Karen Travers

Residency query - spouse of British citizen

Created

Hi everyone, I would really appreciate your expert advise on something as I'm slowly driving myself mad overthinking the residency rules.  Because of the changes in 21/22 i've been receiving loads more queries from our curriculum teams.  They are questioning whether a Non EEA citizen who has not been resident in UK for 3 years but is a spouse of a british citizen (i.e with UK passport) would be eligible under point 41.4 of the adult skills guidance - i.e exempt from the 3-year residency requirement as their spouse has 'indefinite leave to remain'??  I keep going round in circles questioning whether someone who holds a UK passport has the 'indefinite leave to remain' status.  I know it means they don't have any restriction on the length of their stay in the UK but don't know if it can be classed as 'indefinite leave to remain'.  Thanks.

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Martin West

See also:

41.8. The husband, wife, civil partner or child of any of the above in paragraphs 41.1 to 41.7

Karen Travers

Many thanks Martin yes I understand para 41 includes spouse but want to know if 'indefinite leave to remain' can be evidenced by someone holding a UK passport - assume it is?

Steveh

No, being a UK citizen and having ILR are two different things.

Non-UK family members who do not themselves have one of the para 41 statuses need three years. I don't like it, but it's the rule.  This was the response I got from the Service Desk:

Thank you for your enquiry regarding changes of eligibility for family members. The changes have been made due to EU Exit and changes to UK immigration rules and currently stand as below;

Family members of UK and EEA nationals
40. A ‘family member’ is the husband, wife, civil partner, child, grandchild, dependent parent or grandparent of a UK or EEA national. A family member is eligible for funding if they:
40.1. where required to do so, have obtained pre-settled or settled status under the EU Settlement Scheme and
40.2. have been ordinarily resident in the UK or EEA for at least the previous 3 years on the first day of learning

With the move from an EU law (rights based) system to a UK immigration system, everyone who is not British or Irish is expected to have an immigration status.

Karen Travers

Thanks so much for that Steve Hewitt -- I really started to doubt myself - it does seem unfair that if they are a spouse of someone with ILR/ILE then they are eligible without 3 years residency but not if they are a spouse of a british citizen.

Martin West

I think you have to consider the immigration status of the applicant in establishing eligibility and not if eligibility is inferred from their spouse.