I believe it was a missed opportunity for the Court of Appeal not to have dealt with the question of whether this is acceptable under EU law principle, that similar protection that Section 3C confers is not extended to EEA nationals and their family, especially in the case of Durable partner of EEA nationals, who apply for Residence Card before their leave expires.
If these people where in a Durable relationship with a British or Settled person, they will be able to apply under the rules and obtain Section 3C rights, but because they are in a relationship with an EU citizen, they are precluded from working for 6 months, and their career opportunities or interest may be disrupted. There lawful residence may come to an end, and they may be refused citizenship for unlawful residence.
In my opinion,such situation is beyond any degree of absurdity.
AS (Ghana) v Secretary of State for the HomeDepartment [2016] EWCA Civ 133 (20 January 2016) was bound to fail on its fact, as he did not have any rights under the regulation, and the subsequent FLR(O) application could not cure that, after his appeal had failed.
Interesting Article from Freemovement.
4. The question before us is whether a person who at one stage was the spouse of an EEA citizen with a right of abode in the United Kingdom but no longer has that status and right is to be treated as having leave either under the Immigration Act 1971 or otherwise after his application for permanent residence as the former spouse of an EEA citizen has been rejected.
The answer is a firm “no”.
Under the Immigration Act 1971 sections 3C and 4, someone applying for variation of leave under that Act — that is under UK immigration law, rather than the 2006 Immigration (EEA) Regulations — has their leave extended pending a decision on whether to vary the leave or not. However, states Lord Justice Beatson, that is the 1971 Act. The Immigration (European Economic Area) Regulations 2006 are a different matter, and a different procedural system applies to them.
Mr Kannangara’s submission that a person “should” have a status in effect similar to that given by section 3C of the 1971 Act is in effect a submission as to a reform designed to put such a person in a similar position to a person with leave under the 1971 Act. That process, however, is one for the legislature and not for the court.
The final nail in the coffin is the point that the 2006 Regulations themselves recognise the distinction between the processes under the different immigration systems.
As well as the provisions to which I have referred, paragraph 4(2) of schedule 2 to the 2006 Regulations expressly provides that a person who has been issued with a residence card shall have no right of appeal under section 82(1) of the 2002 Act, and regulation 19(5) recognises the distinction between the right to reside under EU law and the right to remain under the 1971 Act. It provides that a person must not be removed as a person who does not have or ceases to have a right under the 2006 Regulations it he has a right to remain by virtue of leave granted under the 1971 Act.
