Wife is UK Citizen; I am EEA (Polish); Question re: Children

[melloj]

My situation is a somewhat complex one due to our jetsetting ways.

We currently live in Canada. I have a Canadian and a Polish passport (I left Poland when I was a child, but have maintained my citizenship).

My wife has Japanese, Canadian and British passports (she was born in Japan, but her father is a British citizen; my wife obtained her British citizenship by way of descent which means that the British citizenship does not pass to her children).

We have a 2 year old son; he was born in Canada and has a Canadian and Japanese passport. By law, he is also a Polish national through being my son, but the process to obtain his Polish passport is time-consuming as I first have to register our Japanese marriage in Poland (and can only do so in December when my wife and I present ourselves to the Polish embassy in Tokyo), then register his Canadian birth certificate in Poland and finally apply for his documents.

My wife is pregnant with our second child and is planning to go home to Japan to give birth in December.

Now, the complicating factor. From January, my firm is transferring me to our London UK office. As an EEA national, I am entitled to work in the UK and have my Polish passport to gain entry. As a UK national, my wife can obviously live in the UK no problem, using her UK passport.

The plan is that I will go to the UK in mid-January to rent a home and set things up. My wife would follow from Japan with the two children in February.

The problem is the children. There is no way I can have my son's or new baby's Polish passports ready in time for their move to the UK. They are both by law Polish citizens (among Canadian and Japanese), so technically have the right of abode in the UK; but at the immigration desk at Heathrow, we will have no documents that show that yet.

I thought I could apply for the EEA family permit for the kids, but that doesn't work as they are in fact EEA nationals. What we may have to resort to is the two kids getting visitor stamps when my wife arrives with them and then once the Polish passports are obtained, they would leave on their stamped passports and come back into the UK on the Polish passports.

I cannot see a different route that would be open to me for the kids. I thought of trying to see if the Polish embassy in Tokyo would issue some document that outlines that I am in the process of obtaining passports for the kids and confirms their Polish citizenship, but that will still depend on the understanding of whichever official we get at Heathrow.

Any thoughts?

[Amber]

Has your wife (the British national), lived in the UK for 3 years at any time in her life?

[Obie]

So long as the entitlement to polish nationality is a qualified right, and procedure has to be followed for your child to obtain it, he is not a polish yet.

As you are an EEA national, you children, as family members, are entitled to join you as a matter of right, without even the need for an EEA family permit.

After your arrival, and provided you are still at work, they will qualify for a residence Card.

If they stay in the UK for 3 years, they will be entitled to register as a matter of right, under section 3(5) of the nationality act 1981.

They have no right of abode in the UK. It is a mistaking view of the law, to assume so.

Canadians don't permit their citizens to hold more that 1/2 other nationalities, i believe. Therefore you may have to consider the implication of your children holding many nationalities.

[Amber]

The child may also be entitled to register under section 3(2) if the parent (British) had lived in the UK for a period of 3 years. The added bonus with a section 3(5) application is the child will be British otherwise than by descent.

[Obie]

The difficulty with a Section 3(2) application, is the same one you envisaged and mentioned above, such that it was not worth mentioning, giving the circumstances of the case.

The children are clearly not British, by any stretch of the imagination. They may well be in the distance future, but not at this present moment. No form of application that seeks to confer on them such status, can be made at this present moment, or if made, has any viable prospect of success.

[Amber]

I believe a section 3(2) application can be made straight away if the parent who is British lived in the UK for 3 years at any point prior to the child's birth, that is why I was asking if the parent had lived in the UK at any point. The disadvantage with a section 3(2) application is the child would be British by descent.

[melloj]

Thank you both for the replies.

Unfortunately my wife has never lived in the UK for an extended period of time, so we cannot avail ourselves of the 3(2) registration. As Obie says, the children at the present moment have no claim to British nationality.

Obie - I wanted to clarify a couple of things in your first post. If I read your post correctly, as an EEA national living and working in the UK, my children have the right to join me in the UK notwithstanding the fact that they have not yet confirmed the process of obtaining their Polish passports, correct?

Is there anything I need to do, any steps I need to take, prior to their arrival in England? Do I need to provide a letter to my wife who will be travelling with the children pursuant to which I outline that I am resident and employed in England and that I am an EEA citizen? Or is there a more "official" process for doing so. I just want to make sure that their progress through immigration is as painless as possible given that she will be alone with two young children.

Obviously, once they are in, we can seek to get them a residence card, but I assume that they need to be admitted into the country first.

As for Canada, quoting from the Canadian CIC website (http://www.cic.gc.ca/english/resources/ ... enship.asp): "The law thus makes it possible to have two or more citizenships and allegiances at the same time for an indefinite period."

Many thanks again for the responses.

[Obie]

I get the point you are seeking to make.

[Obie]

Interesting. I was under the impression, a friend of mine, who held a South African and a Canadian Passport, as will as a British one, told me he will be required to drop one. But i take it he was wrong, i have to admit that i have never set eyes on the provision of Canadian Citizenship law.

I seek to start working on the Canadian and American Forum, this may encourage me to focus more on their statutory instrument.

In regards to your query, all you need to enter and stay with the children, is their birth certificate, showing their relationship to you, and obviously, your Polish passport, which i suspect you will be flying with.

They will be entitled to entry under Regulation 11.

They will have an initial residence under Regulation 13 of the EEA regulation 2006, for a period of 3 months, if you started working immediately, they will have an Extended rights under Regulation 14.

[melloj]

Obie, just to be painfully clear (I don't want to make any mistakes on this as you can appreciate), I will be in the UK for about a month before my wife and children arrive.

My wife will only have her British passport with her, which, I take, won't be of assistance to the kids.

It seems though that if she has:
a) my childrens' birth certificates, naming me as the father;
b) a notarized copy of my Polish passport;
c) a letter from me indicating my then-current presence in the UK; and
d) a letter from my employer indicating my employment in the UK,
then the kids should gain entry under Regulation 11 without needing an EEA permit, correct? Or do I actually have to fly in with them for them to take advantage of the regulation?

Looking at regulation 11 itself, I suppose that the answer is that I do not have to fly in with them as long as I meet the requirements of paragraph 11(4):
(4) Before an immigration officer refuses admission to the United Kingdom to person under this regulation because the person does not produce on arrival a document mentioned in paragraph (1) or (2), the immigration officer must give the person every reasonable opportunity to obtain the document or have it brought to him within a reasonable period of time or to prove by other means that he is—
(a) an EEA national;
(b) a family member of an EEA national with a right to accompany that national or join him in the United Kingdom; or
(c) a family member who has retained the right of residence or a person with a permanent right of residence under regulation 15.

But based on the above, does the requirement not still state the person has to have a right to accompany/join the EEA national in the UK, in which case where does that right flow from with respect to my children? Or am I missing something (I took a look at the derivative residency rights, but I don't think any of the categories in 15A apply to my situation)?

[Obie]

Your undertanding of the law was very much spot on, until you got to the last paragraph. That is where you got into a module.

Forget about 15(1A) or 15(A) they are not applicable to you.

You children and wife, if a non-EEA National, has a right to join or accompany you in the first 3 months of your residence, without any condition, other than them proving you are an EU citizen, their passport, and Evidence of their relationship. This is provided for under Reg 13.

If they come after you, they are entitled to enter under Reg 11(4) to Join you. If you have already been in the UK for 3 months before they arrive, you will need to show you are a qualified person. If less than 3 months, you need to show the evidence i mentioned in the preceding paragraph.

[melloj]

Got it - that makes sense.

Thank you very much for your help in this.

[vinny]

When was your wife born and what was her father's occupation? This has a bearing on whether she is British "by descent" or "otherwise than by descent".

[melloj]

Vinny - she was born after January 1, 1983, in Japan. Her father was employed at an animal sanctuary there - not in any official capacity with respect to the Crown.

[vinny]

Well, it was a long shot. Asumming also that neither your wife nor son was born in a UK registered vessel, then Obie's advice is best.