ariskar wrote: ↑Wed Jan 23, 2019 6:54 am
The issue of a person on a different visa type, is that obtaining pre-settled status and switching from a UK Immigration rules visa category (Tier, refugee, etc.), could "reset" the clock on their settlement/ILR eligibility.
I don't think the Settled Status route is incompatible with having simultaneously a visa or residence permit in any other category, or that it resets any clock. But someone please correct me if I'm wrong,
In your particular case,
the non-EU national is married to the EU national. That in itself grants them the EU family member status since the date of marriage, and nothing can override or reset clocks for that... provided the UK belongs in the EU.
After Brexit, these EU regulations that cover you as a married couple will cease to be valid. If the Non-EU spouse has not applied for anything else or have any other visa come the deadline (30 June 2021, or 31 December 2020 if the UK leaves the EU without a deal), I think... they won't have the right to remain in the UK. That's why the Settled & Pre-Settled status are there for.
Which raises three questions:
1. If either granted pre-settled status or not applying for it and retaining non EEA/EU route visa
Be careful there. The EEA/EU residence card has an expiration date due to Brexit (30 June 2021, or 31 December 2020 if the UK leaves the EU without a deal). As explained above, you cannot simply "retain the EEA/EU route" after Brexit indefinitely. It's Brexit!
can after 5 years of marriage (and not 5 years of EU rules residence) the non-EU spouse apply for settled status?
Again, I think you risk not being legal if you don't apply for anything else and simply wait to have completed 5 years married. Not applying for anything and relaying on one's marriage was possible when the UK belonged to the EU, but this will change after Brexit. Again, that's what the Pre-Settled status is there for.
2. If one applies for settled status and obtains pre-settled status
You do not "apply for settled status". You simply apply through the app, and it tells you, based on your NI history, to which of Settled or Pre-settled status your application will be considered for. You do not chose which one it will be.
would their other leave under UK Immigration rules cease to be valid?
As I said, I don't think that's the case.
Again, you need to be careful, as Brexit changes the validity of the EEA status, as explained above. Don't delay processing an application just because you are holding on to a status that is going to expire (30 June 2021, or 31 December 2020 if the UK leaves the EU without a deal).
Because that person may be eligible for ILR under their existing route in say 1 year (while under settled scheme longer), would they be still able to apply for ILR under UK Immigration rules based on their prior visa route?
The only way to qualify for ILR combining different visa categories, as it appears to be your case, is to apply for the 10-year ILR route. Then it won't matter as time is not reset in this route. All time spent in any category counts, including Pre-Settled status.
3. If one applies for settled status and is told that they would obtain pre-settled status, can he withdraw the application and refuse the pre-settled status (i.e. retain pre-application UK Immigration rules visa)?
As explained above, you don't choose which of Settled or Pre-settled you apply for, BUT after you submit your NI details, the app does tell you which of the two your application will be considered for. If you are not happy with the assessment, you can then chose to stop the application and pursue it later.
"Apply and see!"
Risking to render the immigration status of the non-EU spouse worse in lieu of clarification of the above.
As explained above, not at all.
My posts express what I believe are the facts, based on the best of my knowledge, about the topics discussed in this forum. They do not constitute immigration advice.