Is Home Office correct to refuse settlement scheme because of entry with visitor visa

I was going through a provision in the settlement scheme, which i find most troubling.

The provision states that joining family members should be refused if they entered with a visitors visa and then apply under the scheme.

I think that is wrong and inconsistent with Metock.

I will welcome views from applicants who have been refused under this provision.

A close friend of mine came in on a visitors visa and met a guy (Dutch national), got married and now has pre-settled statues. I just helped her apply for a replacement BRP last week.

Bazinga_ wrote: ↑

Thu Jun 10, 2021 5:57 am

A close friend of mine came in on a visitors visa and met a guy (Dutch national), got married and now has pre-settled statues. I just helped her apply for a replacement BRP last week.

How long ago was that? I believe the restriction around applicants on visitor visas is quite recent, i.e. 2020...

Obie wrote: ↑

Tue Jun 08, 2021 9:51 pm

I think that is wrong and inconsistent with Metock.

Is Metock even relevant to this situation? Metock is based on the rights of EU citizens under the EU Treaties.

Post transition period, the rights of EU citizens and their family members in the UK are governed by a much more narrowly defined Withdrawal Treaty, whose rights seem to mirror just Directive 2004/38/EC rather than the much wider EU Treaties.

That is to say that the very basis of the rights has changed and I am not sure that rights deriving from the EU Treaties (rather than Directive 2004/38/EC) continue intact.

So I suspect that the UK government does not consider itself bound by Metock in the case of family members arriving on a non-EUSS visa after 1st January 2021.

Yes Metock is a decision made by the CJEU before exit day. So under the withdrawal agreement, it is binding on the UK, in its implementation of the terms of the withdrawal.

The whole settlement scheme is inconsistent with EU law, as it proceeds on the basis of leave to remain.

Beneficiaries of the withdrawal agreement should really try and exercise treaty rights until they acquire permanent residence rights.

Relying on the immigration rules is problematic, as there will come a time when UK will seek to make changes to the rules, those whose rights are purely based on the EU immigration rules scheme, will find it hard to qualify.

There could even be a time in future, when the UK may impose conditions for qualifying joining family members, if those people dont have claim under the withdrawal agreement, the UK will be able to get away with it.

kamoe wrote: ↑

Thu Jun 10, 2021 6:48 am

Bazinga_ wrote: ↑

Thu Jun 10, 2021 5:57 am

A close friend of mine came in on a visitors visa and met a guy (Dutch national), got married and now has pre-settled statues. I just helped her apply for a replacement BRP last week.

How long ago was that? I believe the restriction around applicants on visitor visas is quite recent, i.e. 2020...

That is correct. It came into effect after Brexit day.

Obie wrote: ↑

Thu Jun 10, 2021 9:19 am

Yes Metock is a decision made by the CJEU before exit day. So under the withdrawal agreement, it is binding on the UK, in its implementation of the terms of the withdrawal.

The whole settlement scheme is inconsistent with EU law, as it proceeds on the basis of leave to remain.

Beneficiaries of the withdrawal agreement should really try and exercise treaty rights until they acquire permanent residence rights.

Relying on the immigration rules is problematic, as there will come a time when UK will seek to make changes to the rules, those whose rights are purely based on the EU immigration rules scheme, will find it hard to qualify.

There could even be a time in future, when the UK may impose conditions for qualifying joining family members, if those people dont have claim under the withdrawal agreement, the UK will be able to get away with it.

Section 6 of Schedule 1 of the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 expressly displaces retained EU law relating to immigration. Would Metock be displaced by that section?

6(1)Any other EU-derived rights, powers, liabilities, obligations, restrictions, remedies and procedures cease to be recognised and available in domestic law so far as—

• (a)they are inconsistent with, or are otherwise capable of affecting the interpretation, application or operation of, any provision made by or under the Immigration Acts (including, and as amended by, this Act), or

• (b)they are otherwise capable of affecting the exercise of functions in connection with immigration.

(2)The reference in sub-paragraph (1) to any other EU-derived rights, powers, liabilities, obligations, restrictions, remedies and procedures is a reference to any rights, powers, liabilities, obligations, restrictions, remedies and procedures which—

• (a)continue to be recognised and available in domestic law by virtue of section 4 of the European Union (Withdrawal) Act 2018 (including as they are modified by domestic law from time to time), and

• (b)are not those described in paragraph 5 of this Schedule.

(3)The reference in sub-paragraph (1) to provision made by or under the Immigration Acts includes provision made after that sub-paragraph comes into force.

I am not quite sure we are on the same page here.

The policy of the 2020 Social Security Coordination act is to close the door on new EU entrants not covered by the withdrawal agreement.

I believe the relevant provisions you should focus on, are the EU withdrawal Act 2018, which was supplemented by the EU withdrawal act 2020, by the insertion of section 7A, 7B and 7C into the withdrawal act 2018 .

Those provisions ensures that provision of the withdrawal act have direct effect in the UK, and ensure that provision in the act, which mentions Union law or provision, are interpreted consistently with provision or interpretations that existed before the transition period.

I will also refer you to Article 4 of the withdrawal Agreement, especially article 4(4), which protects the status of CJEU ruling before the end of transition provision.

Also see Article 158 of the withdrawal agreement which maintain the jurisdiction of the CJEU in the UK in relation to Part 2 of the agreement until 8 years after withdrawal.

kamoe wrote: ↑

Thu Jun 10, 2021 6:48 am

Bazinga_ wrote: ↑

Thu Jun 10, 2021 5:57 am

A close friend of mine came in on a visitors visa and met a guy (Dutch national), got married and now has pre-settled statues. I just helped her apply for a replacement BRP last week.

How long ago was that? I believe the restriction around applicants on visitor visas is quite recent, i.e. 2020...

Original decision letter to grant her BRC was 21/08/2020. She was granted PSS this year.