Retaining EEA family member right of residence

[etalgor]

Hi everybody
Sorry for posting this if the issue has been already addressed, but I couldn't find a satisfactory answer...
I am an EEA citizen and i have obtained my PR card (via EEA3) almost one year ago, in April 2013. I am now considering applying for UK citizenship soon (this or next month).

My wife (we got married less than one year ago, in July 2013) is a non-EEA citizen and has applied (based on my EEA PR) for a residence permit, via EEA2, and has obtained it in December 2013 (after a long application process and sending extra documentation, but that's another story, she got the 5 year EEA vignete on her passport). Before that, she was in UK for about 3 years (1 yr on student visa and then on post-study 2yr visa).

My question is, what will happen with her right of residence if i become UK citizen sometime later this year?
On her letter she received form UKBA with her passport & residence permit, it is stated clearly that her rights of residence remain as long as her husband (myself) continues exercising treaty rights (and must let them know immediately if this stops etc) .

I read here that there was a change in law in 2012 affecting dual EEA & UK nationals, regarding their rights under EEA agreements; is this going to affect our case?

As a related point, what next for my wife after i obtain UK citizenship, will she be able to apply for citizenship in 3 years (since married or since i become naturalized?) or she will have to go down on the EEA route of 5 years? Not so much troubled about this at the moment, however i am very worried she might loose her right of residence for which we struggled so much!

Many thanks for sharing any previous experience or indeed any advice on this.

[Jambo]

Retaining residence rights are for cases of divorce (or death). Not relevant to your case.

If you become British and keep holding your EU citizenship (not all countries allow dual nationality), your wife can continue to enjoy from the EEA route. The changes in 2012 apply to new applications. Not to people already on the EEA route.

If you are BC, then on the day your wife complete 5 years of residence (and obtain PR automatically), she can apply for BC (if she wish).

[etalgor]

Many thanks Jambo for the reply.
I agree the term "retaining residence right" is usually understood as applying to the cases you mentioned, perhaps I should call our case one keeping/maintaining/continuing etc residence right under EEA, to avoid confusion.

I'm still not quite in clear what you said about the 2012 law, that is only relevant to new applications - in what sense do you state that my wife can continue on the EEA route once i become dual BC & EEA? I was thinking she only started her EEA route in December 2013 when she got her 5 year permit (or at earliest in July 2013 when we married) - thus after 2012 . I started mine in 2007 or 2008 but is that of any importance for her case?

I know there are other similar cases discussed here (and you gave some very helpful replies ) which were in the end successful - but in those cases the non-EEA partner had got their 5 year residence permit before 2012.

I have my Life in UK test tomorrow but I'm not looking forward at all to BC if all this would just get us into more trouble...

[askmeplz82]

What Jumbo was trying to say:

from 6 July 2012, a dual UK / EEA national is not to be treated as an EEA national for the purposes of the EEA Regulations. so if you have become british and then your wife send EEA2 application her application would have been rejected because under new law

but she is still under EEA law and she will qualify for PR 5 years after marriage

taking up British nationality now will exclude you from bringing in dependent parents, or adult dependent children. Under the EEA Regulations, it is (relatively) easy to apply for a dependent parent to join you, but under domestic legislation it is increasingly difficult. This is something which EEA nationals in the UK will need to consider prior to taking up British nationality.

[Jambo]

You are not British yet. The rules change would only affect you once you become British but they will not affect family member who are already on the EEA route once you become British.

[etalgor]

Many thanks for your replies!

I was not understanding when/how the new regulations start applying for a new case - thinking that they will affect all post-2012 cases. I see now that the regulations are just a mean to stop any fresh new EEA routes being started once once BC was acquired.

Feeling much better now , only hoping though that they won't change again the damn thing... After all, the thing i was afraid didn't seem at all implausible...

[etalgor]

I have now read the amendments from 2012 (No 1547) to the Immigration (EEA) regulations (2006)(http://www.legislation.gov.uk/uksi/2012/1547/made) where the definition of a "EEA national" was amended to "a national of an EEA State who is not also a United Kingdom national" for the purposes of 2006 regulations.
I understand also that there are transitional provisions in place to cover the cases when the non-EEA family member had, or was in the precess of obtaining, a residence card/family permit/etc in July 2012.
I see however that these transitional provisions do not apply to our case, not only because my wife didn't have such a card in 2012, but because (i guess??) the provisions are for those who applied as a family member of a dual UK/EEA citizen prior to 2012.

Understanding this, i still have a fundamental issue to sort out: from what law/part of it/regulation/etc do arise the rights of my wife to (continue to) reside in UK after i will become dual UK/EEA citizen. To this point, i understand that this right is not absolute (for example it could end if we separate, i leave UK, etc, subject to conditions etc). I guess again that there must be however a catch somewhere in the law that allows her (as you all said ) to continue to reside under EEA reg. I can see here an analogy to the Surender Singh cases, where the residence rights can be derived from the treaty rights of a UK citizen, exercised for some time, but which for sure are no longer exercised (?) upon return to the UK of the UK citizen. So a UK citizen can go abroad, exercise treaty rights for some time (i know this is becoming harder now...), then come back with spouse, she gets 5 year EEA residence, and after that PR, without the UK citizen ever going back abroad? If the residence rights can continue in SS cases, i guess they continue in our case as well; to end this long (and i hope not to annoying argument), which are the "magic" words in the law (or precedents) that allow this to happen?

I also posted an enquiry on Your Europe Advice about the rights we have in our case, will let you know as soon as i get a reply!

[Jambo]

There isn't a specific dealing in such cases in the law probably be cause they didn't envisaged such cases but the logic that is behind the transitional arrangement (not leaving people already under the EEA route in limbo) should apply to your case as well. I don't see the HO arguing differently.

[maxmelion]

Dont confuse urself nd listen to jambo . He told u the right advice .

I have now read the amendments from 2012 (No 1547) to the Immigration (EEA) regulations (2006)(http://www.legislation.gov.uk/uksi/2012/1547/made) where the definition of a "EEA national" was amended to "a national of an EEA State who is not also a United Kingdom national" for the purposes of 2006 regulations.
I understand also that there are transitional provisions in place to cover the cases when the non-EEA family member had, or was in the precess of obtaining, a residence card/family permit/etc in July 2012.
I see however that these transitional provisions do not apply to our case, not only because my wife didn't have such a card in 2012, but because (i guess??) the provisions are for those who applied as a family member of a dual UK/EEA citizen prior to 2012.

Understanding this, i still have a fundamental issue to sort out: from what law/part of it/regulation/etc do arise the rights of my wife to (continue to) reside in UK after i will become dual UK/EEA citizen. To this point, i understand that this right is not absolute (for example it could end if we separate, i leave UK, etc, subject to conditions etc). I guess again that there must be however a catch somewhere in the law that allows her (as you all said ) to continue to reside under EEA reg. I can see here an analogy to the Surender Singh cases, where the residence rights can be derived from the treaty rights of a UK citizen, exercised for some time, but which for sure are no longer exercised (?) upon return to the UK of the UK citizen. So a UK citizen can go abroad, exercise treaty rights for some time (i know this is becoming harder now...), then come back with spouse, she gets 5 year EEA residence, and after that PR, without the UK citizen ever going back abroad? If the residence rights can continue in SS cases, i guess they continue in our case as well; to end this long (and i hope not to annoying argument), which are the "magic" words in the law (or precedents) that allow this to happen?

I also posted an enquiry on Your Europe Advice about the rights we have in our case, will let you know as soon as i get a reply!

[etalgor]

I appreciate the advice and i think - considering all that was said and Jambo's experience- it is a reasonable advice. Looks like the law is not that specific in this case, so i am not 100% happy at the moment After all, there is a hell of a lot to be lost in 4 years time if it turns out somehow i was wrong and my wife was residing illegally. I just want to proceed with caution, as there is no burning need for me to apply to BC without fully understanding the consequences. Would have been nice to know some other ppl experiences and that i'm not alone in this boat.

[etalgor]

I got today the following reply from Your Europe Advice, after submitting an inquiry last week:

Thank you for contacting Your Europe Advice.

In the event you were to acquire British citizenship, as you correctly point out, 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).

In order to safeguard your wife s rights, we therefore do not recommend that you apply for naturalisation as a British citizenship until your wife has obtained permanent residence by submitting an application using Form EEA4.

Otherwise if you were to obtain British citizenship, your wife would need to change her status to being the spouse of a British citizen, which means complying with the financial requirements among other conditions. You can find out more about these here:
https://www.gov.uk/remain-in-uk-family

We understand that you were married in July 2013. As a result your wife will have acquired the status of the family member of an EU citizen from that date. This means that she will acquire permanent residence after having lived continuously for five years in the UK. She would therefore be able to apply for a permanent residence card in July 2018. The rules are explained further here:
https://www.gov.uk/apply-for-a-uk-resid ... d/overview

We hope this answers your query.

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

[maxmelion]

Dissapoint answer . If tht true im lost .

I got today the following reply from Your Europe Advice, after submitting an inquiry last week:

Thank you for contacting Your Europe Advice.

In the event you were to acquire British citizenship, as you correctly point out, 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).

In order to safeguard your wife s rights, we therefore do not recommend that you apply for naturalisation as a British citizenship until your wife has obtained permanent residence by submitting an application using Form EEA4.

Otherwise if you were to obtain British citizenship, your wife would need to change her status to being the spouse of a British citizen, which means complying with the financial requirements among other conditions. You can find out more about these here:
https://www.gov.uk/remain-in-uk-family

We understand that you were married in July 2013. As a result your wife will have acquired the status of the family member of an EU citizen from that date. This means that she will acquire permanent residence after having lived continuously for five years in the UK. She would therefore be able to apply for a permanent residence card in July 2018. The rules are explained further here:
https://www.gov.uk/apply-for-a-uk-resid ... d/overview

We hope this answers your query.

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