Dual Citizens - Surinder Singh ...?

[LittleLark]

Hello, Immigration friends -

I've got a fun one for you.

Timeline:

- Partner born in France, educated in France ->MBA, both parents reside in and own property in France. However, partner's father born in France to British mother and French father, is thus eligible for English passport (takes it) and passes this right on to my partner, who also takes the right to a passport. Partner has never exercised right of residence as a UK citizen, taken UK public funds, etc. Lived in the UK for 6 months only as a visiting Erasmus student in Wales.

- Partner meets charming American girl (me.. obviously) in Paris, they start dating.

- American girl starts staying for long periods with partner in France January 2014.

- American girl and French boy get a 'certificate de vie en commune' at the local prefecture which certifies they are living together at a French address - March 2014

- Boy and Girl get engaged to be married April 2014 - photographic proof available.

- Girl and Boy submit documents for a Pacs (civil union) to the local prefecture in Sept. 2014 - documents accepted in Oct. 2014

- Girl is accepted to grad school in the UK, obtains student visa, travels to UK to start courses in Oct. 2014

- Boy joins girl in UK in Nov. 2014, begins working full-time for an English company in Feb. 2015

- French prefecture transfers Pacs documents to French embassy in London March 2015 because documents must be signed in person.

- Pacs documents signed and stamped April 2015

- Girl is accepted to continue on to DPhil, Boy happy to stay as well as job is going well.

- Boy and Girl decide to submit EEA family residence card application in Nov as girls Tier 4 ends in January. HOWEVER - they then realize the dual citizenship is going to cause problems. Despite not really being British, the UK gov will try to force them to apply for partner visa. Which would all be fine, except that the English gov doesn't recognize the Pacs between straight couples because gay marriage is legal. We would have to get married in the UK - but we can't do that without first dissolving our Pacs because it is a legal partnership in France. Also, we had planned to upgrade our Pacs to Marriage in France in Sept. 2016, so this would require us to get divorce, married, divorced, and again married all in less than 1 year. Obviously, not feasible.

- So friends, the question is - do we apply under Surrinder Singh, or do we try to argue that despite having a UK passport, he should be seen as a EEA citizen?

- Will I be allowed to stay in the country as we make the application? If its denied (as we expect we'll have to take this to appeal, anyway, given the complexity of it) can I stay in the country during the appeal processes?

I only really need to be in the UK until June 2016, as my PhD research requires me to live in my field site for over a year.

Looking forward to your thoughts!

[noajthan]

Hello, Immigration friends -

I've got a fun one for you.

Timeline:

- Partner born in France, educated in France ->MBA, both parents reside in and own property in France. However, partner's father born in France to British mother and French father, is thus eligible for English passport (takes it) and passes this right on to my partner, who also takes the right to a passport. Partner has never exercised right of residence as a UK citizen, taken UK public funds, etc. Lived in the UK for 6 months only as a visiting Erasmus student in Wales.

- Partner meets charming American girl (me.. obviously) in Paris, they start dating.

...

- So friends, the question is - do we apply under Surrinder Singh, or do we try to argue that despite having a UK passport, he should be seen as a EEA citizen?

- Will I be allowed to stay in the country as we make the application? If its denied (as we expect we'll have to take this to appeal, anyway, given the complexity of it) can I stay in the country during the appeal processes?

I only really need to be in the UK until June 2016, as my PhD research requires me to live in my field site for over a year.

Looking forward to your thoughts!

Zut alors!

A dual national who is a British citizen is only treated as being British by UK Gov;
such a citizen is not ordinarily considered to be an EEA national.

EEA nationals cannot exercise SS in home country (/countries) so a dual national (French/UK citizen) is not operating under the SS route by living/working in France or UK.
You would (both) have to move your centre of life to another EU country before eventually returning to UK & etc.

If the privilege of UK citizenship is not a major factor for monsieur then one option could be to renounce UK citizenship.
There is a thread in this forum on that topic.
Not a step to be taken lightly though; however it would open up EU route to you both (& no need for SS).

I don't know about PACs but according to this information a French PAC is simple/straightforward to dissolve.

A PACS can be dissolved simply if one partner marries someone else, or if the contract between the parties is terminated (including unilaterally, by letter from one partner), whereas dissolution of a UK CP is more akin to a divorce

Ref: https://www.frenchentree.com/french-pro ... they-work/
I suppose that may help you progress under UK Immigration Regulations (however they are quite restrictive & financially demanding) compared to EU route.

Bonne chance mon Brave.

[noajthan]

P.S. to avoid the overhead & stress of divorce/marriage that you mentioned, for any unmarried partnership type of visa route into UK you would have to show a durable partnership akin to marriage for at least (I think) 2 years;
so even if your French PACS is not officially recognised in UK it may help in proving a longstanding relationship of 2 years or more.

[LittleLark]

Merde.

Indeed, we suspected this was the case. However, in speaking to an immigration lawyer, he suggested that we might be able to argue that as the Monsieur has never exercised his UK nationality (has never accessed public funds, etc.) other than living here this year (which he could do as a French citizen, equally) - we might be able to argue that the UK gov't should have to treat him as an EEA citizen.

Essentially, I think the lawyer is excited by the prospect of a case that he might use to punch another hole in the UK immigration law's blatant disrespect for EU law.

Pragmatically, my concern is more:

1) If we do apply, assuming it will get returned and we would try an appeal, would I be able to stay in the country during that period?
2) I ask this, because I only need to be here for another 7 months or so and my current visa ends Jan 30. If we apply in Jan 2016 and the whole processes takes 6 months, than even if they deny it its fine because I'll have leave to remain during that period and will head out in June anyway.

The other option is for me to suck it up and apply for my student visa extension, but its 1000 GBP with the damn NHS surcharge and I only actually need it for 6 months despite my course being 3 years. I'm an anthropologist so we have to be in the field for our research. It also creates problems for me working, because I am a consultant and I would need to essentially be 'hired' by my husbands sole tradership to be able to continue in that capacity - which is annoying.

Thoughts?

[secret.simon]

partner's father born in France to British mother and French father, is thus eligible for English passport (takes it) and passes this right on to my partner

Can you give us the month and year when your partner was born and when his father was born? Because his father was born overseas, the father would be a British citizen by descent and would not have passed British citizenship to your partner automatically. Different rules applied before 1st January 1983.

Automatic acquisition of British citizenship is limited to one generation overseas since 1983.

British citizens by descent (your partner's father) could register their children as British citizens in limited circumstances, such as if they resided in the UK for three years or if they were in Crown Service overseas. Can your partner check if he was registered (a voluntary process, not automatically by process of law) as a British citizen by his father?

If he was not registered, there is a good chance that your partner is not a British citizen at all.

If he is not a British citizen, his children will also not be British citizens, even if born in the UK, unless they are born after he acquires PR after five years or he registers them after he acquires PR.

Partner has never exercised right of residence as a UK citizen

Has he got a British passport?

the Monsieur has never exercised his UK nationality

Not exercising a birth right does not mean that you lose it, except by force of law. A child born in jus soli jurisdiction, such as Canada (Ted Cruz) or the US (Boris Johnson), does not lose his citizenship by not exercising it. S/he has to actively renounce it.

If your partner is a British citizen (it is highly likely that he is not), he is British, irrespective of whether he exercises the right or not.

A ruling on such a matter by the European courts would not be very popular in the UK, given that we are having a referendum to leave the EU in the very close future.

I don't know about PACs but according to this information a French PAC is simple/straightforward to dissolve.

A PACS can be dissolved simply if one partner marries someone else, or if the contract between the parties is terminated (including unilaterally, by letter from one partner), whereas dissolution of a UK CP is more akin to a divorce

That makes a French PACS sound like an Islamic marriage, where the husband can divorce the wife by merely repeating the word "talaq" ("divorce") thrice. Modern jurisdictions following Islamic fiqh (jurisprudence), such as Malaysia, have interpreted that as meaning that a marriage could be dissolved by text or Facebook message.

... the UK immigration law's blatant disrespect for EU law.

Or the EU's disregard of the UK's public opinion and laws. The EU is developing a parallel legal system in disregard of the national laws of all its member states and that is not universally welcome.

[LittleLark]

His father had a British passport, I don't know by what means. My partner had a UK passport as a child and had it renewed last year - so, given your other notes below I think that makes it fairly clear we wouldn't be able to argue he should be held to French and not British citizenship law.

The PACS is a civil union and it is performed by the French prefecture. Its quite formal and not at all like religious marriage, which, in general, is not recognized by the French gov't as having any legal standing: https://en.wikipedia.org/wiki/Civil_solidarity_pact

Final point - the continued tensions between the EU and the UK, and where you stand on who is in the wrong are obviously subjective. With that said, Surrinder Singh seems to be an excellent example of British citizens wanting to exercise EU rights of movement that their government is denying them.

[secret.simon]

His father had a British passport, I don't know by what means. My partner had a UK passport as a child and had it renewed last year - so, given your other notes below I think that makes it fairly clear we wouldn't be able to argue he should be held to French and not British citizenship law.

The father is entitled to a British passport, as he is British by descent and as he was born before 1983. I believe that your partner is not, unless he was explicitly registered with the British authorities. Can you let us know of his month and year of birth? Can you also check if he was registered by his father?

If not, there is a good chance that his UK passport was issued in error.

Last point - the PACS is a civil union and it is performed by the French prefecture. Its quite formal and not at all like religious marriage, which, in general, is not recognized by the French gov't as having any legal standing: https://en.wikipedia.org/wiki/Civil_solidarity_pact

I was referring to the ease of dissolution, in the sense that the PACS can be dissolved by a letter from one partner to another.

Final point - the continued tensions between the EU and the UK, and where you stand on who is in the wrong are obviously subjective.

Agreed. I was giving an alternate viewpoint to what I perceived was a blatantly biased statement, to make the thread a bit more balanced. That said, I do not have a high regard for Surinder Singh.

[LittleLark]

My partner was born in April of 1989 in France. His first passport was issued when he was a young child - probably 3 or 4 years old. So I think its safe to say his father made the application on his behalf...

Any PACS is registered with the French state, my name has been entered on his carnet de famille (family book) as his civil partner. You can dissolve it unilaterally, but its still registered with that gov't.

My statement re: EU/UK is blatantly biased, because I find it absurd that this hasn't been worked out already. I don't think its unfair to say that the UK has a clear disregard for EU laws - they do. Its also fair to say that the UK doesn't want to follow those laws because they don't think they are in their best interest. That said, I don't think the way to go about dissenting is through creating these immigration legality issues that leave many people in limbo - Surinder Singh being a good example of this.

[secret.simon]

My partner was born in April of 1989 in France. His first passport was issued when he was a young child - probably 3 or 4 years old. So I think its safe to say his father made the application on his behalf...

Not a passport, but a registration under the British Nationality Act 1981. If your partner was registered, he would have a registration document (not dissimilar to a naturalization certificate) in addition to his passport.

If he does not have one, he is solely a French citizen and is not British at all.

To avoid futher doubt, he can apply for a certificate of non-acquisition of British nationality.

My statement re: EU/UK is blatantly biased, because I find it absurd that this hasn't been worked out already. I don't think its unfair to say that the UK has a blatant disregard for EU laws - they do. Its also fair to say that the UK doesn't want to follow those laws because they don't think they are in their best interested. That said, I don't think the way to go about dissenting is through creating these immigration legality issues that leave many people in limbo - Surinder Singh being a good example of this.

Pot, meet kettle. May I point out the Tenth Amendment in the US Constitution expressly gives all powers not explicitly enumerated in the Constitution to the States. Yet the federal government has been encroaching on state powers, under such guises as the Commerce Clause.

It is in the nature of things for powers to be centralised and standardised. But unlike the US (look at the Civil War), it is possible to leave the EU (thanks to the Treaty of Lisbon).

It does not help that most of the EU have a civil law system and the UK and Ireland (ike most of the US) have a common law system, which means that the same EU law is interpreted differently in different jurisdictions.

[LittleLark]

We will look into the certificate.

I don't know why you are comparing US law to UK/EU relations. I may have been born American but I have lived outside of the US for the majority of my life. I have no nationalist inclinations that would cause me offense, rather, I would note that the problem of state laws conflicting with federal laws is just that - a problem. This is not a normative statement (i.e. there should be no state laws, only federal) but rather and acknowledgement of the difficulties this poses for citizens caught between two conflicting frameworks. To that end, I haven't said anything about whether or not the UK should adhere to all EU laws - I don't have a horse in this race and frankly, don't care. I DO think it is a problem that what is ultimately a political disagreement over the nature of UK involvement in the EU scheme, creates problems for both UK and EU citizens trying to operate legally.

[noajthan]

The other option is for me to suck it up and apply for my student visa extension, but its 1000 GBP with the damn NHS surcharge and I only actually need it for 6 months despite my course being 3 years. I'm an anthropologist so we have to be in the field for our research. It also creates problems for me working, because I am a consultant and I would need to essentially be 'hired' by my husbands sole tradership to be able to continue in that capacity - which is annoying.

Thoughts?

As an anthropologist you have come to the right place - there is plenty of dissertation and thesis material to be found here from all sorts of viewpoints:
legal, political, sociological, cultural, psychological, philisophical & etc.

Options seem to be:
a) partner to renounce British citizenship or confirm it should never have been granted (as Simon is probing for you);
then your partner is 100% French and EU right of free movement will sort you out.

b) partner retain UK citizenship but terminate your French PACS (assuming no adverse consequences in France vis a vis property/inheritance & etc);
file for a UK spouse or fiancee visa;

Note a UK fiancee visa would give you 6 months in UK in which to marry or else leave UK (if not married within 6 months).

c) Surinder Singh - but that seems impractical based on your current commitments, your stated timeline & your essentially short-term plan for life with us Rosbifs.

d) swallow the visa extension cost; treat it as a further investment in future career/earning potential

[LittleLark]

This is a very helpful breakdown - thank you. Indeed, much to study in the UK as an anthropologist, but sadly I specialize in violent religion nationalism in Myanmar:)

If we do find out that he should never have been granted UK citizenship, and we apply under EEA family, will I be able to stay put in the UK whilst we await their response, do you know? If we had to appeal, could we do that from the UK or would we have to leave?

It's all just so unclear.

[secret.simon]

I don't know why you are comparing US law to UK/EU relations... I DO think it is a problem that what is ultimately a political disagreement over the nature of UK involvement in the EU scheme, creates problems for both UK and EU citizens trying to operate legally.

At the end of the day, both arguments are essentially the same; where does sovereignty lie? How does the principle of subsidiarity (power closed to the people; US states and EU countries) interplay with that of uniformity (the power at the top; the federal government and the EU)?

As you had mentioned that you were American, I rephrased the argument in terms that an American could relate to.

As an anthropologist you have come to the right place - there is plenty of dissertation and thesis material to be found here from all sorts of viewpoints: legal, political, sociological, cultural, psychological, philisophical & etc.

Don't know much about anthropology, but noajthan is correct. We are strong on our social sciences

...I specialize in violent religion nationalism in Myanmar

That is a fascinating & very topical (given the recent elections in Burma/Myanmar) topic by itself. The recent stabbings of prominent atheists in Bangladesh and the not-entirely peaceful Buddhist-Sinhalese movement in Sri Lanka provide a very interesting perspective on possible developments in Burma/Myanmar.

If we do find out that he should never have been granted UK citizenship, and we apply under EEA family, will I be able to stay put in the UK whilst we await their response, do you know? If we had to appeal, could we do that from the UK or would we have to leave?

If you were married, you would have the absolute right to reside in the UK with your (solely) French spouse as a "family member". That right would not depend on a visa.

As you are an unmarried partner, you are considered an "extended family member" and different rules apply. I believe that when you apply, you are issued a COA that essentially allows you to stay in the UK while your application is being decided. When the application is successful, you will be issued a Residence Card. So, you should not have to leave the UK at any point.

[noajthan]

This is a very helpful breakdown - thank you. Indeed, much to study in the UK as an anthropologist, but sadly I specialize in violent religion nationalism in Myanmar:)

If we do find out that he should never have been granted UK citizenship, and we apply under EEA family, will I be able to stay put in the UK whilst we await their response, do you know? If we had to appeal, could we do that from the UK or would we have to leave?

It's all just so unclear.

Ah, Myanmar - fascinating place in the midst of irreversible changes & developments.
It's surely the right time to study & visit; I was in Yangon this time last year, working on modernising certain systems.
(My daughter is currently completing A-level coursework on the religious violence in Vietnam during the Kennedy/Diem era. It seems the past truly holds the contours of the future).

If partner is EEA & exercising treaty rights in UK (eg as a worker) then you have the right to reside & study/work in UK too, ie as a dependent family member.
There is a 3 months grace period.

Not sure if you would have to leave & re-enter UK but you could go for a quick daytrip or weekend away if need be. Then re-enter as partner of EEA national not as a US 'visitor'.

After the 3 months grace, you would then need to apply for a Residence Card (RC);
a COA would be issued whilst the RC was being processed.
(Processing time is several months - the RC, once granted, will be valid for 5 years).

Your university 'international support officer' would have to be kept informed and they would need sight of the COA to confirm your continued presence as their student.
(Universities are now required to enforce immigration controls or face stringent penalties).
Suggest talk to the relevant official about this now, just in case you need to activate this plan.

(There is a thread about another US student, spouse of a German national as I recall, but their student status got into a bit of a pickle as he entered UK as a 'US visitor'. I will paste link as a fyi, if I can find it again).

I think Tier 4 extension is 'only' £439 but I guess health surcharge could make it up to around the £1000 mark.
https://www.gov.uk/tier-4-general-visa/extend-your-visa

Unless partner proves to be 'just' French (ie only British by mistake) the Tier-4 extension may actually be least hassle;
anything else at this time may divert too much time & energy from your studies.

[noajthan]

FYI - an informative recent case involving US partner of an EEA national & his quest for student status (in UK) under EU free movement/treaty rights...
http://www.immigrationboards.com/genera ... 94593.html

[LittleLark]

Yes, I see what you are saying and I don't disagree - my point, as I said, is not normative - I don't have an opinion on where that line of sovereignty should sit. My issue is that the lack of clarity means people like myself lose days of their productive work lives trying to figure out how to follow the law!

Also my university considers me a Home/EU student by virtue of my PACS - because it is a legal civil union. Similarly, in France I am considered the legal partner of a French citizen, so for the purpose of the EEA application I am a civil partner, not an extended family member.

And actually, to that end, when I registered for my new course this year they didn't ask me to show my visa because of that status, so I'm not entirely sure if my University is monitoring me? I should look into that...

The problem with the student visa is the limitations on my ability to work freelance. The partner visa allows me to work as a freelance consultant but the student visa doesn't allow for that, for some reason. I've been designing and implementing international peace and conflict programs in East/Central Africa, MENA and SEA for almost a decade now (including in Sri Lanka, working with Bodu Balu Sena, the Buddhist extremists you mentioned), so consulting a few days a month actually allows me to pay my substance costs (my fees are funded through university scholarship) quite easily so I don't want to loose that option.

Its all so complicated. Honestly, its really tempting to just transfer to another program. I only accepted the PhD offer from Oxford because we believed we could transfer to the EEA family residence card. Sigh.

[secret.simon]

I could be wrong, but to the best of my knowledge, PACS are only recognised as the equivalent of UK civil partnerships, which are restricted to same-sex couples. Therefore, I am not wholly convinced that a PACS counts in the case of opposite-sex couples, in UK law. Note that I am not a lawyer and I could be wholly wrong. I would wait for Obie to opine on this specific point.

I only accepted the PhD offer from Oxford...

That is something that I am so jealous about. On a point of interest, may I ask which college?

[LittleLark]

We ran into this with the university and essentially they decided that because our civil partnership is between heterosexual partners, it does not count under UK law. However, it IS recognized under French law, so whilst I wouldn't quality for Home fees on my partners UK citizenship, I do quality for EU fees on my partner's French citizenship. Suffice to say I am paying EU fees - not oversees fees. Of course Oxford doesn't get to make the immigration rules, but the immigration lawyer I spoke to (who was family with the PACS) says that as long as its recognized as a legal form of civil partnership in France, the UK has to respect it for purposes of the EEA residence card.

Oxford is great, I'm at one of the oldest colleges (edited because I realize I've given loads of personal info already! But PM me if you want to chat more about this, if you are interested in the program?). I just wish this process weren't so stressful. We don't want to stay in the UK forever - we want to go back to France!

[LittleLark]

Bahumbug - its saying I'm not authorized to use the PM feature?

Not sure why that would be.

[secret.simon]

You will be after you have posted 10 posts. Given that you are at 9...

the immigration lawyer I spoke to (who was family with the PACS)

I presume you meant to say au fait or familiar with PACS.

[LittleLark]

POST 10!! Ok, will try now.