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EU & Brexit Deal

This is the area of this board to discuss the referendum taking place in the UK on 23rd June 2016. Also to discuss the ramifications of the EU-UK deal.

Differing views will be respected. Rudeness to other members will not be welcome.

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Richard W
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Re: EU & Brexit Deal

Post by Richard W » Thu May 03, 2018 6:37 pm

The draft treaty is confusing. It has several contradictions and ambiguities. The definition of a 'family member' is allegedly given in Article 8, and is restricted to people in the personal scope of Article 9. Article 9 then defines the personal scope of Titles I and II of Part 2 of the treaty. There are four categories, namely (a)-(d). there that broadly correspond to 'qualified persons', and other categories that consist only of family members as defined in Article 8 and extended family members. This definition is circular! A logically possible interpretation is that the only people who are family members are some of the people who are in categories (a)-(d) or are also extended family members!

A more reasonable interpretation is to take the most inclusive definition consistent with the two articles. This is equivalent to Article 9 using the definition in Article 8 without the restriction by Article 9, and then restricting the term 'family member' in Article 10 onwards to mean those satisfying the definition in Article 8 who are also included in Article 9.

The next question is whether the list of family members is frozen at the end of the transition period. As people not yet born at the end of the transition period will be included by Article 9(e)(iii), I believe the definition is dynamic.

So, what happens when a qualified person divorces from his TCN spouse? According to Article 8, the TCN spouses ceases to be a family member, and so by Article 9 is therefore no longer covered by Part 2 of the treaty. However, Article 12(3) of the draft treaty says that they have the residence right set out in Section 13(2) of 2004/38/EC, which says that the TCN ex-spouse may retain a right of residence! I can see two resolutions of this:

(a) The definition in Article 8 of the treaty was meant to include those who have ever been family members according to Article 2(2) of the Free Movement Directive.

(b) Ex-spouses who marry another EU citizen can exercise a retained right of residence in respect of the first so as to acquire permanent residence if the second persons is not a 'qualified person' or 'permanent resident'.

Article 14 (3) says, "Once acquired, the right of permanent residence shall be lost only through absence from the host State for a period exceeding five consecutive years." This looks like a contradiction, but perhaps the right of permanent residence is only active while the holder is in scope under Article 9. I would expect that the EU-law derived settled status would truly be indefinite; in particular, it would not be lost by TCNs on bereavement.

I can see a lot of legal work arising from this treaty.

Alanran
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Re: EU & Brexit Deal

Post by Alanran » Thu May 03, 2018 7:52 pm

Oh gosh , imagine someone being legal for 7/8 years , working and have normal life , just wake up in the morning to find out she/ he is illegal now ..

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Artur111
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Re: EU & Brexit Deal

Post by Artur111 » Sun May 06, 2018 7:34 pm

so the only possible solution here is to apply for British citizenship?
otherwise come March 2019 and I will lose my right to be in the UK?
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Richard W
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Re: EU & Brexit Deal

Post by Richard W » Mon May 07, 2018 12:58 am

Artur111 wrote:
Sun May 06, 2018 7:34 pm
so the only possible solution here is to apply for British citizenship?
otherwise come March 2019 and I will lose my right to be in the UK?
Well, your right will last until the end of the transition period, so longer. However, you may lose settled status earlier. EEA nationals have abruptly lost settled status before, in 2000, when being a 'qualified person' suddenly ceased to convey settled status, and EEA nationals had to obtain ILR in order to be settled. If there is a set date on which permanent residence will be lost, it makes no sense for that person to be considered to have no time limit on their right to be in the UK. You require settled status to apply for British citizenship.

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Artur111
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Re: EU & Brexit Deal

Post by Artur111 » Mon May 07, 2018 12:35 pm

Do you think I can apply for ILR which will replace my PR?
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Richard W
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Re: EU & Brexit Deal

Post by Richard W » Mon May 07, 2018 3:41 pm

Artur111 wrote:
Mon May 07, 2018 12:35 pm
Do you think I can apply for ILR which will replace my PR?
ILR on the basis of 10 years lawful residence looks possible - provided that you clock up 10 years before the end of the transitional period.

It is conceivable that the Home Office will be more generous than the treaty requires, and allow you to apply for settled status on the basis of your PR. This is still a common belief, but the evidence supporting it is weak.

Richard W
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Re: EU & Brexit Deal

Post by Richard W » Tue May 08, 2018 7:52 pm

I had been wondering if I had missed something in the draft treaty, for it did not seem to cover non-EU EEA nationals and countries. Well, it seems that it doesn't - https://www.gov.uk/government/news/plan ... and-norway.

Mugen
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Re: EU & Brexit Deal

Post by Mugen » Thu Jun 21, 2018 3:14 pm

Details on new settlement scheme published today.
https://www.gov.uk/government/news/home ... u-citizens

As an Apple user, Im not happy.

rooibos
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Re: EU & Brexit Deal

Post by rooibos » Thu Jun 21, 2018 4:05 pm


Richard W
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Re: EU & Brexit Deal

Post by Richard W » Thu Jun 21, 2018 7:29 pm

Richard W wrote:
Mon May 07, 2018 3:41 pm
Artur111 wrote:
Mon May 07, 2018 12:35 pm
Do you think I can apply for ILR which will replace my PR?
ILR on the basis of 10 years lawful residence looks possible - provided that you clock up 10 years before the end of the transitional period.

It is conceivable that the Home Office will be more generous than the treaty requires, and allow you to apply for settled status on the basis of your PR. This is still a common belief, but the evidence supporting it is weak.
The statement of intent is indeed much more generous than the treaty requires. I believe your permanent residence will be transformed to ILR on application, though you should check the wording.

As an allegedly trained nit picker ('Analysis I' was the course according to the schedule), the only gap I can find is the status of stateless family members - draft Rule EU9(c) and the definitions of 'required proof of identity and nationality' and 'specified relevant document' on p55. Now, I may be misunderstanding the term 'passport'. As I read things, a person who cannot obtain a passport has no right to a residence card, but may still have a right of residence. That half-way house will no longer exist; a person subject to immigration control will require leave to remain.

I further trust that there will not be problems because a current EU citizen is denied a passport, e.g. British citizens denied a passport because they have documents in more than one name.

rooibos
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Re: EU & Brexit Deal

Post by rooibos » Thu Jun 21, 2018 7:35 pm

Richard W wrote:
Thu Jun 21, 2018 7:29 pm

The statement of intent is indeed much more generous than the treaty requires. I believe your permanent residence will be transformed to ILR, though you should check the wording.
You haven't read the document. This will be a special case of IRL, but not IRL. And it seems to me that, at least on paper, the conditions will be stricter than for the EEA-PR.

The thing is: I cannot trust this government; I cannot trust this Home Office and their predecessors. They are compulsive liars. They'll move the goal post at any occasion. Vote Leave promised an "automatic ILR" for all EU citizens. Where is it? The burden of proof is always on us. I am prepared for the worst. This will be Windrush on steroids, but this time there will be no happy ending.

Richard W
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Re: EU & Brexit Deal

Post by Richard W » Thu Jun 21, 2018 8:02 pm

rooibos wrote:
Thu Jun 21, 2018 7:35 pm
Richard W wrote:
Thu Jun 21, 2018 7:29 pm
The statement of intent is indeed much more generous than the treaty requires. I believe your permanent residence will be transformed to ILR, though you should check the wording.
You haven't read the document. This will be a special case of IRL, but not IRL.
I have. It will be a more resilient class of indefinite leave to remain, surviving a 5 year absence. If my memory serves me right, ILR resilience currently depends on the holders national status (or history thereof). If my memory serves me right, it lasts indefinitely for British nationals, but has to be nourished by residence in the UK for others.

Richard W
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Re: EU & Brexit Deal

Post by Richard W » Fri Jun 22, 2018 1:47 am

Richard W wrote:
Thu Jun 21, 2018 8:02 pm
surviving a 5 year absence
Or, rather, up to but not reaching 5 years.

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Artur111
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Re: EU & Brexit Deal

Post by Artur111 » Fri Jun 22, 2018 9:10 am

Richard W wrote:
Thu Jun 21, 2018 7:29 pm
Richard W wrote:
Mon May 07, 2018 3:41 pm
Artur111 wrote:
Mon May 07, 2018 12:35 pm
Do you think I can apply for ILR which will replace my PR?
ILR on the basis of 10 years lawful residence looks possible - provided that you clock up 10 years before the end of the transitional period.

It is conceivable that the Home Office will be more generous than the treaty requires, and allow you to apply for settled status on the basis of your PR. This is still a common belief, but the evidence supporting it is weak.
The statement of intent is indeed much more generous than the treaty requires. I believe your permanent residence will be transformed to ILR on application, though you should check the wording.

As an allegedly trained nit picker ('Analysis I' was the course according to the schedule), the only gap I can find is the status of stateless family members - draft Rule EU9(c) and the definitions of 'required proof of identity and nationality' and 'specified relevant document' on p55. Now, I may be misunderstanding the term 'passport'. As I read things, a person who cannot obtain a passport has no right to a residence card, but may still have a right of residence. That half-way house will no longer exist; a person subject to immigration control will require leave to remain.

I further trust that there will not be problems because a current EU citizen is denied a passport, e.g. British citizens denied a passport because they have documents in more than one name.
Morning everyone,

Thank you Richard for your input.

I have read the statement of intent and I think I will be able to convert my PR into ILR (at least based on what is written on page 29 - 6.9).

Let see what the real process will be like. Anyways I have passed Life in The UK already preparing for naturalisation process in case my PR is not converted.

Artur
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Learn from yesterday, live for today, hope for tomorrow.
The important thing is not to stop questioning.

Albert Einstein

Daniann
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Re: EU & Brexit Deal

Post by Daniann » Fri Jun 22, 2018 9:43 am

I have question ,
What is the position of family member or EEA who hold PR already and his wife ( EEA) hold OR as well
But they got divorce ( after both had their PR)
Can he still apply for the new ILR

softy monster
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Re: EU & Brexit Deal

Post by softy monster » Fri Jun 22, 2018 10:42 am

what has got to do with ILR? ILR UK Law - PR EU Law (I think you meant the new settled status)
Do you have a PR, and if yes why don't you apply for a citizenship! if you don't do that now then you will be applying for the new settled status from march 2019, but free of charge as you already have a PR

all the best
Non-EEA (McCarthy Transitional Arrangement case)
PR card rec/dated:28 April 17
British Citizen: Dec 17

Daniann
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Re: EU & Brexit Deal

Post by Daniann » Fri Jun 22, 2018 11:21 am

Daniann wrote:
Fri Jun 22, 2018 9:43 am
I have question ,
What is the position of family member or EEA who hold PR already and his wife ( EEA) hold OR as well
But they got divorce ( after both had their PR)
Can he still apply for the new ILR
Thank you for your reply but I think you didn’t understand my question .
Richard W , could you please give me your opinion as I can see from your replies your have good understand about the withdraw agreement and what the HO announced yesterday
Thank you guys
Thank you

Richard W
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Re: EU & Brexit Deal

Post by Richard W » Fri Jun 22, 2018 6:22 pm

Daniann wrote:
Fri Jun 22, 2018 9:43 am
I have question ,
What is the position of family member or EEA who hold PR already and his wife ( EEA) hold OR as well
But they got divorce ( after both had their PR)
Can he still apply for the new ILR
Basically, yes. In the simple case, he will have a valid PRC, and will thereby satisfy Condition 1 of draft Immigration Rule EU11, by virtue of its validity not be the subject of an outstanding deportation order, exclusion order, or exclusion decision (Rule EU15 (a) and (b)). The only slight complication in general is that it must not be the case that "The applicant is subject to a removal decision under the EEA Regulations on the grounds of their non-exercise or misuse of rights under Directive 2004/38/EC" (Rule EU15 (c)). That rule could bite several people, but should not be relevant to a non-EEA national who has permanent residence.

If a PRC is not held, the equivalent of a derived right of residence will apply; this equivalent is not lost on achieving permanent residence.

There are cases where those whose right to reside currently depends on frequently crossing the border would be vulnerable; they're clearly such bad characters that they should not be allowed to stay. This bit of EU15(c) contradicts other parts of the statement of intent. Or have I misunderstood the wording?

Daniann
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Re: EU & Brexit Deal

Post by Daniann » Fri Jun 22, 2018 9:53 pm

Thank you Rechard W , according to my understanding the answer is yes he can exchange his PR into ILR in the normal case , which really I didn’t understand or the other terms you were discussing .
But thank you

aarontran2506
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Re: EU & Brexit Deal

Post by aarontran2506 » Sun Jun 24, 2018 7:34 pm

There is one gap in the statement of intent that I couldn't find anywhere. I hope the experts in this forum could enlighten me. I am a non-EA male married to a Romanian woman who will qualify for the new "settled status" (equivalent to permanent residence) in November 2019, my 5-year residence card lasts until 2023 so under the new settlement scheme I will have to switch this 5-year residence card to a 5-year "pre-settled status". So assuming that in November 2019, my wife will have her "settled status" and I will have switched my residence card to the 5-year "pre-settled status". And the unknown gap is here, if she then applies for British citizenship in November 2020 (1 year after acquiring her settled status), what kind of permanent residence will I be applying for in 2023 after being her family member for 5 years? will I have to apply for ILR because she will have become British by that time, or can I just switch the "pre-settled status" to "settled status" free of charge (as per the statement of intent) ?

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