Change of status from non-EU to EU while in UK

[lbexel]

Hi,

I'm planning to apply for a permanent residence card for myself, wife and children via the EEA route. I've been working since 2012 in the UK. The complication is that we initially arrived on a Tier 2 visa as we only had non-EU citizenship, but then two years ago myself and the kids obtained citizenship of an EU country (one of my ancestors was Hungarian). This made the three of us EU and my workplace cancelled my sponsorship and we cancelled the Tier 2 visas.

Now we are planning to apply via the EEA route for PR, but am worried whether they will count these 5 years as my "exercising the treaty rights ...". My HR department at work thinks that this will be OK, but I think they just wanted to get me off the list of sponsored people. Any ideas anyone or personal experience?

Thanks

[secret.simon]

You cannot combine time across visas issued under UK Immigration Rules and rights under EU law. So, those years that you were in the UK on a Tier 2 visa will not count, except under a possible scenario (b) mentioned below.

You can only have exercised EU treaty rights when you had EU citizenship. One of two scenarios is possible.

a) You and your children only became Hungarian citizens two years ago, when you applied for Hungarian citizenship. This type of citizenship is often called citizenship "by option" or "by declaration" or "by naturalisation" or, in the UK, "by registration". In that case, your EU law PR clock only started from that time onwards and you will acquire PR automatically at the end of five years from the date of acquisition of Hungarian citizenship (assuming that you keep working throughout).

b) Alternatively, your children and you always were Hungarian citizens by birth, just not aware of it. In that case, you were exercising treaty rights throughout the period that you were working (including the period under Tier 2 leave, which was superfluous) and you and your children would acquire PR after five years of having worked in the UK.

Unfortunately I (and most people on these forums) do not know how Hungarian citizenship law works in general and worked in your case. So, you will need to get into the intricacies of how you acquired Hungarian citizenship (which you will also need at the time of your application for DCPR) to be able to answer your own question.

Useful thread on Reddit on acquisition of Hungarian citizenship

[secret.simon]

Another useful link explaining the difference between regular citizenship, essentially citizenship by descent-scenario (b) in the post above, and simplified naturalisation, essentially scenario (a) above.

[lbexel]

Indeed the "simplified naturalisation" was the route we took. Thanks for the detailed reply. I'll go back to my HR department see what they have to say for themselves and will post here if I learn anything useful.

[secret.simon]

I'll go back to my HR department see what they have to say for themselves

I wouldn't be too harsh on your HR department. They are not experts on immigration law. All they want to know is "Can we hire you?". They are unlikely to know or care about your PR prospects.

Also, I believe (I could be wrong on this point) that as an EU citizen, not only do you not need leave under the UK Immigration Rules, but you are in fact ineligible for such leave. That means that when you became a Hungarian citizen, your Tier 2 leave ceased automatically and you would have been ineligible to renew it or reapply for it.

So, there was no alternative to your clock resetting to zero.

[Richard W]

Also, I believe (I could be wrong on this point) that as an EU citizen, not only do you not need leave under the UK Immigration Rules, but you are in fact ineligible for such leave. That means that when you became a Hungarian citizen, your Tier 2 leave ceased automatically and you would have been ineligible to renew it or reapply for it.

I believe that argument is almost completely wrong. At the simplest level, what law states that leave apparently granted to an EU citizen is null and void? I believe the argument is that

Save where expressly indicated, these Rules do not apply to those persons who are entitled to enter or remain in the United Kingdom by virtue of the provisions of the 2006 EEA Regulations. But any person who is not entitled to rely on the provisions of those Regulations is covered by these Rules.

However, that would merely imply that the leave was granted outside the rules; it would remain valid.

Note also that family members may hold visitor's visas:

If a family member who is travelling with, or is to join the EEA national in the UK requests a visit visa under the Immigration Rules, you should offer him (or her) the option of applying for a family permit under EC law free of charge.

There is no implication there that a visitor's visa would be invalid. Indeed, there may be cases where a visitor's visa is better than a family permit, e.g. quicker response time and no need to carry documents proving family relationships. Indeed, in theory, does a family permit allow a family to stay for up to 6 months? I can't find the evidence that in law it allows a visit of more than 3 months.

I also find it hard to believe that those with ILR when the Immigration (EEA) Regulations 2006 came in automatically lost it when they acquired permanent residence. I believe there are some rare cases where ILR might actually be more secure than permanent residence - e.g. the UK exiting the Free Movement regime!

Turning now to the OP's question, I believe the entire 5 years residence counts. That's based on two arguments. Firstly, the tenor of the arguments in the Lassal judgement indicate that the point is that 5 years residence is enough to integrate a beneficiary of the Citizens' Directive. The second, is that the initial 3 years or thereabouts actually meet the following requirements:

(1) Any period of time during which an EEA national (“P”) resided in the United Kingdom in accordance with the conditions listed in sub-paragraphs (2) or (3) is to be taken into account for the purpose of calculating periods of residence in the United Kingdom in accordance with these Regulations.

(2) <snip>

(3) The condition in this paragraph is that P resided in the United Kingdom in circumstances where—

(a) P was a national of a State which at that time was not an EEA State;

(b) P had leave to enter or remain in the United Kingdom under the 1971 Act for the duration of P’s residence; and

(c) P would have been residing in the United Kingdom in accordance with these Regulations, had P’s State of origin been an EEA State at that time, and had these Regulations been in force.

(4) [effect of 2 year absences]

Note that 3(a) does not require that P's then state ever become an EEA state. I'm assuming that P was not stateless.

I have no idea as to whether the OP would meet the 5 year rule for settlement in the UK proposal for post-Brexit treatment of EEA nationals and their families.

[alexfenty]

Hey lbexel!

Would be super interesting to hear the outcome of your case.
Thanks in advance!