3years with EEA2 and wife became BC

[Plum70]

It's really getting tight on me, I can understand your view points Considering this into account it's wise to switch to UK national LAW as Spouse of BC or should I wait to complete my 5years under EU law?

I might have my doubts about the continuity under EU law but this is not to say that this avenue is completely shut. So hold off making any hurried decisions till all viable options are known.

Some research might pull up similar case law... I will post back if I come across anything and suggest you start doing some digging if you haven't already.

[zubby007]

It's really getting tight on me, I can understand your view points Considering this into account it's wise to switch to UK national LAW as Spouse of BC or should I wait to complete my 5years under EU law?

I might have my doubts about the continuity under EU law but this is not to say that this avenue is completely shut. So hold off making any hurried decisions till all viable options are known.

Some research might pull up similar case law... I will post back if I come across anything and suggest you start doing some digging if you haven't already.

Thanks so much and much respect to all Moderators, gurus and those who shows concern and comments, I am still doing some research of the best way forward any comment or suggestion will be much appreciated.

[EUsmileWEallsmile]

If one were to switch to UK immigration rules, the clock might well be reset.

The earliest you would meet PR is after five years in the UK.

[Jambo]

I have a different view.

The partner has not lost his PR status by becoming British (and losing his Austrian citizenship). The only way to lose a PR is by being absent from the UK for more than 2 years. He is a PR holder and a EEA national (although British).
It is an odd case but I don't think he lost the rights under the directive.

Having said that, the spouse would need to complete 5 years of residence to obtain PR which is a requirement for BC.

Possible pitfalls that come to (my mind) with this viewpoint are:

Say, the OP carries on under the EU route up to the 5 year mark and decides to apply for confirmation of PR - which in this case would be wise - he would need to:

1. Show that he is (not was) the spouse of a EEA/EU national who has either attained PR or has resided in the UK for such a time in accordance with the regulations. The EU national's PR card covers this bit, but..

2. The OP would also need to provide the EU national's ID, but as they renounced their Austrian citizenship, there may be none to show. Now, one can argue that the HO should have a copy on file to refer to but would this copy still be deemed legitimate in light of the circumstances aforementioned?

3. The EEA4 form asks if the EU national is also a British citizen. The OP will have to answer 'yes' to this which may lead the UKBA to check if the EU national has retained their original nationality. Another potential road block.

I am not confident (without the backing of EU (case) law) that this will succeed. The cogent point is that the OP will be looking to obtain PR based on the past activities of his EU spouse who can now only lay claim to British citizenship. I do not know if there is the capacity to 'freeze frame' and disregard material changes which, if taken into account, seemingly disqualify the OP from the benefits of EU law.

Just to reassure - I am not the harbinger of ill-fated news but consider this a positive exercise in highlighting possible hurdles which can then be discussed and clarified.

I don't argue this is a simple case but the main point I argue is that he is a EEA national who still holds a PR status and his family members who were on the EEA route can continue with this route.

The fact that he is now (only) British should not affect his ability to "sponsor" family member who have been under the EEA regulations for several years now.

I don't see a problem submitting a British passport with a PR card to support the application.

[Plum70]

I don't argue this is a simple case but the main point I argue is that he is a EEA national who still holds a PR status and his family members who were on the EEA route can continue with this route.

For the purpose of the Directive she is no longer an EEA national who holds PR but simply a (British) national. She was an EEA national who held PR until she renounced her Austrian citizenship. Now (solely) as a British with the right of abode (who can not also hold PR), I strongly doubt that the OP can lay present claim to what is his spouse's historic nationality.

The fact that he is now (only) British should not affect his ability to "sponsor" family member who have been under the EEA regulations for several years now.

It can. Why? Because she is no longer an EEA national exercising treaty rights in the UK. She is simply a British citizen residing in the UK under national rules.

I don't see a problem submitting a British passport with a PR card to support the application.

I do! If the application doesn't fall under Surinder Singh, then how can the OP justify submitting his spouse's British passport??? The UKBA will need to see (another) EU passport to satisfy themselves that the OP is the non-EEA family member of a EU citizen (other than British) who acquired PR.

We could keep ping-ponging back and forth...best to go away and pull out relevant excerpts in (case) law that can assist the OP in making an informed decision.

[zubby007]

I don't argue this is a simple case but the main point I argue is that he is a EEA national who still holds a PR status and his family members who were on the EEA route can continue with this route.

For the purpose of the Directive she is no longer an EEA national who holds PR but simply a (British) national. She was an EEA national who held PR until she renounced her Austrian citizenship. Now (solely) as a British with the right of abode (who can not also hold PR), I strongly doubt that the OP can lay present claim to what is his spouse's historic nationality.

The fact that he is now (only) British should not affect his ability to "sponsor" family member who have been under the EEA regulations for several years now.

It can. Why? Because she is no longer an EEA national exercising treaty rights in the UK. She is simply a British citizen residing in the UK under national rules.

I don't see a problem submitting a British passport with a PR card to support the application.

I do! If the application doesn't fall under Surinder Singh, then how can the OP justify submitting his spouse's British passport??? The UKBA will need to see (another) EU passport to satisfy themselves that the OP is the non-EEA family member of a EU citizen (other than British) who acquired PR.

We could keep ping-ponging back and forth...best to go away and pull out relevant excerpts in (case) law that can assist the OP in making an informed decision.

Relevant points.

[Plum70]

Relevant points.

To which I am yet to find any (case) law to support either way. Still searching...

[Jambo]

You may want to contact the European Cases Policy Team in UKBA to find out their view (rather than ours .

Their email address is EuropeanOperational@homeoffice.gsi.gov.uk
Make sure you construct your query as a general policy one as they can't comment on individual cases. Also make sure the situation is explained clearly and the questions asked are to the point. Generic questions would get generic answers.

[Stefan-TR]

I do! If the application doesn't fall under Surinder Singh, then how can the OP justify submitting his spouse's British passport???

In my personal opinion, the only sensible way to treat cases where the EEA national gets naturalised and gives up his original citizenship is to handle them in a way equivalent to Surinder Singh. Unfortunately, I am not aware of any case law in this area, so there might well be no binding decision around.

Given that the OP still has some time, he could send out another EEA2 application with the intent to re-confirm his rights under the EEA rules now that his spouse has been naturalised. If the EEA2 application is successful, then the UK can't claim later on that he lost his rights under the directive when his spouse renounced her Austrian citizenship.

If the EEA2 application is not successful, the OP could either start legal proceedings with the hope of getting confirmation of a Surinder Singh equivalent status through the courts or switch to a category in the Immigration Rules.

[zubby007]

You may want to contact the European Cases Policy Team in UKBA to find out their view (rather than ours :-).

Their email address is EuropeanOperational@homeoffice.gsi.gov.uk
Make sure you construct your query as a general policy one as they can't comment on individual cases. Also make sure the situation is explained clearly and the questions asked are to the point. Generic questions would get generic answers.

Many thanks Jambo will give it a go.

[Directive/2004/38/EC]

Question for the OP: Was any attempt been made to contact the Austrian government before or after the naturalization? I assume no application was made to retain citizenship?


This situation also resembles the situation when either (1) the EU citizen dies (in this case they have died as an EU citizen) or (2) the EU citizen stops being a family member through divorce. In both cases, the family member can retain a right to remain in the host member state.

In this case the EU citizen has made a decision to naturalize without fully realizing the consequences. There is a clear effort made in Directive 2004/38/EC to insulate family members from unfortunate decisions of their EU citizen spouses.

(15) Family members should be legally safeguarded in the event of the death of the Union citizen, divorce, annulment of marriage or termination of a registered partnership. With due regard for family life and human dignity, and in certain conditions to guard against abuse, measures should therefore be taken to ensure that in such circumstances family members already residing within the territory of the host Member State retain their right of residence exclusively on a personal basis.

[Obie]

You may have a case.

Also see Rottmann

[zubby007]

Question for the OP: Was any attempt been made to contact the Austrian government before or after the naturalization? I assume no application was made to retain citizenship?


This situation also resembles the situation when either (1) the EU citizen dies (in this case they have died as an EU citizen) or (2) the EU citizen stops being a family member through divorce. In both cases, the family member can retain a right to remain in the host member state.

In this case the EU citizen has made a decision to naturalize without fully realizing the consequences. There is a clear effort made in Directive 2004/38/EC to insulate family members from unfortunate decisions of their EU citizen spouses.

(15) Family members should be legally safeguarded in the event of the death of the Union citizen, divorce, annulment of marriage or termination of a registered partnership. With due regard for family life and human dignity, and in certain conditions to guard against abuse, measures should therefore be taken to ensure that in such circumstances family members already residing within the territory of the host Member State retain their right of residence exclusively on a personal basis.

Yes, she rang the Austrian Embassy in London to ask of her intention to become BC and she was told by the Embassy staff that, Austria Goverment do not allow dual citizen that she will loss her Austrian citizen if she became BC.

[Directive/2004/38/EC]

Yes, she rang the Austrian Embassy in London to ask of her intention to become BC and she was told by the Embassy staff that, Austria Government do not allow dual citizen that she will loss her Austrian citizen if she became BC.

Embassies are very bad at answering such questions. Sadly.

Wikipedia makes it sound a little more complicated http://en.wikipedia.org/wiki/Austrian_n ... itizenship

Loss of Austrian citizenship

An Austrian citizen who acquires another citizenship by voluntary action automatically loses Austrian citizenship. The exception is in cases where permission to retain Austrian citizenship has been obtained in advance. This may be difficult to obtain, since it needs to be in the interest of the republic of Austria to grant this dual citizenship (e.g. when somebody is a celebrity in arts, sports, science, economy etc.). However, in practical terms conditions have relaxed. If, for example, an Austrian citizen wants to obtain U.S. citizenship because he/she lives in the U.S. but has still personal or at least some commercial interests in Austria and applies for permission to retain Austrian citizenship, that request is usually granted and has become almost a formality. The important part is, that the application to retain Austrian citizenship is made BEFORE acquiring another citizenship. Otherwise the Austrian citizenship is automatically lost the moment a person obtains a foreign citizenship. The law can change at any time, however, especially should the power in the Austrian parliament shift dramatically after an election and a party opposed to the current law regains absolute majority

[wanyu1229]

Hi this is really interesting discussion here as I was just asking my husband who is Spanish and intends to become British at some point.

I'm currently applying for RC via EEA route and wondering what would happen if he becomes British. Now I think he should definitely keep his Spanish nationality to avoid future troubles... Especially if I want PR in 5 years.

Thanks everyone!

[zubby007]

Hi this is really interesting discussion here as I was just asking my husband who is Spanish and intends to become British at some point.

I'm currently applying for RC via EEA route and wondering what would happen if he becomes British. Now I think he should definitely keep his Spanish nationality to avoid future troubles... Especially if I want PR in 5 years.

Thanks everyone!

I think your case may be difference if Spanish Authority allow dual citizen, So check with the Spanish Authority first

[augustine70]

hi,
if you apply through eea route, it is free but i think you are now under the 'immigration rules' which means NOT free. Currently around £600 for standard application by post, nearly £1000 if made in person.(plus fees for each additional dependent). I think you will have to 'switch' your current status to fulfil the 'immigration rules' as you no longer under the EEA rules. (meaning a LOT more complicating) Also I believe PR will be under EEA rules. You will be probably using FLR or ILR (sorry not really sure which one but pls someone clarify this)
More complicating meaning.....there is a minimum earnings per year that you will have to prove plus extra for each dependent. Now in terms of your clock, I don't know what happens to them??

Please correct me if I got things wrong..
p.s....when i say you i meant your spouse/partner (british has to prove minimum i think £18600)

[wanyu1229]

Hi this is really interesting discussion here as I was just asking my husband who is Spanish and intends to become British at some point.

I'm currently applying for RC via EEA route and wondering what would happen if he becomes British. Now I think he should definitely keep his Spanish nationality to avoid future troubles... Especially if I want PR in 5 years.

Thanks everyone!

I think your case may be difference if Spanish Authority allow dual citizen, So check with the Spanish Authority first

Yes you're right. Spainish can claim to retain the original one. Initially he said he doesn't mind giving up Spanish nationality, but now it seems its worth keeping! Please keep us updated here on your progress please! All the best with your case!

[wiggsy]

hi,
if you apply through eea route, it is free but i think you are now under the 'immigration rules' which means NOT free. Currently around £600 for standard application by post, nearly £1000 if made in person.(plus fees for each additional dependent). I think you will have to 'switch' your current status to fulfil the 'immigration rules' as you no longer under the EEA rules. (meaning a LOT more complicating) Also I believe PR will be under EEA rules. You will be probably using FLR or ILR (sorry not really sure which one but pls someone clarify this)
More complicating meaning.....there is a minimum earnings per year that you will have to prove plus extra for each dependent. Now in terms of your clock, I don't know what happens to them??

Please correct me if I got things wrong..
p.s....when i say you i meant your spouse/partner (british has to prove minimum i think £18600)

does the spouse not essentially remain such as a singh route spouse?...

[i'd file a FOI request with the Home OFfice, but they will refuse and state im being vexatious... perhaps somebody else would like to ? ]

[augustine70]

hi wiggsy,
From my understanding, it mainly applies if you bring someone to UK from other EU country, as you have been working and paying in the respective country. If you are already in the country this does not apply.

wanyu1229--- Please be careful....check this out.
http://eumovement.wordpress.com/2012/07 ... #more-1064
stumbled across this page!

[zubby007]

Hi this is really interesting discussion here as I was just asking my husband who is Spanish and intends to become British at some point.

I'm currently applying for RC via EEA route and wondering what would happen if he becomes British. Now I think he should definitely keep his Spanish nationality to avoid future troubles... Especially if I want PR in 5 years.

Thanks everyone!

I think your case may be difference if Spanish Authority allow dual citizen, So check with the Spanish Authority first

Yes you're right. Spainish can claim to retain the original one. Initially he said he doesn't mind giving up Spanish nationality, but now it seems its worth keeping! Please keep us updated here on your progress please! All the best with your case!

Thanks I will, good luck to you.

[wanyu1229]

hi wiggsy,
From my understanding, it mainly applies if you bring someone to UK from other EU country, as you have been working and paying in the respective country. If you are already in the country this does not apply.

wanyu1229--- Please be careful....check this out.
http://eumovement.wordpress.com/2012/07 ... #more-1064
stumbled across this page!

Oh thanks a lot this is really relevant! Never thought it'd be this complicated though...