New 2017 rule for non-EEA family of naturalizing EEA citizen

[robbie296]

Hi

I just stumbled upon the "Immigration (European Economic Area) (Amendment) Regulations 2017 (No 1)"

http://www.legislation.gov.uk/uksi/2017/1/made
Third party weblink removed

This stuff is somewhat technical - but am I right in assuming it allows me as an EEA national to acquire British citizenship without affecting my non-EEA partner who is reliant on my EEA status for her EEA4 permanent residence

Key facts as follows:
- I am an EEA citizen who arrived (back) in the UK in early 2010. I have been continuously resident and gainfully employed since then.
- I applied for and received my EEA3 document certifying permanent residence in 2015. So technically, I qualify for natualisation now - which is something I have been considering with Brexit.
- My non-EEA partner moved with me in 2010. Initially she came on the basis of an EEA1 Family Permit, of which she received 2 successive ones in 2010. Then in 2011 she applied for and received an EEA2 Residence Card, valid for 5 years. In 2015, we then applied for and received her EEA4 biometric permanent residence card.

Until today, it was my understanding that if I were to obtain British citizenship then my partner would lose the ability to rely on my EEA status and would effectively lose her permanent residence (as discussed a number of times in this forum)

Reading these new transitional provisions that kick in in 2 weeks' time, it would appear to me that my situation should be covered by them - and that therefore come February, I should be free to apply for naturalisation without any risk to my wife's EEA-derived permanent residence status.

My analysis is as follows:
- She (F) is has a right to reside in the UK that depends on me (P) being an EEA national;
- [in the case where I get naturalised] - P would be an EEA national if P was not also a British citizen;
- criterion 2 is not met as F did not hold permanent residence on 16/7/2012
- criterion 3 (including criterion 5) is met as F had a right of residence on 16/7/2012 based on her EEA2 residence card, and held a valid EEA residence card on 16/10/2012
- criterion 4 (incl. criterion 6) is also met as F had applied for and entered the UK pursuant to an EEA1 family permit prior to 16/7/2012

I would be grateful for any / all thoughts before I seriously consider this potentially big and consequential step...

[robbie296]

PS - as I was doing some more reading on this, it appears that Immigration (European Economic Area) (Amendment) Regulations 2017 (No 1) merely replicates what was in Schedule 3 of The Immigration (European Economic Area) (Amendment) Regulations 2012.
So if my analysis above is correct, then we have probably always been grandfathered by virtue of those Transitional Provisions but I just wasn't aware of that. Probably makes all this easier to answer for the experts on this forum as this is not new news for the expert community - merely for me...

[noajthan]

PS - as I was doing some more reading on this, it appears that Immigration (European Economic Area) (Amendment) Regulations 2017 (No 1) merely replicates what was in Schedule 3 of The Immigration (European Economic Area) (Amendment) Regulations 2012.
So if my analysis above is correct, then we have probably always been grandfathered by virtue of those Transitional Provisions but I just wasn't aware of that. Probably makes all this easier to answer for the experts on this forum as this is not new news for the expert community - merely for me...

As you suspect this is old news. But your post may help other worried members as there have been a surprising number of such cases in the past month.

As you had foresight to get RC for spouse within the relevant time limit (and you remain married to same spouse) then you/spouse have always been covered by McCarthy.

And you seem to suggest spouse has acquired RR and also PRC - so she is settled in UK in her own right anyway.
That means your status and citizenship are now immaterial to that of your spouse.

If you naturalise then spouse may immediately apply to naturalise under section 6(2) of BNA (assuming all other requirements have been/can be met);
that is, instead of waiting 12 months as you will have had to have done when applying under s.6(1).

[robbie296]

And you seem to suggest spouse has acquired RR and also PRC - so she is settled in UK in her own right anyway.
That means your status and citizenship are now immaterial to that of your spouse.

I did not realise that? I was always under the impression that her right to permanent residence remained contingent on my status as an EEA citizen.

Regulation 18.5 state "A document certifying permanent residence and a permanent residence card shall cease to be valid if the holder ceases to have a right of permanent residence under regulation 15."

So it seems possible to lose permanent residence status? And wouldn't she lose her PR status if I were to lose mine? e.g. if we hadn't been grandfathered under the Transitional Provisions, and I were to naturalise... what would happen then?

If you naturalise then spouse may immediately apply to naturalise under section 6(2) of BNA (assuming all other requirements have been/can be met);
that is, instead of waiting 12 months as you will have had to have done when applying under s.6(1).

That is positive - though she holds Malaysian nationality, and MY does not allow for dual citizenship. Therefore we want to make absolutely sure (based on current legislation of course as no one knows what might happen with Brexit...) that nothing will happen to her EEA PR status even if I were to naturalise.

[noajthan]

I did not realise that? I was always under the impression that her right to permanent residence remained contingent on my status as an EEA citizen.

Regulation 18.5 state "A document certifying permanent residence and a permanent residence card shall cease to be valid if the holder ceases to have a right of permanent residence under regulation 15."

So it seems possible to lose permanent residence status? And wouldn't she lose her PR status if I were to lose mine? e.g. if we hadn't been grandfathered under the Transitional Provisions, and I were to naturalise... what would happen then?.

No, you have misunderstood some of this.
Have you read Regulation 15?

I understood you to say partner has already has confirmation of PR (PRC) - is that the case?
If so all is good.

Once acquired PR is only normally lost by continuous absence from UK of 2 years.
You could even divorce (perish the thought) or leave the country - it would not matter as partner would still have PR status in UK.

[robbie296]

No, you have misunderstood some of this.
Have you read Regulation 15?

I did but was probably being overly cautious in my interpretation - assuming there was some kind of continuing test rather than just a one-time one... i.e. 15(1)(b) would no longer apply if I were to cease being an EEA citizen... but then again 15(2) is pretty definitive in that (as you stated) "The right of permanent residence under this regulation shall be lost only through absence from the United Kingdom for a period exceeding two consecutive years"

I understood you to say partner has already has confirmation of PR (PRC) - is that the case?
If so all is good.

yes - she received her confirmation letter and biometric PRC over a year ago already.

thanks again.

[noajthan]

yes - she received her confirmation letter and biometric PRC over a year ago already.

thanks again.

So panic over.

if not naturalising partner's status is now as good as it gets.
She will have to take her chances after Brexit depending on the exit negotiations.

If you naturalise and then partner decides to take the plunge she can apply under s. 6(2) and so save time.