Irish citizen + non-EEA wife seeking naturalisation

[Missenden]

Dear brainstrust,

My wife and I are medical doctors about to commence PhDs (myself as university staff, my wife as a student) for the next 3-4 years. We plan to live & work in the UK permanently, so would like to apply for naturalisation as soon as practicable to secure this, especially following Brexit with significant uncertainty for EU nationals.

Brief summary:
- Both moved to UK Feb 2015.
- Myself: dual Irish + Australian citizen. Full time work with NHS Feb 2015 - June 2016. Paternity + unpaid leave July - Sept 2016, full time PhD commences (as university staff) Oct 2016 for 3-4 years

- My wife: Australian citizen. Moved on EEA Family Permit; EEA residence card (RC) mule EEA(FM) of QP issued Oct 2015. Full time work in NHS Feb 2015 - June 2016, maternity leave July 2016 - March 2017; full time PhD commences (as student) April 2017 for 3-4 years.

- Our daughter born in UK July 2016: British citizen as parent 'settled' in UK as Irish citizen

My current thoughts were:
- Both myself + my wife: 5 years residence to EEA PR, then once obtained apply directly for naturalisation as 'settled' since arrival by virtue of Irish nationality

My questions are:
1. Can I document / formalise my 'settled' status since arrival in UK, and my wife's, with earlier application for EEA(PR)? In case any changes arise post Brexit negotiations

2. Is this the fastest way for Irish citizen + spouse to apply for naturalisation?

3. Should I be considering a non-EEA route e.g. SET(M) - although this is £3750 (rather than £65 for EEA PR)

[Thank you moderators for your extraordinary generosity within this forum - many readers including myself have found it absolutely invaluable]

[secret.simon]

You are thinking way too fast and way too much. Let's pause and walk through this slowly.

Settled status is typically acquired in two ways; ILR under the UK Immigration Rules and PR under the EEA Regulations. In most cases, but not all , they are mutually exclusive.

For historic and geographic reasons, Irish citizens are treated as settled on arrival in the UK. But it is unclear as to the legal basis of this treatment. There has been some lively debate regarding this specific issue on these forums and there is an opinion that such settled status is based on provisions of the Immigration Act 1971 that creates the CTA (Common Travel Area). But it is by no means certain. Because the law on the settlement of Irish citizens is unclear, it is hard to document/formalise your settled status. What is clear is that the status of Irish citizens is governed by UK domestic law in addition to EU law and hence is more likely to be safeguarded post-Brexit.

The settled status of Irish citizens applies only to the Irish citizen themselves. At the moment, their non-EEA spouses and other family members acquire a right under the EEA Regulations to reside in the UK with them. But that is under EU law and not related to their settled status, which is specific to their being Irish citizens. Can your wife acquire Irish citizenship?

As you are a settled person, in theory, your wife would be eligible to apply under the UK Immigration Route,which as you noticed is a bit on the expensive side. She can not jump straight to SET(M), but would need to apply for 2 rounds of FLR(M) of 2.5 years each followed by SET(M) after 5 years. That whole journey would easily set you back by about £5000 at current prices. These fees increase at much higher than the rate of inflation (the fees for ILR jumped up from £1075 to £1500 to £1875 in three years).

Does your wife have a grandparent who was born in the UK? If so, she would be eligible to apply for an Ancestry visa under the UK Immigration Rules, which could be used as an alternative if things go pear-shaped post-Brexit.

As you can see the UK Immigration Route is significantly more expensive and takes as long. It is also way more stressful as you must apply for a leave to remain, whereas under the EEA Regulations, your wife has a right to live in the UK with you that can not be refused.

There is no faster way for your wife to get naturalised as it would take five years for her to acquire either PR or ILR. Naturalisation itself requires five years of residence for people who are not married to British citizens. Hence, you will also need to wait five years for naturalisation.

The consensus on these forums is that provided you have documentation of your residency under the EEA Regulations pre-Brexit, you will be protected under transition provisions post-Brexit.

Remember that EEA Regulations do require you, the EEA Citizen, to be exercising treaty rights (working, seeking work, studying with CSI and being self-sufficient with CSI - CSI is Comprehensive Sickness Insurance, essentially private health insurance) for five continuous years. Make sure that there are no gaps when it comes to your exercise of treaty rights.

Apologies for the verbose response, but as I am addressing PhD students, I have attempted to address the entirety of the field of the question.

[noajthan]

Dear brainstrust,
...

My questions are:
1. Can I document / formalise my 'settled' status since arrival in UK, and my wife's, with earlier application for EEA(PR)? In case any changes arise post Brexit negotiations

2. Is this the fastest way for Irish citizen + spouse to apply for naturalisation?

3. Should I be considering a non-EEA route e.g. SET(M) - although this is £3750 (rather than £65 for EEA PR)

[Thank you moderators for your extraordinary generosity within this forum - many readers including myself have found it absolutely invaluable]

1) Get up to speed on free movement here:
http://ec.europa.eu/justice/citizen/doc ... 013_en.pdf

It takes 5 years to acquire PR in 'normal' way.
Wife/dependent's activities (however valuable and stimulating) are immaterial in this context. (As long as legal).

Wife has no time with Brexit on the cards; invest in optional EU documentation (RC) as a priority.
Rely on British sense of fair play and any transitional arrangements.
(Did I mention get EU docs in place - such transitionals are often predicated on possessing key doc/s at a key date).

2) Why would you bother. Being Irish is good enough.
And for rest of Europe you are still a Union citizen. (See #1).

My Irish uncle has lived, worked in UK, (now retired on UK pension) for almost 50 years. Irish.
Irish citizens are sorted; CTA is not going away.

3) Welcome to our world, families with non-EEA nationals.

Oh, and if you're concerned, have a word with the "17million". Perhaps prescribe a dose of purgatives all round.

[Richard W]

The OP has not stated which country they is/will be living in. If they live in Northern Ireland, at present a secure accelerated route would be for Mrs Missenden to first acquire Irish nationality. Then, if the laws relating to the Irish do not change, she will become 'settled'.

I recommend that for any naturalisation application relying on being Irish (rather than just any EEA citizenship), the applicant first ensure that he have a 'qualifying CTA entitlement', i.e. that the last entry into the UK was from the Republic of Ireland. It may be necessary to make that qualifying trip sooner rather than later. The pre-existing (well, until 2002, at least) legal situation that the concept of a 'qualifying CTA entitlement' was intended to capture was changed in 2014 to apply to anyone, except in general a visa national, who is 'an EEA national, or a person who is entitled to enter or remain in the United Kingdom by virtue of an enforceable EU right or any provision made under section 2(2) of the European Communities Act 1972'. Previously that part of the statutory instrument only applied to Irish citizens. The Irish have good reason to worry as to what will happen to that clause if the UK leaves the EEA.

Nowhere have I heard that the concept of a 'qualifying CTA entitlement' is completely redundant.

[Missenden]

Thank you secret.simon, noajthan and Richard W - all very detailed and informative responses!

The slender win Brexit vote has certainly livened up immigration debate - all EEA nationals (and UK nationals) will watch the negotiations with great interest. To date, EU voices sound like freedom of movement is a non-negotiable sine qua non of access to the EU single market post Brexit.

Richard W - currently (and hopefully permanently) resident in the UK, so have not lived in Ireland 12 months for Mrs Missenden to naturalise as Irish.

Oh well - if it all turns sour, we'll be obliged to take our medical research to Australia or Ireland

[Richard W]

Richard W - currently (and hopefully permanently) resident in the UK, so have not lived in Ireland 12 months for Mrs Missenden to naturalise as Irish.

As I understand it, 3 years residence in Northern Ireland, which is still part of the UK, would be enough for her to meet the residence requirement for naturalisation as Irish. I'm not quite sure how it works, as the ill-documented extension to Northern Ireland only applies because you are Irish.