Non-EEA family member of dual citizen - Possible to switch the visa?

[hamtoring]

Hi, I need some advice and here is my situation.

I’m a non-EEA national (South Korean) who is married to a Spanish/British dual citizen.
My husband has been living and working in the UK since 2005. He acquired his permanent residence in 2017, and British citizenship in 2018.

We also got married in the same year and I switched my visa from Tier 5 to family permit as a spouse of British citizen, and gained an Indefinite Leave to Remain in May 2018, which needs to be renewed in 2020.

At that time we knew that British citizenship was prioritised when you a dual citizen, so we chose not to apply under EEA family permit. But recently we found that according to the new guidelines by the Home Office ("Free Movement Rights: direct family members of European Economic Area (EEA) nationals"), the dual citizen can also exercise the right as a EU citizen.

Here is the link.
https://www.gov.uk/government/publicati ... -nationals

My question is can I switch my visa or apply for EEA family permit when I already have an ILR as a family member of a British? (for saving money, time and effort obviously…)
Plus what happens if I directly apply to the EU settlement scheme before Brexit, as a family member of a EEA national?

I couldn’t find a similar case to mine, so your advice can be really helpful to me.
Thank you!

[CR001]

You don't have ILR (indefinite leave to remain) if your visa is valid for 2.5 years. You have limited leave to remain (LLR).

Was he British already when you got married??

At that time we knew that British citizenship was prioritised when you a dual citizen,

Not sure what exactly you mean by this? There is no prioritisation for British citizenship applications.

[hamtoring]

You don't have ILR (indefinite leave to remain) if your visa is valid for 2.5 years. You have limited leave to remain (LLR).

Was he British already when you got married??

At that time we knew that British citizenship was prioritised when you a dual citizen,

Not sure what exactly you mean by this? There is no prioritisation for British citizenship applications.

Hi, thank you for the reply.

You are right!
Leave to Remain, I was confused.

He was already a British when we got married.
We thought we had to apply my visa under UK law not EU, after my partner got a British citizenship.
(lack of information back then).

[CR001]

I don't think you can use the EEA route as he would now only be considered British in the UK and he can't exercise treaty rights in the country if which he is a citizen. If you had had a EEA residence card before he became British, it would have been a bit different.

[hamtoring]

Thanks for the answer.

But in the guideline from the link (pg 24), it mentions about Lounes’ cases, saying:

A dual British and EEA national will continue to be an EEA national for the purposes
of the 2016 Regulations, as defined in regulation 2(1), if:

• the dual British and EEA national exercised free movement rights in the UK as
a worker, self-employed person, self-sufficient person or student, or had a
right of permanent residence in the UK prior to the acquisition of British
citizenship
• subsequently acquired British citizenship, while also retaining their nationality
of origin
• the dual British and EEA national continues to exercise Treaty rights or holds
a right of permanent residence

The family members of dual British and EEA nationals meeting these criteria will
continue to be eligible to apply for the documentation available under regulations 12,
17, 18 or 19 of the 2016 Regulations.

So I thought I might have a chance for trying the EEA route.

[kamoe]

At that time we knew that British citizenship was prioritised when you a dual citizen,

Not sure what exactly you mean by this? There is no prioritisation for British citizenship applications.

I believe what the OP is trying to express is that, in the case of dual nationals, British nationality takes precedence over the other nationality when it comes to residence applications for family members (before Lounes was decided). I believe they are not referring to applications for British citizenship.

[CR001]

The key point is that you were not an EEA family member with an EEA residence card under the ewa/EU rules before your spouse became British and you got married.

[sfljiaf]

The key point is that you were not an EEA family member with an EEA residence card under the ewa/EU rules before your spouse became British and you got married.

Is it a requirement that the relationship to the EEA sponsor already existed at the time the sponsor acquired British citizenship? My understanding is that the requirement is only that the EEA sponsor keep exercising treaty rights. Re-reading the caseworker guidelines OP linked seems to confirm this. I think OP's plan might work, but I may have missed something?

Edit: I just checked the Lounes ruling itself as well, the timeline there was also that British citizenship was acquired long before the relationship to the family member started.

[kamoe]

Edit: I just checked the Lounes ruling itself as well, the timeline there was also that British citizenship was acquired long before the relationship to the family member started.

My initial thoughts exactly. The key point was that Ms Ormazabal had excercised treaty rights before becoming a British citizen, and continued to do so when she married Mr Lounes, even though, by then, she had already acquired British citizenship.

But, there is one difference: Mr Lounes was unlawfully present in the UK, and could not benefit from the routes available from British immigration. In the OPs case, they are lawfully present, so their right to a family life will not be curtailed if the EEA route is not available to them, which was the case for Lounes. Not sure what the impact of that is.

[sfljiaf]

But, there is one difference: Mr Lounes was unlawfully present in the UK, and could not benefit from the routes available from British immigration. In the OPs case, they are lawfully present, so their right to a family life will not be curtailed if the EEA route is not available to them, which was the case for Lounes. Not sure what the impact of that is.

Ah, interesting point - but I cannot imagine it would make a difference in practice. Caseworker guidelines also seem to suggest nothing like this.

hamtoring, I think you're right, you should be able to apply for an EEA residence card, or pre-settled status. Just make sure to explicitly state on the application form that your EEA sponsor continues to exercise treaty rights; If they got PR in 2017 and citizenship in 2018, they couldn't have been out of the country for long enough to loose PR, but still good to point it out so the caseworker can tick off that box. Note that you may not get back your current BRP, the EEA RC will replace it.

Not a huge difference probably between applying for EEA RC or directly for the settlement scheme. EEA RC application process seems to be fairly robust and fast these days and it allows (some) visa-free travel to Schengen area until Brexit, but settlement scheme is free.

[kamoe]

hamtoring, I think you're right, you should be able to apply for an EEA residence card, or pre-settled status. Just make sure to explicitly state on the application form that your EEA sponsor continues to exercise treaty rights; If they got PR in 2017 and citizenship in 2018, they couldn't have been out of the country for long enough to loose PR

I agree.

The case of non-EEA family members of dual nationals who exercised treaty rights before becoming BC is very specifically spelled out as a valid category of applicants for EUSS : https://www.gov.uk/settled-status-eu-ci ... ss-citizen

If you're not an EU, EEA or Swiss citizen
You may be able to apply if:

you’re a family member of an EU, EEA or Swiss citizen
you’re the family member of a British citizen and you lived outside the UK in an EEA country together
you’re the family member of a British citizen who also has EU, EEA or Swiss citizenship and who lived in the UK as an EU, EEA or Swiss citizen before getting British citizenship
you used to have an EU, EEA or Swiss family member living in the UK
you’re the primary carer of a British, EU, EEA or Swiss citizen
you’re the child of an EU, EEA or Swiss citizen who used to live and work in the UK, or the child’s primary carer

Not a single mention of the timing at which the applicant became the family member of the dual citizen, nor any restrictions regarding what type of visa or permit the applicant currently has; and according to the caseworker guideline a residence card must be issued if the spelled out conditions are met.

[hamtoring]

Edit: I just checked the Lounes ruling itself as well, the timeline there was also that British citizenship was acquired long before the relationship to the family member started.

But, there is one difference: Mr Lounes was unlawfully present in the UK, and could not benefit from the routes available from British immigration. In the OPs case, they are lawfully present, so their right to a family life will not be curtailed if the EEA route is not available to them, which was the case for Lounes. Not sure what the impact of that is.

This was the point I have been worried about.
But I will go for it anyway when I still have a chance before Brexit.

Thank you very much for all of you for the advice and opinions!!

[it91]

I have a similar question.
I’m a non-EEA national who is married to a Spanish/British dual citizen. We got married after he is naturalised and he kept exercising his treaty rights after naturalisation.

I was told to apply to Lounes case (request paper application form). Is it correct thing to do?

[lappotto]

I have a similar question.
I’m a non-EEA national who is married to a Spanish/British dual citizen. We got married after he is naturalised and he kept exercising his treaty rights after naturalisation.

I was told to apply to Lounes case (request paper application form). Is it correct thing to do?

See below in bold

If your sponsor is a dual national (EEA/UK), you can only apply via the pre-settled status via the Lounes route. This can only be done via a paper form application. Call the HO, tell them you are applying for Lounes, and they will send you a paper application form (yes, no other way to do it) with you name, DOB and ref no at the top. This can take up to 4 weeks to arrive (mine arrived in 3/4 days).

Application is 44 pages long, asking the usual questions: your ID, sponsor ID, proof of relationship/address, proof sponsor has been exercising treaty rights pre and post naturalisation. You'll get a letter asking you to do BRP (unless you have it already) and note that HO said paper applications may take up to 6 months. I call every 3/4 weeks to check the status.

[it91]

Hi,
Thanks. I sent off my postal application yesterday.
Regards the BRP, I had to contact with Home Office, as BRP and BRC are not the same things. So that’s why I needed to submit my Tier 4 BRP but also need to do biometrics as well.