Will prison time affects my EEA4 application

[Dijean]

Hi guys, please I need your advice. I am a Non-EEA national and came into UK illegally in 2005. I applied for my RC in Dec. 2011 as an extended(Unmarried) family member of an EEA(Irish) national and was issued in June 2012 to expire in June 2017. In 2013, I was arrested for false representation, by using fake documents to get a job, which happens in 2010, but to cut the long story short, I pleaded guilty to the charges and was convicted, which resulted to 8months custodial sentence(serve 4months). Since then, I got married to my wife in 2014 and had our first child the same year. What I would like to know is, will I be able to apply for a PR when my RC expires next year? or do I have to renew my RC?

Also how will my criminal record affects the outcome of the PR decision? If I'm eligible. Do I need to contact a solicitor? I can provide all the documents required, before and after me and my wife got married. I would really appreciate all your advice guys. Thanks.

[noajthan]

Hi guys, please I need your advice. I am a Non-EEA national and came into UK illegally in 2005. I applied for my RC in Dec. 2011 as an extended(Unmarried) family member of an EEA(Irish) national and was issued in June 2012 to expire in June 2017. In 2013, I was arrested for false representation, by using bad quality documents to get a job, which happens in 2010, but to cut the long story short, I pleaded guilty to the charges and was convicted, which resulted to 8months custodial sentence(serve 4months). Since then, I got married to my wife in 2014 and had our first child the same year. What I would like to know is, will I be able to apply for a PR when my RC expires next year? or do I have to renew my RC?

Also how will my criminal record affects the outcome of the PR decision? If I'm eligible. Do I need to contact a solicitor? I can provide all the documents required, before and after me and my wife got married. I would really appreciate all your advice guys. Thanks.

Interestingly, an EEA citizen in prison cannot be considered a qualified person as they are not exercising treaty rights (whilst incarcerated).
However as you are the direct family member of your EEA sponsor your activity in UK is immaterial. So it may be your PR clock did not stop whilst in custody.

There is no 'good character' test in the context of EU migration and PR.
So it looks like you may acquire PR in/around 2017 (assuming sponsor remains a qualified person; you remain married to each other; no prolonged absences from UK).

If organised and methodical you should not need a solicitor or advisor for such an application.

[Dijean]

Thanks noajthan, really appreciate your quick response. I'm just a bit worried my application could be refused because of my criminal record. Also, is there a possibility they might ask me to apply for another RC instead of a PR? and how early can I apply for the PR? My RC expires June 2017. Thanks again for your help.

[noajthan]

5years after EFM RC (June 2017) because EFMs need to hold a RC to apply for confirmation of PR.
You can add your time as FM with/without a FM RC now you're married.

No good character test so no need to hold off fron PR application assuming you have rock-solid supporting evidence.

[Obie]

I am not sure you are right Noajthan, with the utmost respect. Leading authorities from the CJEU , appears to indicate that OP will have to restart the clok from the time he completes his custodial sentences.

Period on remand will not affect PR but incarceration does affect continuity.

Furthermore 2 periods cannot be amalgameted to get PR.

[noajthan]

I am not sure you are right Noajthan, with the utmost respect. Leading authorities from the CJEU , appears to indicate that OP will have to restart the clok from the time he completes his custodial sentences.

Period on remand will not affect PR but incarceration does affect continuity.

Furthermore 2 periods cannot be amalgameted to get PR.

Obie, that makes more sense. Thanks for clarifying.

I was aware of the approach for Union citizens (PR clock stopping in prison).
It is clearly more equitable that HO applies even-handed and equivalent treatment to non-EEA nationals in the same situation too.

[Dijean]

Thanks for the clarification guys, I'm learning a lot from you. Does that mean I have to wait till 2018 before I can apply for a PR?

[Obie]

It is settled law Noajthan.

Also see Onuekwere.

[Dijean]

Thanks obie for sharing Onuekwere's case, makes me feel optimistic about mine. Here is a quick timeline on my case.

Applied for RC: Dec. 2011(Extended family member)
RC Issued: June 2012
Arrested on: 26/08/2013
Sentenced on: 14/10/2013 - 8months to do 4months(on remand before sentencing)
Released on electronic tag: 06/12/2013
Married my EEA partner: Feb. 2014

Which means, I spent just over 7 weeks in prison from the date I was sentenced, because I was on remand before then. Does that mean RC starts again from Dec. 2013? when I was released.