Switching from EEA to UK route

[Abena11]

Hi,

My step daughter currently holds a UK residence card as a family member of British Citizen through SS route, if we wanted to/had to switch to a UK immigration route as a result of Brexit does anyone know which application it would be? Her father is now British Citizen so I’m a bit confused on whether we would be eligible for FLR or SET M applications and how long each route would take to permanent residence?

[Abena11]

Sorry that should read SET F for child application

[Richard W]

What rôle does her mother play in her life? Does your stepdaughter have permanent residence? If so, registration as British may be the appropriate move.

[Abena11]

Her mother will speak to her infrequently on the telephone if we call her but she plays no role as a parent if you like, makes no decisions regarding her daughter, does not instigate contact herself and has no financial contribution towards her. She has been living with us in our care for the last 2 years, prior to this was cared for mainly by her uncle in home country.

She doesn’t have permanent residence yet just the 5 year residence card but want to get planning for UK application if this card is to become invalid next year. She’s 10 years old now.

Thanks for your help

[Richard W]

It is a confusing situation. With regard to the UK route, it's rather like the situation of Miss Toonbarmy; I think that thread is worth reading.

The obvious method would be to apply for SET(F); your husband seems to satisfy the sole responsibility criterion. However, there is one fatal deficiency - your daughter does not have leave to remain. Unlike FLR(M), SET(F) requires that leave to remain be held.

The obvious alternative is for her to apply for settlement from abroad. The problem with that is whether she would have to be living abroad, and whether she could return to the UK while she waited for her application to be decided. A method was suggested on the ToonBarmy thread.

I forgot to ask what your stepdaughter's nationality was. If she were an EEA national, you could make her 'self-sufficient' by buying her CSI, and that would solve your problem.

A complicating factor is that it is by no means certain that your stepdaughter is lawfully resident in the UK.

(4) This regulation [= the Surinder Singh regulation - RW.]does not apply—

(a)where the purpose of the residence in the EEA State was as a means for circumventing any immigration laws applying to non-EEA nationals to which F would otherwise be subject (such as any applicable requirement under the 1971 Act to have leave to enter or remain in the United Kingdom); or

This rule came into force on 25 November 2016. Many, including myself, believe it is contrary to EU law.

There may be a way for her to automatically gain leave to enter the UK if she does not have an enforeceable EU right to reside in the UK:

(i) If she is Indian or Chinese, she might be able to obtain an Irish visa for 90 days or less endorsed 'BIVS'. If she then entered the UK from the Republic after activating the visa, it would automatically confer leave to enter the UK.
(ii) If she is not a visa national, then she would automatically get leave to remain in the UK for 3 months on crossing from the Republic to the UK.

All this is courtesy of the Immigration (Control of Entry through Republic of Ireland) Order 1972; the special rules for Indians and Chinese come from an amendment in 2014.

Whether one should try to argue that she does not have en enforceable EU right to enter the UK because you deliberately arranged your affairs to avail yourselves of SS is another matter. If you won that argument, there would be a 5 year delay before she could become British. The best time to apply the automatic leave to remain would be as the SS-derived rights were lost.

[Abena11]

Thanks so much for your response, the above thread has a lot of simailarities and it’s encouraging to see discretion exercised to issue citizenship in that case.

My stepdaughter is Ghanaian and received an EEA family permit to move to England with us from the host country in March 2017 so I am confident she is here lawfully until the next set of retrospective regulations come into play at least.

Do you know if there is any evidence that discretion can be used to issue SET (M) when entry has been under EEA route? Or would a FLR application be suitable? would FLR eventually enable her to obtain citizenship, and if so after how long?

Keeping fingers crossed for some sort of protection of status for BC family members, or a time machine to go back and apply under UK route from host state!

[Abena11]

It is a confusing situation. With regard to the UK route, it's rather like the situation of Miss Toonbarmy; I think that thread is worth reading.

The obvious method would be to apply for SET(F); your husband seems to satisfy the sole responsibility criterion. However, there is one fatal deficiency - your daughter does not have leave to remain. Unlike FLR(M), SET(F) requires that leave to remain be held.

The obvious alternative is for her to apply for settlement from abroad. The problem with that is whether she would have to be living abroad, and whether she could return to the UK while she waited for her application to be decided. A method was suggested on the ToonBarmy thread.

I forgot to ask what your stepdaughter's nationality was. If she were an EEA national, you could make her 'self-sufficient' by buying her CSI, and that would solve your problem.

A complicating factor is that it is by no means certain that your stepdaughter is lawfully resident in the UK.

(4) This regulation [= the Surinder Singh regulation - RW.]does not apply—

(a)where the purpose of the residence in the EEA State was as a means for circumventing any immigration laws applying to non-EEA nationals to which F would otherwise be subject (such as any applicable requirement under the 1971 Act to have leave to enter or remain in the United Kingdom); or

This rule came into force on 25 November 2016. Many, including myself, believe it is contrary to EU law.

There may be a way for her to automatically gain leave to enter the UK if she does not have an enforeceable EU right to reside in the UK:

(i) If she is Indian or Chinese, she might be able to obtain an Irish visa for 90 days or less endorsed 'BIVS'. If she then entered the UK from the Republic after activating the visa, it would automatically confer leave to enter the UK.
(ii) If she is not a visa national, then she would automatically get leave to remain in the UK for 3 months on crossing from the Republic to the UK.

All this is courtesy of the Immigration (Control of Entry through Republic of Ireland) Order 1972; the special rules for Indians and Chinese come from an amendment in 2014.

Whether one should try to argue that she does not have en enforceable EU right to enter the UK because you deliberately arranged your affairs to avail yourselves of SS is another matter. If you won that argument, there would be a 5 year delay before she could become British. The best time to apply the automatic leave to remain would be as the SS-derived rights were lost.

Does anyone know if an EEA family permit counts as leave to remain in order to submit a SET (F) application?