Dual British/Italian spouse EEA RC - are we here illegally??

[aquafreddo]

Hello there all,

I have been lingering, reading all the great advice that you guys give, and I really hope someone can help me understand.

My husbands residence card was applied for in May 2012, when an EEA family permit expired which we got in Italy, as we were living and working there. I am dual Italian/British and we now live in the U.K.

I was told today on the phone by the UK border Agency helpline, once I’d explained a little, that basically my husband is here illegally, on the wrong visa and should return to his home country.

I was extremely upset as you can imagine, and I was in shock on the phone, as I had previous thought I had done everything right, and in line with their advice. Is this true?

Now, researching it myself, I see reference to this date 16th July 2012, and realise that we applied before this came into effect, and the call handler made no mention of it.

Another query I have is in in fact, this date is important and means we are not “breaking the law” as the call handler put it, what would happen in the instance that the Permanent residence requirement cannot be met? I.e After being at University, 7 months of not working, while living with my (British) family?

My concerns are firstly, that the call handler was correct and my husbands needs to leave the country, his job and mortgage asap.

My second is, what is the provision for the dual nationality subjects who do not meet Permanent Residence requirement, as mentioned above, but have over the majority of 5 years lived, worked and studied in the country?

Does he have to leave and go back to his home country, and we have to apply the UK route? This is very concerning as obviously he would endanger his job, we would struggle with the mortgage, and leave his 1 year old child (I am currently expecting).

I am so confused and totally terrified of the consequences if I have done something wrong, and have a very high risk, difficult pregnancy, suffice to say, the stress is really getting to me.

Any advice would be greatly appreciated

[Richard W]

My husbands residence card was applied for in May 2012, when an EEA family permit expired which we got in Italy, as we were living and working there. I am dual Italian/British and we now live in the U.K.

As UKVI read it, using the family permit makes you count as an EEA national as far as your husband is concerned.

I was told today on the phone by the UK border Agency helpline, once I’d explained a little, that basically my husband is here illegally, on the wrong visa and should return to his home country.

You should have noticed statements here that they are quite unreliable, especially as regards EEA matters. (I can neither confirm nor deny their unreliability.)

Now, researching it myself, I see reference to this date 16th July 2012, and realise that we applied before this came into effect, and the call handler made no mention of it.

If you were exercising treaty rights on that date, and you were both present in the UK, and your husband got the residence card from the May 2012 application, then you definitely count as an EEA national as far as your husband is concerned.

Another query I have is in in fact, this date is important and means we are not “breaking the law” as the call handler put it, what would happen in the instance that the Permanent residence requirement cannot be met? I.e After being at University, 7 months of not working, while living with my (British) family?

The rule is quite humane. You count as an EEA national w.r.t. your husband until you have no non-British EEA nationality or he ceases to be your husband. It seems that you can repeatedly stop exercising your treaty rights before you get PR and the only effect is that your husband won't be lawful in the UK while you aren't exercising them.

However, the Immigration Act 2016 threatens to be nasty. It seems to me that if the EEA spouse stops exercising treaty rights, the working non-EEA spouse will be working illegally, i.e. criminally, and that his pay can be confiscated as the proceeds of crime. So, if you're a student or relying on your husband keeping you or otherwise 'self-sufficient', you need CSI until such time as you qualify for PR. You may have qualified as a child, as a family member of an Italian parent, but 2 years away from the UK would then have lost you the PR you had gained. Fortunately, workers can take time off for childbirth.

[Casa]

Since the 16th July 2012, dual EEA/British nationals have only been considered as British and are unable to take advantage of the EEA route for family members. However, you are right that the HO advisor didn't take into consideration the following (which you have probably read).
Persons residing in the UK on 16 July 2012
Persons already residing in the UK on 16 July 2012 as family members of dual EEA and
British citizens, and who held a valid registration certificate or residence card confirming
this right on 16 October 2012 will continue to be treated as the family member of an EEA
national for as long as they continue to be the family member of that dual national.
This arrangement also applies where a person had a right of residence on this basis on 16
July 2012 and had submitted an application for a document confirming this right on or
before 16 October 2012. Such persons will continue to have a right where a document is
subsequently issued on the basis of this application

[noajthan]

Agree with the above, you are still considered an EEA national by virtue of the McCarthy transitional arrangement you referred to.

Is there anyway hubby qualified for Italian citizenship?
I notice many members with Italian spouae do seem to become Italian.

As for hubby in UK, you do need to be exercising treaty rights for him to reside in UK & in order for him to acquire PR.

If a student did you have CSI policy?
Similarly to qualify as a self sufficient qualified person CSI is required.
Otherwise your PR clock will reset back to zero.

As for helpline, its notoriously unreliable both in my own experience & as you have just discovered.

[Casa]

This proves the point well regarding unreliable advise from the UKVI 'help line'
https://www.freemovement.org.uk/immigra ... pectation/

[noajthan]

I was told today on the phone by the UK border Agency helpline, once I’d explained a little, that basically my husband is here illegally, on the wrong visa and should return to his home country.

...

My concerns are firstly, that the call handler was correct and my husbands needs to leave the country, his job and mortgage asap.

...

Does he have to leave and go back to his home country, and we have to apply the UK route? This is very concerning as obviously he would endanger his job, we would struggle with the mortgage, and leave his 1 year old child (I am currently expecting).

I am so confused and totally terrified of the consequences if I have done something wrong, and have a very high risk, difficult pregnancy, suffice to say, the stress is really getting to me.

Any advice would be greatly appreciated

Just to be clear, noone needs to leave the country on the say-so of a helpline operative.

There is a complex process around 'administrative removal' including a carefully orchestrated sequence of notifications (with rights of appeal).

fyi - this is the removal process that HO would have to follow & is not currently happening to you:
https://www.gov.uk/government/uploads/s ... A_v8_3.pdf

Unless/until you hear anything in writing do not do anything drastic - it is completely unnecessary.
You are not ruined and this is not the end of life as you know it in the damp, chilly and somewhat peculiar country of UK that you have come to know and love.

[aquafreddo]

Firstly, thank you all so much, I read your posts at 3am this morning, and finally was able to sleep. Really, thank you for taking time to respond so quickly. And, also for making so much more sense than anything I've been told.

The rule is quite humane. You count as an EEA national w.r.t. your husband until you have no non-British EEA nationality or he ceases to be your husband. It seems that you can repeatedly stop exercising your treaty rights before you get PR and the only effect is that your husband won't be lawful in the UK while you aren't exercising them

I am now exercising my treaty rights, as I have my own business, and will not be taking a break for maternity, as it is mostly work at home, but all above board with an accountant etc.

Does that mean that we don't have to do anything until 09/2017 when his RC expires? Or, because it seems he was unlawful in the past, by not having CSI when I was a student in 2012-13, does that mean we have breached some serious rule? Reading above, it seems that we still satisfy the condition of still having had Italian nationality and being married at that time.

Is there anyway hubby qualified for Italian citizenship?
I notice many members with Italian spouae do seem to become Italian.

Gaining Italian citizenship is almost a right for anyone still married to an Italian after 2 years residing in Italy or 3 years outside, so this is an option... however, the processing time is.... 3 years!!! Which, after 2017 he won't have a RC in the UK anymore.

If a student did you have CSI policy?
Similarly to qualify as a self sufficient qualified person CSI is required.
Otherwise your PR clock will reset back to zero.

This is where I have really stuffed up (( Nothing of that kind when I was a student in 2012-13. Therefore, if we can't apply for PR in 09/2017, as we will get refused due to these failures to comply with the requirements, what can we do? Does he have to leave? If we are starting PR again from scratch, then won't I now fall under the new post-2012 rule that I am a British citizen in Britain, and therefore there is nothing he can apply for while already being in the country?

[noajthan]

Firstly, thank you all so much, I read your posts at 3am this morning, and finally was able to sleep. Really, thank you for taking time to respond so quickly. And, also for making so much more sense than anything I've been told.

...

If a student did you have CSI policy?
Similarly to qualify as a self sufficient qualified person CSI is required.
Otherwise your PR clock will reset back to zero.

This is where I have really stuffed up (( Nothing of that kind when I was a student in 2012-13. Therefore, if we can't apply for PR in 09/2017, as we will get refused due to these failures to comply with the requirements, what can we do? Does he have to leave? If we are starting PR again from scratch, then won't I now fall under the new post-2012 rule that I am a British citizen in Britain, and therefore there is nothing he can apply for while already being in the country?

Hmm, if no CSI do you/did you have a foreign-issued EHIC?
Or any sort of health care provision from Italy that extends to UK?
Or (& it's a longshot) did you have a UK-issued RC, issued to you as a student (in or before 2011)?
These are all possible ways to work round the CSI requirement and make sure those carefree student days actually counted towards your PR clock.

Otherwise your PR clock will have started after your studies. When did you start work? (was it 2013? / 2014?)

Did you have the RC approved and in your possession by October 2012 or had you only filed the application before October 2012?
I think the transitional arrangement will continue to apply to you anyway; (no clear mention of termination due to expiry of any particular RC):

... will continue to be treated as the family member of an EEA national for as long as they continue to be the family member of that dual national

[aquafreddo]

Hi, thank for responding!

I didn't have anything, I stupidly just reverted back to thinking and feeling British, and went back to my previous Uni. I was born in Edinburgh and sent the majority of my years till after University there, despite being also registered Italian from birth. I totally forgot, or didn't read that requirement.

I started proper work in 2014, and we had my husbands RC in our possession from September 2012. His EEA FP ran out in May 2012, so we had applied before then, probably around April 2012. Does that mean the transitional requirement still applies to us?

What I don't understand about the transitional arrangement, is what to do if we fail to meet the requirement for Permanent residence, based on this 5 years... no CSI, long time job hunting/staying with parents after Uni.

Can we apply for another 5 years, based on the fact that we have been here, and still married since that first RC was issued? Or will I become a British citizen in the eyes of the law?

Thanks again for your help

[noajthan]

Hi, thank for responding!

I didn't have anything, I stupidly just reverted back to thinking and feeling British, and went back to my previous Uni. I was born in Edinburgh and sent the majority of my years till after University there, despite being also registered Italian from birth. I totally forgot, or didn't read that requirement.

I started proper work in 2014, and we had my husbands RC in our possession from September 2012. His EEA FP ran out in May 2012, so we had applied before then, probably around April 2012. Does that mean the transitional requirement still applies to us?

What I don't understand about the transitional arrangement, is what to do if we fail to meet the requirement for Permanent residence, based on this 5 years... no CSI, long time job hunting/staying with parents after Uni.

Can we apply for another 5 years, based on the fact that we have been here, and still married since that first RC was issued? Or will I become a British citizen in the eyes of the law?

Thanks again for your help

For this to work you need to keep your Italian hat on.

As posted above:
eea-route-applications/dual-british-ita ... l#p1330651

Persons already residing in the UK on 16 July 2012 as family members of dual EEA and British citizens, and who held a valid registration certificate or residence card confirming this right on 16 October 2012 will continue to be treated as the family member of an EEA national for as long as they continue to be the family member of that dual national.

I think the 'ta' will continue, especially as you had the foresight to get the RC into your hands before October 2012.
So that should help you sleep at night.

All I can suggest is continue exercising treaty rights (eg by working) until 2019.
You (and spouse) should acquire PR by then (via your exercise of treaty rights) unless anything untoward happens (eg Brexit; excessive absences from UK; divorce - perish the thought).

Deep breaths - keep going. Good luck.

[Richard W]

I was born in Edinburgh and sent the majority of my years till after University there, despite being also registered Italian from birth.

How long at a time did you spend outside the UK? We still don't know that you haven't already acquired and retained permanent residence as an Italian yourself. You can even combine time as a family member and as a qualified person.

Can we apply for another 5 years, based on the fact that we have been here, and still married since that first RC was issued? Or will I become a British citizen in the eyes of the law?

One doesn't apply for 5 years at a time. It's just that the residence cards themselves are only valid for 5 years. The permanent residence cards are valid for 10 years, but for some purposed they last indefinitely.
Your husband will need another RC (I suggest to cover him up to 2010) and then, when he qualifies for PR, I recommend he gets his permanent residence card. I think it is a bad idea for him not to be the holder of a valid residence card of some sort.

[aquafreddo]

Thanks for the responses again,

I lived in the UK full time (except holidays to Italy) until 2007 - when I went to Italy to stay with family and work. So, not sure if it counts when you're a kid, but 1985-2007.

I agree that a RC would be good to have of some sort, especially when travelling, coming through the airport etc, what I just don't know is if we can apply for another one when his runs out in 2017, and I will still be treated as an Italian, and not fall under the new ruling and be a Brit?

Also, regarding absences from the UK, this isn't really relevant but I've always wondered, as I usually drive to Italy... where, at the UK border there is the barest minimum of glances at your passport, how do the UK government know about travel within the EU? Not really important, just curious

And if we were able to get the RC, then as soon as 5 years passes from when I can prove I was working in the UK - from 2014 so 2019, I can just apply for PR for him? Do I need to do it too, even though I am Britishers well?

[noajthan]

See my post above about the likely continuity of the 'ta'
Of course you don't need PR for yourself, you are British already!

[Richard W]

Thanks for the responses again,

I lived in the UK full time (except holidays to Italy) until 2007 - when I went to Italy to stay with family and work. So, not sure if it counts when you're a kid, but 1985-2007.

If you were then full time in Italy from 2007 to 2012, you probably lost permanent residence in 2009.

I agree that a RC would be good to have of some sort, especially when travelling, coming through the airport etc, what I just don't know is if we can apply for another one when his runs out in 2017, and I will still be treated as an Italian, and not fall under the new ruling and be a Brit?

As far as your husband is concerned, you'll still be Italian. The relevant law is Schedule 3 of the Immigration (European Economic Area) (Amendment) Regulations 2012.

Also, regarding absences from the UK, this isn't really relevant but I've always wondered, as I usually drive to Italy... where, at the UK border there is the barest minimum of glances at your passport, how do the UK government know about travel within the EU? Not really important, just curious

Nowadays, the government gets passenger lists.

And if we were able to get the RC, then as soon as 5 years passes from when I can prove I was working in the UK - from 2014 so 2019, I can just apply for PR for him? Do I need to do it too, even though I am Britishers well?

You don't need to apply for yourself; just your husband needs to apply. As your husband's rights do not depend on whether you hold any sort of document certifying permanent residence, I don't believe your could get either a DCPR or PRC.

[aquafreddo]

Sorry - I mean a Registration Certificate!

I was looking at the RC (5 years) application just to understand what we will have to fill in, and it does ask to see his previous RC and the dates etc, as well as how long he has resided in the UK.

Does that mean they will simply look at the dates and know that we fall under the Transitional Arrangements?

And there is a lot of questions about the sponsors PR or if they hold a Registration Certificate, and if not why... do I put - due to dual citizenship?

The only notes about dual citizenship anywhere on the form are Surinder Singh cases... nothing for people in our situation - RC from pre July 2012.

Sorry for all the questions! Thanks so much for taking the time to help.

[noajthan]

You will definitely need a cogent cover letter.
Make your case clear and simple so cw understands exactly what she is dealing with.

Don't expect a busy, overloaded (& possibly underpaid) cw to 'join the dots' for you.

Explain clearly that although British you are Italian too - and application is based on you being the EEA sponsor of your dependent family member (the main applicant).
That original RC is gold - make sure you keep several scans & photocopies of it in your possession (just in case).

Whatever you do don't leave HO any 'wriggle room' in either the application or the supporting documentary evidence; that needs to be good (if not unimpeachable) too.
Spoonfeed them to make it easier for them to weigh up and process your application.

[aquafreddo]

Thanks for the input, it does lay my mind to rest.

The only query I have now, is when completing the form, when I am explaining why we can't apply for PR, and saying I had a period of not working, didn't have CSI while a student... can we get in trouble for these breaches retrospectively?

[ohara]

Extremely unlikely they will try to punish you retrospectively. I've been here for 25 years including all of primary and secondary school, plus further education, and I never had any form of health insurance at any time. I even wrote a covering letter with my application for a document certifying PR stating this and HO didn't care at all. The DCPR was issued without a problem.

[noajthan]

Thanks for the input, it does lay my mind to rest.

The only query I have now, is when completing the form, when I am explaining why we can't apply for PR, and saying I had a period of not working, didn't have CSI while a student... can we get in trouble for these breaches retrospectively?

No you will not be penalised or otherwise in trouble.

The caseworker can always see the history of your activities from the various timeline questions you will answer; so suggest less emphasis on all that in the cover letter (if any at all).

The main focus of the cover letter should be on explaining about and invoking the 2012 transitional arrangement based on the RC dating from 2012.

[Richard W]

The main focus of the cover letter should be on explaining about and invoking the 2012 transitional arrangement based on the RC dating from 2012.

The original family permit may be an even better document. According to pp45-6 of the HO internal guidance, it is also acceptable, and may well be the intended interpretation of the law. The RC has the drawback, not mentioned in the guidance, that the holder has to have had the right to reside in the UK on 16th July 2012 - Schedule 3 Regulation 2(3)(a).

[Casa]

Thanks for the input, it does lay my mind to rest.

The only query I have now, is when completing the form, when I am explaining why we can't apply for PR, and saying I had a period of not working, didn't have CSI while a student... can we get in trouble for these breaches retrospectively?

No you will not be penalised or otherwise in trouble.

The caseworker can always see the history of your activities from the various timeline questions you will answer; so suggest less emphasis on all that in the cover letter (if any at all).

The main focus of the cover letter should be on explaining about and invoking the 2012 transitional arrangement based on the RC dating from 2012.

@ aquafreddo Noajthan has given you excellent advice in this thread. Stay focused and don't allow yourself to be sidetracked from the main issue as Noajthan has wisely suggested.

[noajthan]

The main focus of the cover letter should be on explaining about and invoking the 2012 transitional arrangement based on the RC dating from 2012.

The original family permit may be an even better document. According to pp45-6 of the HO internal guidance, it is also acceptable, and may well be the intended interpretation of the law. The RC has the drawback, not mentioned in the guidance, that the holder has to have had the right to reside in the UK on 16th July 2012 - Schedule 3 Regulation 2(3)(a).

In this context a FP is no better or worse than a RC.

The OP did have a demonstrable right to reside in UK on/before July 2012 anyway, even without a RC in their hands.

And, as many experienced moderators caution within these forums, the HO guidance (example as quoted above) cannot be taken as an accurate representation of the law;
such documents are often riddled with errors & should only be treated as an approximate expression of the law.

The OP now has enough to work with and a sound basis to move forwards.
That is the main thing.

[Richard W]

In this context a FP is no better or worse than a RC.

The OP did have a demonstrable right to reside in UK on/before July 2012 anyway, even without a RC in their hands.

The OP's husband had a demonstrated possession of the right in May 2012; strictly speaking, to use the RC as evidence that his wife counts as Italian, he will have to establish that he also had the right on 16 July 2012. The relevant regulation says 'on', not 'before'. To be sure of being able to use that RC when applying for subsequent cards, supporting documents for July 2012 need to be kept or be obtainable.

One worrying thought has occurred to me. Will the first RC be returned by the HO when the second RC is applied for? Of course, the Home Office should have a record of having issued the first RC.