Switching from EEA2 to FLR(M) - what a Story ! HELP PLZ !

[citehay]

Hi there,

I am an Algerian national and I came to the UK in 2006 from France As I used to live and work in France.
When I first phoned UKBA asking about what type of application I should apply with, for my residency in the UK they advised me to use EEA2 because the entry was from France.
After completing my 5 years, I applied for EEA4 unfortunately it was refused based on the fact that my wife, who is British Citizen, is considered as "a burden on the state" in their words, due to the fact she stopped working after we had a baby born in 2008. I challenged them over some letters where I contested the decision because neither I nor my wife was claiming any public funds and I was working for entire period.
They however requested us to provide a comprehensive sickness insurance or EHIC for the relevant period when she stopped working until the end of the 5 year period, naturally I couldn’t as she is British and NHS won't provide the EHIC for a British Citizen who lives in the UK. In addition to this we were not aware that a British Citizen needs Comprehensive sickness insurance being in the UK.
I then had to apply for FLR (M) as my EEA2 Expired and this was granted with no issues at all.
I then tried to apply for SET (M) straight after but they didn't accept my application as I hadn’t completed my 2 year probation period. I told them that I have been through a probation period of 6 years since I arrived in the UK. Also we have been married for 10 years and have two Children together who are both British. I have spent 6 years working in the UK and not seeking any public funds since the day I arrived. I have passed the English academic test and the Life in the UK test.
UKBA are now saying that I need to complete the 2 year probation period before I can apply for SET (M)

Is there anybody who had a similar case and can help please?

Your help is much appreciated!!

Thank you

[Lucapooka]

I then had to apply for FLR (M) as my EEA2 Expired and this was granted with no issues at all.

I'm surprised you were allowed to switch to FLR(M) as at that time you did not have extant leave under UK rules; more comment on this would be appreciated.

284. The requirements for an extension of stay as the spouse or civil partner of a person present and settled in the United Kingdom are that:
(i) the applicant has limited leave to enter or remain in the United Kingdom which was given in accordance with any of the provisions of these Rules

UKBA are now saying that I need to complete the two year probation period before I can apply for SET (M)

That is correct; the rules are very clear on this. You have to complete two years in that category. Previous leave (which, in any case, would have to be leave under UK rules) can't be aggregated into the two years probationary residence period.

287. (a) The requirements for indefinite leave to remain for the spouse or civil partner of a person present and settled in the United Kingdom are that:
(i) (a) the applicant was admitted to the United Kingdom for a period not exceeding 27 months or given an extension of stay for a period of 2 years in accordance with paragraphs 281 to 286 of these Rules and has completed a period of 2 years as the spouse or civil partner of a person present and settled in the United Kingdom;

[vinny]

I then had to apply for FLR (M) as my EEA2 Expired and this was granted with no issues at all.

You were lucky.

[Greenie]

Did you challenge the Eea4 refusal? If your wife is British then she is not required to have csi and nor is she required to show she is exercising treaty rights in the uK. If you were here through the surrinder singh route then your wife presumably demonstrated that she was working if France prior the returning to the UK?

[citehay]

Well, first this is not switching from EEA2 to FLR (M) as it looks like!!
Basically I applied for the FLR (M) as a new route not switching from EEA law to the British law. However I tried before during the EEA2 - 5 years period but they didn’t accept it.
I have completed 5 years then applied for the EEA4 for which I had a refusal. Although I had a letter from UKBA stating that I am becoming free from Immigration control after the period of 5 years so then if we take it as it said in their words I should have been granted leave to remain instead of restarting the process from scratch (so Lucky or not lucky - I am not sure about that but anyway I applied using FLR (M)).
Actually when we first came to the UK my wife was working for the period of 2 years and then stopped in 2008 after she gave birth to our first child.
I also challenged UKBA on the basis that my wife is British so Comprehensive sickness insurance does not apply and it is impossible to get the EHIC for a British Citizen who lives in the UK and exercising the treaty rights should not apply for a British Citizen in the United Kingdom,
As it is clearly stated on http://www.legislation.gov.uk/ :
General interpretation
2.—(1) In these Regulations—
“
“EEA family permit” means a document issued to a person, in accordance with regulation 12, in connection with his admission to the United Kingdom;
“EEA national” means a national of an EEA State;
“EEA State” means

(a)a member State, other than the United Kingdom;
In addition to that:
Persons not subject to restriction on the period for which they may remain
2.—(1) for the purposes of the 1971 Act and the British Nationality Act 1981(a), a person who has a permanent right of residence under regulation 15 shall be regarded as a person who is in the United Kingdom without being subject under the immigration laws to any restriction on the period for which he may remain.

So exercising the treaty rights and Burden on the state not applicable if we take a look at the legislation regarding British nationals.

[citehay]

I then had to apply for FLR (M) as my EEA2 Expired and this was granted with no issues at all.

I'm surprised you were allowed to switch to FLR(M) as at that time you did not have extant leave under UK rules; more comment on this would be appreciated.

284. The requirements for an extension of stay as the spouse or civil partner of a person present and settled in the United Kingdom are that:
(i) the applicant has limited leave to enter or remain in the United Kingdom which was given in accordance with any of the provisions of these Rules

UKBA are now saying that I need to complete the two year probation period before I can apply for SET (M)

That is correct; the rules are very clear on this. You have to complete two years in that category. Previous leave (which, in any case, would have to be leave under UK rules) can't be aggregated into the two years probationary residence period.

287. (a) The requirements for indefinite leave to remain for the spouse or civil partner of a person present and settled in the United Kingdom are that:
(i) (a) the applicant was admitted to the United Kingdom for a period not exceeding 27 months or given an extension of stay for a period of 2 years in accordance with paragraphs 281 to 286 of these Rules and has completed a period of 2 years as the spouse or civil partner of a person present and settled in the United Kingdom;

Well, first this is not switching from EEA2 to FLR (M) as it looks like!!
Basically I applied for the FLR (M) as a new route not switching from EEA law to the British law. However I tried before during the EEA2 - 5 years period but they didn’t accept it.
I have completed 5 years then applied for the EEA4 for which I had a refusal. Although I had a letter from UKBA stating that I am becoming free from Immigration control after the period of 5 years so then if we take it as it said in their words I should have been granted leave to remain instead of restarting the process from scratch (so Lucky or not lucky - I am not sure about that but anyway I applied using FLR (M)).
Actually when we first came to the UK my wife was working for the period of 2 years and then stopped in 2008 after she gave birth to our first child.
I also challenged UKBA on the basis that my wife is British so Comprehensive sickness insurance does not apply and it is impossible to get the EHIC for a British Citizen who lives in the UK and exercising the treaty rights should not apply for a British Citizen in the United Kingdom,
As it is clearly stated on http://www.legislation.gov.uk/ :
General interpretation
2.—(1) In these Regulations—
“
“EEA family permit” means a document issued to a person, in accordance with regulation 12, in connection with his admission to the United Kingdom;
“EEA national” means a national of an EEA State;
“EEA State” means

(a)a member State, other than the United Kingdom;
In addition to that:
Persons not subject to restriction on the period for which they may remain
2.—(1) for the purposes of the 1971 Act and the British Nationality Act 1981(a), a person who has a permanent right of residence under regulation 15 shall be regarded as a person who is in the United Kingdom without being subject under the immigration laws to any restriction on the period for which he may remain.

So exercising the treaty rights and Burden on the state not applicable if we take a look at the legislation regarding British nationals

[citehay]