Sorry, I know it seems confusing
you get PR on the basis of (briefly discarding the EEA's requirement to exercise Treaty Rights for the 5 years you live together):
1) Having resided with the EEA for 5 years;
2) That joint residence should be "in accordance with the "EU Law" i.e. being a family member/extended family member;
3) When you marry and provided your EEA is exercising Treaty Rights, you are a family member of the EEA and are living in accordance with the "EU Law". But that is only ONE of the situations where you are regarded a family member, you could never get married, live in a durable relationship as a couple and still be regarded a family member, thus living with the EEA national "in accordance with the EU Law";
Many don't notice this subtlety as mostly people only come to the UK as the spouses etc, being family members on this basis from the outset and the 5 years starts to tick from when they enter on that basis. However, consider situations such as Id here:
a) he/she might have been in the UK on some other visa, living with the EEA in a durable relationship (thus, hypothetically qualifying as a family member/
extended family member);
b) then they get married and Id becomes a "family member" but why should the time before marriage not count? The law is clear as to the requirement, all one needs is 5 years living together, EEA exercising Treaty Rights. Now, proving it may be harder because you wouldn't have the solid evidence as you have with the Marriage Certificate etc. But in theory this should be allowed.
Imagine a situation where Id just carries on living with the EEA forever, without getting married, Id would qualify as an extended family member (provided proof can be provided) and after 5 years of such joint residence Id could apply for PR, without ever getting married!
So, why should those who decide to eventually get married lose out on the time they had lived together in the UK as counting towards joint residence? They shouldn't, but since there are few such cases etc, and most people don't think as deep as Id did, this gets ignored.
Finally, on a practical note it is quite another thing to persuade the UKBA caseworker to take time and think about it, since they will (as already said) look at the date of the marriage certificate, count five years and if it doesn't add up, refuse the application.
Others would probably correct me, but you could then appeal to an Asylum and Immigration Tribunal trying to fight your case, if they refuse, go all the way to Judicial Review to prove that public body erred in law as they are meant to interpret any UK legislation in the light of the Directives etc.
And Post post scriptum, even if you do manage to get PR that 1 year earlier, I guess the next stage would be to go for Naturalisation (where you need to have been resident in the UK for a year without any restriction on your stay), problem here would be that, by the time you obtain the PR through the appeals etc, it would have taken a year anyway, so if you wanted to prove that you were entitled to PR on such and such a date, you'd need to write another covering letter explaining that you actually are due PR a year before your 5th anniversary, soo.... quite some info to digest.
(apologies for my "eloquence"
Thus, if you see my point, ould be either through 5 years MARRIED (which is easier to prove as you have
CheGuevara wrote:Getting all confused, do you get permanent residence based on 5year residency or on 5 years marriage - my mate has been married 6 years and resident under EU law for 2 and a half years but were cohabiting 5 years b4 marriage. Any ideas
