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Lounes, Pre-settled status, and continued exercise of treaty rights

Use this section for any queries concerning the EU Settlement Scheme, for applicants holding pre-settled and settled status.

Moderators: Casa, push, JAJ, ca.funke, Amber, zimba, vinny, Obie, EUsmileWEallsmile, batleykhan, meself2, geriatrix, John, ChetanOjha, archigabe

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sfljiaf
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Posts: 60
Joined: Sat Dec 08, 2018 2:47 pm

Lounes, Pre-settled status, and continued exercise of treaty rights

Post by sfljiaf » Sun Jul 07, 2019 8:33 am

Hi all,

I've been helping a friend with their EEA residence card and now pre-settled status application recently, and we have come across a subtle ambiguity that I wonder if anyone else has some thoughts on: With the settlement scheme, if a (extended) family member gets pre-settled status now and wants to apply for settled status a few years down the line, they will again have to submit evidence of their relationship to their EEA sponsor, and of their EEA sponsor's status I assume.

Now, when an EEA sponsor doesn't also have British citizenship, I assume they will simply want to check that the sponsor has pre-settled or settled status at the time of the family member's application for settled status.

But in a Lounes case, the sponsor cannot themselves apply for the settlement scheme, as they already have British citizenship. So what will the condition be on them in such a case? Up until now, the criteria was that the sponsor continued exercising treaty rights after they got British citizenship, meaning essentially that they don't leave the country for more than two years to fulfil the conditions of retaining Permanent Residence under EEA rules. But post-Brexit, PR under EEA rules will cease to exist, right? Does "continuing to exercise treaty rights" have any (likely) defined meaning under those circumstances?

The way we've been thinking, there could be several possibilities of how the Home Office might handle such cases:
(a) They might not allow Lounes cases post-Brexit at all, as in a narrow reading the sponsor cannot keep exercising treaty rights. (Unlikely I think, and would probably open them up to litigation.)
(b) They might interpret the rules as if PR was still a thing, and the condition will be that the sponsor has no absences of more than two years.
(c) They might interpret the rules as if the sponsor had settled status, and allow absences of up to five years.
(d) They might just not check the sponsor's status at all.

I assume (b) is most likely, but I was wondering if anyone here had any firmer thoughts on this?

Thank you!

mezien
Newly Registered
Posts: 28
Joined: Sun Jun 23, 2019 9:37 am

Re: Lounes, Pre-settled status, and continued exercise of treaty rights

Post by mezien » Tue Jul 09, 2019 11:32 am

Noob question and not exaclty answer to your query about Lounes cases, but can't the spouse just apply for British Citizenship through naturaisation by being married to a (now) British citizen and having lived in the country for at least 3 years?

secret.simon
Moderator
Posts: 10975
Joined: Thu Feb 21, 2013 9:29 pm

Re: Lounes, Pre-settled status, and continued exercise of treaty rights

Post by secret.simon » Tue Jul 09, 2019 11:48 am

In this case, the OP is asking about an extended family member, so it won't be the spouse.
mezien wrote:
Tue Jul 09, 2019 11:32 am
can't the spouse just apply for British Citizenship through naturaisation by being married to a (now) British citizen and having lived in the country for at least 3 years?
No, because in any case the spouse also requires to be settled in the UK (either ILR under the UK Immigration Rules or ILR/Settled Status under the EU Settlement Scheme or PR under the EEA Regulations) before applying for naturalisation. All those procedures for settlement require at least five years residence in the UK.

Therefore it is not possible to apply for naturalisation purely on the basis of being married to a British spouse for three years. You need at least five years residence in the UK AND ILR/PR.
I am not a lawyer or immigration advisor. My statements/comments do not constitute legal advice. E&OE. Please do not PM me for advice.

kamoe
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Re: Lounes, Pre-settled status, and continued exercise of treaty rights

Post by kamoe » Tue Jul 09, 2019 1:46 pm

sfljiaf wrote:
Sun Jul 07, 2019 8:33 am
But post-Brexit, PR under EEA rules will cease to exist, right? Does "continuing to exercise treaty rights" have any (likely) defined meaning under those circumstances?

The way we've been thinking, there could be several possibilities of how the Home Office might handle such cases:
(a) They might not allow Lounes cases post-Brexit at all, as in a narrow reading the sponsor cannot keep exercising treaty rights. (Unlikely I think, and would probably open them up to litigation.)
(b) They might interpret the rules as if PR was still a thing, and the condition will be that the sponsor has no absences of more than two years.
(c) They might interpret the rules as if the sponsor had settled status, and allow absences of up to five years.
(d) They might just not check the sponsor's status at all.

I assume (b) is most likely, but I was wondering if anyone here had any firmer thoughts on this?

Thank you!
Since this isn't really a question to provide an actual solution for under current EEA regulations or EUSS, but rather a general reflection on what might be the case post Brexit, should not this be moved to Referendum-News and Developments?
My posts express what I believe are the facts, based on the best of my knowledge, about the topics discussed in this forum. They do not constitute immigration advice.

sfljiaf
Junior Member
Posts: 60
Joined: Sat Dec 08, 2018 2:47 pm

Re: Lounes, Pre-settled status, and continued exercise of treaty rights

Post by sfljiaf » Wed Jul 10, 2019 8:55 am

kamoe wrote:
Tue Jul 09, 2019 1:46 pm
Since this isn't really a question to provide an actual solution for under current EEA regulations or EU Settlement Scheme, but rather a general reflection on what might be the case post Brexit, should not this be moved to Referendum-News and Developments?
I was more interested if there is anything in the current rules about this, or maybe some general law principle that applies to the situation. Otherwise it's just speculation anyway.
secret.simon wrote:
Tue Jul 09, 2019 11:48 am
No, because in any case the spouse also requires to be settled in the UK (either ILR under the UK Immigration Rules or ILR/Settled Status under the EU Settlement Scheme or PR under the EEA Regulations) before applying for naturalisation.
Secret Simon is correct, naturalisation requires settlement first, even if you're married to a British citizen.

Anyway, given the responses I assume that this is simply not decided yet, and we'll have to wait and see. Thank you everyone for chiming in!

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