EEA(PR) for non-EU citizen after changing citizenship

[chaoclive]

Hi all

Just wondering if anyone has been in a situation similar to this before:

Chinese citizen arrived in the UK on an EEAFP (Aug 2014), successfully applied for EEA2 (now called EEA(FM)) (received in Dec 2014). Will apply for Irish citizenship (civil partner of Irish citizen living in Northern Ireland) in 2017 when qualifies. Due to gaining Irish citizenship, the Chinese citizen has to renounce Chinese citizenship.

After renouncing Chinese citizenship, the (previous) non-EEA citizen will apply for UK PR on EEA(PR) after the qualifying period is up in Aug 2019 using the Irish passport.

Do you think the Home Office will still honor the PR application even though the non-EEA person changed citizenships from the original citizenship used to enter the UK to another EU citizenship? I know that there is no real need for an Irish citizen to apply for PR in the UK but it wouldn't do any harm to have it and we will have all the documents when the qualifying period is up so it wouldn't be a major exercise.

Has anyone else came across the same kind of situation in the past?

Any ideas?

Cheers
CC

[secret.simon]

Due to historic reasons, Irish citizens are considered settled on arrival in the UK.

So, on getting Irish citizenship, your ex-Chinese partner will automatically be considered settled in the UK. Their EEA dependant status will be superseded by their independent settled status. So, I believe that they will not only not need to, but also will be unable to acquire PR.

On another line of logic, PR requires five continuous years of exercising treaty rights in the same capacity (i.e. as either an EEA citizen or as a dependant of such citizen). By changing from an EEA dependant to an EEA citizen, their PR clock will restart anyway.

[noajthan]

...

On another line of logic, PR requires five continuous years of exercising treaty rights in the same capacity (i.e. as either an EEA citizen or as a dependant of such citizen). By changing from an EEA dependant to an EEA citizen, their PR clock will restart anyway.

Simon,
Putting logic (even common sense) aside, just wondering if/where this is captured explicitly in the EU regs (as the same question occasionally comes up in the forum).
Cheers.

[secret.simon]

...

On another line of logic, PR requires five continuous years of exercising treaty rights in the same capacity (i.e. as either an EEA citizen or as a dependant of such citizen). By changing from an EEA dependant to an EEA citizen, their PR clock will restart anyway.

Simon,
Putting logic (even common sense) aside, just wondering if/where this is captured explicitly in the EU regs (as the same question occasionally comes up in the forum).
Cheers.

Law can not be understood in the absence of logic. Not everything can be or is expected to be spelt out in law.

The current version of the EEA Regulations states

Permanent right of residence
15.—(1) The following persons shall acquire the right to reside in the United Kingdom permanently–
(a) an EEA national who has resided in the United Kingdom in accordance with these Regulations for a continuous period of five years;
(b) a family member of an EEA national who is not himself an EEA national but who has resided in the United Kingdom with the EEA national in accordance with these Regulations for a continuous period of five years;

You can qualify under 15(a) OR 15(b). So, five years as either an EEA national OR as a family member of such a national. Each five year requirement is mathematically discrete and not continuous.

Nothing in the Regulations suggests that you can pick-n-mix bits across regulations. You qualify based on one category alone. In that sense, the EEA Regulations are harder than the Immigration Rules, which does allow years to accumulate (in limited cases) across visa categories.

In any case, none of this alters my opinion on the OP's case, where his partner acquires settled status immediately on acquisition of Irish nationality.

[chaoclive]

This is a reply from the Home Office via email:

"In terms of permanent residence, she will need to show that she has been living in line with the regulations for a continuous period of 5 years. In theory, we do not see why she can’t rely in part or wholly on her time as the non EEA national family member of a Union citizen.

Her problem will be her ability to prove it, if she no longer has her passport or anything related to her Chinese citizenship.

So, changing citizenship would not in itself prevent a person from acquiring permanent residence, but they would still need to provide the evidence they were living in line with the regulations like everyone else.

Tell her to keep a copy of her Chinese passport with the current vignette, before it is handed back to the Chinese authorities."
-----
Re: an Irish citizen getting PR under the EEA regs: this is definitely possible. I have asked this question of the Home Office in the past and it's completely acceptable. Why should an Irish citizen be refused something that a French/Spanish/Romanian citizen can avail of? That was not the issue here. As an aside: A friend of mine was told that she still held PR for the UK even after renouncing her British citizenship (she has lived in Northern Ireland for ages) and was born with dual UK/Irish citizenship, even though she had only had a British passport.

[secret.simon]

I will bow to the Home Office's greater knowledge of the EEA Regulations. I analysed it from an academic point of view.

an Irish citizen getting PR under the EEA regs: this is definitely possible. I have asked this question of the Home Office in the past and it's completely acceptable. Why should an Irish citizen be refused something that a French/Spanish/Romanian citizen can avail of?

I am not saying that they can't. I am saying that it is subsumed (within the UK) by settled status, which is what PR amounts to in the UK.

In UK law, there are three ways of acquiring settled status;
PR under the EEA Regulations
ILR under the UK Immigration Route
Irish Citizenship under the Ireland Act 1949

From a UK law point of view, Irish citizens in the UK are considered settled immediately, rather than waiting for five years to exercise treaty rights.

From an EU point of view, you acquire PR after five continuous years of exercising treaty rights.

Two different sources of the law; two different statuses at different points in time.

As an aside: A friend of mine was told that she still held PR for the UK even after renouncing her British citizenship (she has lived in Northern Ireland for ages) and was born with dual UK/Irish citizenship, even though she had only had a British passport.

I am very intrigued by this case. Firstly, (EU) PR status would only have started if she had exercised treaty rights for five continuous years after she renounced her British citizenship. Has that been the case? If not, she does not have (EU) PR status.
When she speaks of "PR for the UK", I think she is referring to what I have been saying all along; that Irish citizens in the UK have settled status immediately, equivalent to PR status for other EU citizens after five years.

[noajthan]

...
Law can not be understood in the absence of logic. Not everything can be or is expected to be spelt out in law.

The current version of the EEA Regulations states

Permanent right of residence
15.—(1) The following persons shall acquire the right to reside in the United Kingdom permanently–
(a) an EEA national who has resided in the United Kingdom in accordance with these Regulations for a continuous period of five years;
(b) a family member of an EEA national who is not himself an EEA national but who has resided in the United Kingdom with the EEA national in accordance with these Regulations for a continuous period of five years;

You can qualify under 15(a) OR 15(b). So, five years as either an EEA national OR as a family member of such a national. Each five year requirement is mathematically discrete and not continuous.

Nothing in the Regulations suggests that you can pick-n-mix bits across regulations. You qualify based on one category alone. In that sense, the EEA Regulations are harder than the Immigration Rules, which does allow years to accumulate (in limited cases) across visa categories.

....

Noted.
I'm aware not everything is spelt out in statute law which is why we also have case law (& even common law) at least in our Western European/Anglo Saxon jurisprudence.

I wasn't sure if you meant pure, abstract logic (a thought experiment even) or HO logic.

[secret.simon]

I would not dare contemplate HO logic. It is past all comprehension.

Look at my arguments, grounded in English grammar and the text of the regulations, being overturned by an HO email that does not spell out how they came to the conclusion that they did.

I'm aware not everything is spelt out in statute law which is why we also have case law (& even common law) at least in our Western European/Anglo Saxon jurisprudence.

Case law is not a Western European legal concept. It is specifically an English law concept. It doesn't even apply to Scots law.

The idea that a higher court's decisions bind the lower courts is found only in courts following the common law (common law incidentally because it applied both to Normans and Anglo-Saxons) tradition.

Civil law (almost all the rest of Western Europe except Ireland, Japan, China and all countries colonised by the French) place greater emphasis on interpreting the text of the law. Judgements of higher courts are taken as persuasive guidance, not binding law. That is why a German court and an English court may render the Surinder Singh judgment completely differently. The philosophy of the law is different. That is also why I am not entirely convinced that a pan-European court system is a good idea.

In any case, the civil law system is moving towards a more case law approach. It is called jurisprudence constante. But it still places a higher value on the text of a law than on any judgments related to it.

So, be careful when you mention Western European jurisprudence. It is more varied than you think.