Do dual EU-UK citizens have rights under EU law?

[vinny]

You became a family member immediately after your marriage. Your qualifying period for PR started when you were initially a family member in the UK of a qualified person, unless they granted you an EEA residence card as an extended family member before you got married.

[silverman123]

Thanks vinny
I applied for my first residence card on May 2013 got in November 2013
before that i did not have any other residence in uk.

[vinny]

As a family member, the EEA residence card is irrelevant for the purposes of PR.

[Unluckyeea2]

Hi everyone!
Thanks to all for updates .
@ Kam99 Thank you for your support and sharing your experience .
@ Silverman may be case worker didn't carefully handle PR application we reading news some they sending documents passports to wrong address to wrong person .hope your solicitor will follow them .

Thank you everyone on this Great forum , moderators ,senior Gurus and friends for your valuable time .

[reynaldogr]

Hi Silverman, it sounds to me this is in fact another useless caseworker that doesn’t have a clue what is doing! My advise will be to formally apeal or take your case to court! Should be a pretty straight forward decision but I understand will be a pain to go through the process, time consuming and money! There no such a thing as double back to back residence cards to cover up 10 years, as far as I’m aware. So this is to me a geniuly mistake....

May I know how did you manage to live and stay in the uk with your wife since 2012 (when you get married), until you formally apply for your first residence card on may 2018?

Br

[Richard W]

Back again to my problem
My solicitor opinion was error from them.
I don't know how they issued me another 5 years residence card with no explanation.

If you enrolled your biometrics after your fifth anniversary, then your solicitor is correct.

[silverman123]

I'm in relation since 2012 and we live together since 2012.
We married in uk in May 2013
Applied for my first residence card in May 2013(same month i got married)
So i completed my 5 years marriage in May 2018
And after i applied for my permanent residence.
I received another 5 years which is wired.
No explanation letter.
Not even a letter to apeal.
It look like if I was applying for another residence card.
I know it's a mistake
Honestly guys i don't see why they issued my another 5 years.
There is no excuses.
My poor expectations they considered my application as residence card.
However across the Internet i found many cases such as me.
But 90% of them retain right of residence.
Or their wife's not exercising their treaty rights during the 5 years.
I found a very similar case like my case.
But the guy apply one year earlier based on 4 years marriage.
Home office sent him a letter saying
You only can apply after you complete 5 years marriage.
Or 28 days before expiry date of his residence card.
And they give him options either they reject the application. Or they can issue him another 5 years.
He choosed 5 years.
However i know that I don't have to stay another 5 years to apply for my permanent residence as already completed my 5 years marriage.
I will wait for their response which i know that they will never reply.
I will have to do fresh applications.

Thanks guys for your help and sharing thoughts with me. I really appreciate it.

[silverman123]

Many thanks Richard W
Yes i made my biometric enrollment in 8 July 2018

[reynaldogr]

Text correction from my previous post:

“The 5 year starts since you started living together in the uk (may 2013 from what I can understand), the date when the RC was issued (nov 2013), is irrelevant. You were entitled to apply for PR, 28 days before the actual date you entered to join (or along with your partner) in the uk, so in your case, sometime in April this year... so what do you have at the moment? 2x vignette stamped in your current passport? Not sure if you could re-apply if this was the case! You will end up making thing more messy (just my humble opinion).

Br”

[CR001]

The 5 starts since you started living together in the uk (may 2018), when the RC was issued (nov 2018), is irrelevant. You were entitled to apply for PR, 28 days before the actual date you entered to join (or along with your partner) in the uk, so in your case, sometime in April this year... so what do you have at the moment? 2x vignette stamped in your current passport? Not sure if you could re-apply if this was the case! You will end up making thing more messy (just my humble opinion).

Br

There is no "28 days before" for applications under the eea/EU route. It must be the full 5 years before applying got PR.

The 28 days applies to UK immigration rule route applications!

[reynaldogr]

This was the information I was given (actually, in several ocasions) by the useless HO European telephone helpline ...

[silverman123]

Hi @CR001
Am I qualify for permanent residence based on my 5 years marriage?
Or i had to wait until November for 2018 to apply?
Sorry but i Got confused.

Hi @Reynaldogr
I have to residence card
The old one which is look like visa stamped on my passport.
New one biometric valid until 2023.

Many thanks in advance.

[Richard W]

Hi @CR001
Am I qualify for permanent residence based on my 5 years marriage?

For the third time, yes, roughly speaking. You acquired PR on the basis of:
1) Being married for 5 years
2) Residing in the UK during that time
3) Your wife being a qualified person and then a permanent resident during that time.

We would normally suspect that the Home Office considered that either your wife was neither a qualified person nor a permanent resident for some of that time, or that you were absent from the UK during a significant part of that time. As your wife has a DCPR, then either they consider it was issued in error (or as the result of a deception), or they think you were absent, or they have simply made a mistake. It appears to be the latter. Solicitors aren't always wrong about the EEA route.

[silverman123]

@Richard W
Many thanks for your help.
Sorry for asking many times.
It's just the stress home office always put us in.

I will wait for their response. If they don't i will have to make fresh application.

[kam999]

HI Silver,

Just occurred to me, since your spouse has dual nationality, did you submitted her permanent residence document (if she still had it at the time of your app) with your application? if yes, did they return it? If both answers are yes, then I think it is a mistake by caseworker. However, your wife acquired DCPR in Jan 2018 and then she took maternity leave in the same month. you submitted your application on May 2018, 4 months gap since your wife is on maternity leave.

Now HO's free movement rights version 6, in the section of Family members of dual British and EEA nationals it says:

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 (bullet point 3):

the dual British and EEA national continues to exercise Treaty rights or holds a right of permanent residence

and only then: 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.

My question is would her maternity leave could effect on your PRC, provided you mentioned it?

Also a bit silly but can't be overruled, do you (or your solicitor) have a copy of your application form the one you sent for PRC, if yes, see if you checked the wrong box by mistake or did not check the box at all in section 3.

All the best mate.

[silverman123]

Hi @kam999
First many thanks for sharing your thoughts with me.
I think you got confused in some point.
Because my wife applied for her permanent residence in Feb 2017 she received in Feb 2017(same month)
With a letter from HO says you are qualified for permanent residence since Feb 2015.
Because she entered uk as worker in Feb 2010.
I think HO were trying to say you don't have to wait 12 months to naturalised.
She applied for her British citizenship in October 2017.
She received confirmation in November 2017
But her ceremony was in jan 2019(it took a bit of time to attend her ceremony)
So she became dual nationality in jan 2018
Jan 2018 she went on maternity leave.
Maternity is for 12 months but they pay her for 9 months only.
I applied after i completed my 5 years of marriage
Which it was in may 2018
My solicitor have sent all evidence
Such as
Bank statements
Tenancy agreement.
Child benefits.
5 years P60s.
Letter from her job confirming that she is still working for them.
Confirmation of her maternity.
Utility bills.
Certificate of marriage.
Annual taxes
Alot of staff cannot remember all of it.
So they are aware that my wife is still on maternity and her maternity not finished yet.
I have spoken to many solicitors over the phone plus all moderators in this forum confirmed me that she still a qualified person even if she is on maternity.
I'm wondering how they managed to do a mistake such as this one.
Unless if the case worker is not even aware what maternity means!!!
Or maybe something was wrong in application but even though they should refuse my application.
Not giving me another 5 years.
However many thanks yo everyone who is trying to think loudly with me in this forum.
I'm hoping they will tell us why this happened.
And hopefully it just a mistake no more.
Could you please what section 3 says.....???
And i will double check with my solicitor.
Thanks kam

[silverman123]

Forgot to say
Yes we sent her permanent residence and i received her British citizenship.

[silverman123]

[quote=silverman123 post_id=1663962 time=1532973257 user_id=190398]
Forgot to say
Yes we sent her permanent residence and her British citizenship.

[kam999]

Hi Silver,

1) What i was trying to say, as per EEA reg latest section 9A, your wife should continue exercising treaty rights after acquiring Dual nationality (which in your case started from Jan 2018) and I was not sure where they stand at maternity leave which you now clarified.

2) I was talking about section 3 of the application form you filled out for your permanent residence card, like I said a silly one but it could happen.

[Unluckyeea2]

Hi everyone !
Thank you for updates .
@Kam99 you mean 24th July 2018 EEA regulation covering Lounes case for dual EEA /British citizens need to continue exercise treaty rights even after completing exercising treaty rights for five years then receiving DCPR then naturalising as British citizen and becoming dual EEA/British citizen ? After completing exercising treaty rights for five years then aquering DCPR and no need to be qualified person for EEA regulation purpose to sponsor non EEA family members is only for none dual only EEA nationals?That mean if dual national stops working then he is not qualified person and can no longer sponser non EEA family members ?

Thanks for everyone for your help .

[kam999]

Yes Unlucky, that's what i understood. Dual national has to retain the right of permanent residence and exercise treaty rights until their TCN FM acquires PRC. May be seniors can explain and correct me as well if I did not get it right. Regardless, it should not effect Silver's case.

[Richard W]

1) What i was trying to say, as per EEA reg latest section 9A, your wife should continue exercising treaty rights after acquiring Dual nationality (which in your case started from Jan 2018) and I was not sure where they stand at maternity leave which you now clarified.

I believe you're referring to Regulation 9A(2):

2) DN who comes within the definition of “qualified person” in regulation 6(1) is only a qualified person for the purpose of these Regulations if DN—
(a) came within the definition of “qualified person” at the time of acquisition of British citizenship; and
(b) has not at any time subsequent to the acquisition of British citizenship lost the status of qualified person.

It is very rare for a dual national who became British as an adult to be a qualified person but not a permanent resident. The normal path is

qualified person > permanent resident > British citizen

or

family member > permanent resident > British citizen

On these routes, the person who is excluded by the regulation will be someone who lost permanent residence after gaining British citizenship. They will not regain their EEA privileges until they have regained permanent residence.

I believe the main group excluded by Regulation 9A(2) will be those who were registered as British before the age of 5.

[Richard W]

On these routes, the person who is excluded by the regulation will be someone who lost permanent residence after gaining British citizenship. They will not regain their EEA privileges until they have regained permanent residence.

And they can only regain permanent residence as a family member! Subtle!

[marcsiga]

Hi All,

I am a silent reader of this forum.
We are about to apply for PR end of this month.

I applied for BC in 2016 October and naturalised i 2017 May and received passport in 2017 June.

I came to UK in 2006 and working since then. I didnt apply for Permanent Residence Card (so I dont have one)after living/working here 10 Years applied for BC starightaway. (Now I am Hungarian-British)

Will that cause an issue when we are applying for PR for my Husband?

[marcsiga]

I am sorry I got the date wrong. Applied for BC in 2015 and got it in 2016.
Past 2 Years i am worrying (but I am sure many of you know this feeling)