ILR or Right to Remain ?

[vinayunited]

I came to this country in January 2007 and have been here since then. I was initially on a student visa until early 2013 and then had PSW until Deb 2015. In 2014 I got married to my partner and was given EEA2 as a result.

I am considering applying for the indefinite leave to remain early next year. I have a few of questions regarding that.

Am I eligible in spite of using the European law to remain in this country ?

I have also recently filed for divorce, Can I make an ILR application while my divorce proceedings are going on ? Do I have to inform the Home Office in my ILR application that I am getting my divorce?

Does it make more sense to apply for Right to Remain once my divorce is complete ? What would be the better option to apply for ROR or the ILR and what are the advantages of one over the other ?

Sorry for the bulk questions. If anyone can answer them it would be most helpful. This forum has been a life saver during my EEA2 and PSW ordeals

[Wanderer]

I don't think either option will work for you, ILR because your not on the UK immigration route, and RoR because you've not been married to your EEA spouse for three years or more.

[Casa]

You don't qualify for ILR as you are no longer under the UK Immigration Rules since you switched to an EEA2 permit in 2014.

I believe Wanderer is right in that you don't qualify for ROR as your marriage to an EU national has subsisted for less than 3 years.

[vinayunited]

I have been married for three years. My third anniversary was two weeks ago..

Why would the ILR route not work. I have been here legally for 10 years. Wouldn't that count even if I was on EEA2 for the last three years of it ?

[CR001]

You can include time spent on the EEA route for long residence ILR but only if you provide all the documents and evidence of your EU spouse exercising treaty rights and being a qualified person for the time you are claiming under EEA route. The divorce is probably not going to help.

If you got married in 2014, you have not been married for three years.

Edit: How have you been married for 3 years when you say that your marriage was in 2014
Has your wife been exercising her Treaty rights throughout your marriage?

[Casa]

It would have helped if you had continued in your other thread where you've already been given advice.
http://www.immigrationboards.com/eea-ro ... l#p1310843

[vinayunited]

Sorry my bad. Got married in 2013 and clearly Maths is not my strong point. My wife has been completing her PHD so has been a student for the past three years.

So i guess i have to apply for the ROR and the ILR route is closed for me ?

[CR001]

Has your spouse held CSI for the whole time she has been a student? Has she worked at all?

[vinayunited]

Has done some part time tutoring work in university while doing her PHD. Yes she has had insurance during this period.

[CR001]

What insurance? Comprehensive sickness or EHIC?

[vinayunited]

I brought CSI from health online during my EEA2 application and have continued to do so since.

[Casa]

I brought CSI from health online during my EEA2 application and have continued to do so since.

But what insurance did your wife (as your EEA sponsor) have?

[CR001]

What is the period (month/year) that CSI has been held?

What are the month/year she has been studying?

[CR001]

What is the period (month/year) that CSI has been held?

Was it in her name or joint names?

What are the month/year she has been studying?

[vinayunited]

She has been in uni since Sept 2012 (the PHD is a long course)

I setup the CSI when i made my application for EEA2 which was around Dec 2013

It was in her name only.

[vinayunited]

[quote="Casa"][quote="vinayunited"]I brought CSI from health online during my EEA2 application and have continued to do so since.[/quote]

But what insurance did your wife (as your EEA sponsor) have?[/quote]


It was comprehensive health insurance. They asked for it when i made the application for the EEA2 and i have continued to keep the same.

[Casa]

We'll get there in the end....

Was the comprehensive sickness insurance in JOINT names, or your name only?

What insurance did your wife hold throughout her time as a student or while unemployed?

[vinayunited]

No it was only in her name. Since i was employed I didnt think i needed to have it.

She had this comprehensive sickness insurance throughout the whole time in uni.

[secret.simon]

In order for you to apply for ILR on the basis of long residency, you will need to prove that your entire stay as the family member of an EEA citizen was compliant with the EEA Regulations.

In order to do that, your EEA spouse needed to have exercised treaty rights for that entire duration from 2014 till date (though, as you had a PSW visa till December 2015, you could argue that the treaty rights only need to be counted from then on).

Regulation 4(2) of the EEA Regulations requires that for a student to be exercising treaty rights, s/he must have Comprehensive Sickness Insurance for themselves and those family members who are dependent on them for their right to reside. Your working is immaterial (unless you have CSI from a non-NHS health policy at work).

Given that EEA Regulations are meant to be read literally and have no provision for discretion, I would say that your EEA spouse did not exercise treaty rights if her CSI policy did not cover you from December 2015 till date.

If your EEA spouse did not exercise treaty rights or there was a break in her exercising treaty rights, you are not, prima facie, eligible to use that period towards either ILR or PR.