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Third country nationals with Pre settled
I’m tying myself up in knots here.
I note that both Mrs Fratila and CG were EEA nationals, what’s the state of play for third country nationals? Can they take advantage of the charter arguments still outstanding after CG?
I don’t think I’ve seen a third country national before; is there anything interesting legally where we’ve granted presettled? I suppose it’s just LLR with recourse to public funds but no R2R & no means to exercise treaty rights probably means no entitlement to UC. We do that with NRPF all the time but is it different for people who came here with EU rights?
What’s troubling me is that when she arrived she was exercising treaty rights as she joined her EU partner here however he’s certainly not a qualified person at the material time so the easement at 10(5) I(EEA) can’t bite; he’d been working in another EU state for quite some time and doesn’t have 12 months’ continual status/employment here to retain worker status.
On my reading of the charter it looks like it applies to everyone rather than just EEA nationals.
i would appreciate peoples’ thoughts.
[ Edited: 15 Sep 2022 at 03:09 pm by Dan Manville ]I’m pretty sure they can. How far the CG arguments might actually take things we’ll have to see with that trench of cases currently at the UT.
I have one myself at the moment - Nigerian national, worked herself for NHS Track and Trace for a couple of months shy of 2 years until it ended in March. Then took planned 3 weeks holiday with Irish husband to Nigeria- he abducted the kids and returned to the UK after the first week (so clearly pre-planned) and also stole her passport, meaning it took her some 4 months to obtain a replacement and EU family member travel permit. Unsurprisingly, there’s a previous history of DV and coercive control.
UC have decided no RtR. It appears one element of the decision is straightforward loss of habitual residence ‘in fact’ due to the 4 month absence! - though that part easy to deal with. And if only they were divorced, I’d also be able to argue ‘would be a worker’ as status retained as 4 month gap before registering as unemployed not an undue delay in the circumstances.
I’ve got the “spouse of a qualified person” argument but I very much suspect that one will end up not stacking up - he’s supposedly self-employed but I my intuition tells me will either have not registered with HMRC or under-declared his earnings to avoid tax (wrong ‘uns gonna do wrong). One thing proving cash-in-hand/black economy activity in respect of a claimant, but very different trying to prove it in respect of a former partner who doesn’t want to co-operate.
Anyway, the point of mentioning this is I have discussed this particular case with one of those at CPAG running the CG cases at the UT - and there was no suggestion that my client won’t be able to use these arguments in the event that the spouse of a qualified person argument does fall apart. And though I’d say don’t quote me, I think a couple of the the claimants in their cases might be 3rd country nationals - certainly, part of our discussion involved mention of the fact that the very people who might have to rely on destitution arguments are in the majority of cases likely to be in similar situations to my client - i.e. 3rd country nationals who have been victims of DV.
Cheers Simon but something’s just struck me as I’ve read your post.
What’s to stop them applying for the Destitution Domestic Violence [s]Easement[/s] concession instead; instant leave to remain and access to UC thus remedying the concerns ECJ aired about the charter?
An alternative translation of that is “oh heck have I been doing it all wrong?”
Gulp!
[ Edited: 20 Sep 2022 at 03:04 pm by Dan Manville ]We have a Third Country national who has recently been granted Leave Outside the Rules (LOTR) under the Destitution Domestic Violence Concession (DDVC). She has habitual residence, and limited leave for a period of 3 months “to allow her to access safe accommodation while she completes and submits an application for indefinite leave to remain as a victim of domestic violence”. The letter granting leave came with another letter to present to DWP, on the strength of which she has been awarded UC.
Your client should see an immigration lawyer.
Cheers Simon but something’s just struck me as I’ve read your post.
What’s to stop them applying for the Destitution Domestic Violence Easement instead; instant leave to remain and access to UC thus remedying the concerns ECJ aired about the charter?
An alternative translation of that is “oh heck have I been doing it all wrong?”
Gulp!
Nothing. But that may not be viable/tactically the best route in all cases.
1. The concession lasts 3 months - you need an immigration solicitor to assist. Not always easy.
2. The concession ends existing leave - so ILR needs to be applied for within the 3 months. Again, an immigration solicitor needed. Again, not always easy.
3. The ILR route will take someone down a new route (5 years, 10 years? not an immigration specialist so don’t quote me) with time already spent in the UK no counting, I think. That may not be particularly appealing for someone only a year or two away from full settled status under EUSS…....
(In my case, there are additional complicating factors; the ex has been particularly devious and made - what I am certain are false - allegations to social services of my client abusing the children immediately on his return to the UK. Rather than see the kids in foster care, my client has agreed the kids should remain with their father until social services complete its investigation. Then there might be care proceedings. She may get the the 3 month DV concession without any difficulty - but whether the ‘doubts’ about the DV would then make the success of an ILR application uncertain, I don’t know. For the moment anyway, it’s a case of waiting to see what comes back on the spouse of a qualified person argument….)
[ Edited: 16 Sep 2022 at 10:21 am by past caring ]If these are going to need staying behind that tranche of cases at the UT I probably need to ask for file ref numbers. Can anyone help?
I’ve messaged you.
I’ve conflated the DDVE with the destitution domestic violence concession here.
The DDVC only applies where someone is here on a spousal visa.
Or does it? They amended the Immigration Rules to catch durable partners in May 2020 so people who are here solely on PSS might be discriminated against should they not be accepted as having a R2R.
Can I concoct a convention argument?
[ Edited: 20 Sep 2022 at 04:27 pm by Dan Manville ]We have a Third Country national who has recently been granted Leave Outside the Rules (LOTR) under the Destitution Domestic Violence Concession (DDVC). She has habitual residence, and limited leave for a period of 3 months “to allow her to access safe accommodation while she completes and submits an application for indefinite leave to remain as a victim of domestic violence”. The letter granting leave came with another letter to present to DWP, on the strength of which she has been awarded UC.
Your client should see an immigration lawyer.
Did that person previously have Pre Settled Status?
No. She is a non-EU Third Country national. She previously held a spousal visa with NRPF but permission to work. She is now separated from her husband, with limited leave under the DDVC.
Excuse me for piggy-backing onto here. I have a Romanian who has only been here 3 months, has pre settled status. was previously in another EU country for 5 years having cancer treatment. Client is living with and dependent upon working daughter who has been here a number of years and also has pre settled status. My thoughts are 1. she needs an immigration advisor to clarify her status. 2. she is not going to be entitled to anything as not Ds1500/SR1.
TIA for any help/advice
Your client appears to be a “joining family member” who is eligible for the settled status scheme despite not having lived in the UK on 31/12/20.
She is able to rely on preserved EEA residence rights as a member of the “post transition period group” by virtue of SI 2020/1309. As is her daughter.
It looks as if she has a right to reside as a dependant relative in the ascending line of her daughter, who in turn has a right to reside as a worker.
Sorted.
No. She is a non-EU Third Country national. She previously held a spousal visa with NRPF but permission to work. She is now separated from her husband, with limited leave under the DDVC.
It’s the spousal visa that’s key. The guidance google took me to didn’t make it clear. DDVC doesn’t apply to EU nationals.