ILR/Permanent Residence under family member of EEA national

[mmbecks7]

Hi guys,

I am a bit confused about my situation and am hoping someone can help Basically, I am a non-eu citizen residing in the UK as a family member of an EU national (Polish) as unmarried partners.

Initially, I was granted a 2 year leave to remain (issued in October 2005 and valid until October 2007). We had been living together for 2 years prior to this.

After this, I got the residence card for family member of an EEA national which is valid till Jan 2013, issued in Jan 08.

My question is, when will I be able to make an application for indefinite leave to remain or Permanent Residence as it is known under EU law? Is it in October 2010 (5 years from the time the first visa was issued under this route) or is it from the time the first application was made? Or maybe from when we started to live together, which makes the total period now 7 years?? A bit lost there....

Also, if it's time to apply, what form do I use? EEA4?

Sorry if these questions are obvious, just trying to clarify those points. I hope this makes sense

Many thanks!

[Frudo]

We had been living together for 2 years prior to this.


Also, if it's time to apply, what form do I use? EEA4?

Hi there ,
i will be corrected by moderators if i am wrong but as far as i know, after you have lived in U.K for 5 years starting from your leave2remain you can apply for the P.R, since you have got your EEA2, yes you will be applying under E.U law by EEA4 form.

[Ben]

You shall automatically acquire PR in October 2010.

You may apply for a Permanent Residence card if you wish, but there is no compulsion to do so.

[John]

benifa, I am not sure that is the case. It needs to be appreciated that the first application was granted in October 2005, that is, prior to the current EU Directive coming into force on 30.04.06. So the application granted in October 2005 would have been for a UPV, granted under UK immigration law. That is, it was not granted under the terms of the former EU Directive, and the very good reason for that is that the former EU Directive did not have provisions for unmarried partners.

Accordingly I think mmbecks7 only started to exercise EU Treaty Rights in the UK when the Residence Card was issued in January 2008, and accordingly will not get PR status until January 2013.

mmbecks7, can you confirm that the first visa was indeed issued under UK immigration law, and was a paid-for application .... not free?

Basically, I am a non-eu citizen residing in the UK as a family member of an EU national (Polish) as unmarried partners.

Actually not the case. You are not a "family member" of an EU national. You are their "extended family member", and that means for example that you did not get EU Treaty Rights until the issue of the Residence Card. That is, UKBA had to actually agree that you were indeed an extended family member.

Had the two of you got married, you would be a "family member", and would have automatically acquired EU Treaty Rights from the instant of the marriage. That is, in the case of marriage, the issue of a RC is merely confirmatory, and does not give additional rights. But for "extended family member" it is very different.

[Ben]

Hi John.

mmbecks7 said that he began living with his partner, a Union citizen, in October 2003.

Therefore, by October 2005 (arguably before), he was the partner with whom the Union citizen has a durable relationship, duly attested.

By October 2010, mmbecks7 shall acquire Permanent Residence since he will have legally resided with the Union citizen in the host Member State for a continuous period of five years.

(Assuming, of course, that mmbecks7's partner has been exercising a Treaty right in the UK).

[John]

Therefore, by October 2005 (arguably before), he was the partner with whom the Union citizen has a durable relationship, duly attested.

I think you need to take on board that you are quoting words that only took effect when the new EU Directive came into force on 30.04.06.

Which is why the application needed to be made for a UPV using UK immigration law.

Also appreciate that he has never been a family member of an EU Citizen. Instead he is an "extended family member", but you will appreciate that such status does not happen automatically. It has to be agreed, and in the UK it is UKBA that do the agreeing, by issuing a Residence Card. And RC not issued until January 2008.

[Ben]

Therefore, by October 2005 (arguably before), he was the partner with whom the Union citizen has a durable relationship, duly attested.

I think you need to take on board that you are quoting words that only took effect when the new EU Directive came into force on 30.04.06.

Hi John. The point is, he is currently resident in accordance with the Directive, and by October 2010 he will have legally resided with the Union citizen in the host Member State for a continuous period of five years. Permanent Residence will have been acquired and a Permanent Residence Card must be issued.

Also appreciate that he has never been a family member of an EU Citizen. Instead he is an "extended family member", but you will appreciate that such status does not happen automatically. It has to be agreed, and in the UK it is UKBA that do the agreeing, by issuing a Residence Card. And RC not issued until January 2008.

With the greatest of respect John, I don't entirely agree with you here. "Extended family member" is a UK term, used to refer to those family members described in Article 3(2) of the Directive. Where is it stated that the right of residence of such family members is subject to the approval of the host Member State? Rather, the host Member State is required to facilitate entry and residence for such family members.

[mmbecks7]

Hi guys,

Thanks for the replies... My first visa was issued under EU law and not UK law... I know this because I used a solicitor and I was told exactly that... On my residence card, I have 'Residence card of a Family member of an EEA national' and not extended family as John pointed out.

I have actually spoken to my solicitor again after seeing the conflicting replies and they have confirmed that I do qualify for permanent residence as benifa and Frudo have pointed out.

Thanks for taking the time and replying to the post. It was really helpful.