Should a EU national wait until their family members get Permanent Residence, before applying for British citizenship?

[kamoe]

I skimmed through the pinned thread discussing the Lounes cases here: eea-route-applications/do-dual-eu-uk-ci ... 2-640.html

but I am unable to tell if, as of October 2018, it is (still) advised that EU citizens holders of Permanent Residence and eligible for British Citizenship wait until their family and extended family members acquire Permanent Residence, before acquiring British citizenship.

I understand this caused issues in 2017, when family members of dual nationals had their rights confirmed to stay in the UK by the ruling of the Lounes case, but this was only granted under derivative rights of residence, which do not count towards PR, complicating their 5-year requirement. I read posts of several members regretting acquiring citizenship "prematurely".

Is this still an issue? Is there a general consensual advice on this? Should EU nationals await until their families acquire PR, or are dual nationals' family member's PR currently granted without issues nowadays?

I am afraid it has been difficult for me to find the answer to my question anywhere else.

Thanks
Kamoe

[NikiGio]

Have a look at this blog:

Blog weblink removed by moderator

In the section where it says:

"
Dual nationals will keep their family reunion rights after Brexit

Dual nationals, i.e. those EU nationals who have become British citizens, will not be able to register for Settled Status, however, the Lounes judgment will be respected. That means people who have naturalised as British through getting PR under the EEA Regulations will still be able to sponsor family members where the relationship existed before midnight on December 31st 2020 and continues to exist.
"

Is this still an issue? Is there a general consensual advice on this? Should EU nationals await until their families acquire PR, or are dual nationals' family member's PR currently granted without issues nowadays?

Looks like the answer is that EU nationals can now safely naturalise and their families' status will be safeguarded - provided the relationship existed before 31.12.2020 and continues to exist.

Don't know enough about cases where the relationship has ceased to exist - ie. RoR. But I also haven't read the Lounes case in detail yet.

[Shlumaan]

Hi NikiGo, can you please PM the weblink to the blog mentioned? It's been removed here for some reason.

[NikiGio]

I don't have the PM facility - but if you do a Google search inserting the quote below, you'll find it online - should be the second result that comes up:

Dual nationals will keep their family reunion rights after Brexit

Dual nationals, i.e. those EU nationals who have become British citizens, will not be able to register for Settled Status, however, the Lounes judgment will be respected. That means people who have naturalised as British through getting PR under the EEA Regulations will still be able to sponsor family members where the relationship existed before midnight on December 31st 2020 and continues to exist.

[kamoe]

Dual nationals will keep their family reunion rights after Brexit

Dual nationals, i.e. those EU nationals who have become British citizens, will not be able to register for Settled Status, however, the Lounes judgment will be respected. That means people who have naturalised as British through getting PR under the EEA Regulations will still be able to sponsor family members where the relationship existed before midnight on December 31st 2020 and continues to exist.

Thanks NikiGio.

However, that's not the issue. The issue is not if they can keep their right to live in the UK by virtue of their now British spouse sponsoring them, or if they can eventually naturalize. The issue is, is their right to reside granted under derivative rights of residence, and if so, in this particular context, is the time they spent under these derivative rights considered invalid towards the required 5-years residence?

Say an EU man becomes British citizen, at the time their non-EU wife has accumulated 4.5 years for PR. When will their non-EU wife be able to apply for PR? Will the next 6 months they reside in the UK after her husband becomes British count, and so will she be able to apply at the end of those 6 months?

Or, because her British husband became British, will any time she spends in the UK after that not count towards PR (as considered derivative rights), and thus, her only chance of getting PR/Settled status is now to accumulate 10 years instead of not 5, under ILR Long residence, which is, to my knowledge, the only category where ANY time legally spent in the UK counts? In theory this would still "safeguard her rights" and "allow her husband to sponsor her stay" but completely screws her up as she would need to wait another 5 years, when she was very close to qualify for Permanent Residence.

That is the real issue, and it is really not clear. I think this needs to be spelled out somewhere.

[Shlumaan]

Hi Kamoe, I'm just a lay person so excuse my ignorance in advance. However, from reading NikiGo assertion and through reading the outcome of the Lounes case, isn't it the case that by virtue of the EU national, now a dual national, being able to retain their EU rights (pre-Brexit) and despite their acquisition of UK citizenship, their non-EU partner qualifies for PR under the EU legislation? In other words, isn't the Lounse case addresses this exactly, that the wife was allowed to exercise her treaty rights and therefore her husband too, despite having obtained her UK citizenship?

I am reading your concerns and I can't quite understand where the issue is given the Lounes case seemed to have answered those issues before?

[kamoe]

reading the outcome of the Lounes case, isn't it the case that by virtue of the EU national, now a dual national, being able to retain their EU rights (pre-Brexit) and despite their acquisition of UK citizenship, their non-EU partner qualifies for PR under the EU legislation?

Well, this is not what I understand, and is at the center of my question. As far as I have been able to interpret, the Lounes case allows family members of dual EU/UK nationals to reside in the UK, but under a different label: "derivative rights of residence.", and not continue under the same EEA rules and rights. But someone please correct me if I'm wrong.

In other words, isn't the Lounse case addresses this exactly, that the wife was allowed to exercise her treaty rights and therefore her husband too, despite having obtained her UK citizenship?

Not as I understand it, no. They are allowed to stay, but not having that time count towards Permanent Residence under EEA roules. Again, someone correct me if I'm wrong.

I am reading your concerns and I can't quite understand where the issue is given the Lounes case seemed to have answered those issues before?

As far as I can see it, the Lounes case prevents people form acquiring Permanent Residence as fast as they could have been able to before their now dual EU/UK family member acquired British nationality. Depending on people's individual circumstances this can make a big difference. Again, am I interpreting this correctly?

That's my question. I know many people in this forum went through that and I was hoping someone could share their experience.

[NikiGio]

However, that's not the issue. The issue is not if they can keep their right to live in the UK by virtue of their now British spouse sponsoring them, or if they can eventually naturalize. The issue is, is their right to reside granted under derivative rights of residence, and if so, in this particular context, is the time they spent under these derivative rights considered invalid towards the required 5-years residence?

Right, got it - I hadn't appreciated the derivative rights element to the question and whether these re-set the time clock to '0' for the non-EEU spouse in case the EU spouse naturalises.

It's a complex issue all right - and I'm not sure there's yet an answer out there.

I wonder whether some of the people/more experienced users that are involved in the original thread you posted might have more insight - I know mods normally don't like double-posting, but perhaps re-posting the question as a comment to that original thread might get them to see your query...

[vinny]

Judgment

Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC must be interpreted as meaning that, in a situation in which a citizen of the European Union (i) has exercised his freedom of movement by moving to and residing in a Member State other than that of which he is a national, under Article 7(1) or Article 16(1) of that directive, (ii) has then acquired the nationality of that Member State, while also retaining his nationality of origin, and (iii) several years later, has married a third-country national with whom he continues to reside in that Member State, that third-country national does not have a derived right of residence in the Member State in question on the basis of Directive 2004/38.

The third-country national is however eligible for a derived right of residence under Article 21(1) TFEU, on conditions which must not be stricter than those provided for by Directive 2004/38 for the grant of such a right to a third-country national who is a family member of a Union citizen who has exercised his right of freedom of movement by settling in a Member State other than the Member State of which he is a national.

I doubt that “derived right of residence” under Article 21(1) TFEU is the same as “Derivative right to reside” under Regulation 16.

[isidore91]

Right, got it - I hadn't appreciated the derivative rights element to the question and whether these re-set the time clock to '0' for the non-EEU spouse in case the EU spouse naturalises.

so you can apply for PR but does this re-set the time clock to 0 for the non-EEU spouse in case the EU spouse naturalises ?