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

[sneha0207]

Hoping someone could help me.

I hold dual British & Hungarian citizenship and my husband is an Indian citizen. I acquired British citizenship in November 2014. I have been living and working in the UK since August 2006 but I am currently a stay-at-home mother.

My husband and I got married in March 2012 and shortly afterwards he was granted a 5-year EEA family permit. He has been employed continuously since then. This permit will expire in May 2017.

As I had been working continuously from August 2006 till I came on maternity leave in May 2013 I believe I held permanent right of residence after 5 years which was August 2011 (I did not apply for a residence card to prove this though as it was not compulsory). I have been in short periods of employment since my maternity leave ended but I am currently unemployed.

I read that my husband could apply for a permanent residence card once his family permit expires next year but I am unsure as to how my newly-acquired British citizenship will affect his application. As he had been granted an EEA family permit before I gained British citizenship, can he still apply via the EEA route? Or as he will already have spent 5 years living and working in the UK with the EEA family permit in May 2017, can he apply for a permanent residence card in his own right?

Thank you for your help in advance.

[noajthan]

I read that my husband could apply for a permanent residence card once his family permit expires next year but I am unsure as to how my newly-acquired British citizenship will affect his application. As he had been granted an EEA family permit before I gained British citizenship, can he still apply via the EEA route? Or as he will already have spent 5 years living and working in the UK with the EEA family permit in May 2017, can he apply for a permanent residence card in his own right?

Thank you for your help in advance.

Yes on this point based on having the 2012 FP:

As he had been granted an EEA family permit before I gained British citizenship, can he still apply via the EEA route?

No to this:

Or as he will already have spent 5 years living and working in the UK with the EEA family permit in May 2017, can he apply for a permanent residence card in his own right?

Non-EEA spouse's activity in UK is immaterial.
Husband acquires PR only through you exercising treaty rights continuously for 5 years in UK.

This assumes neither of you have had prolonged absences from UK.

Suggest you apply for confirmation of PR based on 2006 - 2011.
Once you have that confirmed you will have had no need to continue to exercise treaty rights, ie after 2011 or so.

Husband applies for confirmation of PR from date of marriage or date of entry to UK (whichever is latest).
Assuming you had acquired PR by then all hubby had to do is reside in UK (preferably with you) for 5 years.

Just to be clear, as timing is critical for the relevant transitional arrangement to be invoked:
When did you / husband arrive in UK?
When exactly did you apply for FP and when did you receive it?
Did you arrive in UK within 6 months of the issue date of the FP?
Did husband apply for a RC in 2012?

fyi - similar case:
http://www.immigrationboards.com/eea-ro ... 06697.html

[sneha0207]

Thank you for your help.

I arrived in the UK in June 2006 and hubby in April 2009. We got married in March 2012 which is when I applied for the FP. Received FP in May 2012.

So am I correct in saying that my BC does not affect his EEA4 application and he can still take the EEA route as FP was issued before I acquired BC?

Thank you once again.

[Richard W]

I read that my husband could apply for a permanent residence card once his family permit expires next year but I am unsure as to how my newly-acquired British citizenship will affect his application.

As he had been granted an EEA family permit before I gained British citizenship, can he still apply via the EEA route? Or as he will already have spent 5 years living and working in the UK with the EEA family permit in May 2017, can he apply for a permanent residence card in his own right?

He cannot apply in his own right as he does not hold a retained right of residence. He applies as having resided for 5 years as your family member, you being a permanent residence. I trust you registered under the WRS.

Did your husband hold a family permit - that lasts only 6 months. You are talking about a residence card. His only claim to use the EEA route that I see is the 'McCarthy' transition clauses, Schedule 3 of the The Immigration (European Economic Area) (Amendment) Regulations 2012. It would appear that the residence card he got in May 2012, plus you being a worker on 16 July 2012, makes your British citizenship irrelevant. The big worry I have is that the schedule was not meant to cover cases like yours, and so might be ruled not to cover them.

[noajthan]

Thank you for your help.

I arrived in the UK in June 2006 and hubby in April 2009. We got married in March 2012 which is when I applied for the FP. Received FP in May 2012.

So am I correct in saying that my BC does not affect his EEA4 application and he can still take the EEA route as FP was issued before I acquired BC?

Thank you once again.

The McCarthy transitional arrangement applies if you meet the criteria.
Several such cases have come across the forum's desk.

Unclear if you really mean a FP - 'family permit' or a Residence Card (RC).

A FP is an UK entry visa valid for 6 months.
Why would hubby need that if he entered UK in 2009?
- On what basis was he in UK from 2009 until 2012?

Did husband possess any RCs issued sometime after first entry into UK and up to 2012?

[sneha0207]

He was here on a student visa from April 2009.

[sneha0207]

Sorry for the confusion. He was granted a residence card of a family member of an EEA national valid for 5 years.

If application via EEA route gets rejected, is there any way we could still stay together as a family? We have a 3-year-old who also holds BC. Is there anything else we could do?

[noajthan]

Sorry for the confusion. He was granted a residence card of a family member of an EEA national valid for 5 years.

If application via EEA route gets rejected, is there any way we could still stay together as a family? We have a 3-year-old who also holds BC. Is there anything else we could do?

There is no need to abandon the EU route, there are options even for the extreme scenario you have just mentioned.
Best to focus on acquiring PR document for husband now (& evidence you were exercising treaty rights), as I suggested above.

When exactly (what date) was the RC granted? This is very important

[sneha0207]

RC was issued 24 May 2012.

Does my being unemployed at the moment affect my residence card application? Form does not have an option to state that I am unemployed now as a stay-at-home mum but had completed the qualifying five-year period previously.

[noajthan]

RC was issued 24 May 2012.

Does my being unemployed at the moment affect my residence card application? Form does not have an option to state that I am unemployed now as a stay-at-home mum but had completed the qualifying five-year period previously.

Receipt of the RC before one of the relevant critical dates of the 'ta' (6 July 2012 ) is most helpful to your case.

What was I thinking of, as you are a BC you don't need formal confirmation of having acquired PR.
So focus on husband's application.

You just need supporting documentary evidence to prove you were exercising treaty rights for a valid 5-year period.
Since then you don't need to exercise treaty rights.
Husband simply needs to submit proof of residence in UK since your marriage plus proof of the marriage (and proof of both your ids obviously).

[sneha0207]

Ok so hopefully I am correct in saying that:

My hubby can still apply via the EEA route as residence card was granted on 24 May 2012 before I acquired BC in November 2014.
I don't need to show that I am exercising my treaty rights after the qualifying five-year period which I completed in August 2011. We got married in March 2012 and have been living together since. Based on the above, hubby can, in theory, apply for and be granted a permanent residence card.

Just one more thing, can hubby apply for BC when his PR card expires (if granted next year)?

Thank you very much, you both have been very helpful!

[noajthan]

Ok so hopefully I am correct in saying that:

My hubby can still apply via the EEA route as residence card was granted on 24 May 2012 before I acquired BC in November 2014.
I don't need to show that I am exercising my treaty rights after the qualifying five-year period which I completed in August 2011. We got married in March 2012 and have been living together since. Based on the above, hubby can, in theory, apply for and be granted a permanent residence card.

Just one more thing, can hubby apply for BC when his PR card expires (if granted next year)?

Thank you very much, you both have been very helpful!

Yes, your understanding aligns with my understanding of the case.

As well as invoking the transitional arrangement this relies on you having adequate documentary proof of exercising treaty rights.
If that is all available then you have a good chance of success in confirming hubby's acquisition of PR.
(No cast-iron guarantees ofcourse - there are other details, not discussed here, you will need to dig into and make sure of "to cross the t's and dot the i's" so to speak).

If/when husband has his PR confirmed then yes, he may apply for the privilege of citizenship as soon as he meets all the requirements for naturalisation.
He will have no need to hold his PR status for 12 months - that is the one benefit (in immigration terms) of marriage to a BC.

[sneha0207]

Yes, I have all the documentary proof required to show I was exercising treaty rights during those five years - I had to submit these with the citizenship application too.

If I still wanted to get confirmation of PR for 2006-2011, do you know if it is possible to backdate an application? Although I am unemployed at the moment, I am doing vocational training (ACCA self-study) related to my last job as accounts assistant. Otherwise I'm not sure how to get a permanent residence card based on those five years in my present situation.

I am slightly confused how to go about this as I now hold BC too, it doesn't make sense to give me a PR card as well. I know that acquired BC in itself is already proof of my PR otherwise BC would not have been granted.

But my husband's permanent residence card form states that they need my residence card number as proof, should I just give them my naturalisation certificate number? But then it looks like we are applying on the basis of my British citizenship and not my having exercised treaty rights between 2006 and 2011 as an EU citizen.

Sorry for all this, don't want to confuse you but I hope you understand my problem. Thank you for all your help so far.

[noajthan]

Yes, I have all the documentary proof required to show I was exercising treaty rights during those five years - I had to submit these with the citizenship application too.

If I still wanted to get confirmation of PR for 2006-2011, do you know if it is possible to backdate an application? Although I am unemployed at the moment, I am doing vocational training (ACCA self-study) related to my last job as accounts assistant. Otherwise I'm not sure how to get a permanent residence card based on those five years in my present situation.

I am slightly confused how to go about this as I now hold BC too, it doesn't make sense to give me a PR card as well. I know that acquired BC in itself is already proof of my PR otherwise BC would not have been granted.

But my husband's permanent residence card form states that they need my residence card number as proof, should I just give them my naturalisation certificate number? But then it looks like we are applying on the basis of my British citizenship and not my having exercised treaty rights between 2006 and 2011 as an EU citizen.

Sorry for all this, don't want to confuse you but I hope you understand my problem. Thank you for all your help so far.

Yes I understand the problem or challenge.

It is a little odd as you are now British.
I don't know of any outright ban on you applying for a confirmation of PR card but it may just be odd to be applying for one now.

I suggest applying for husband's PR by declaring your exercising of treaty rights and resubmitting all the evidence that, as you say, you had used before;
(definitely use the relevant and proven period: 2006-2011 and not any later period which may fail).

It may be your acquisition of PR (& the date) is already recorded on the HO internal 'CID' (computer) system - but you can't rely on that.
It's up to you to back up the application now being made.

If need be, add some explanation in a brief covering letter.
In any case you should explain clearly that you are invoking the transitional arrangement.
So you can also point out the specific period that is your qualifying period when you acquired PR.

Have a few dry-runs on a draft form; see how it all shapes up along with your supporting evidence.
Try to make it as simple as possible for the caseworker to weigh up and process the application.

[Richard W]

The McCarthy transitional arrangement applies if you meet the criteria.
Several such cases have come across the forum's desk.

UKVI says the transition arrangements don't apply if the sponsor was not a British citizen on 16 July 2012. Last year you too expressed concern over whether such cases would succeed. What changed your mind? Do you know of successful cases where the sponsor became British after that date but the family member still got the card later on?

European Operational Policy Notice 09/12 also takes that restrictive view. It also takes the draconian view that if the sponsor ceases to be a permanent resident or a 'qualified person', then the exception lapses - the sponsor ceases to count as an 'EEA national'. This latter argument has been used to refuse further family permits to a couple that was using them as cheap and unstressful tourist visas. Possibly the HO has relented or been defeated on this view.

[Richard W]

If application via EEA route gets rejected, is there any way we could still stay together as a family? We have a 3-year-old who also holds BC. Is there anything else we could do?

So long as he is in the UK, and not as a visitor, he should be able to apply on FLR(M) or FLR(FP). It will depend on human rights, with your child serving as an anchor baby and activating Immigration Rule EX.1.

A much weaker case than yours (Toufik Lounes v. SSHD) , relating to an EU national settling and naturalising in the UK, and then trying to bring in a non-EEA national, has recently been referred to the European Court of Justice. The decision may mean that you don't need to depend on the transitional arrangements for dual nationals.

[noajthan]

The McCarthy transitional arrangement applies if you meet the criteria.
Several such cases have come across the forum's desk.

UKVI says the transition arrangements don't apply if the sponsor was not a British citizen on 16 July 2012. Last year you too expressed concern over whether such cases would succeed. What changed your mind? Do you know of successful cases where the sponsor became British after that date but the family member still got the card later on?

European Operational Policy Notice 09/12 also takes that restrictive view. ...

Short answer:

The McCarthy transitional arrangement applies if you meet the criteria.
Several such cases have come across the forum's desk.

If you are addressing me Richard, and not OP, then Richard I have learned by experience and from wider reading.
And from my co-Moderators, (some of whom are extremely experienced lawyers in the field of immigration).
As well as from a number of related cases that have passed across the Board's (virtual) desk in the past year or so.

So the words of 'wisdom' that I, at least, am, on occasion, able to share are not just cobbled together and cast out into the ether at random.

Furthermore another thing I have learned is that the apparent interns and admin clerks responding to FOI requests are not the repository of the law.
Neither is UKVI the final word on the matter.
They are all just as capable of misunderstanding relevant legislation as you are (or I am).

An example...
Schedule 3 of Immigration (European Economic Area) (Amendment) Regulations 2012

Amendments to the definition of EEA national

2.—(1) Where the right of a family member (“F”) to be admitted to, or reside in, the United Kingdom pursuant to the 2006 Regulations depends on the fact that a person (“P”) is an EEA national, P will, notwithstanding the effect of paragraph 1(d) of Schedule 1 to these Regulations, continue to be regarded as an EEA national for the purpose of the 2006 Regulations where the criteria in subparagraphs (2), (3) or (4) are met and for as long as they remain satisfied in accordance with subparagraph (5).

So you will note the legislation that transposes McCarthy into UK law does not actually contain any condition or require that 'P' is a British citizen (/dual national).
It is couched primarily in terms of an EEA national.

Yes, Mrs McCarthy was a dual national lady. But the rather limited ruling the justices made (and apparently described as such), and which, interestingly, McCarthy lost, was not transposed directly into law.
Some elements of the judgement were lost in transposition.
Whether that was by accident or design - "I couldn't possibly comment".

It is therefore irrelevant whether the sponsor was British or not at the time (in 2012).
The crux of the matter is the OP and applicant were (are) a sponsor & dependent and there was a RC (as per the sub-paragraphs, blah blah blah).

Without further distraction (and without scaring OP away), can we now all get back to the fundamental task of reaching the OP's 'holy grail', namely PR for hubby
(My patience is wearing thin the way some of these threads meander all over the place).

PS Richard, if you take one thing away with you can you understand that Operational Policy Notices (& similar documents), however useful they may be as a kind of sketch map or crib sheet, merely provide guidance.
That is: Guidance.

It is both salutary and instructive to note the IDIs/guidance are wrong.
The FOI data clerk got it wrong too.
Both misquoted &/or mis-paraphrased the legislation into the 'official guidance'.

Just as a map is not the territory, guidance is not the law. And it has no binding statutory weight.

[sneha0207]

My very limited understanding of the McCarthy case is that Mrs McCarthy has never exercised her treaty rights. I had already completed my five-year qualifying period in August 2011, having both worked and studied at university during that time. My mistake was not applying for a permanent residence card back then as it was not required or necessary.

I only acquired British citizenship in November 2014 and so my husband's application was done via the EEA route back in 2012. I understand I am now considered a BC before anything else so would I now have to renounce my citizenship to keep him here with us? Don't see the point of trying to break families up.

[sneha0207]

To be able to use form FLR (M) or FLR (FP) would we not have to meet the income threshold of £18,600? This is not possible for us at the moment as I am currently unemployed.

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

[noajthan]

My very limited understanding of the McCarthy case is that Mrs McCarthy has never exercised her treaty rights. I had already completed my five-year qualifying period in August 2011, having both worked and studied at university during that time. My mistake was not applying for a permanent residence card back then as it was not required or necessary.

...

Don't get distracted. No need to jump ship from EU route at this time, after all you haven't even tried to apply for hubby's PR..

You have a plan of action already discussed at length.
How is that shaping up? Evidence gathered together yet? Draft form printed out? (several copies!).
See how it all looks when form is filled out and backed by the supporting evidence you have to submit.

[sneha0207]

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?

[noajthan]

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.

[sneha0207]

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.

[sneha0207]

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.

[noajthan]

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).