Pre-settled status holder sponsoring Non-EU fiance via UK family visa

[Bollox]

Would someone be able to help please.

Can a person with pre-settled status (granted on the basis of retained rights of residence) sponsor non-eu fiance via UK family visa route?

Thank you.

[CR001]

No they cannot. If they are a non EU citizen, they can only sponsor a partner under the more strict and costly UK immigration rules once they have settled status.

Only an EU citizen can sponsor family under the EU rule and EU settled scheme.

[Bollox]

No they cannot. If they are a non EU citizen, they can only sponsor a partner under the more strict and costly UK immigration rules once they have settled status.

Only an EU citizen can sponsor family under the EU rule and EU settled scheme.

Thank you for your quick response. So in short, Non EU with pre-settled status cannot get married to another non-EU person and sponsor under UK immigration?

Regards

[CR001]

Nothing prevents them from getting married, but they cannot sponsor a spouse to migrate to the UK with pre-settled status. A non EU spouse can only be sponsored once the nom EU spouse in the UK has settled status.

[secret.simon]

Nothing prevents them from getting married, but they cannot sponsor a spouse to migrate to the UK with pre-settled status. A non EU spouse can only be sponsored once the nom EU spouse in the UK has settled status.

Hold on to that thought, @CR001. I read somewhere recently (not sure if it was on these forums or elsewhere online) that the government has put forward amendments to the UK Immigration Rules to allow people with pre-settled status to sponsor non-British spouses on the same terms as settled peoples (i.e. effectively on FLR(M)). I'll see if I can find the link for that.

However, at the moment, @CR001's advice is correct.

[Bollox]

Nothing prevents them from getting married, but they cannot sponsor a spouse to migrate to the UK with pre-settled status. A non EU spouse can only be sponsored once the nom EU spouse in the UK has settled status.

Hold on to that thought, @CR001. I read somewhere recently (not sure if it was on these forums or elsewhere online) that the government has put forward amendments to the UK Immigration Rules to allow people with pre-settled status to sponsor non-British spouses on the same terms as settled peoples (i.e. effectively on FLR(M)). I'll see if I can find the link for that.

However, at the moment, @CR001's advice is correct.

Thank you. Please share the link.

regards

[Obie]

Nothing prevents them from getting married, but they cannot sponsor a spouse to migrate to the UK with pre-settled status. A non EU spouse can only be sponsored once the nom EU spouse in the UK has settled status.

Hold on to that thought, @CR001. I read somewhere recently (not sure if it was on these forums or elsewhere online) that the government has put forward amendments to the UK Immigration Rules to allow people with pre-settled status to sponsor non-British spouses on the same terms as settled peoples (i.e. effectively on FLR(M)). I'll see if I can find the link for that.

However, at the moment, @CR001's advice is correct.

I will not be too excited about this if I was you, it scope is limited. GEN 1.3(d) was inserted to include EEA national with pre-settled status. It does not cover non-EEA national

[secret.simon]

Thank you as always, @Obie.

I found the text and Obie is spot on.

On Page 157 of the Statement of Changes in Immigration Rules published on 22nd October 2020;

(d) references to a person being “in the UK with limited leave under Appendix EU” mean an EEA national in the UK who holds valid limited leave to enter or remain granted under paragraph EU3 of Appendix EU to these Rules on the basis of meeting condition 1 in paragraph EU14 of that Appendix; and

To the OP: I apologise for my incorrect advice. @CR001 is correct. You will only be able to sponsor your non-EEA spouse after you are granted Settled Status.

[Obie]

Also see:

“(c) in the UK with refugee leave or with humanitarian protection; or
(d) in the UK with limited leave under Appendix EU, in accordance with paragraph GEN 1.3.(d); or
(e) in the UK with limited leave as a worker or business person under Appendix ECAA Extension of Stay, in accordance with paragraph GEN.1.3.(e).”.

Not sure whether this will be lawful though in relation to people with Retained right of residence, but we shall see what the courts have to say about this, in relation to equal treatment for beneficiary of the treaty provision.

[secret.simon]

Not sure whether this will be lawful though in relation to people with Retained right of residence, but we shall see what the courts have to say about this, in relation to equal treatment for beneficiary of the treaty provision.

I think that the government's logic is that this provision essentially preserves the status quo.

Before 31st January 2020, EEA citizens who are divorced from an EEA citizen sponsor can sponsor any future spouse themselves in their own right (as EEA citizens), while non-EEA citizens with retained right of residence can't do that under the EEA Regulations/EU law anyway.

GEN.1.3(d) essentially allows the EEA citizens who arrived after 31st December 2020, as spouses of relevant EEA citizens, to retain the ability to sponsor their future spouses, while retaining the block on non-EEA citizens with retained right of residence.

That is to say that there is no change between the two statuses. The former could always sponsor their spouses, while the latter couldn't.

And that seems to be in keeping with the Withdrawal Agreement.

A clear distinction is drawn between Article 13(2) of the WA (Family members who are either Union citizens or United Kingdom nationals) and Article 13(3) (Family members who are neither Union citizens nor United Kingdom nationals).

The latter preserves Article 13(2) of Directive 2004/38/EC, which specifically states that "Such family members shall retain their right of residence exclusively on personal basis.", which limitation does not apply to those under Article 13(2).

[Obie]

Cannot argue either way. Need to study it much more.

This is an issue the Upper Tribunal face several years back in the case of RK. It may well come sometimes in the future in the case of RK.

The only difference between the 2 categories of sponsors appears to be nationality. They both have similar residence rights.

We shall see.