McCarthy Transition Rules and New Dual Nationals

[pochaco]

Please kindly advise me if the transition rules could be applied in our case:

I am an EU citizen who moved to the UK in 2008. I have automatically acquired permanent residence in 2013, although my PR document was issued only in 2016. I married a non-EU citizen in 2015, who moved to the UK in the same year and was granted an EEA Family Member residence card (issued in 2016 valid till 2021). If I apply for British citizenship now will my wife be able to apply for Permanent Residence (providing Brexit does't mess things up)? In 2012 I was an EEA citizen in the UK exercising treaty rights.

If McCarthy Transition Rules don't apply in our case, what would happen to my wife if I naturalise? Would she be deported after my oath to Her Majesty?

Thanks a lot.

Bingo!

I think I've got a document that trumps European Operational Policy Notice 09/12 mentioned above. It's part of a trawl, released on 27 April, of European Operational Policy Team notices from October 2014 through February 2016. No. 9 is Operational Notice 07/15: Clarification of the definition of an EEA national. It's key paragraph is

This paragraph, whilst drafted to provide transitional arrangements for the family members of dual EEA/British citizens following the McCarthy judgment, also applies to family members where the sponsor was an EEA national at time of the changes to the Regulations, but who then later acquires British citizenship. In such cases, the family member will continue to benefit from the Regulations and can acquire permanent residence as long as they remain the family member of that EEA/British citizen (i.e they remain married or in a civil partnership).

The literal reading is the endorsed one.

[secret.simon]

The transitional arrangements means that if your wife was in the UK holding the Residence Card as the family member of an EEA national on the relevant date in 2012, then the change of status of the EEA citizen to a British citizen would not affect her.

So, your wife is not covered by the transitional arrangements.

If McCarthy Transition Rules don't apply in our case, what would happen to my wife if I naturalise? Would she be deported after my oath to Her Majesty?

Your ability to sponsor her under the EEA Regulations would cease. As she would not have an EEA citizen as a sponsor, her legal residence in the UK would cease. In order to stay in the UK, she would then have to make the appropriate application under the UK Immigration Rules.

Alternatively, she and you can move to another EEA state of which you are not a citizen and exercise treaty rights again.

[noajthan]

Clearly, as per guidance...

It remains the position that the transitional arrangements do not apply in circumstances where a dual EEA/British citizen marries their family member after the transitional arrangements have ended.
These cases will continue to fall outside the scope of the Regulations.

[pochaco]

Thanks for your clarification.

We wouldn' mind leaving the UK after my naturalization, however as we cannot know when exactly my application is decided, it is difficult to make arrangements and it's very likely that my wife would be still in the UK when my citizenship certificate is issued. Given this situation, I have 2 questions:

1. Would Home Office give us some time, say 3 months, to leave voluntarily, or we should worry that they raid our home and detain my wife?

2. Provided we leave voluntarily within a few months after my naturalization, would that period considered as breach of immigration laws and as such would it jeopardise my wife application for a spouse visa under UK immigration law if one day we were to decide to return to the UK?

[noajthan]

1) Time to leave is not granted like that.
Unlikely.

2) Wife does not have 'leave to remain' even now as she is not on a UK domestic visa so she wouldn't be an overstayer.
However as soon as you naturalise wife would have no basis on which to remain in UK unless she can find a visa route in her own right.

Wife may have some basis to remain in UK if you have children. May be worth digging into.

With her PR clock only starting in 2015, wife will not have to acquire PR in the normal way anyway, due to Brexit.

[pochaco]

So basically, we have nothing to lose. If my wife cannot acquire PR anyway due to Brexit then I will go ahead with naturalization as I already have all the paperwork ready.

Wife may have some basis to remain in UK if you have children. May be worth digging into.

With her PR clock only starting in 2015, wife will not have to acquire PR in the normal way anyway, due to Brexit.

[noajthan]

So basically, we have nothing to lose. If my wife cannot acquire PR anyway due to Brexit then I will go ahead with naturalization as I already have all the paperwork ready.

Well your wife, just like '000s of others who are still mid-flight on the EU migration trajectory, will have to rely on the traditional British sense of fair play and any transitional arrangements (if any) that are going to be put in place;
all yet TBC ofcourse.