Can a EEA apply for ILR

[aledeniz]

I have seen this question answered before, but it was before the referendum. The answer was generally to ask for a DCPR.

Is it possible for a EEA citizen to apply for ILR, as opposed to a DCPR?

And more specifically, would a EEA citizen married with a British citizen be able to apply for ILR, if they don't qualify for a DCPR?

I am thinking about women who could not apply on their own right, e.g. because they have been full time mothers for a few years and don't have 5 years of continuous residence, and at the same time they cannot use their husband as sponsor, as he will be British.

[noajthan]

I have seen this question answered before, but it was before the referendum. The answer was generally to ask for a DCPR.

Is it possible for a EEA citizen to apply for ILR, as opposed to a DCPR?

And more specifically, would a EEA citizen married with a British citizen be able to apply for ILR, if they don't qualify for a DCPR?

I am thinking about women who could not apply on their own right, e.g. because they have been full time mothers for a few years and don't have 5 years of continuous residence, and at the same time they cannot use their husband as sponsor, as he will be British.

Not usually as they wouldn't have leave to remain in UK by virtue of a UK visa.

And if they applied on basis of 10 years LR, which would only be permitted at discretion, then the periods served under EU regulations would still have to have been covered by valid exercise of treaty rights and/or covered by a Union citizen sponsor.

If that is achievable then the applicant would probably have acquired PR anyway.

[Richard W]

I am thinking about women who could not apply on their own right, e.g. because they have been full time mothers for a few years and don't have 5 years of continuous residence, and at the same time they cannot use their husband as sponsor, as he will be British.

I keep coming up with the same weird answer - take a return surface trip to the Republic of Ireland! Now, in this case, the result is not as useful as it might be. While the trip makes Irish citizens who then live in the UK settled, other EEA nationalities will merely be lawfully present in the UK without any time limit. Because statute law has not kept up with this change, it will leave them "in breach of the immigration laws" as defined by BNA 1981 Section 50A. Only Irish citizens get a qualifying CTA entitlement. Perhaps what other EEA nationals get is a 'non-qualifying CTA entitlement'! To become settled, they will need to exercise treaty rights. Becoming self-sufficient thought the husband's earnings and CSI is one possibility. Note that re-entering the UK from another country will terminate the status of being lawfully present without time limit. Additionally, this loophole seems very easy to close. It seems to me to have been created by lazy drafting.

The other solution, not available in every case, is to go down the national family re-unification route of applying of FLR(O) and FLR(M). This is expensive.

It may be possible to combine the two approaches and just naturalise after 3 years, saving the ILR fee and, for some, two FLR(M) fees and 5 years IHS surcharge for the poorer applicants. I'm not sure, though, that limited leave to remain and a 'CTA entitlement' can be combined. It may be that the later one acquired cancels the other, just as being granted "limited leave to remain" revokes "indefinite leave to remain". If they can be combined, the combination gives one settled status and eligibility after 3 years for naturalisation.

Another problem with either combination - with being a qualified person or having limited leave to remain - is that it may not be accepted for naturalisation. Naturalisation is at discretion - it is not an entitlement.