Davidclr wrote: ↑
Sat Feb 09, 2019 11:18 am
That would be a loophole.
You are misinterpreting the the issue here.
A non-EU national can indeed apply without their EU national family member applying. It is recommended they both apply, as this way their application will be linked and more straightforward, but this is not necessary (for example, for non-EU family members of Irish citizens).
if for whatever reason your partner does not want to apply for the scheme, you are in a loophole, lets say;
you arrived in the UK as a student, working and paying tax, etc... and stay for 3 years, met you partner and got a RC 2 years ago. so you have a RC for 2 years, you have been in the UK for 5 years in total. you are entitled to settled status according to the the settlement scheme.
This has been widely discussed in a number of posts in this forum:
For non-Eu nationals, does time spent under other visa categories, other than EEA RC and RC Family permits, count towards the 5 years needed for settled status?
To the best of the understanding of the members of this forum, the answer has always been NO. Only time spend under EEA route counts.
(Now, this is an understanding and not, as of yet, a proven and empirical confirmation of how settled status works, as seems like all those interesting non-EU cases with more than 5 years under different visa categories are the ones being held for the end).
Part of the confusion, I believe, is the fact that the wording the HO uses to describe the "entitlement" for Settled Status does not clarify its audience. It says that as long as "you" have spent more than 5 years in the UK "you" will be granted settled status, but it is very likely that "you" only applies to EU citizens, not their non-EU family members. This, I believe, is a massive oversight on the part of the HO, as applicants to the scheme include non-EU family members, and thus they should really clarify what conditions apply specifically to non-EU members.
Example: I have spent over 9 years in the UK, and only 3 as a RC holder. Yet I was offered Settled Status at the end of my submission. My application is almost two weeks old and I'm still waiting a decision. I see other non-EU applications being decided within two days, with Pre-Settled status as an outcome. I would have though my application had a straightforward Pre-Settled outcome, as only 3 years under RC. So how come it has not yet been decided?
My only explanation and personal opinion is that it is eerily very possible that the HO has simply not thought this through and they have not laid out clearly what the outcome should be in these cases of non-EU applicants having spent over 5 years in other visa categories. And that this is the reason these applications are taking so much longer. Because they don't know what to do with us!
The HO Can't give you settled status because that would be as if they were speeding up your process because would take you another 3 year to be able to apply to Indefinite leave to remain.
I don't this is necessarily in conflict. If they laid out clear legislation that entitles people who meet certain conditions to Settled Status, then if a person meets those conditions, the fact that they also meet conditions to attain ILR via other routes with less advantageous conditions should not be a reason not to grant them this. People often have different options for different visas and residence permits, and they can choose the best route for their case.
The HO also can't give you pre settled status because that is the wrong status for as you are entitled to settled status.
As explained above, the issue could be, precisely, that it is not clear if in these case you are entitled to Settled Status or not.
They also can't refuse your application as it would be bad data for them. and wrong.
I... do not think they can legally do this.
It is a catch 22. you are stuck. you file will be put aside as dealing with would take time.
Back to base 1 of this discussion!
The HO will wait until you 30 of March and send you an email saying, "we appreciate that you applied for the settled scheme during the test phase. but as the UK reached a deal with the EU or as the Uk will postpone brexit or as the UK is no longer leave, your application is no longer need, you will need to go through the normal process in order to get an ILR in future.
The only scenario where I could see this happening is if Brexit was cancelled, in which case, I think people would be offered the option of withdrawing the applciation. But since the Windrush scandal, I think there would be still grounds to argue the process is still valid to establish legal residence of Eu nationals, do I don't think it will be scraped altogether in a no-Brexit scenario, it would just become less urgent.
My posts express my personal opinion, formed with the best of my knowledge, about the topics discussed in this forum. They do not constitute immigration advice.