EEA person is actually also British.... now what?

[genevieve]

Hiya,

This question spans a few different categories so please correct me if I need to post this in a different forum title.

So my husband is European, I am non-European and on a family member of an EEA person residence card (EEA2 I think). The time has come around for me to renew my permit (whoa, the form has become long!). We had planned to apply for permanent residence for me at this point, and then British citizenship after a year, but with the law change a few years ago regarding health insurance I've become no longer eligible (previously just the EEA person, now EEA person and their family members). In my reading of whether our baby can acquire British citizenship I learned that the law changed a few years back regarding how British citizenship is passed on when abroad. Previously it was only through the father, now it is also through the mother. My husband's mum is British (Scottish) and as far as I can tell from what I've read, that makes my husband British and he'd need only apply for a passport to prove his British citizenship (and provide necessary documentation).

My question is... what does that mean for me? If he applies for a British passport, does the time frame reset for me applying for naturalisation or do the past 5 1/2 years I've been here count for anything? He's not met the salary limits in that time frame as he was a PhD student so I can see that being non-compliant right there! If he has a job that meets the salary limits and applies for a British passport, when would I be able to apply for British citizenship?

Thank you very much for any help!

[secret.simon]

When was your husband born?

If he was born in or after 1983, he would have inherited British citizenship automatically if his mother was British.

If he was born before 1983, he would not have inherited British citizenship from his mother. The law change allows such persons to apply to be registered as a British citizen. But it is not automatic. And he would only become a British citizen from the date of registration.

If he becomes a British citizen, he won't be able to sponsor you under the EEA Regulations. But as he is not a British citizen at the moment, just tell him to postpone his registration until you and your other family members complete your immigration journey.

[genevieve]

He was born 1984.

Ah, cool so he's not British yet. Good to know we're not accidentally skirting any laws! Thanks for your response. I imagine it would be best to just wait and see what's happens, whether he should apply for me to stay depending on the results with Brexit.

Thanks again!

[secret.simon]

If he was born in or after 1983, he would have inherited British citizenship automatically if his mother was British.

If he was born in 1984, then he is a British citizen by descent automatically.

Theoretically that would mean that he has been unable to sponsor you for all the time that you have been in the UK. Not sure what your legal status in the UK is now.

[genevieve]

Whoops, sorry, just realised I miss-read your earlier post and that only applied to pre-1983. Oh dear, guess we ought to figure what we're doing quickly!

[genevieve]

Although thinking about it now... would not his 25 years in Sweden and then coming to work / study here count as a Surinder Singh type entry?

[Richard W]

Theoretically that would mean that he has been unable to sponsor you for all the time that you have been in the UK. Not sure what your legal status in the UK is now.

If Genevieve apparently had a right of residence on 16 July 2012, had applied for a residence card by 16 October 2012, and received the card as a result of the application, then her husband still counts an EEA national so far as she is concerned. From what she has written, she satisfies Schedule 6 Regulation 9(3) in the EEA Regulations 2016 (the 'McCarthy transition arrangement').

Although thinking about it now... would not his 25 years in Sweden and then coming to work / study here count as a Surinder Singh type entry?

I don't think so - he wasn't exercising treaty rights in Sweden!

[Obie]

I have had to move this topic from the British Citizen section, as that is not the appropriate place for it to be.

I understand that Op mentioned some aspect of acquisition of British Citizenship, but the core of her post appear to me to relate to the Renewal of her Permit.

Richard, i believe what Simon was seeking to convey is that in the normal scheme of things, a person will not be able to take advantage of the regulation if they are British, and this is a settled fact. However i believe he is aware of the transitional provision relating to people who were dual citizen when their family member were issued a residence permit and thereafter.

[genevieve]

Thanks! Although I do still wonder if this means I'll eventually be able to apply for British Citizenship or is that just out of the running now? As far as the authorities are concerned, he's Swedish as his mum never registered his birth.

[genevieve]

*And just to be clear, I'm not trying to get around the law. Just figure out what my best course of action should be.

Thanks Richard W. I'll have to check out the McCarthy thing you mention. Also just came across a sticky about dual EU/UK citizens so I'll read through that stuff, too.

[Richard W]

Thanks! Although I do still wonder if this means I'll eventually be able to apply for British Citizenship or is that just out of the running now? As far as the authorities are concerned, he's Swedish as his mum never registered his birth.

As the law currently stands, you will have a problem with the period from 2015 onwards when you were not covered by CSI although you husband was only a student. If the current British proposal for EU citizens after Brexit is implemented as described, you will immediately qualify for settled status on the basis of five years residence as a family member of an EU citizen. The wording implies that dual nationals automatically get the privileges of EU citizens, and there's a reasonable chance that the McCarthy transition arrangements will be continued if the privilege is not automatic. (It is not certain - it was forgotten in the 2016 regulations, and was restored in January 2017.) Your problems may be (1) accumulating the 3 years lawful residence and (2) the risk (very small, I believe) that you may be excluded from naturalisation for 10 years because of the time when you were in breach of the immigration laws through lack of CSI.

I therefore believe that you should apply merely for a residence card (once your husband is a 'qualified person') to cover you in the short term, and wait and see.

[genevieve]

Thank you!