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family member and settled status

dizzymare
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Welfare benefits adviser - Dudley MBC

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Total Posts: 295

Joined: 18 June 2010

Morning

I have a Polish lady who is still married but separated. She has made a late application to EUSS and has a COA. Her ex-partner is working and has settled status. As this confers indefinite leave to remain, I am just checking if this causes any problems if my client seeks to rely on status as a family member of an EEA national who is a worker (ie do the usual qualifying person rules apply?). Clt was present from around 2018.

She has also worked in the past and has children so we are also arguing derivative rights for her but UC has been refused on the basis that her children were born in UK. (assuming they are attributing British status to children and therefore applying Zambrano rules) eldest child has a Polish passport anyway. Youngest child doesnt have one at all but Father is Polish.

I did however read this:
” If at least one of your parents was a citizen of an EU or EEA country when you were born
You’re automatically a British citizen if when you were born all the following applied to at least one of your parents:
- they had citizenship of a country that was in the EU or the EEA at the time they lived in the UK
- they had ‘indefinite leave to remain’ (ILR), ‘settled status’, ‘permanent residence status’, ‘right of abode’ or ‘right of re-admission’

so ... are the children British? (seems so)

I would be grateful for any advice. Thank you

Elliot Kent
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Shelter

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None of the interesting parts of your case actually arise, because your client is married to an EEA worker so has a right to reside for that reason alone and that is the end of it. That they are separated is irrelevant.

There is not enough information to know if the children are British. The fact that they were born in the UK does not alone make them British. As you say, they could be British despite not having British parents if one of their parents had permanent residence when they were born. We don’t know enough about the ages of the children or their father’s residence history to say.

But if the father of the children is the same person as the EEA worker spouse, then the argument just boomerangs completely. For the children to be British, the father would need to be a permanent resident, and if the father is a permanent resident, your client has a right to reside by being his spouse for that reason also.

dizzymare
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Welfare benefits adviser - Dudley MBC

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Total Posts: 295

Joined: 18 June 2010

thanks Elliot. Just wasnt sure if settled status over ruled this - so thank you for clarifying.

Elliot Kent
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Shelter

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Total Posts: 2624

Joined: 14 July 2014

dizzymare - 28 July 2022 01:09 PM

thanks Elliot. Just wasnt sure if settled status over ruled this - so thank you for clarifying.

No, its a bonus extra status in national law. It doesn’t get rid of your EU law rights.