Residence card for non-EEA husband of dual UK/EU citizen

Noajthan *deep sigh* sorry, not abandoning the EU route. It's just all the things that have been previously mentioned now make me feel like application will just get rejected, for example transitional arrangements for dual citizens, I was not a BC in 2012. If it was a first-time application I would understand the reasons why we cannot apply via the EEA route as I am now a dual citizen. But effectively this is just an extension of a residence card that had been granted when I was only a Hungarian citizen so I don't understand why they now have to take into account the fact that I am a BC, too.

Hubby's residence card expires May 2017 so even though I have all the evidence with me and forms printed I don't think I can send it off just yet?

sneha0207 wrote:Noajthan *deep sigh* sorry, not abandoning the EU route. It's just all the things that have been previously mentioned now make me feel like application will just get rejected, for example transitional arrangements for dual citizens, I was not a BC in 2012. If it was a first-time application I would understand the reasons why we cannot apply via the EEA route as I am now a dual citizen. But effectively this is just an extension of a residence card that had been granted when I was only a Hungarian citizen so I don't understand why they now have to take into account the fact that I am a BC, too.

Hubby's residence card expires May 2017 so even though I have all the evidence with me and forms printed I don't think I can send it off just yet?

Hopefully you will be able to laugh about all this one day.

As explained at length the relevant 'ta' (more specifically the relevant schedule 3 to EEA regs) is not couched in terms of whether someone is a BC.
It is written in terms of a sponsor being an EEA national.
Last time I checked you were in 2012. Sorted.

A slight correction, there is no real need to wait for the RC to expire. It has little to do with when someone acquires PR.
And it is not a 'visa'.

Your mission is to apply for confirmation of hubby's PR.
Apply for the confirmatory PR card as soon as hubby qualifies (ie as soon as he acquires PR automatically) that is regardless of any date on any card.

If you were married in UK (I think you were) then on or after your 5th wedding anniversary would be appropriate, (sometime in March 2017?) for your particular case.

Thank you for your words of encouragement and all your help.

Yes, we got married in the UK in March 2012. I am planning to send the form off shortly before that, around mid-February.

On the form I obviously have to declare I hold BC too, do you think it is not likely to affect the application then? I know there are no guarantees.

Also, as you seem to be much more knowledgeable in these matters than I could ever hope to be, would the EEA applications be affected if we were to leave the EU? I know slightly off topic but as the referendum will take place before we submit the application, I thought I'd ask.

sneha0207 wrote:Thank you for your words of encouragement and all your help.

Yes, we got married in the UK in March 2012. I am planning to send the form off shortly before that, around mid-February.

On the form I obviously have to declare I hold BC too, do you think it is not likely to affect the application then? I know there are no guarantees.

No effect - because you are relying on the 'ta' and its use of the pre-2012 definition of EEA national (which also includes BCs).

Note that you are one of the lucky ones, still able to use this 'ta'.
I'm sure there are plenty of EEA citizens (who are either now duals or are long-standing duals) currently in UK living in blissful ignorance of the situation and the 'ta'.

In terms of dual nationals who are (now) BC, if they are part of the cohort dating from late 2012 onwards then their PR (& for family members) will be maturing around late 2017/early 2018 onwards.

If the EEA sponsor in those families naturalises at the 'wrong time' (ie too early, because perhaps they came to UK earlier than the rest of the family) they will effectively snooker their dependents; this could render them with no legal basis to remain in UK.
That is because the temporary 'ta' will have timed out by then (late 2017/2018) and so have no further application by then.

Don't misunderstand and don't panic - this is not the case for you.

So, as I suggest, go ahead on basis of invoking the 'ta', (quote the 'ta' in cover letter).
You cannot hide the fact you are now a BC and you don't need to.

After all the 'ta' was put in place to protect your rights dating from that period as you were already in UK.
Think of it as British fair play in action if you will.

Suggest applying at the right time (March or later) and not a month early to 'save time'.

That is permitted in Ireland for EFM (but it's a purely local provision as I understand it);
however under EU law (& in UK) there is no concept of applying 28 days early on the EU route (even though there is for some UK visa routes).

sneha0207 wrote:Also, as you seem to be much more knowledgeable in these matters than I could ever hope to be, would the EEA applications be affected if we were to leave the EU? I know slightly off topic but as the referendum will take place before we submit the application, I thought I'd ask.

Obviously 'something' would happen, but I'm afraid I no nothing of such matters, (I may have private views but they are unlikely to be of relevance or interest).

There are other threads on that topic (elsewhere in forum) if you wish to participate in discussing that side of things.

I missed this question, so I am belatedly replying to it. This is all emergency preparation in case the judges decide that the law does not mean what it says. I don't believe you need to make any non-EEA application before the Home Office starts threatening your husband with removal - which may never happen.

sneha0207 wrote:To be able to use form FLR (M) or FLR (FP) would we not have to meet the income threshold of £18,600?

If you can't meet the income threshold, your husband would start on the 10-year route. He can do this because he "has a genuine and subsisting parental relationship with a child who is a British Citizen". (Extracted from Immigration Rule EX.1).

sneha0207 wrote:Richard, we have been living together since we got married in March 2012 and so hubby is not here as a visitor.

Make sure he does not acquire that status. DON'T PANIC.

The only preparation I can see that you should do along these lines is (a) check that he will satisfy the English language requirement, which he will need anyway for naturalisation and probably already satisfies, and (b) ensure that you can pay the fee (currently £811) even though there would then be a high risk of his being temporarily unemployable.

Richard W wrote:(b) ensure that you can pay the fee (currently £811) even though there would then be a high risk of his being temporarily unemployable.

Sorry, I forgot the £500 NHS surcharge for this emergency route. It is an expensive route to take.

Thank you both for all the help.

We will make an EEA application shortly after our 5th wedding anniversary in March next year. Fingers crossed it will all work out. I do feel that our case is stronger than some I have come across but we must be prepared for all possibilities.

Thank you once again for all the information you provided.

Just to let you both know, this is what Your Europe Advice emailed me:

Thank you for contacting Your Europe Advice.

We understand that your husband currently holds a residence card for family members of EU citizens following an EEA2 application.
We further understand this was granted to your husband in early 2012 (and therefore before 16 October 2012).

Since then, you have acquired British citizenship. As a result, the UK authorities would no longer consider you as being an EU citizen exercising free movement rights, in accordance with the amendment made to Immigration (European Economic Area) Regulations 2006 by the Immigration (European Economic Area) (Amendment) Regulations 2012 (No. 1547).

However, you should know that family members who were granted (or applied for) a family residence card before October 2012 come under transitional arrangements for family members of dual British/EEA nationals. The transitional arrangements preserve the old rules (where dual nationality of the sponsor did not matter) to remain applicable to family members of dual nationals, so that these family members who hold a residence card can apply for permanent residence under the old rules after October 2012.

While the UK authorities will no longer consider you as an EEA national, this should not affect your spouse s status as the spouse of an EU citizen who holds a residence card issued under the Immigration (EEA) Regula prior to 16 October 2012. Your husband should therefore be allowed to apply for a permanent residence card by virtue of Schedule 3, paragraph 2 of the Immigration (European Economic Area) Regulations 2006.

Your husband should therefore have the right to apply for a permanent residence card using Form EEA(PR) once he has resided for a continuous period of five years in the UK, which we understand will be during the course of 2017.
Further details on applying on applying can be found here:
https://www.gov.uk/apply-for-a-uk-resid ... dence-card

We hope this answers your query.

We remain at your disposal, should you require further information.

sneha0207 wrote:Just to let you both know, this is what Your Europe Advice emailed me:

Thank you for contacting Your Europe Advice.

We understand that your husband currently holds a residence card for family members of EU citizens following an EEA2 application.
We further understand this was granted to your husband in early 2012 (and therefore before 16 October 2012).

Since then, you have acquired British citizenship. As a result, the UK authorities would no longer consider you as being an EU citizen exercising free movement rights, in accordance with the amendment made to Immigration (European Economic Area) Regulations 2006 by the Immigration (European Economic Area) (Amendment) Regulations 2012 (No. 1547).

However, you should know that family members who were granted (or applied for) a family residence card before October 2012 come under transitional arrangements for family members of dual British/EEA nationals. The transitional arrangements preserve the old rules (where dual nationality of the sponsor did not matter) to remain applicable to family members of dual nationals, so that these family members who hold a residence card can apply for permanent residence under the old rules after October 2012.

While the UK authorities will no longer consider you as an EEA national, this should not affect your spouse s status as the spouse of an EU citizen who holds a residence card issued under the Immigration (EEA) Regula prior to 16 October 2012. Your husband should therefore be allowed to apply for a permanent residence card by virtue of Schedule 3, paragraph 2 of the Immigration (European Economic Area) Regulations 2006.

Your husband should therefore have the right to apply for a permanent residence card using Form EEA(PR) once he has resided for a continuous period of five years in the UK, which we understand will be during the course of 2017.
Further details on applying on applying can be found here:
https://www.gov.uk/apply-for-a-uk-resid ... dence-card

We hope this answers your query.

We remain at your disposal, should you require further information.

Lovely.
This advisory chimes with my understanding.

This cogent and valuable response from Europe Advice can be used to your advantage in your covering letter.

Thank you for all your valuable advice, too, Noajthan!

Obie has just argued that the transitional arrangements cannot apply:

Obie wrote:By definition a transitional provision cannot apply to prospective event. It applies to a state of affair in place before new rules were put in place.

@R, cease and desist.

You are going to worry & confuse this OP unnecessarily; (an OP who has no idea whatsoever what you are talking about or why you have suddenly popped up in her/his aging thread).

You seem incapable of discerning what is relevant and what is not and that does not contribute to the benefit of members.

You cannot apply some point from one topic to another where it clearly does not apply.
You are again veering off-topic and hijacking a thread.

In this case the ta has been invoked already and so it remains in force under the terms of the ta (unless/until the conditions for such invocation of the ta change or terminate).

Kindly refrain from interfering in members' threads where you have not gained an appreciation of the topic nor shown an understanding of the pertinent points.

noajthan wrote:In this case the ta has been invoked already and so it remains in force (unless/until the conditions for such invocation change or terminate).

The OP's husband obtained his residence card in 2012 and the OP became British in 2014. The only way that I can see that the transitional arrangement may have been invoked is that there may conceivably have been a deliberate decision not to revoke the husband's residence card when the wife naturalised. Do you think there was such a deliberate decision?

I admit it would have been better if I had remembered and found the discussion thread I created.

Hello again and sorry for my late reply. I am slightly confused by your post Richard, when I acquired British citizenship I was allowed to retain my Hungarian citizenship too, so why should we have revoked my husband's residence card? I was solely a Hungarian citizen both at the time of our marriage (March 2012) and when hubby acquired his residence card (May 2012). Sorry I am not that knowledgeable in these matters.

sneha0207 wrote:Hello again and sorry for my late reply. I am slightly confused by your post Richard, when I acquired British citizenship I was allowed to retain my Hungarian citizenship too, so why should we have revoked my husband's residence card? I was solely a Hungarian citizen both at the time of our marriage (March 2012) and when hubby acquired his residence card (May 2012).

I am not suggesting that you two should have revoked the card. If the Home Office believes that your husband is no longer entitled to the rights of an EEA family member, they could have revoked the residence card. My belief is that no-one at the Home Office has yet given the matter any consideration - except in so far as someone at the Home Office may be following this forum.