Applying for FLR M whilst appealing RC refusal with FP

[pseudolus]

This is driving me mad and I can not get an answer to this. Non EU wife came over to the UK with me (Brit) under SS with a FP. Her RC was refused and we are appealing. However, I am interested applying for a FLR M for her as we meet all the requirements. However, the one we can not get an answer to which looks like it will take us paying up and taking a chance, is if she actually is allowed to apply for it?

My instinct is that yes, FP does not need a RC as the HO say it is USEFUL to have an RC only to prove right of stay and work. FP Doesn't expire either as long as I am exercising treaty rights here, which I am. So regardless of appeal, she is allowed to apply FLRm.

However, I read a reply from HO to a FOI where the person asked if whilst appealing something else could they apply FLR, and they said NO! Must withdraw appeal, but then they would also have no right of stay, so either way, no, can not apply for FLR.

So - does anyone know? Anyone appealed RC with a FP, and got FLR M as well? I know it is possible with FP and no RC application, but it is the FP, RC failed,appealed, that I am trying to work out.

Thanks in advance.

[Obie]

Her application is likely to fail as family permit is not leave.

She has no extant leave, therefore switching to FLR(M) is not an option. Perhap FLR(FP) might be, depending on the circumstance, but with FLR(M) you are likely to get a refusal, and possible a certification to go with in, going by their recent unlawful practice.

[Richard W]

This is driving me mad and I can not get an answer to this. Non EU wife came over to the UK with me (Brit) under SS with a FP. Her RC was refused and we are appealing. However, I am interested applying for a FLR M for her as we meet all the requirements. However, the one we can not get an answer to which looks like it will take us paying up and taking a chance, is if she actually is allowed to apply for it?

Unless Immigration Rule EX.1 applies to her, I don't believe your wife has the appropriate immigration status, though she might have the required immigration status.

The question is whether she is lawfully in the UK. The family permit does not convey a right - rather it is advice to Immigration Officers not to automatically challenge the holders right of residence or entry - rather like a residence permit.

If she has a right to be resident under the EEA Regulations, then she probably doesn't need a visa - unless you are concluding that Surinder Singh will be useless come Brexit. So, her status is inappropriate in that sense.

My instinct is that yes, FP does not need a RC as the HO say it is USEFUL to have an RC only to prove right of stay and work. FP Doesn't expire either as long as I am exercising treaty rights here, which I am.

My understanding is that a family permit is only valid for 6 months. What persists almost as you describe is her right of residence - which HO either says she does not have or says she has not demonstrated. (I don't know the ground of refusal. Also, it is possible that the right to be treated as an EEA national may be lost by changes in the Regulations.)

However, I read a reply from HO to a FOI where the person asked if whilst appealing something else could they apply FLR, and they said NO! Must withdraw appeal, but then they would also have no right of stay, so either way, no, can not apply for FLR.

I too don't see how appealing a refusal of a residence cards automatically disqualifies one from applying for FLR(M). A holder of a Tier 2 visa could be refused a residence card while earning enough to qualify for FLR(M).

So - does anyone know? Anyone appealed RC with a FP, and got FLR M as well? I know it is possible with FP and no RC application, but it is the FP, RC failed,appealed, that I am trying to work out.

The problem is that being at "FP, RC failed, appealed" means that lawful reasidence under the EEA Regulations has not been demonstrated. It does not preclude it being demonstrated as part of the FLR(M) application. As with you, I cannot see how "FP, RC failed, appealed, appeal withdrawn" is any better.

[pseudolus]

Pretty much as I thought. However, there are quite a few people who have entered on a FP, and applied FLR M whilst the RC application is still in review or before they put the RC application in. So therefore the case workers are accepting the validity of the FP, and indeed, the FPs have technically been expired (after 6 months) when the FLR Application has gone in.

[Richard W]

Pretty much as I thought. However, there are quite a few people who have entered on a FP, and applied FLR M whilst the RC application is still in review or before they put the RC application in. So therefore the case workers are accepting the validity of the FP, and indeed, the FPs have technically been expired (after 6 months) when the FLR Application has gone in.

It should be the case that the case workers in these cases did not believe that the right of residence had been lost. What you may be able to demonstrate is that by my argument there should have been evidence of CSI, but that there was clearly none. You also have to exclude the cases where there was a British child involved when FLR(M) was submitted.