Dual National, used EEA, can i use UK for baby

[Salem]

Hi,
I am a dual national, I was born in Northern Ireland, and legally hold both an Irish and UK Passport. I currently live in London and have used by Irish Passport to bring my non EU wife to live here with me via family permit, and she is now 3 years into her 5 year residents card. My question is, can I use my UK passport to register our newly born daughter, as I have to send my wife's non eu passport as well in the application, and will that cause an issue when they see her resident's card although it will be with a UK passport? The Passport Office know I legally have two passports, but can I 'switch' like that no problem? I suppose if I only had to send my passport with our baby's application it would be ok, but from reading it seems I need to certainly send my wife's, although maybe just impute my UK Passport details?

Thanks

[Noetic]

I was under the impression HO didn't treat dual nationality UK citizens as EEA citizens in this context so unsure if the family permit was legitimate if post 2012.

https://www.gov.uk/government/publicati ... ily-permit

[noajthan]

Hi,
I am a dual national, I was born in Northern Ireland, and legally hold both an Irish and UK Passport. I currently live in London and have used by Irish Passport to bring my non EU wife to live here with me via family permit, and she is now 3 years into her 5 year residents card. My question is, can I use my UK passport to register our newly born daughter, as I have to send my wife's non eu passport as well in the application, and will that cause an issue when they see her resident's card although it will be with a UK passport? The Passport Office know I legally have two passports, but can I 'switch' like that no problem? I suppose if I only had to send my passport with our baby's application it would be ok, but from reading it seems I need to certainly send my wife's, although maybe just impute my UK Passport details?

Thanks

Dual nationals who are British are not considered EEA nationals (in the context of EU migration for family members) unless certain exceptions apply.
Have you traveled to UK via Europe on the Surinder Singh route?
Or have you invoked the McCarthy (2012) transitional arrangement?

When did you start to live in UK?
When were you married?

When did wife apply for her FP?
When did FP start from?

When did wife apply for her RC?
When did RC start from?

[LilyLalilu]

I was under the impression HO didn't treat dual nationality UK citizens as EEA citizens in this context so unsure if the family permit was legitimate? Unless that rule has changed only recently?

Definitely still the case. Maybe he used ta's or SS?

I'm not sure how it works but I believe Irish citizens are regarded settled on arrival in the UK - so maybe you could use your Irish passport to claim your child's BC too? As in a child born in the UK to a settled person? Just an amateur idea, not sure if this actually works...

[Salem]

I was under the impression HO didn't treat dual nationality UK citizens as EEA citizens in this context so unsure if the family permit was legitimate? Unless that rule has changed only recently?

Hi

No i think you are mistaken. If you're talking about the McCarthy judgement, my wife's application was before that was enforced, hence she benefited from the transitional rules, and will stay on those. I can assure you that both the Family Permit and her Residence Card are both fine under my Irish Passport exercising my treaty rights. I think that Judgement was successfully challenged not so long ago anyway.

I just want to know If I can 'switch' like that on the application? I don't think it would be a problem, as it's to do with my child, and I can and do legally hold both passports. But was just looking for opinions or confirmation.

Thanks.

[LilyLalilu]

No i think you are mistaken. If you're talking about the McCarthy judgement, my wife's application was before that was enforced, hence she benefited from the transitional rules, and will stay on those. I can assure you that both the Family Permit and her Residence Card are both fine under my Irish Passport exercising my treaty rights. I think that Judgement was successfully challenged not so long ago anyway.

I just want to know If I can 'switch' like that on the application? I don't think it would be a problem, as it's to do with my child, and I can and do legally hold both passports. But was just looking for opinions or confirmation.

Oh yes, if the family permit is legit because you invoked ta's then you can of course use your British passport now

[Salem]

I was under the impression HO didn't treat dual nationality UK citizens as EEA citizens in this context so unsure if the family permit was legitimate? Unless that rule has changed only recently?

Definitely still the case. Maybe he used ta's or SS?

I'm not sure how it works but I believe Irish citizens are regarded settled on arrival in the UK - so maybe you could use your Irish passport to claim your child's BC too? As in a child born in the UK to a settled person? Just an amateur idea, not sure if this actually works...

Hi,
Yes, my wife is under the McCarthy TA's and will always stay on them. Though as far as I'm aware the McCarthy judgement was successfully challenged not so long ago anyway. Though I don't want to sidetrack the thread in that direction.

Ok, thanks for mentioning about Irish being classed as settled on arrival, I wasn't aware of that, though I'd like some confirmation that it would actually work before I went that way, if anyone has any idea where to get that?
I can prove I've exercised my treaty rights for the 5 years, I have worked in the public sector for the past 9 years, but I was just trying to make it easier/simpler, hence wondering if I could use my UK Passport? I think I could, as it's do with my child's passport, not my wife's visa, and my dual national status is fully legal. Though as I say, just hoping for confirmation.

Thanks

[noajthan]

Hi,
Yes, my wife is under the McCarthy TA's and will always stay on them. Though as far as I'm aware the McCarthy judgement was successfully challenged not so long ago anyway. Though I don't want to sidetrack the thread in that direction.

Ok, thanks for mentioning about Irish being classed as settled on arrival, I wasn't aware of that, though I'd like some confirmation that it would actually work before I went that way, if anyone has any idea where to get that?
I can prove I've exercised my treaty rights for the 5 years, I have worked in the public sector for the past 9 years, but I was just trying to make it easier/simpler, hence wondering if I could use my UK Passport? I think I could, as it's do with my child's passport, not my wife's visa, and my dual national status is fully legal. Though as I say, just hoping for confirmation.

Thanks

Regarding...

Ok, thanks for mentioning about Irish being classed as settled on arrival, I wasn't aware of that, though I'd like some confirmation that it would actually work before I went that way, if anyone has any idea where to get that?

- search the forum, its been discussed quite recently.

Your McCarthy ta only applies to wife (as baby wasn't born at relevant invocation time) and (from memory) just for as long as you are married and you/she remain in UK & etc etc.

My understanding is your relationship with your child can be as a British father as that has nothing to do with your wife's status.
Anyway you are actually using your Britishness (transformed into EEA-ness by virtue of McCarthy) for your wife.

So you are not actually using your Irish passport for anything as far as I can see. Bit of a puzzle why you used it for FP because if that was pre-McCarthy you could have used your then 'EEA'-British passport.

A cogent cover note to explain may help or else just wing it; depends how risk-averse you are really.

PS By "register baby" I assume you simply mean apply directly for her passport(?).
She is already British (& Irish ofcourse) so no need to register her as a British minor.

[Salem]

Hi,
Yes, my wife is under the McCarthy TA's and will always stay on them. Though as far as I'm aware the McCarthy judgement was successfully challenged not so long ago anyway. Though I don't want to sidetrack the thread in that direction.

Ok, thanks for mentioning about Irish being classed as settled on arrival, I wasn't aware of that, though I'd like some confirmation that it would actually work before I went that way, if anyone has any idea where to get that?
I can prove I've exercised my treaty rights for the 5 years, I have worked in the public sector for the past 9 years, but I was just trying to make it easier/simpler, hence wondering if I could use my UK Passport? I think I could, as it's do with my child's passport, not my wife's visa, and my dual national status is fully legal. Though as I say, just hoping for confirmation.

Thanks

Regarding...

Ok, thanks for mentioning about Irish being classed as settled on arrival, I wasn't aware of that, though I'd like some confirmation that it would actually work before I went that way, if anyone has any idea where to get that?

- search the forum, its been discussed quite recently.

Your McCarthy ta only applies to wife (as baby wasn't born at relevant invocation time) and (from memory) just for as long as you are married and you/she remain in UK & etc etc.

My understanding is your relationship with your child can be as a British father as that has nothing to do with your wife's status.
Anyway you are actually using your Britishness (transformed into EEA-ness by virtue of McCarthy) for your wife.

So you are not actually using your Irish passport for anything as far as I can see. Bit of a puzzle why you used it for FP because if that was pre-McCarthy you could have used your then 'EEA'-British passport.

A cogent cover note to explain may help or else just wing it; depends how risk-averse you are really.

PS By "register baby" I assume you simply mean apply directly for her passport(?).
She is already British (& Irish ofcourse) so no need to register her as a British minor.

Hi,

Yes my wife's TA are valid as long as we are married.
That's what I thought in regards to my baby's passport application, it's to do with that, not my wife's visa, but was just looking for opinions/confirmation if possible.
I'm actually using my Irishness and Irish Passport to go via the FP/RC route by virtue of the Good Friday Agreement and relevant EU Directive in regards to my non EU wife.
I don't understand your 'EEA-British Passport' pre-McCarthy statement. I had to use my Irish passport to go via the FP/RC route, as I could not bring my non EU wife to the UK on that route with my British Passport as far as I'm aware.
Yes, certainly, I will be drafting a short cover letter to help explain any potential misunderstanding with the different passports/visa route.
And yes, by register baby I just mean to get her, her first Passport.

Thanks for your impute.

[noajthan]

Hi,

...

I don't understand your 'EEA-British Passport' pre-McCarthy statement. I had to use my Irish passport to go via the FP/RC route, as I could not bring my non EU wife to the UK on that route with my British Passport as far as I'm aware.

...

Thanks for your impute.

Before the need for the McCarthy ta (ie pre-McCarthy 2012), BCs were also treated as EEA nationals (in the context of migration).
So your British passport was in effect the passport of an EEA citizen too (hence it was an 'EEA-British' passport as I put it).

So my understanding is you could have used that British passport in the earlier FP/RC applications for that reason.

[Richard W]

Before the need for the McCarthy ta (ie pre-McCarthy 2012), BCs were also treated as EEA nationals (in the context of migration).
So your British passport was in effect the passport of an EEA citizen too (hence it was an 'EEA-British' passport as I put it).

Er, no. From the original 2006 regulations:

“EEA national” means a national of an EEA State;
“EEA State” means—
(a) a member State, other than the United Kingdom;
(b) Norway, Iceland or Liechtenstein; or
(c) Switzerland;

Thus Salem qualified as an EEA national because he is a national of Ireland, but most British citizens didn't because they are citizens of the United Kingdom only.

[noajthan]

Oh, good catch.

Note to self: memorise 2006 Regs. Do not rely on wordsearch (family member) on a small-screen cellphone.

Where these Regulations apply to the family member of a United Kingdom national the United Kingdom national shall be treated as holding a valid passport issued by an EEA State for the purpose of the application of regulation 13 to that family member

Main point stands: relationship of father as BC to baby as a BC minor is independent of the relationship of husband as EEA sponsor to non-EEA wife.

[Salem]

Hi everyone, thanks for your input, and it looks like I can use my UK Passport then. I'll just draft a brief cover letter to head off any potential misunderstanding.

I have one related query.

I think no matter the outcome of the referendum it will have implications on non EU family members going down the route we have went, either Cameron's negotiation or if a Leave vote wins and it gets scrapped etc. So my question is, with our baby born in the UK and she will get a UK passport, if 'hypothetically' the FP/RC/PR route is closed to my non EU wife for whatever reason, what other options are there for her/us to stay in the UK as a family taking into consideration our daughter and my daughter's status? I have read somewhere that the mother cannot be separated from the child, is this true, and if so, is it also a EU directive that could be scrapped dependent on the referendum result, or is it a UK based rule? Are there any other rules or avenues now open to us because of our child?

Yes I could start afresh and go down the UK settlement route, although I think it's costly, then there's Life in the UK test etc, so I'm really trying to plan ahead and know where we stand, what we can do in whatever eventuality, and hoping to avoid the UK settlement route.

Again, thanks in advance

[Salem]

Hi everyone, thanks for your input, and it looks like I can use my UK Passport then. I'll just draft a brief cover letter to head off any potential misunderstanding.

I have one related query.

I think no matter the outcome of the referendum it will have implications on non EU family members going down the route we have went, either Cameron's negotiation or if a Leave vote wins and it gets scrapped etc. So my question is, with our baby born in the UK and she will get a UK passport, if 'hypothetically' the FP/RC/PR route is closed to my non EU wife for whatever reason, what other options are there for her/us to stay in the UK as a family taking into consideration our daughter and my daughter's status? I have read somewhere that the mother cannot be separated from the child, is this true, and if so, is it also a EU directive that could be scrapped dependent on the referendum result, or is it a UK based rule? Are there any other rules or avenues now open to us because of our child?

Yes I could start afresh and go down the UK settlement route, although I think it's costly, then there's Life in the UK test etc, so I'm really trying to plan ahead and know where we stand, what we can do in whatever eventuality, and hoping to avoid the UK settlement route.

Again, thanks in advance

^^^^^^^
Anyone able to offer me any advice on the above, or point me in the right direction as to anywhere else on the forum I might be able to get some clarity?

Thanks.

[Richard W]

... if 'hypothetically' the FP/RC/PR route is closed to my non EU wife for whatever reason, what other options are there for her/us to stay in the UK as a family taking into consideration our daughter and my daughter's status? I have read somewhere that the mother cannot be separated from the child, is this true, and if so, is it also a EU directive that could be scrapped dependent on the referendum result, or is it a UK based rule? Are there any other rules or avenues now open to us because of our child?

You're basically looking at the right to a family life. The child-based route is the 10-year route to settlement, with the relevant rule being EX.1(a) (in Appendix FM of the Immigration Rules):

EX.1. This paragraph applies if
(a)
(i) the applicant has a genuine and subsisting parental relationship with a child who-
(aa) is under the age of 18 years, or was under the age of 18 years when the applicant was first granted leave on the basis that this paragraph applied;
(bb) is in the UK;
(cc) is a British Citizen or has lived in the UK continuously for at least the 7 years immediately preceding the date of application ;and
(ii) it would not be reasonable to expect the child to leave the UK; or
(b) <snip>

The Zambrano judgement makes it generally unreasonable to require a British citizen child to leave the country, so there may be an EU element even to this rule.

[Salem]

... if 'hypothetically' the FP/RC/PR route is closed to my non EU wife for whatever reason, what other options are there for her/us to stay in the UK as a family taking into consideration our daughter and my daughter's status? I have read somewhere that the mother cannot be separated from the child, is this true, and if so, is it also a EU directive that could be scrapped dependent on the referendum result, or is it a UK based rule? Are there any other rules or avenues now open to us because of our child?

You're basically looking at the right to a family life. The child-based route is the 10-year route to settlement, with the relevant rule being EX.1(a) (in Appendix FM of the Immigration Rules):

EX.1. This paragraph applies if
(a)
(i) the applicant has a genuine and subsisting parental relationship with a child who-
(aa) is under the age of 18 years, or was under the age of 18 years when the applicant was first granted leave on the basis that this paragraph applied;
(bb) is in the UK;
(cc) is a British Citizen or has lived in the UK continuously for at least the 7 years immediately preceding the date of application ;and
(ii) it would not be reasonable to expect the child to leave the UK; or
(b) <snip>

The Zambrano judgement makes it generally unreasonable to require a British citizen child to leave the country, so there may be an EU element even to this rule.

Thanks,

And pardon my ignorance about this, but what route would that be under? I mean if we needed to do this, basically how would we go about it, what forms etc, how or where would we apply?

Again, pardon my ignorance in this, I only know the EEA route, as that's all I have had to know before.
We might still be ok with the EEA route anyway, there's so many variables about how all this will play out, but i'm just trying to cover all eventualities, hence me wanting to understand how to successfully utilise this route via our child if need be.

Thanks again.

[Richard W]

And pardon my ignorance about this, but what route would that be under? I mean if we needed to do this, basically how would we go about it, what forms etc, how or where would we apply?

I suppose you'd call it the family members' or family 're-unification' route. These routes are under the Immigration Rules, and have very little input from EU law. If your finances were sound, you'd apply on the 5-year route, using FLR(M), and your daughter would be of little to no relevance, except in so far as as she needed accommodating. If your wife does not meet the requirements, the 10-year route will automatically be considered, or you can apply directly on FLR(FP). These routes don't avoid the English language requirement or LitUK for ILR; they can only be avoided by the old age exemption.

[Salem]

Thanks for your response.

Judging by that, if worst came to worst, I'd just be better going down the settlement route by marriage. I meet the financial requirements, my wife's English is sound, it would just be the Life in the UK test, and cost of Visa process.

Though I am still hopefull no matter what changes will be brought in for the FP/RC/PR, they will allow transitional arrangements if a Remain vote, or my wife's 5 years would be up and PR applied for before anything was implemented if a Leave vote, if no transitional that route. My wife's 5 years are up in November of next year.

Just have to wait I see I suppose, it's all speculation at present.

Thanks again for your response.

At least I'm pretty certain I can use my UK passport for our child's passport application.