There has previously been some uncertainty surrounding the possibility of an EEA national being able to apply validly under the Immigration Rules where they do not satisfy the EEA Regulations 2006. The question has arisen more frequently with the recent talks regarding Brexit. Recent clarification from the Home Office may assist some EEA nationals.
In some cases EEA nationals have discovered that if they were self-sufficient or students their time in the UK cannot be counted towards the relevant 5 year period for Permanent Residence, unless they also held fully Comprehensive Sickness Insurance. Regrettably, this is resulting in the EEA national having to wait up to a further 5 years, until they are considered under the Regulations to have 5 continuous years of exercising Treaty Rights. Is there scope for the EEA national to switch out of EU law into leave to remain under British Immigration law?
The Home Office have reconfirmed in a letter dated 9th February 2017 that an EEA national who meets the requirements under the Immigration Rules, for example where the EEA national is the spouse of a British citizen or non-EEA national with indefinite leave to remain in the UK, (and meet all of the requirements under that route) can indeed rely on the Immigration Rules. In recent correspondence the Home Office have stated, “There is nothing to prevent an EEA national applying under the Immigration Rules”. Therefore, it is now clear if the EEA national does not meet the requirements under EEA Regulations the second position would be to rely on the Immigration Rules for leave to remain/indefinite leave to remain, if those requirements are met.
They must however be lawfully present in the United Kingdom, which means they must be exercising treaty rights in some form. With the uncertainty of BREXIT, some EEA nationals may see some attraction in moving out of residence based on European law to a residence based on UK Immigration law.
The Immigration Rules would apply to a variety of situations, for example to an EEA national who has a genuine and subsisting relationship with a British citizen child, or who could apply under the rules for Long Residence.
In addition, an EEA national relying on the Immigration Rules could attend a Premium Service Centre appointment to switch from the EEA Regulations to the Immigration Rules. Anybody attending at the Premium Service Centre may want to have with them a copy of the recent announcement from the Home Office since there has been some confusion over whether the applications can be accepted in person.
The option of switching out of EU law into UK Immigration law may in some circumstances be useful. Such an application may not be straightforward. Our teams in Glasgow and Edinburgh would be happy to assist.