The authorities may have a point here. If I get your posting right, the non EEA dependents joined the EEA partner in 2001 and were issued with an EEA Residence Permit which has a duration of 4 years (in her case until 2005).

To be entitled to an Indefinite Leave to Remain (ILR) whilst having an EEA permit, you should had lived in the UK for the duration of the 4yr period. Regardless of the current status of the partner his non-EEA family is required to exercise his/her stay to its full duration which should be until 2005 and not anytime earlier to become entitled to an ILR.

With just a year to run on their permit why the rush to take themselves from under EU Law with its better protection and make themselves vulnerable under UK immigration Law. I think there is more to the information that have been provided and until one really gets the full picture and the details of the case its very difficult to make a very informed opinion.

In conclusion though I would say, if they are still married, regardless of any mistake, she is entitled to an ILR sometime this year. But if per some chance prior to the expiration of her EEA permit, she may have taken herself from under EU Law and placed her circumstances under the UK Immigration rules, I would advise that she seeks counsel from a solicitor to get the Home Office to redress such an unnecessary mistake.

As regards your question, I will suggest that they follow option 2:

Re-apply using Form EEC2 since they have now been in the UK for four years?


As regards the technicality of the rejection of the previous application, they were rightly refused the ILR which they were not entitled to at the time of the application. However it does not affect their existing Permit and in all respects they are still legal residents.