Should leave if visa exprired? (waiting RC)

[Richard W]

One thing that would protect you is that it might not be 'proportionate' to remove you between visa expiry and the grant of the residence card.

While it may or may not be proportionate to remove her, she would be an overstayer and that would affect her "good character" for any forthcoming applications.

Is such a rule being applied? The logical position would be that anyone who failed to achieve permanent residence within 5 years and 3 months of their most recent arrival in the UK, and had had no non-EEA basis of stay, was of bad character.

... The sentence immediately preceding the sentence you have highlighted states

Section 3C does not extend leave where an application is made for a residence card under the EEA Regulations

The reason that Section 3C does not apply is because EEA applications are not requests for leave to remain, but merely confirmation of a right to stay in the UK.

But for EFMs, such a right to stay in the UK is not pre-existing. It only comes into existence when the Home Office confirms it.

So, between the time your T5 visa expires and your EFM RC is issued, your residential status in the UK would be as an illegal overstayer.

An EEA application by an EFM who is not yet to be treated as a family member is not a request for a confirmation of a right to stay, but a request to be treated as such, and thus effectively a request to be allowed to remain while circumstances are as at the time of application. Therefore the claimed reason that Section 3C does not apply cannot be the correct reason.

An alternative line of reasoning is that the application backdates the right to be treated as a family member to the date of the application. Then, it would be an application for a confirmation of status, and so 3C would not apply and would not be needed. However, I have grave doubts that residence under the EEA Regulations can be said to have started at the date of the application.