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Settled status
Cl is an EU national by birth but left to live in a non-EU country at the age of seven. They did not have an EU passport at that time. They were subsequently given non-EU citizenship and have a passport with ‘no recourse to public funds’ .
They came to the UK in 2014 on that passport but have now successfully applied for an EU passport as well. The cl has now applied for Settled Status
Settled Status rules seem to imply that to be granted this the claimant has to have resided in the UK as an EU citizen for at least five years. My cl has of course been residing in the UK (probably under a maintenance agreement) for longer than that but not necessarily as an EU citizen.
Does the fact that they did not have an EU passport until recently affect their status as an EU citizen living in the UK for more than five years? (I would have thought that being born in an EU country of EU parents automatically conferred EU citizenship and the non- EU citizenship only confers dual nationality without taking away the original citizenship.?)
The cl has been abandoned by their non-EU partner (and so far, does not seem to qualify for R2R in any other way) but needs to remain in the UK and hopes to get UC so Settled Status has become very important.
Any thoughts , observations or past cases welcome!
It’s essentially a question of his citizenship. If he’s a citizen of the EU state then I would have thought that would suffice. Citizenship can get complicated, particularly with multiple countries involved and questions of dual nationality. I would suggest that it would be sensible to refer him elsewhere that can provide level 2 or 3 immigration advice.
Being born in a country does not necessarily make a person a citizen of that country. The USA is one of the only countries in the world (if not the only one) where being born there grants a person automatic citizenship, under the 14th amendment to the US constitution. Each country has its own rules. So, you would need to establish whether he was a citizen of a particular EU state. If he is, and is therefore by virtue of the EU Treaty, an EU citizen, then I would have thought that the documentation is only proof of that citizenship and not a condition of it.
If he has an EU passport, he must have citizenship of a particular EU state. If so, it seems to me that the question is when did that citizenship start?
The usual disclaimer here: I am not a specialist immigration adviser, so the above is not advice but just initial thoughts, of which I stand to be corrected, and your client should seek the appropriate specialist advice.
Cl is an EU national by birth but left to live in a non-EU country at the age of seven. They did not have an EU passport at that time. They were subsequently given non-EU citizenship and have a passport with ‘no recourse to public funds’ .
They came to the UK in 2014 on that passport but have now successfully applied for an EU passport as well. The cl has now applied for Settled Status
Settled Status rules seem to imply that to be granted this the claimant has to have resided in the UK as an EU citizen for at least five years. My cl has of course been residing in the UK (probably under a maintenance agreement) for longer than that but not necessarily as an EU citizen.
Does the fact that they did not have an EU passport until recently affect their status as an EU citizen living in the UK for more than five years? (I would have thought that being born in an EU country of EU parents automatically conferred EU citizenship and the non- EU citizenship only confers dual nationality without taking away the original citizenship.?)
The cl has been abandoned by their non-EU partner (and so far, does not seem to qualify for R2R in any other way) but needs to remain in the UK and hopes to get UC so Settled Status has become very important.
Any thoughts , observations or past cases welcome!
1. Almost all citizenship laws of all EU member states will provide that if born in an EU state with EU parents at time of birth he will be a citizen of that state- see http://globalcit.eu/eudo-citizenship/ for various databases of nationality law - a good website. Remember that proving an issue of foreign law in the UK is a question of fact.
2. Based on what you say the client now has an EU passport- that is sufficient proof that he is currently an EU citizen.
3. If your client’s leave to remain “without recourse to public funds’ is still valid then he can claim all benefits NOW before he gets settled status.
4. The reason for that is:
a) He is not excluded from benefits by being a “person subject to immigration control” despite the fact he has LTR with a no recourse condition. That is because s.115(9) defines a person subject to immigration control as someone who is not an EEA citizen but your client is an EEA citizen.
b) His leave to remain with the no recourse to funds condition is a “right to reside” in the UK that is not an excluded right to reside for any benefit.
5. On your question about the settled status application- if he was on the facts all along an EU citizen then he has been residing here and was an EU citizen for a 5 year period- I read Appendix EU as those being the conditions he needs to meet- although that is immigration advice and he should check it.
6. All of that said in theory he could breach his no recourse condition and therefore fall foul of the suitability requirements for Appendix EU if he was to claim. Again he needs immigration advice on that - I would hazard a guess this would not be a problem but something to check.
Long and short of it is that from a social security law perspective he is not excluded by residence or immigration conditions. Explain that to the immigration adviser and check 6 above.
Thanks for that, the cl has an immigration lawyer who has been in contact with Settled Status to point out the long standing nature of EU citizenship but I understand that they are still ‘looking into it’. I have suggested that the cl re applies for UC ( the previous claim having been closed) with anote to say that they are waiting to hear about Settled Status, this should at least hold the case open past the HRT.
If he applied for settled status before his leave with the NRPF condition expired (or if it has not expired) he could succeed before settled status- and what about a challenge to the “closed” UC claim (ie the end of his previous award decision).
Thanks Martin, the cl has made a fresh claim for UC with an MR request for the previous claim as well, the settled status application was made some months ago so if the outcome is changed from Pre Settled to Settled it is likely to cover the previous claim as well as the new one. Unfortunately they don’t meet any of the usual criteria for R2R so the case is most likely going to hinge on the Settled Status decision. This is being dealt with by the cl’s immigration lawyer