Settled Status for NON-EEA FAMILY MEMBER WITH DUAL NATIONAL SPONSOR (2012-TRANSITIONAL ARRANGEMENT)

My husband has applied for the settled status, as he has a 5 years residence permit stamped in his passport. My step-dad is his sponsor (a dual national from birth - German and British). We have previously relied on the 2012 transitional arrangements where family members who had successfully obtained residence documents where allowed to continue exercising those rights.

Fast forward to now, where we have supplied everything needed on his application and have been left waiting since April 2019 for his settled status. Is there anyone else in similar situation and with any advice? All advice and information would be very welcome.

Time Line:- Applied for Settled Status on the 09/04/2019;

Appointment for Bio-metrics on the 03/05/2019;

Requested more evidence (more of the same stuff really) on the 16/07/2019 - replied the same day;

Update received on the 06/09/2019 - saying to use Lounes Paper Route; called resolution center and was told it would be referred to back to case worker to review and process again as we definitely cannot use Lounes;

12/09/2019 - Received a call back from the resolution center agent that he basically wasn't allowed to do what he had said he was going to do and that we had to email the case worker by replying to the update email with the details we discussed over the phone - we replied the same day with everything;

We have been waiting since. Almost 11 months since we applied, we have called several times since, to be told its been escalated to two different senior case workers.

Some Background information (not sure if its relevant) -

I applied and obtained my residence card in 2011, got married in 2011.

Applied for my husband and 3 children's residence cards in 2013, obtained them in 2014 (transitional arrangement applied here by Home Office - they were still pretty reasonable at this time).

Applied for PR in 2016 - went through a 3 year 'battle' with the home office to obtain the PR and get the correct PR date confirmed. Thanks to a bunch of nonsense lawyers, I hadn't realised that as a direct family member my PR was acquired 5 years into my long residence with my parents (member of the household and all that) which meant I had PR since 2008. It all got sorted in March 2019, correct date and all.

Please, if anyone can advise us on this, it would be highly appreciated.

Unfortunately, your husband and children are not covered by the EU Settlement Scheme or the Withdrawal Agreement. The problem is that your stepfather is not and never has been an 'EEA citizen' as defined by Appendix EU of the Immigration Rules.

There is a way forward, at least if your children are not too old.

(a) Your husband and children* should apply for permanent residence cards under the EEA Regulations.
(b) You should apply for British citizenship.
(c) When your husband and children have their PR cards, and you have British citizenship, they should apply for naturalisation or registration.

You must act fast. Your husband has until 31st December (unless the EEA Regulations 2016 remain unamended and unrepealed) to apply for naturalisation; he will qualify on the basis of 3 years residence not in breach of the immigration laws and being married to a British citizen.

*Possibly unnecessary for the children, as they have PR already, but I think it may make matters easier if they have documented rights of permanent residence.

I have been assuming the children were born outside the UK. If they are the OP's and were born in the UK in or after 2011, and the OP has retained PR from 2008, then of course they are already British.

I do not agree with Richard on this unfortunately.

The people in this discussion have already acquired Permanent Residence status, they are therefore entitled to apply in there own right without the need to rely on a Sponsor.

Lounes is not applicable in this case. The 2012 transitional provision is not engaged.

Obie wrote: ↑

Sun Mar 01, 2020 10:04 pm

The people in this discussion have already acquired Permanent Residence status, they are therefore entitled to apply in there own right without the need to rely on a Sponsor.

I too originally thought that, except that a PRC (or in the general case, but rarely, a DCPR) would be required. Then I checked the current version of the Rules.

Unhappily, a documented right of permanent residence on its own ceased to be enough with the Immigration Rules that came in for 1st November 2018, which then also required a connection with an EU (i.e. EU27) citizen. The killer punch was the change that came in on 30 March 2019, when dual nationals (e.g. the OP's stepfather) were excluded from the definition of 'EEA citizen' (which has now replaced 'EU citizen' in the Rules) unless they were protected by the HO interpretation of the Lounes judgement. I suspect the only way for the family to have made the window of opportunity would have been to renew their residence cards so that they had mere residence cards issued after 6 April 2015, rather than wait until the 5 years had been completed and they would (I hope) be entitled to permanent residence cards.

Or have you found some way that the connection with an 'EEA citizen' mentioned in Paragraph EU11 Condition 1 is unnecessary? If so, please share, especially with the OP.

Obie wrote: ↑

Sun Mar 01, 2020 10:04 pm

The 2012 transitional provision is not engaged.

If I understand your phrase, that is the problem. It's only relevant to the acquisition of PRCs for the OP's husband and possibly her children.

Googling, I found on a law firm's facebook account a message purporting to come from 'xxxxxx', Head of European Migration Policy, a fortnight ago saying that they are aware that they haven't captured the transitional arrangement and intend to fix it in Immigration Rule changes laid before parliament in the middle of this month. That is not a commitment, but offers hope. In the meantime, applying for PRCs looks prudent.

It seems that some applicants have received advice from within the Home Office, or Home Office contractors, to lie about their sponsor's nationalities, which may be why the the case worker assumed that Lounes was relevant. It seems to me that that's how similar cases have been handled.

I just want to say thanks so much Richard W, for all your replies and advice. I am looking into everything you've said so far.

Richard W wrote: ↑

Fri Feb 28, 2020 12:55 am

I have been assuming the children were born outside the UK. If they are the OP's and were born in the UK in or after 2011, and the OP has retained PR from 2008, then of course they are already British.

Actually, I have since (March 2019) applied and obtained my British citizenship and my children's British citizenship were confirmed as automatic (your analysis is spot on), with me being settled since 2008. Its just my husband left now, I had hoped the settled status was the most straightforward way for him, as I have a very heavy distrust of the PR route, being that the entire process seems to have evolved into a massive landmine; also thanks to my 3 year ordeal getting mine done.

Richard W wrote: ↑

Tue Mar 03, 2020 5:32 pm

Googling, I found on a law firm's facebook account a message purporting to come from 'xxxxxx', Head of European Migration Policy, a fortnight ago saying that they are aware that they haven't captured the transitional arrangement and intend to fix it in Immigration Rule changes laid before parliament in the middle of this month. That is not a commitment, but offers hope. In the meantime, applying for PRCs looks prudent.

Thanks for this insight, I am going to keep an eye on this, hopefully they proceed forward with this and conclude on it positively. Fingers crossed (praying with every bit of my heart) for this.

Obie wrote: ↑

Sun Mar 01, 2020 10:04 pm

I do not agree with Richard on this unfortunately.

The people in this discussion have already acquired Permanent Residence status, they are therefore entitled to apply in there own right without the need to rely on a Sponsor.

Lounes is not applicable in this case. The 2012 transitional provision is not engaged.

Thanks Obie for your reply as well. But I think you've misunderstood, My Husband doesn't currently have PR, neither do my children (but then I do no longer need to apply for that for them). Not sure what you meant by the 2012 transitional provision not being engaged, if you don't mind, please explain further.

I had really hoped we would have obtained his citizenship by now, really don't want to get stuck in this Brexit atmosphere, not a good place to be in.

I think Obie assumed that having been granted a residence card 5 years ago, you husband would by now automatically have acquired permanent residence.

I had assumed that your husband was part of your father-in-law's household. On reading your much earlier posts, I now begin to think he was merely financially dependent. If he did not remain financially dependent or part of his household for the five years, I think he will not have remained a 'family member', and therefore not have achieved PR and therefore be eligible for a PRC.

There is another worry, lying in the EUSS definition of 'dependent relative'. There are currently three categories of 'sponsor' in such a case.
(a) A relevant EEA citizen who would qualify for leave to remain under the EUSS.
(b) The spouse of such a national.
(c) A 'qualifying British citizen', which relates to SS.
Definition (a) needs to be modified for you to benefit, as it does not cover relevant EEA nationals who are also British citizens. British citizens cannot be granted leave to remain. This definition seems not to be consistent with the Withdrawal Agreement, as it would also exclude a 'relevant naturalised British citizen'.