LONG RESIDENCE (7 YEARS AS A STUDENT+3 YEARS AS EEA SPOUSE)

[GEORGE81]

Hello everyone,
firstly I am happy that I've found you as I do not seem to find any proper advice neither from the lawyers nor from any law websites. Hope your opinion will shed at least some light to my concern.
now, please see below what I am about to write to the HO regardless the possible disappointment to get clarity from them, and please give your opinions on the issue. Thank you very much in advance!

Dear Sir/Madam,

I write to seek your advice on the settlement on the basis of long residence in the United Kingdom that is now considered under paragraphs 276A to D of the Immigration Rules.

I am due to apply for Indefinite Leave to Remain in the foreseeable future and would greatly appreciate if you could help me to be precisely clear whether my immigration history/status falls within the definition of Immigration Directorate’s instructions.
I have been residing in the UK for almost 10 years now. My 10 years residence is based on the student visas and partly on the right of residence under the EEA regulations as a family member of the EEA National.
According to Immigration Directorate’s instructions, provided the applicant meets all the other requirements of the long residence rules, discretion may be exercised to count the time, spent in the UK with the right of residence under the EEA regulations, as if it were a lawful residence.

Quote:

‘‘ 2.3.8 Time spent in the UK with a right to reside under the EEA Regulations
Applications may be received from third country nationals who have spent part of their time in the United Kingdom as the spouse, civil partner or other family member of an EU/EEA national exercising their treaty rights to reside here, but who have not been able to qualify for permanent residence. Alternatively, we may receive applications from former family members who have had a retained right of residence (see Chapter 5 of the European Casework Instructions for more details).
During their time here under the provisions of the EEA Regulations, the individuals would not have been subject to immigration control and would not have required leave to enter or remain. Therefore, they would not fall within the definition of lawful residence given at paragraph 276A.
However, the family members of EU/EEA nationals exercising their treaty rights to reside in the UK are here in a lawful capacity. Provided they meet all of the other requirements, discretion may be exercised to count this time as if it were lawful residence.
This does not affect the rights of family members of EEA nationals to permanent residence in the UK where they qualify for it under Regulation 15 of the Immigration (European Economic Area) Regulations 2006. ‘’

Having read the definition above, unfortunately I do not acquire full understanding of the main concept of the rule.
I have been married to an EEA national since 2007. My Spouse has continually been exercising treaty rights. Provided our marriage continuous to be subsisting, I am not still certain if the discretion may be exercised to count the time, I spent in the UK with the right of residence under the EEA regulations, as if it were a lawful residence, hence to be granted the settlement.

Therefore, I am not convinced whether I qualify for the settlement and if I should apply for ILR.

I would be grateful if given more clarity on the above in order to obtain full awareness of the rule in question and my eligibility for Indefinite Leave to Remain.

Yours faithfully,

[magsi23]

What clarity do you need?, If you have been in UK for 10 years and have continuous lawful residence you can apply for ILR.

[GEORGE81]

Hi Magi,
if you look at this below closely you'll see what clarity i need:)
how would one be sure about HO officer discretion?

during their time here under the provisions of the EEA Regulations, the individuals would not have been subject to immigration control and would not have required leave to enter or remain. Therefore, they would not fall within the definition of lawful residence given at paragraph 276A.
However, the family members of EU/EEA nationals exercising their treaty rights to reside in the UK are here in a lawful capacity. Provided they meet all of the other requirements, discretion may be exercised to count this time as if it were lawful residence.
This does not affect the rights of family members of EEA nationals to permanent residence in the UK where they qualify for it under Regulation 15 of the Immigration (European Economic Area) Regulations 2006. ‘’

[magsi23]

You are applying based on 10 yr LR and not spouse of an EEA national so it will not apply on you. Even the time spent as a visitor is counted towards LR.

As i said before as long as you meet LR criteria that should be enough.


http://www.ukba.homeoffice.gov.uk/sitec ... chapter18/

[GEORGE81]

You are applying based on 10 yr LR and not spouse of an EEA national so it will not apply on you. Even the time spent as a visitor is counted towards LR.

As i said before as long as you meet LR criteria that should be enough.


http://www.ukba.homeoffice.gov.uk/sitec ... chapter18/

you are great encauragement Magsi, and thanks for that, but the quote i pasted in the letter to HO is from exactly the link you provided me.
i know, technically, i should be directly eligible for ILR but it says that if part of 10 years is spent under EEA regulations then it is up to the caseworker to decide, in other words, it is about caseworker discretion. that's what worries me. if it is up to the HO caseworker then why it should be decided for my favour if he/she can still stick to the rule that says: ''During their time here under the provisions of the EEA Regulations, the individuals would not have been subject to immigration control and would not have required leave to enter or remain. Therefore, they would not fall within the definition of lawful residence given at paragraph 276A.''

[imraniqbal2010]

You are applying based on 10 yr LR and not spouse of an EEA national so it will not apply on you. Even the time spent as a visitor is counted towards LR.

As i said before as long as you meet LR criteria that should be enough.


http://www.ukba.homeoffice.gov.uk/sitec ... chapter18/

you are great encauragement Magsi, and thanks for that, but the quote i pasted in the letter to HO is from exactly the link you provided me.
i know, technically, i should be directly eligible for ILR but it says that if part of 10 years is spent under EEA regulations then it is up to the caseworker to decide, in other words, it is about caseworker discretion. that's what worries
me. if it is up to the HO caseworker then why it should be decided for my favour if he/she can still stick to the rule that says: ''During their time here under the provisions of the EEA Regulations, the individuals would not have been subject to immigration control and would not have required leave to
enter or remain. Therefore, they would not fall within the definition of lawful
residence given at paragraph 276A.''

So did u get ILR???

[imraniqbal2010]

You are applying based on 10 yr LR and not spouse of an EEA national so it will not apply on you. Even the time spent as a visitor is counted towards LR.

As i said before as long as you meet LR criteria that should be enough.


http://www.ukba.homeoffice.gov.uk/sitec ... chapter18/

you are great encauragement Magsi, and thanks for that, but the quote i pasted in the letter to HO is from exactly the link you provided me.
i know, technically, i should be directly eligible for ILR but it says that if part of 10 years is spent under EEA regulations then it is up to the caseworker to decide, in other words, it is about caseworker discretion. that's what worries
me. if it is up to the HO caseworker then why it should be decided for my favour if he/she can still stick to the rule that says: ''During their time here under the provisions of the EEA Regulations, the individuals would not have been subject to immigration control and would not have required leave to
enter or remain. Therefore, they would not fall within the definition of lawful
residence given at paragraph 276A.''

So did u get ILR???

Could you please update us if u were successful in your application.Cos i have to go through the same process.
thnx

[imraniqbal2010]

You are applying based on 10 yr LR and not spouse of an EEA national so it will not apply on you. Even the time spent as a visitor is counted towards LR.

As i said before as long as you meet LR criteria that should be enough.


http://www.ukba.homeoffice.gov.uk/sitec ... chapter18/

you are great encauragement Magsi, and thanks for that, but the quote i pasted in the letter to HO is from exactly the link you provided me.
i know, technically, i should be directly eligible for ILR but it says that if part of 10 years is spent under EEA regulations then it is up to the caseworker to decide, in other words, it is about caseworker discretion. that's what worries
me. if it is up to the HO caseworker then why it should be decided for my favour if he/she can still stick to the rule that says: ''During their time here under the provisions of the EEA Regulations, the individuals would not have been subject to immigration control and would not have required leave to
enter or remain. Therefore, they would not fall within the definition of lawful
residence given at paragraph 276A.''

So did u get ILR???

Could you please update us if u were successful in your application.Cos i have to go through the same process.

your quick responce could reliese me from a state of confusion.