NRPF but married to (but separated from)EU citiizen

Think I might be overcomplicating things in my head.
Cl from Ghana. Came to UK on student visa but met and married man in 2018 who is an EU citizen.
We suspect he has settled status as has been in UK since 2008.
They have now separated and she doesn’t know where he is. He was certainly working prior to separation.
From what she says, it sounds like she applied for a spousal visa but husband didn’t turn up to hearing and this was not granted. Student visa has expired.
Does her marriage to the EU citizen assist her at all from a benefits perspective?

Thanks in advance.

Not without EU settled status, pre-settled status or pending application

Thanks HB Anorak

If he has settled status (as we suspect) does she also have settled status as his spouse and, if so, does this trump the NRPF restriction?

No recourse to public funds means exactly what it says. It’s not about settled status “trumping it”, it’s that if your client claims a public fund, they run the risk of detention and deportation.

You never get status under EUSS automatically - it has to be applied for.

Your client might be able to apply to EUSS on the basis of being a family member of her spouse. If she were awarded settled status by doing so, that would suffice for benefit purposes. If she were awarded pre-settled status, then she would also need to show that she was e.g. the family member of a qualified person or permanent resident, or herself a permanent resident, to qualify.

But she will of course require immigration advice.

Thanks Paul and Elliot

Is there any benefit to applying for an EU settlement status if, as Paul says, she can’t claim anyway?

HarlowAC - 07 August 2023 10:41 AM

Thanks Paul and Elliot

Is there any benefit to applying for an EU settlement status if, as Paul says, she can’t claim anyway?

That’s why your client needs immigration advice first and foremost. As Elliot says, she might be able to apply for settled status which means she is effectively granted indefinite leave to remain. However, from what you’re saying, she’s an overstayer for immigration purposes at the moment, so that is what needs immediate attention. Sorry, my reply wasn’t the best above.

Thanks again

Completely agree that immigration advice is key. Just had, in the back of my mind, the possibility that she might be able to apply for (pre)settled status and this might help her position.

This is one of those cases where using inaccurate terminology can lead us into error…..

This does not appear to be a client who has “no recourse to public funds” (NRPF) - that phrase is often wrongly used to mean anyone who is a “person subject to immigration control” (PSIC). However, only one of the 4 potential categories of PSIC is accurately described as someone with NRPF.

The 4 categories are defined in s.115(9) Immigration and Asylum Act 1999.

“(9)“A person subject to immigration control” means a person who—

(a)requires leave to enter or remain in the United Kingdom but does not have it;
(b)has leave to enter or remain in the United Kingdom which is subject to a condition that he does not have recourse to public funds;
(c)has leave to enter or remain in the United Kingdom given as a result of a maintenance undertaking; or
(d)has leave to enter or remain in the United Kingdom only as a result of paragraph 17 of Schedule 4.”

The post states that the student visa has expired and a spouse application was refused. It does not say that is being challenged etc. Given those facts it seems the person falls within s.115(9)(a): they require leave but do not have it. They are not a person who has leave to enter at all- and thus there is no condition attached to their leave that they do not have recourse to funds.

They will be excluded from benefits anyway (by s.115(1)). Whilst making a claim might lead to HO being alerted as to their presence it does not breach any immigration condition- because they have no leave and thus no immigration conditions attached to any leave.

Sorry for the pedantic rant but in this thread we have Paul (correctly) advising what claiming benefits if NRPF means but then we also need to explain that technically this client is not NRPF.

Tempted to do the Humpty Dumpty quote about making words mean whatever you want….

Totally agree this client needs immigration advice and if husband has EUSS leave then she could presumably get it too.