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UC / Settled status / Citizenship

JayKay
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Benefits adviser - Penwith Housing Association, Penzance

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Hi

I have a complex immigration / benefits case that I really don’t know where to start with.

My client is claiming UC with her partner.  She is a British Citizen.  He is from India.  He entered the UK in 2008, and then obtained the right to reside via his marriage to a Polish national.  He obtained a residence card which was originally from 2012 - 2017 and was then extended to 2023.

He then split from his Polish partner, and now lives and has children with my client.  He put in an application for British Citizenship in Feb 2021, which has not yet been decided - but the Home Office currently has all of his documents such as passport and visa.

UC are now saying that they are going to suspend payments unless he puts in an application for the EU settlement scheme within 28 days.  His immigration solicitor says he should not do this as his citizenship application is pending. (And the EU settlement application requires him to provide his passport which the Home Office has)

Can anyone point me in the direction of what he should be doing, and whether he has grounds to challenge a UC suspension? (I am already aware that we can ask for the UC claim to be partially suspended, and my customer treated as a single claimant)

Thank you in advance.

JK

HB Anorak
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Benefits consultant/trainer - hbanorak.co.uk, East London

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His immigration status is in the safest hands it can be in, so it’s not for me to comment on whether applying for settled status is advisable in that regard.  But it looks to me as if he possibly had a permanent EEA right of residence from about 2017 (subject of course to the economic status of the Polish citizen throughout the five years); and it does not look as if he had any other obvious immigration status in the UK.  If he hasn’t applied for settled status, any EEA residence rights he might have had before 30 June have now lapsed and he is currently a person who requires leave to enter/remain but does not have it.  UC cannot force him to apply for settled status against the advice of his solicitor but they can decide (correctly it would appear) that he personally is ineligible for UC and that his British partner can claim as a single person.

So my take is: he should abandon any resistance on the UC side, acknowledge that his immigration status disqualifies him from UC, and invite them to make a decision awarding UC to his partner as a single person.  Suspending UC in the meantime is just delaying the inevitable and unnecessarily complicating things.

While it’s not my place to comment, I would say that his prospects of getting settled status depend on several things:

- Whether he is still married to the Polish national
- Whether she still lives here
- Whether he established a permanent right to reside as her family member at some point since 2013 (2008 + 5 years)

If he is divorced and did not have a permanent right to reside at the point when he got divorced, the chances are he is not eligible for the settled status scheme as his EEA links are long behind him.

[ Edited: 1 Dec 2021 at 09:09 pm by HB Anorak ]
Elliot Kent
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I’d typed out something similar but wandered off before I posted it (honest).

I would just add that the enquiry is a lot simpler if we just ignore the part about the citizenship application for the moment. Someone otherwise in the same position but who had not applied for citizenship would be unable to rely on any EU law status they may have had pre-Brexit unless they either (a) have pre-settled status or (b) have applied to the EUSS - neither of which apply. So you would be advising that they had no apparent right to reside and pointing them in the direction of immigration advice re EUSS.

Does the citizenship application change that analysis? I don’t see how it could. There isn’t, to my knowledge at least, any provision which grants a right to reside to someone who is awaiting a decision on an application for citizenship (c.f. certain people awaiting decisions on extension of time limited leave to remain under s3C Immigration Act 1971). There also isn’t any provision for this situation in the Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020 which provide the temporary protections for EUSS applicants. So I don’t see that the citizenship application materially changes the current position insofar as his benefits are concerned.

Martin Williams
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Welfare rights advisor - CPAG, London

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So is the Immigration Solicitor advising that as a matter of some procedural aspect of British citizenship law if one makes an immigration application for a new type of leave to remain (SS or PSS) whilst an application for naturalisation as a citizen (a citizenship rather than immigration matter) is pending then that in some way affects the application for naturalisation?

If I was this client I would want the immigration solicitor to set out for me the legal basis for that view in a situation where I was being asked to forego possibility of UC award.

Not expressing a view myself - just that given it seems odd a naturalisation app could be coloured by a new immigration app I would want it explained how that worked.

Diablo
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Citizens Advice Reading

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Your client may have “acquired PR” - under the EEA Regs-  after 5 years of marriage to his EU national spouse.  I say “may” because this would depend on whether he/his wife at the time, had been exercising a treaty right for 5 continuous period of 5 years (from the date of marriage, not the date the RC was issued from).  If your client did acquire PR after 5 years, then he would have had the opportunity to apply for a PR card/document.  Having held PR for 12 months, then your client may have had the opportunity to apply to naturalise as a BC (but see note below).  This he would have needed to do before 01/07/21 - see https://www.gov.uk/apply-citizenship-eea/after-youve-applied, as the PR card/document would have been accepted as evidence of “settled status” and so he would not have to had apply for a status under the EUSS.  I would check his documents.  If the first is a 5 year “residence card” and the second is a “permanent residence card” then his solicitor may be on the right track.

Note: A permanent residence card is required for a citizenship application.
Note: if your client is now married to a BC, then he would not have to wait the 12 months after “acquiring PR” before applying to naturalise as a BC.

See https://www.freemovement.org.uk/british-citizenship-european-citizens-in-the-uk/

Elliot Kent
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Diablo - 28 December 2021 11:50 AM

Your client may have “acquired PR” - under the EEA Regs-  after 5 years of marriage to his EU national spouse.  I say “may” because this would depend on whether he/his wife at the time, had been exercising a treaty right for 5 continuous period of 5 years (from the date of marriage, not the date the RC was issued from).  If your client did acquire PR after 5 years, then he would have had the opportunity to apply for a PR card/document.  Having held PR for 12 months, then your client may have had the opportunity to apply to naturalise as a BC (but see note below).  This he would have needed to do before 01/07/21 - see https://www.gov.uk/apply-citizenship-eea/after-youve-applied, as the PR card/document would have been accepted as evidence of “settled status” and so he would not have to had apply for a status under the EUSS.  I would check his documents.  If the first is a 5 year “residence card” and the second is a “permanent residence card” then his solicitor may be on the right track.

Note: A permanent residence card is required for a citizenship application.
Note: if your client is now married to a BC, then he would not have to wait the 12 months after “acquiring PR” before applying to naturalise as a BC.

See https://www.freemovement.org.uk/british-citizenship-european-citizens-in-the-uk/

Whilst it may be that this provides a reasonable basis for the citizenship application to succeed, it does no good in terms of the benefit position because EU rights including those referred to can only be relied on if you have either pre-settled status or a pending application under EUSS to go along with them. The claimant in this case has apparently been advised not to apply under EUSS so has neither. Whatever EU law rights they may have is somewhat moot as a result.

Diablo
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I totally agree.  There is absolutely no reason why your client didn’t complete an EU SS application prior to submitting an application to naturalise as a BC.  I’m curious as to why this didn’t happen too.