Settled status previous visa requirement (non-EEA spouse)

[ariskar]

In light of immigration changes on settlement for family members (spouse / children) of EEA nationals:

[*]Where a spouse of an EEA national has been married and living with the EEA national for 5 years in the UK.
[*]The EEA national holds PR through EEA(PR) route
[*]The spouse has held non-dependent type of leave or combination of different categories of leave under UK law (Tier, Student, Refugee, etc.). The spouse has not held "resident card of a family member of a union citizen".

1. Can the family member after 5 years of marriage and continuous residence apply for settlement under EU law?

2. Can the family member apply for the status to a "resident card of a family member of a union citizen" and then immediately apply for EEA(PR), ILR, or new "settled status" on the basis of 5 years continuous married life in the UK with the EEA partner?

3. Would the new "settled status" be compatible with settlement for cases like this?

4. The ECJ ruled that an EEA national naturalizing in the EEA state retains their rights (PR for instance) under EU law on the basis of their other EEA nationality. Does naturalization as British Citizen change any of the aforementioned derived rights of the EEA national?

I quote relevant interpretation of HO for article 5 of immigration rules below:

Apparently, the Home Office’s interpretation of paragraph 5.:

EEA Nationals: Home Office Interpretation of Paragraph 5 of the Immigration Rules

Questions have been raised regarding the Home Office’s interpretation of paragraph 5: “save where expressly indicated, these Rules do not apply to those persons who are entitled to enter or remain in the United Kingdom by virtue of the provisions of the 2006 EEA Regulations. But any person who is not entitled to rely on the provisions of those Regulations is covered by these Rules.”

It was confirmed that: “paragraph 5 of the Immigration Rules is intended to reflect section 7 of the Immigration Rules 1988, by virtue of which a person with an enforceable EU law right cannot be required to seek leave to enter or remain under the Rules. However, if they wish to apply under the Immigration Rules, and they meet the requirements, there is nothing to prevent them from doing so.

The correspondence between Clive Peckover (Home Office) and Chris confirmed the following facts:

a) Could a person switch from exercise of EU treaty rights as a self-employed to spouse of a British Citizen Under the Immigration Rules? Yes, it is allowed.
b) Can EEA nationals apply under the Immigration Rules? Yes. If an EEA National wishes to apply under the Immigration Rules, they are entitled to do so.
c) Do a family members of EEA nationals have to apply under the EEA regulations? No, they can choose to apply under the Immigration Rules.

[ariskar]

Direct FM of EEA nationals (p.p. 16/37)

Permanent rights of residence scenario 2

This is an example scenario of how to apply the permanent right of residence test for
direct family members of a European Economic Area (EEA) national worker.
Mrs B, a Jamaican national, lives in the UK with her husband, a German national,
who works full time in the UK. Five years after entering the UK, Mrs B applies for a
document to confirm her right of residence. Mrs B was granted a residence card 4
and a half years ago.
In support of her application Mrs B sends in:
*her own Jamaican passport
*her husband’s German passport
*their marriage certificate
*her husband’s P60’s for the last 5 years and a letter from his employer
*utility bills and bank statements in joint names covering the last 5 years
You accept that Mrs B has provided proof of her own and her husband’s identity.
You also accept they are related as claimed and that Mrs B’s husband has been a
qualified person for the last 5 years.
You also accept that Mrs B and her husband have been continuously resident in the
UK for 5 years. Therefore you issue a permanent residence card to Mrs B.

[secret.simon]

1. Can the family member after 5 years of marriage and continuous residence apply for settlement under EU law?

Yes, provided,
a) the EEA citizen and non-EEA Citizen were married for the five continuous years that both of them were resident in the UK
b) the EEA citizen was either a qualified person or holding PR for the whole five continuous years
c) the non-EEA citizen was absent for less than six months in every year of residence in the UK

It does not matter that the non-EEA citizen did not hold a Residence Card, which is only confirmatory of their status. Their rights as the spouse of an EEA citizen supersede any grant under the Immigration Act 1971.

Such a person would acquire PR automatically under EU law. ILR under the UK Immigration Rules requires 10 years of continuous residence if combining different forms of leave, such as the ones you described. It is also much more expensive (upwards of £2000, as opposed to £65 for PR).

[ariskar]

1. Can the family member after 5 years of marriage and continuous residence apply for settlement under EU law?

Yes, provided,
a) the EEA citizen and non-EEA Citizen were married for the five continuous years that both of them were resident in the UK
b) the EEA citizen was either a qualified person or holding PR for the whole five continuous years
c) the non-EEA citizen was absent for less than six months in every year of residence in the UK

It does not matter that the non-EEA citizen did not hold a Residence Card, which is only confirmatory of their status. Their rights as the spouse of an EEA citizen supersede any grant under the Immigration Act 1971.

Such a person would acquire PR automatically under EU law. ILR under the UK Immigration Rules requires 10 years of continuous residence if combining different forms of leave, such as the ones you described. It is also much more expensive (upwards of £2000, as opposed to £65 for PR).

Excellent news.

If the EEA citizen obtained BC through naturalisation prior to the non-EEA spouse applying for PR. Whould the non-EEA spouse (being on non dependent time-limit resident visa) still be eligible to apply for PR after satisfying (a),(b),(c) points mentioned above?
(Ref. topic: Do dual EU-UK citizens have rights under EU law?)

[ariskar]

After the changes in EEA regulations (implementing Lounes decision), can a family member (spouse) apply for settlement, under the following timeline and circumstances:

*Non-EEA spouse lawfully in UK from 2012-2014 and on 5-year refugee leave to remain since April 2014.
*Non-EEA spouse and EEA spouse get married in August 2015. Non-EEA spouse retains refugee leave.
*EEA national obtained permanent residence through EEA(PR) 5 year qualifying route for residence in 2011-2016 at the beginning of 2017.
*EEA national obtains (second) British citizenship in March 2018
*In late 2018, non-EEA spouse applies for settlement under EEA new scheme rules

By that time:
1. Non-EEA spouse has been in UK for 6.5 years, out of which 3.5 years married to EEA national.
2. Dual British-EEA national has exercised treaty rights before obtaining British nationality as proven by EEA(PR) certificate, period over which he was already married and living with non-EEA spouse in the UK. (New regulation requirement).
3. Non-EEA spouse never held a BRP/visa labelled "family member of an EEA national"

Could the non-EEA spouse obtain PR under EEA Settlement scheme?

[ariskar]

• EU citizen holds EEA(PR) route permanent resident certificate, proving he has bestowed the permanent residency status exercised treaty rights as a qualified person over 5 years.

• Non-EEA spouse is married and living in the UK with EU citizen (last 4 years) and has 5-year refugee leave to remain (not a visa under "family member of EU citizen"), due to expire soon.

• Non-EEA spouse has been resident in the UK for over 5 years (7 continuous years on different types of visas).

Can non-EEA spouse apply for settled status under the EU settlement (permanent residency) route?

[CR001]

Topics merged!!

Please read through the advice that you have already been given earlier in the year when you asked the same question.

Spouse needs 5 years residence from date of marriage.

[ariskar]

Topics merged!!

Please read through the advice that you have already been given earlier in the year when you asked the same question.

Spouse needs 5 years residence from date of marriage.

Thank you CR001. Would that mean the non-EEA spouse would have the option to get a pre-settled status instead of ILR through SET(P) route, at the expiry of current leave?

The issue is that SET(P) ILR processing times could take very long and non-EEA spouse work requires frequent short international business travel and wouldn't want to risk "getting stuck" in the UK without travel ability for several months... (hence my other questions about UKVCAS SET(P) experience with priority/super priority service). In that regard, we are keen to go to the extra expense of priority/super priority fees to follow the route that takes the shortest.

Would priority/super priority service also apply to settlement / pre-settlement EU/EEA route applications in case the spouse elects to apply through that route instead of ILR-SET(P), or is it something yet to be announced?