Lounes, Pre-settled status, and continued exercise of treaty rights
Posted: Sun Jul 07, 2019 9:33 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!
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!