Eea Fp, Dual National Brit/dutch, 5 Or 6 Yrs?

[pilgrim2505]

I am a dual national Brit/Dutch and my Thai wife & our daughter came over in Feb 2008 on an EEA family permit, I believe that this would be impossible now [ ref EUN2.16 ] ?

With that in mind I was about to apply on an EEA4 for a residency permit BUT I wonder if it might be possible to change tack, present my wife as resident for 5 years, married to a British citizen and then avoid/skip a year [ You should have held permanent residence status for 12 months before you apply for naturalisation. Standard reqs for naturalisation ]

Thoughts? I don't want to apply without assurance that I can as the fee is rather hefty!

[7by7]

This has come up before, and if I recall no one could find a definitive answer on any UKBA site.

However, the consensus of opinion, including that of people far more knowledgeable in this area than I, was that a person entering the UK as the family member of a dual UK/other EEA national using the EEA regulations cannot subsequently switch to being the family member of a British national and come under the UK immigration and nationality rules.

Therefore I am 99.9% sure that your wife and daughter will have to apply for UK permanent residence under the EEA regulations and once they have held that for at least 12 months they can apply for British citizenship (provided all the other requirements are met, of course).

The EEA regulations for the family members of people who hold two or more EEA nationalities did change last year, but I believe that the changes were not retrospective so do not effect your wife and child as they are already in the UK.

Note that EUN2.16 gives an outline from a UK perspective, but being an amendment to the EEA regulations following an ECJ judgement (McCarthy v United Kingdom) it applies equally in all EEA states.

Edited March 25, 2013 by 7by7

[pilgrim2505]

Thank You (as always) 7x7!

I would have to agree with you but I would like absolute confirmation. UKBA are very UN-transparent and ultra annoying!

There are no rulings I can find to counter the ability to change from EEA spouse to

Brit Spouse other than the 3 Vs 5yr ruling, I remain confused on this account!

If you are a national of a country in the European Economic Area (EEA) or

Switzerland, or you are the family member of such a person, you will
automatically have
 permanent residence status if you have exercised EEA
free-movement rights in
the UK for a continuous five-year period ending on or
after 30 April 2006. You
do not need to apply for leave to remain. You should
have held permanent 
residence status for 12 months before you apply for
naturalisation.

This supports the EEA claimants ability to apply for nationalisation on completion of 6 yrs

but disregards any ability for the spouse to change nationality!


Since 30 April 2006, EEA citizens are automatically considered free of a time limit

under the Immigration Rules after they have 
exercised their Treaty rights for
any continuous 5-year period. After 5 years,
they automatically receive
permanent residence status. They no longer need to 
apply for indefinite leave
to remain.

This is all well and good but you need to apply for a permi-residence card if you

intend to travel anywhere as you might not be allowed back in with out
reapplying for a EEA family permit.

Do you need to apply?

You do not need to obtain documents confirming

your right of residence in the UK if you are a family member of an EEA

national. However, you may be inconvenienced if you do not obtain

this confirmation, as: you may have difficulty proving that you are lawfully resident in the UK;

if you leave the UK, you will usually need to obtain an EEA family permit before

returning here, in order to guarantee readmission as the family member of a

qualified EEA national; and you may find it difficult to obtain or change employment.

So, I am still at a lose to what to do and shall wait for a response from the UKBA... However long that will take!?

This link is rather confusing too, let me know what you think, it would suggest that I am eligible to claim on my wife's behalf.

http://www.justanswer.com/uk-immigration-law/7k4id-eea-family-resident-permit-expire-2016.html

And this chap here seems to have done the same but he wasn't originally British, problem is he doesn't provide as source for the things he says!

http://www.lifeintheuk.org/mod/forum/discuss.php?d=764610

Edited March 26, 2013 by pilgrim2505

[7by7]

You are correct in saying that an EEA national and their non EEA family members do not need to apply for PR and a residence card; but as it is free and doing so may save complications when arriving back into the UK after a holiday etc. abroad then I would suggest doing so.

The rules are very clear in saying that it is only the spouses or civil partners of British citizens who can apply for naturalisation once they have no time limit on their stay in the UK and have lived in the UK for at least 3 years.

All others, including EEA nationals and regardless of the nationality of their partner, if any, need to have had no time restriction on their stay for at least 12 months before they can apply and have lived in the UK for at least 5 years. (Except children under 18, who can apply for registration when they have no time restriction on their stay and, if over 13, have been living in the UK for at least 2 years. Although they are unlikely to be successful unless their parent(s) is(are) applying at the same time or is(are) already British.)

I do not agree with the opinion expressed in your 1st link; as I said before, all the information I have been given by, among others, professionals working in this field, including a very experienced barrister, is that you cannot use the EEA rules until PR and then switch to being British for your wife's naturalisation.

With regards to the person in your 2nd link; as you say, his situation is different to yours and, as he says, one important point is that the non EEA spouse must already have PR when the EEA national becomes a British citizen. I must admit this is not a situation I have come across before.

As I understand it from what you have said, although you are a British citizen neither your wife nor daughter yet have PR.

Also from what you have said, I assume that you have queried this with the UKBA and look forward to you posting their reply. I am, as ever, well prepared to be proven wrong.

Did you have dual British /Dutch nationality when they first came to live in the UK?

If so then, with respect, I have to be honest and say that having used your dual nationality to avoid the requirements and the extremely high costs of following the UK immigration rules route to settlement for your wife and step daughter, having to wait until they have held PR for 12 months before they can be naturalised as British does not seem too onerous to me

Edited March 26, 2013 by 7by7

[Mario2008]

Your wife might be eligible for Dutch nationality too.

[pilgrim2505]

Your wife might be eligible for Dutch nationality too.

Naturalisation

Spouses and registered or civil partners of Dutch nationals can apply for Dutch nationality if they meet a number of conditions. The conditions and application procedure are outlined in the brochure Hoe kunt u Nederlander worden in het buitenland? (only available in the Dutch language)

1. Neither of us reads, writes or knows any Dutch!

2. I had actually not bothered to renew my Dutch passport from about 15yrs old as there was no need, I only done it as it was an easier route to visas for the wife and daughter.

[Mario2008]

As you have dual nationality and lived abroad and didn't renew your passport for more than 10 years you lost your Dutch nationality, if you lived for more then 10 years outside the European Union without a Dutch valid passport that is.

If you did not lose your Dutch nationality, it is possible for your wife to get Dutch nationality, but she must be able to speak some Dutch and have some basic knowledge about the Netherlands. (I know that there are some schools in BKK that help people with this).

[pilgrim2505]

As you have dual nationality and lived abroad and didn't renew your passport for more than 10 years you lost your Dutch nationality, if you lived for more then 10 years outside the European Union without a Dutch valid passport that is.

If you did not lose your Dutch nationality, it is possible for your wife to get Dutch nationality, but she must be able to speak some Dutch and have some basic knowledge about the Netherlands. (I know that there are some schools in BKK that help people with this).

I went through a lengthy process to reinstate my Dutch Nationality actually... I was only able to do so because I was Registered by my BRITISH mother when I was under the age of adult consent (I was 17 apx) I had to trace back my mums and dads marriage and my birth records and it took a few months. I would have to say that it was well worth the bother on a financial front.

[pilgrim2505]

You are correct in saying that an EEA national and their non EEA family members do not need to apply for PR and a residence card; but as it is free and doing so may save complications when arriving back into the UK after a holiday etc. abroad then I would suggest doing so.

The rules are very clear in saying that it is only the spouses or civil partners of British citizens who can apply for naturalisation once they have no time limit on their stay in the UK and have lived in the UK for at least 3 years.

All others, including EEA nationals and regardless of the nationality of their partner, if any, need to have had no time restriction on their stay for at least 12 months before they can apply and have lived in the UK for at least 5 years. (Except children under 18, who can apply for registration when they have no time restriction on their stay and, if over 13, have been living in the UK for at least 2 years. Although they are unlikely to be successful unless their parent(s) is(are) applying at the same time or is(are) already British.)

I do not agree with the opinion expressed in your 1st link; as I said before, all the information I have been given by, among others, professionals working in this field, including a very experienced barrister, is that you cannot use the EEA rules until PR and then switch to being British for your wife's naturalisation.

With regards to the person in your 2nd link; as you say, his situation is different to yours and, as he says, one important point is that the non EEA spouse must already have PR when the EEA national becomes a British citizen. I must admit this is not a situation I have come across before.

As I understand it from what you have said, although you are a British citizen neither your wife nor daughter yet have PR.

Also from what you have said, I assume that you have queried this with the UKBA and look forward to you posting their reply. I am, as ever, well prepared to be proven wrong.

Did you have dual British /Dutch nationality when they first came to live in the UK?

If so then, with respect, I have to be honest and say that having used your dual nationality to avoid the requirements and the extremely high costs of following the UK immigration rules route to settlement for your wife and step daughter, having to wait until they have held PR for 12 months before they can be naturalised as British does not seem too onerous to me

Agreed ref the links and I can see the differences now!

I did have dual nationally when hey 1st arrived.

I laugh when I read the term 'with respect' I naturally await the swift blow to the preverbal, but I whole heartedly agree that its a small price to pay for such a cost saving route.

Thanks kindly!

PS: I shall include the response from our beloved UKBA in due course...

Edited March 26, 2013 by pilgrim2505

[Seekingasylum]

Para 5 of the introductory note to the Immigration Rules clearly states that unless they make specific reference to the contrary the rules do not apply to those who gained entry under the European Regulations.

Since the OP's wife has already been accepted under those regs and has now remained for 5 years she is eligible to receive consideration for the endorsement " no time limit " . Provided she has passed her citizenship test and hasn't quit the country for more than whatever period it is she can apply for citizenship after the expiry of her sixth year. That NTL endorsement will now be in the form of a residence card as I understand it.

[pilgrim2505]

Right, took a while but I got a response from our friends down at the UKBA:

Dear Sir

Thank your for your enquiry.

Depending on your wife’s current citizenship or nationality, she may be able to apply in several ways. Your wife should read the requirements for each type of application that is relevant and decide which is best for her. If your wife is unsure she meets the requirements, she may want to take professional advice from a solicitor or from an immigration adviser registered by the Office of the Immigration Services Commissioner (OISC).

If your wife meets the requirements for naturalisation she should go to the applying for naturalisation as a British citizen section for details on how to apply.

There are seven requirements your wife needs to meet before she applies:

· are aged 18 or over; and

· are of sound mind; and

· can communicate in English, Welsh or Scottish Gaelic to an acceptable degree; and

· have sufficient knowledge of life in the United Kingdom; and

· are of good character; and

· are the husband, wife or civil partner of a British citizen; and

· meet the residential requirements; or

· the husband, wife or civil partner is in Crown or designated service outside the United Kingdom.

Residential requirements

In order to demonstrate the residential requirements for naturalisation your wife needs to:

· have been resident in the United Kingdom for at least three years (this is known as the residential qualifying period); and

· have been present in the United Kingdom three years before the date of her application; and

· have not spent more than 270 days outside the United Kingdom during the three-year period; and

· have not spend more than 90 days outside the United Kingdom in the last 12 months of the three-year period; and

· have not been in breach of the immigration rules at any stage during the three-year period.

Further information regarding naturalisation as a British Citizen can be found at the following website links;

www.ukba.homeoffice.gov.uk/britishcitizenship/applying/applicationtypes/naturalisation/

www.ukba.homeoffice.gov.uk/britishcitizenship/eligibility/naturalisation/

www.ukba.homeoffice.gov.uk/britishcitizenship/eligibility/naturalisation/spouseorcivilpartnerofcitizen/

www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/nationality/guide_an.pdf

Please note that as the onus is upon the individual to ensure that he/she satisfies the requirements set out in the guidance material that accompanies each and every application form, the Nationality Group is not able to give, indicate or advise upon the outcome of any such application prior to it being correctly submitted and being given full and careful consideration. Therefore, you are advised to read through the guide prior to submitting a future application.

For any queries regarding permanent residency please contact our European department, contact details below:

European Contact centre

0845 010 5200 (option 1 followed by option 2)

Monday to Thursday 09:00 – 16:45

Friday: 09:00 – 16:30

European Nationals and Family Members:

[email protected]

Regards

AA01

Home Office

Customer Service Improvement Directorate

[7by7]

Not very helpful, really (no surprise!) as all they have done is quote the regulations for the spouse of a British citizen.

What they haven't done is confirm whether or not having entered the UK as the wife of an EEA national (Dutch) she can now use your dual nationality to switch to being the wife of a British national in order to apply for naturalisation.

It seems from what they have said

Please note that as the onus is upon the individual to ensure that he/she satisfies the requirements set out in the guidance material that accompanies each and every application form, the Nationality Group is not able to give, indicate or advise upon the outcome of any such application prior to it being correctly submitted and being given full and careful consideration.

that the only way to find out for sure is to apply and see if the application is accepted or rejected; with the subsequent loss of the fee if she is refused!

Up to you if you want to take that chance or wait until she has held PR for 1 year.

[pilgrim2505]

BACK AGAIN!

it took the UKBA only a month and a half to answer an email, not bad right?!

------------------------

Dear Sir,

Thank you for your further email. We apologise for the delay in reply. We are currently experiencing high volumes of correspondence.

If your wife is a national of a country in the European Economic Area (EEA) or Switzerland, or is the family member of such a person, she will automatically have permanent residence status if she has exercised EEA free-movement rights in the UK for a continuous five-year period ending on or after 30 April 2006. Your wife does not need to apply for leave to remain. Your wife should have held permanent residence status for 12 months before she applies for naturalisation.

If your wife has been outside the UK for six months or more in any one of the five years of the residence period, she will have broken your residence. This does not apply if:

· the absence was due to military service; or

· all absences were for under 12 months and were for important reasons such as pregnancy, childcare, serious illness, study, vocational training or an overseas posting.

You may wish to seek advice from a professional legal adviser in private practice. A list of suitably qualified advisers can be obtained at: www.oisc.homeoffice.gov.uk/

Alternatively you may call the Office of the Immigration Services Commissioner on 0845 000 0046.

The onus is upon the individual to ensure that he/she satisfies the requirements set out in the guidance material that accompanies each and every application form, the Nationality Group is not able to give, indicate or advise upon the outcome of any such application prior to it being correctly submitted and being given full and careful consideration.

Regards

AA01

Home Office

Customer Service Improvement Directorate

-----------------------------------

Still no answer, can I change from being Dual to a Brit, someone MUST know the answer!

[pilgrim2505]

I just got off the phone to the National Checking service who said it makes no difference as long as she has been here 3 years and a wife of a brit!

BUT they aren't allowed to give advice of course

[bobrussell]

The UKBA/Home office clearly consider the application route to be one or the other. Unless you get told differently by an experienced immigration solicitor or OISC registered advisor my advice would be to accept the EEA route rather than challenge the Home Office 'expertise'.

If the application is refused then you head into appeal territory and that gets really complicated.

Save money, stick to the safe route to naturalisation. Your wife has automatically gained PR so only has to wait until Feb next year. A failed application will cost a lot of money!

[Jay Sata]

I'd put the application in now.

[bobrussell]

The Nationality Checking Service are not qualified to give advice. They may well not have registered the difference between EEA route and Spouse visa route.

Be careful!

[7by7]

Remember that the NCS just check that an application contains all the necessary documents.

They play no part in the actual decision making process.

They also seem to have not mentioned that the wife (or husband or civil partner) of a Brit must have no time limit on their stay in the UK; i.e. ILR.

Her immigration status in the UK is as the wife of an EEA national, not as the wife of a Brit; which is why she couldn't apply for ILR after two years and had to wait for 5 years to get PR.

I still believe that this will be her status up to naturalisation and so she comes under the standard requirements; but I am more than happy to be proven wrong.

I guess, unless you can get a definitive answer, that you have a choice; wait another year or apply now and risk losing the fee.

[pilgrim2505]

The information below is been taken from Home office website-Guide AN/NATURALISATION BOOKLET- THE REQUIREMENTS To be read in conjunction with Guide AN.

6. EUROPEAN ECONOMIC AREA NATIONALS AND SWISS NATIONALS
This section covers you if the country to which you belong is part of the European Economic Area or Switzerland.
New immigration regulations came into force on 30 April 2006. If you are a national of a country which is a member state of the EEA or Switzerland, or the family member of such a person, you will automatically have permanent residence status after exercising EEA free movement rights in the UK for any continuous period of 5 years ending on or after 30 April 2006, and therefore will not have to apply for indefinite leave to remain. But remember that, unless married to or the civil partner of a British citizen, you should normally have held permanent resident status for 12 months before applying for naturalisation. This means that you may need to wait until you have been in the United Kingdom for 6 years
before you can apply

I am going for it, wish me luck!

[pilgrim2505]

I think the only real deterrent 7by7 is the cost, but then the naturalisation process in October requires the Mrs going back to do an even higher grade of education.

I don't like this website but it has some history of successful applications

[bobrussell]

Certainly would seem to suggest that a spouse is OK at the 5 year mark but a dependent (non-EU) would have to wait the extra year. Pretty confusing stuff but a dependent child usually gets the same status as the parent.

I have to admit having seen that last paragraph I would be tempted to give it a go!

I wonder if the UKBA know the answer!

Good luck!

[7by7]

Well, good luck and please let us know how she gets on.

BTW, I hope that

I don't like this website but it has some history of successful applications

doesn't refer to this website; Thai Visa!

[pilgrim2505]

Well, good luck and please let us know how she gets on.

BTW, I hope that

I don't like this website but it has some history of successful applications

doesn't refer to this website; Thai Visa!

NO WAY -- This site saves me lots of cash!!

Right... What does this mean? I ask as I'm HM Forces

Transitional arrangements for settlement applications

We recognise that the new KOLL requirement may be challenging for some. We will therefore allow the following categories of applicant to apply for further periods of limited leave (subject to continuing to meet the other relevant Immigration Rules in their category) to enable them to meet the requirement if they have not yet done so:

•  partners, children or parents applying under Appendix FM or subject to transitional arrangements under Part 8;

•  those here on the basis of long residence under paragraph 276A

•  those here on the basis of private life under paragraph 276ADE;

•  those here as dependants of HM forces personnel; and

•  dependants of those who originally entered the UK as PBS migrants or work permit

  holders.

[7by7]

That applies to those who are due to apply for Indefinite Leave to Remain (Settlement) under the immigration rules after 28th October 2013 but will not have met the new language requirements in time. In which case they can apply for Further Leave to Remain (referred to as limited leave to remain in the document) instead without the need to satisfy KOLL.

This doesn't apply to your wife as she has PR under the EEA route, for which there is no language requirement.

She still has to satisfy KOLL to apply for naturalisation as British.

Transitional arrangements for naturalisation applications
Becoming a British citizen is a privilege and the requirements for naturalisation reflect this. There is no time limit on making a citizenship application and so those who wish to apply after 28 October 2013 can take as much time as they need to meet the KOLL requirement. There are therefore no transitional arrangements in place for those wishing to naturalise as a British citizen.

N.B. For those who may be wondering:

• KOLL stands for Knowledge of Life and Language in the UK.
• This is the document pilgrim2505 and I are quoting from.

[bobrussell]

Not sure how this affects HM Forces personnel. I wonder if you can get advice from someone in the forces.

Check:

http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/IDIs/idischapter8/001transitional/trans-guide.pdf?view=Binary

Page 14:

10. Family members of members of HM Forces

The new family migration Rules do not affect non-EEA dependants of members

of HM Forces under Part 7 of the Rules. In addition, as a temporary, transitional

measure, A280(d) specifies that dependants of British serving full-time

members of HM Forces will continue to be dealt with under Part 8 of the

Immigration Rules in force on 8 July 2012, including children.15

The Home Office and MoD will review the Immigration Rules for all serving

personnel and their dependants with a view to aligning these Rules with the

new family migration policies where this is appropriate. The necessary Rules

changes will be introduced from October 2013.

A bit more specialist knowledge than mine required here!

[7by7]

Bob, that applies to settlement applications.

The OP's wife already has PR in the UK under the EEA regulations from using his Dutch nationality.

It is naturalisation he is asking about.

[pilgrim2505]

Bob, that applies to settlement applications.

The OP's wife already has PR in the UK under the EEA regulations from using his Dutch nationality.

It is naturalisation he is asking about.

I am actually astounded no one else has experience or answers to this....

I think my haste is centred on avoiding the wife attendimg yet more education and that KOLL bull**** not to mention that the change deadline is only a few weeks away.

I had thought it would be worth an application but since I spent last month in Thailand I would rather not lose the £800

It seems the majority of the HM Forces guidance is (as 7by7 points out) is pertaining to visas and not naturalisation apps. I have wrote to a gov/hmf guidance email but chances are they will be as useless as the UKBA are!

[pilgrim2505]

Bob, that applies to settlement applications.

The OP's wife already has PR in the UK under the EEA regulations from using his Dutch nationality.

It is naturalisation he is asking about.

I am actually astounded no one else has experience or answers to this....

I think my haste is centred on avoiding the wife attending more education and that KOLL bull**** not to mention that the change deadline is only a few weeks away.

I had thought it would be worth an application but since I spent last month in Thailand I would rather not lose the £800

It seems the majority of the HM Forces guidance is (as 7by7 points out) pertaining to visas and not naturalisation apps. I have wrote to a gov/hmf guidance email but chances are they will be as useless as the UKBA are!

[pilgrim2505]

I had another response from them, still no idea what they are talking about!

Thank you for your email dated 13 September regarding your wife’s eligibility to submit an application for British citizenship. Your email has been passed to me to reply.

From the information you have provided your wife’s avenue to British citizenship would appear to be through naturalisation. If a person is applying for British citizenship under section 6(2) of the British Nationality Act 1981, on the basis of marriage to a British citizen, the requirements are:

a. was in the UK at the beginning of the period of 3 years ending with the date of the application; and

b. was not absent from the UK for more than 270 days in that 3 year period; and

c. was not absent from the UK for more than 90 days in the period of 12 months ending with the date of the application; and

d. was not, on the date of the application, subject under the immigration laws to any restriction on the period of stay in the UK; and

e. was not, at any time in the period of 3 years ending with the date of the application, in the UK in breach of the immigration laws.

Other requirements are:

· at the time of consideration

a. is of good character and

b. has a sufficient knowledge of the English, Welsh or Scottish Gaelic language, and can provide the appropriate evidence to support this; and

c. remains of full capacity

As noted above, one of the requirements for naturalisation as a British citizen based on marriage to a British citizen is that your wife is free from Immigration time restrictions when she applies. She would not be required to hold that status for 12 months before applying, unless the application is based on 5 years residence.

You are correct in stating that since 30 April 2006 all EEA Nationals, and the dependents of EEA Nationals, with 5 years residence in the United Kingdom exercising their Treaty Rights, are classed as being free from Immigration time restrictions.

Further information regarding naturalisation as a British Citizen can be found on our website at:

www.ukba.homeoffice.gov.uk/britishcitizenship/applying/applicationtypes/naturalisation/

www.ukba.homeoffice.gov.uk/britishcitizenship/eligibility/naturalisation/

Once your wife is satisfied that she meets the criteria she may submit an application. The application forms are available via the above links.

The onus is always on the applicant to ensure that they fully meet the requirements for any application as set out in the appropriate guide. All applicants are advised to read the guide thoroughly and make sure they satisfy the requirements before submitting any application. We will not be able to tell your wife prior to submitting any application whether it will be successful or not.

Your wife may therefore wish to seek advice from a professional legal adviser in private practice before submitting any application. A list of suitably qualified advisers can be obtained from the Office of the Immigration Services Commissioner. Their website is at: www.oisc.homeoffice.gov.uk/

Alternatively she may contact them by calling 0845 000 0046.

Yours sincerely

[7by7]

I think the key is

As noted above, one of the requirements for naturalisation as a British citizen based on marriage to a British citizen is that your wife is free from Immigration time restrictions when she applies. She would not be required to hold that status for 12 months before applying, unless the application is based on 5 years residence.
(My emphasis)

As your wife entered the UK under the EEA regulations, she would not be free of immigration time restrictions until she had lived here for 5 years. So my reading is that this means her application will be based upon 5 years residence and so she will need to have been free of immigration time restrictions, i.e. held PR, for 12 months before she can apply for naturalisation.

As said before, up to you if you want to apply now and risk a refusal or wait until she has been here for 6 years when you can be sure that the appropriate residency requirements are met.

Either way, as the new language requirement comes into force on 28th October (Monday) and it's now too late to submit her application before then, she will have to meet the new language requirement.