepdaughter. It would also apply to EU citizens seeking leave to remain on human rights grounds, though perhaps that a complicating exception you saw fit to overlook.)

Thanks in advance for my education.

[vinny]

There's also an exception in Long residence cases, where the directions instructs caseworkers to apply discretion:

Time spent in the UK does not count as lawful residence under paragraph 276A of the Immigration Rules for third country nationals who have spent time in the UK as:

• the spouse, civil partner or other family member of an European Union (EU)
• an EEA national exercising their treaty rights to live in the UK but have not qualified for permanent residence
• former family members who have retained a right of residence

During the time spent in the UK under the provisions of the EEA regulations, the individuals are not subject to immigration control, and would not be required to have leave to enter or leave to remain. For more information, see related link: 05 Residence card applications.
However, you must apply discretion and count time spent in the UK as lawful residence for an EU or EEA national or their family members exercising their treaty rights to reside in the UK.

Sufficient evidence must be provided to demonstrate that the applicant has been exercising treaty rights throughout any period that they are seeking to rely on for the purposes of meeting the long residence rules.

This does not affect the rights of family members of EEA nationals to permanent residence in the UK, where they qualify for it after a period of 5 years residence in the UK - Regulation 15 of the Immigration (European Economic Area) Regulations 2006. More information can be found on the GOV.UK website – apply for a UK residence card.

[Richard W]

There's also an exception in Long residence cases, where the directions instructs caseworkers to apply discretion:
<snip>
However, you must apply discretion and count time spent in the UK as lawful residence for an EU or EEA national or their family members exercising their treaty rights to reside in the UK.
<snip>

So, those with an uncurtailed (what's the right word?) right to reside under the EEA Regulations are not exempt from immigration control and are not subject to immigration control.

It would seem that someone with a right to enter under the EEA Regulations may be given leave to remain outside the rules.

None of this is relevant to eligibility for FLR(M).

[Obie]

A person who does not require leave to enter, cannot be granted leave outside the rules.

It will be nugatory.

The Secretary of state has discretion to grant leave like ILR, which confers greater rights and privileges than a residence card.

Such right are compatible under community law under the principle that was established in the case of Reeds.

[Richard W]

A person who does not require leave to enter, cannot be granted leave outside the rules.

It will be nugatory.

Not entirely. Having leave to remain can be a step on a route to indefinite leave to remain, which would not otherwise be attainable.

Also, what of an EU citizen in the UK who has no right to reside? The cited clause, IA 1988 Section 7(1), implies that such a person would require leave to remain in the UK. Would he automatically lack leave to enter? Would he be a person who requires leave to enter or remain in the United Kingdom?

(Without warning, you might regard the second question as a trick question. It related to the definition of illegal working in Section 24B of the Immigration Act 1971, a.k.a. Section 34 of the Immigration Act 2016.)

[vinny]

See also Alternative options for EU partners: making an application under Appendix FM.

[Nemmy]

Thank you.