Getting UK nationality with stateless children

[Shepol]

Hi. My husband is Portuguese and I'm south African. We have 3 children, 2 of whom is stateless. They are so because my husband didn't work and pay taxes five years before they were born (treaty rights etc, he was working in the UK for 3 years only when they were born). Our last born had English nationality because he was born after my husband worked in UK for 5 years. We would like to apply for their citizenship. However, my husband wants to apply for citizenship too (in light of brexit). How would this affect my status (I have residenceship , been living in UK for 13 years) and my 2 children that are stateless. Would they automatically receive citizenship? Or would we still need to apply for nationality?

[alterhase58]

Not sure why you think the two of your children born in the UK before your husband had PR are stateless. They are Portuguese and/or South African by virtue of their parents' nationalities, unless those two countries would not recognise them as their citizens.
For yourself you need to apply separately for BC and register the two children as BC. There are no couple or family applications. Presumably you have ILR?

[Tea_Rocket]

Hi. My husband is Portuguese and I'm south African. We have 3 children, 2 of whom is stateless. They are so because my husband didn't work and pay taxes five years before they were born (treaty rights etc, he was working in the UK for 3 years only when they were born).

I don't know the details of Portuguese or South African citizenship law, but I would have assumed that at least one of those countries would recognize your children as citizens, regardless of whether or not you and your husband were working and paying taxes, and despite where you were living. You may never have applied for a passport for your children from either of those countries, or for consular birth certificates, but that doesn't necessarily make them stateless. The first thing you need to do is to read up on that.

Our last born had English nationality because he was born after my husband worked in UK for 5 years. We would like to apply for their citizenship. However, my husband wants to apply for citizenship too (in light of brexit). How would this affect my status (I have residenceship , been living in UK for 13 years) and my 2 children that are stateless. Would they automatically receive citizenship? Or would we still need to apply for nationality?

Before we can help, we need clarity on a couple of things:

1. Does your husband have a permanent residence document (card or piece of paper)? If not, he will need to get that before he applies for naturalisation.
2. What is your immigration status? By "residenceship" (not a legal term, by the way), do you mean indefinite leave to remain (ILR)? Or are you here exercising treaty rights as the spouse of an EEA citizen?

If you have ILR, or if your husband has a permanent residence card (either one on its own is sufficient), then you can register all of your children as UK citizens right away. Additionally, any child who was born after you received ILR or after your husband acquired permanent residence is a British citizen already, and you can apply for a passport directly (though if it's on the basis of your husband's PR, he will need to have the PR documents to prove it).

Finally, assuming your children have lived in the UK their whole lives, any child who is over the age of 10 may qualify to register as a citizen using Form T, which doesn't require evidence of their parents' immigration status, though does require evidence that the child was born in the UK and has lived here continuously for the first 10 years of his or her life.

[Shepol]

Aaah after now reading up and much confusion (and 10 years if trying to figure out!) I think I get it! So, I initially thought that they can't get citizenship because my husband didn't work here for 5 years prior to them being born. But from what I understand, as long as we had residenceship before they were born, they're British? Before we got married my husband had to apply residenceship. Then after that I got residence documentation in my passport book. Then my son was born after we already had permanent residency. Does it mean that get automatic citizenship? Its tricky because the rules changed in April 2006 and he was born July 2006 (today lol)

[Shepol]

Such a goose chase trying to figure out how and what. Now I've read people applying for passports and the home office still saying they were refused and that aren't the same as ilr? How can I ensure that they won't refuse even if it is that they're British.

[Tea_Rocket]

Once again, "residenceship" is not a legal term and "residence documentation" is too vague to be useful to us. In order to help you, we have to understand exactly what your situation is, which requires you to describe it as accurately as possible, using the correct terminology. So to review,

Permanent residence (PR) applies to EEA citizens (like your husband) who have lived in the UK for five years or more. It is acquired automatically after five years of residence in the UK, but in order to prove it for purposes of applying for naturalisation, you need to have a permanent residence card or certificate. There is often some confusion because the date on the PR card says when the card was issued, not when permanent residence status was acquired. Some people have letters clarifying the date from which they acquired PR, some don't.

Indefinite leave to remain (ILR) applies to non-EEA citizens who have satisfied the necessary requirements for it and applied for it specifically. Unlike PR, it is not automatic. ILR holders have the right to live and work in the UK without restrictions, and also to access public funds, if they need to. ILR is not the same as a residence card, though for most of us, proof of ILR takes the form of a biometric residence permit (BRP).

So keeping the above in mind, can you please answer the following questions:

1. Does your husband have permanent residence?
2. If yes to Question 1, when did he acquire it (you do not have to give the exact date, just the month/year).
3. Does your husband have a permanent residence card or certificate?
4. Do you have ILR?
5. If yes to Question 4, when did you acquire it? (this will be the issue date on your biometric residence permit—again, we don't need the exact date)

We can deal with the questions of your children's nationalities once we sort out what the situation is with you and your husband.

[Shepol]

Apologies. Yes the jargon gets confusing. So my husband got a blue resident card which was issued on 10 October 2005. I then got a stamp in my passport that says I have a right of residence in the UK as the family member of an EEA national who is resident in the uk in the exercise of a treaty right is hereby given until October 2010. I also then got a resident documentation issued in my passport, and its a permanent resident card, with no restrictions on my activity in the UK. Date of issue says renewal date 21 Mar/Mars 21. Date of issue 21 Mar/Mars 11.

[Richard W]

When did your husband start working in the UK, and was your first child born 5 years or later than that date?

It is not clear what the effect of your husband becoming British would be. The status of you and your elder children may depend on your husband's Portuguese nationality. While you have permanent residence, it is entirely possible that it's being honoured when the UK leaves the EU will depend on your husband being Portuguese. While the text of the British offer implied that dual nationals would retain the privileges left to EU nationals, this may just have been sloppy wording. Also, it is not yet clear whether, under EU law, EEA family members lose their rights when the sponsor naturalises. A relevant question while the British implementation of EU law still applies will be, "During what times in 2012 you and your children had or had applied for residence cards" - The Immigration (European Economic Area) (Amendment) Regulations 2017 newly inserted Schedule 6 Paragraph 9, commonly known as the McCarthy transitional arrangement.

[Shepol]

My husband started working in October 2003 and my soon was born in July 2006 and my daughter may 2008. I read on a site to help EU members understand about their statuses and brexit that people with rp will be allowed to remain in the UK. Its all so confusing and really hard to decide what to do as no one can as of yet say what is going to happen

[Shepol]

I have a younger son that was born on August 2012 aswell

[Richard W]

All of you except your youngest (who is British) already have permanent residence. Under current laws, your husband naturalising would have no effect on the rest of the family. It the current EU proposals were accepted, your statuses would also remain secure.

The issues then arise with Brexit. The UK offer on the future status of EU nationals would, if its wording is to be trusted, cover you and the two elder children as family members of a Portuguese national. I don't trust that wording.

If your husband's Portuguese nationality were disregarded because he had become British, you would have problems. You'd have to either switch to the current UK immigration rules and start the 5 years to qualify for ILR, or naturalise as British. Your younger children would be in the same situation if they could not establish Portuguese nationality. If they can, and I think it's 'just' a matter of registering their births with the Portuguese authorities, I would recommend establishing their Portuguese nationality. They would then be covered under even the worst interpretation of the UK proposals.

I would recommend that if your husband naturalises as British, you should too.

[Shepol]

Thank you for the advice. Does a resident permit give you permanent residence? Or do you have to still apply for permanent residency after obtaining a permit? Sorry its so many questions. Your info is very handy because most of us are sitting with our head in our hands because no one can tell is what brexit would mean for us and what is the best course of action to take.

[Richard W]

Thank you for the advice. Does a resident permit give you permanent residence? Or do you have to still apply for permanent residency after obtaining a permit? Sorry its so many questions.

Generally, a residence card under the EEA Regulations does not grant a status; it merely records the possession of a right under the UK EEA Regulations, which in turn is usually a right created by the free movement directive 2004/38/EC. The one exception, which is not relevant for your family, is that possession of a residence card makes an 'extended family member' a 'family member'; only then does it record a grant of permission.

Possession of a residence card (or certificate) has mattered when a right becomes less widely available; those who had a card, certificate or family permit at a relevant time have been allowed to retain the some of the right, as when the privilege of being an 'EEA national' was narrowed in 2012 and the privilege of being an 'extended family member' was narrowed in 2016. On the other hand, the narrowing of the category of being deemed by the UK government to be beneficiaries of the Surinder Singh ruling appears to have been made retroactive, regardless of the possession of a residence card. (That may be incompetence rather than policy, though malice is very plausible.)

One acquires permanent residence automatically; a permanent residence card (PRC) or document certifying permanent residence (DCPR) merely records possession of permanent residence.

Now, under the UK government's proposal, you will have to apply for settled status, and do it by March 2021. As the proposed rules are probably based on administrative convenience (rather than humanity or justice), I suspect that in your case the processing will simply be a check for any criminal history and a check that you have maintained continuity of residence. You may in practice have lost the right to challenge a fixed penalty notice simply because you believe it is wrong - we won't know until detailed regulations are published.

Your info is very handy because most of us are sitting with our head in our hands because no one can tell is what brexit would mean for us and what is the best course of action to take.

One can merely make a best guess. It had been expected that having a PRC or DCPR would allow one to stay in the UK under the same or more generous conditions as holders of Indefinite Leave to Remain (ILR). However, that is not what the UK government has offered - people are to be expelled for past crimes or the lower degrees of criminality. Additionally, there is no hint that those who attained permanent residence through the Surinder Singh ruling will usually be allowed to stay. On the other hand, the UK government offer is more generous in that mere residence, even unlawful, will qualify for settled status, e.g. non-working EEA wives of British citizens.

It may also be that the UK government does indeed intend to allow most families of dual nationals to stay, regardless of whether their residence is lawful under the current regulations. If that is the case, you would be safe even if your husband naturalised.