Switching from EU route (Surinder Singh) to UK Immigration law rules

[Hbuk]

Hi,

Due to Brexit, Home office decided that residence card issued under EU legislation will not be valid after Brexit and people will have to re-apply again through whatever procedure will be available. I am due to apply for an EEA residence card ( I got my family permit through SS) but since it will take 6 months or more, I dont see the point going through that route. Has anyone tried to switch to UK immigration route? If yes which application is needed to prove I am a resident of the UK ? It should be straight forward but It proved to be a nightmare doing anything in the UK without a residence card. I feel completely stuck that I cant travel, work, or live normally. Any thoughts on this ?

[Casa]

I believe that the Home Office will require you to submit an application under the Immigration Rules from your home country.

[Hbuk]

It wouldnt make much sense because it will mean I will have to go back to the country of my nationality to apply, while I am considered now as a resident!!!

[Casa]

Much of the Immigration Rules don't make much sense, but there have been reports on the forum of FLR(M) refusals due to not being able to switch routes from EEA Regulations to UK Rules from within the UK.

[Hbuk]

That's quite daunting! I tried to look for the forum listing the info but I couldn't find it. I will be grateful if you could provide the link. Thanks

[tmonaghan]

if you got your family permit through SS; who is British? I mean; that I was under the impression that it would be possible for a EU Citizen to apply for a Visa to enter the UK via the UK Immigration route instead of SS. If you searched more and received confirmation that you can switch you maybe entitled to apply for a Visa based on the following.
I don't see why it would not be possible when seeing the high fees for such Visa.

https://www.gov.uk/uk-family-visa

There must be someway to make it possible. I don't see anywhere that it would not be the case,

[Hbuk]

I am non EEA and I relocated with my husband (UK citizen) to the UK through SS since we both lived and worked in the EU for the last 10 years. I have my family permit but it's expiring soon and I will need a residence card to be more flexible. Since it takes 6 months to be delivered, and the route will cease to exist by March 2019 and I will have to re-apply again according to whatever procedure will be in place so it's not worth it so I am looking into the UK immigration route since we fulfill all the requirements, it's straightforward and it takes 8 weeks Vs RC via SS which takes 6 months!!!!! It will be good if someone can give me some insight.

[CR001]

A spouse visa under the UK immigration route can be applied for in person at a premium centre for a same day decision.

As Casa has already mentioned, there have been refusals of spouse visa doing this within the UK, especially if the spouse is British. We would have to dig out the threads from earlier this year.

[Hbuk]

Thanks for the reply. I would just need to know the reason why it was refused from within the UK because it does not make any sense to refuse people who are genuine and qualify for residence. I just want to be able to do my work from the UK and have a normal life! If you stumble upon the link just past here for me to read through. I will keep this thread up to date with my progress. I have a meeting this Friday with an immigration lawyer to explore my options.

[Casa]

This is an extract from a Freedom of Information request (although it refers in this case to the non-EU family member of an EEA national sponsor who has obtained British citizenship)

"On 16th July 2012, the definition of ‘EEA national’ in Regulation 2(1) of the EEA Regulations was changed so that EEA nationals also holding British citizenship were no longer considered to be EEA nationals.
A non-EEA national family member would not be able to switch from 2006 European Regulations to the Immigration Rules of the United Kingdom in country.

The non-EEA national family member would be required to leave the country and make an application to re-enter the United Kingdom under the Immigration Rules to demonstrate that they meet a different set of requirements for entry clearance."

[Hbuk]

Right, I have read about this change in the regulation but does it apply for sure on British nationals as well as EEA nationals who gained British citizenship? There must be a way out of this maze.

[Richard W]

This is an extract from a Freedom of Information request (although it refers in this case to the non-EU family member of an EEA national sponsor who has obtained British citizenship)

"On 16th July 2012, the definition of ‘EEA national’ in Regulation 2(1) of the EEA Regulations was changed so that EEA nationals also holding British citizenship were no longer considered to be EEA nationals.
A non-EEA national family member would not be able to switch from 2006 European Regulations to the Immigration Rules of the United Kingdom in country.

The non-EEA national family member would be required to leave the country and make an application to re-enter the United Kingdom under the Immigration Rules to demonstrate that they meet a different set of requirements for entry clearance."

Do you have a date for this reply? The rules changed only a few years back so instead of requiring leave to remain under something other than a visitor's visa or similar, not being in breach of the immigration law for some other reason sufficed.

All quotes are taken from the Immigration Rules as updated on 10 August 2017. The most relevant rules are E-LTRP.2.1 and E-LTRP.2.2(b) (same hyperlink):

E-LTRP.2.1. The applicant must not be in the UK-

(a) as a visitor; or
(b) with valid leave granted for a period of 6 months or less, unless that leave is as a fiancé(e) or proposed civil partner, or was granted pending the outcome of family court or divorce proceedings

E-LTRP.2.2. The applicant must not be in the UK –
...
(b) in breach of immigration laws (except that, where paragraph 39E of these Rules applies, any current period of overstaying will be disregarded), unless paragraph EX.1. applies.

As to "in breach of immigration laws" and "visitor":

“in breach of immigration laws” means without valid leave where such leave is required, or in breach of the conditions of leave.
...
A “visitor” is a person granted leave to enter or remain in the UK under paragraphs 40-56Z, 75A-M or 82-87 of these Rules before 24 April 2015 or under Appendix V:Immigration Rules for Visitors on or after 24 April 2015.

One does not need leave if one's presence is allowed by the EEA Regulations.

There would be a problem if admission under a family permit constituted a grant of or recognition of leave to enter or remain, but I am pretty confident that it does not.

So, if Hbuk's husband is in work, by the immigration rules, Hbuk may switch to the UK route without leaving the UK.

[Hbuk]

The last reply seems logic to me as under EEA regulation I can live permanently in the UK without restrictions. There is not limit on SS route users. The tricky part is If I want to travel I will need to have the RC and that process prevents me from making my living! So we are willing to pay just to make our lives smooth. It would be crazy to refuse residence to someone who already have the right to reside!!