Set M for residence card holder family member

[dino95]

Hi,

My wife is non Eu citizen, has a 5 year residence card as spouse of EU national (me) that she got In 2013. subsequently I obtained also British citizenship and now we have a British child. She would like to obtain British citizenship. For that she needs first either Permanent residency or ILR.
Two routes seem to be possible although in each case I am not sure if there are no complications given the dual citizenship
- route 1: wait for the end of the 5 years and apply for permanent residency under Eu law. Issue is here whether she will be allowed to apply as I am British and also due to Brexit in 2019 at the same time
-route 2: try the set M form now ( the 2 years route) as spouse of British citizen. But here not sure if her residency card can be considered as a viable document to be used in this route.

Please let me know any advice

[CR001]

Oh dear, would have been better if you had waited till she got PR before you applied for citizenship.

- route 1: wait for the end of the 5 years and apply for permanent residency under Eu law. Issue is here whether she will be allowed to apply as I am British and also due to Brexit in 2019 at the same time

This would have been the only route she could have taken. You becoming British complicates things a bit and you will have to wait to see what the judgement is later this year by the court. See the discussion topic link below

eea-route-applications/do-dual-eu-uk-ci ... 28292.html

-route 2: try the set M form now ( the 2 years route) as spouse of British citizen. But here not sure if her residency card can be considered as a viable document to be used in this route.

No, she cannot use this route as she does not hold a visa in the category that permits her to apply for ILR under the UK Immigration rules on Set(M). Also, there is no 2 year route since 9th July 2012.

[dino95]

thanks I will have a look. Any way to integrate the set M way by asking for a visa under the Uk immigration laws to avoid the discussion about Eu ? It may take longer but wanted to cover all the options.

[CR001]

thanks I will have a look. Any way to integrate the set M way by asking for a visa under the Uk immigration laws to avoid the discussion about Eu ? It may take longer but wanted to cover all the options.

She would have to apply for a spouse settlement visa and then wait a further 5 years (2 x 2.5 year visas) before she qualifies for ILR on Set(M). Current cost for a postal application is £993 PLUS £500 immigration health surcharge. She needs English A2 test and you need to meet the £18,600pa financial requirement, with evidence of payslips and bank statements for 6 months.

Some non-EU spouses who have applied for FLR(M) spouse visa with the same circumstances as yours (EU spouse now British), have been refused their visas.

[dino95]

Thanks. So to get the 2.5 years I need to try the FLR form? Can she apply from the country. On which basis this visa could be refused ?

[CR001]

Thanks. So to get the 2.5 years I need to try the FLR form? Can she apply from the country. On which basis this visa could be refused ?

Due to the fact that you can no longer sponsor her on her EEA residence card due to becoming British, you are only considered British in the UK now. So effectively, from the date you became British, she doesn't really have a right to reside and to apply for leave to remain, you need valid legal status. It is a technicality. Very few have been successful going from Residence Card to FLR(M) within the UK.

[dino95]

Does it mean that in 2019 she can be refused entry to the country ?

[CR001]

Even before possibly.

Brexit requirements depends on the negotiations.