Family came to UK on spouse/dependent visas, spouse rec'd EU citizenship in the interim, renewal coming up, what to do?

[justininlondon]

Here's our situation:

• I'm a dual US-UK citizen, born in the US (UK by descent).
• My wife and children are US citizens, and when we moved to the UK (from the US) two and a bit years ago, she got a spouse visa and they got dependent visas. (And I paid through the nose, obviously, for the visa fees + NHS supplement.)
• A year ago my wife received Portuguese citizenship, so she's now a US-Portuguese citizen, and of course still has the spouse visa. Since receiving the Portuguese passport, she's used it to enter/exit the UK instead of her US passport/spouse visa BRP.
• My children are not yet Portuguese citizens. The applications are in process, it just takes a long time.

Now, the spouse visa and dependent visas expire in a few months in July. I was just thinking about what I need to do to renew, and realised that... I may not need to?

My wife should be able to live here as an EU citizen. And the children are dependents of an EU citizen. So I could give the new Settled Status application website a go, and have that be it? They'd all get pre-Settled Status at this point, but in November or so the children should be eligible for UK citizenship as they'll have been here for 3 years at that point, and can be registered as UK citizens under MN1 Section 3(2).

So my question is, essentially, is that last paragraph correct? Rather than renewing the spouse/dependent visas, I should be able to apply (now) through the Settled Status application, and they should be approved, and I don't need to spend money on anything else or renew the visas that they are currently on.

Any help, pointing out of flaws in my reasoning, etc, would be much appreciated.

[NatCam]

She can definitely apply for a pre-settled status in her own right, providing she is a qualified person.
You will save huge amount of money but your wife will likely lose 2.5 years on her path to permanent residency.
I don't know what your aspirations are, as a family.
As to the children - why can't they be registered as UK citizens, since the father a UK citizen? Why claim citizenship from the mother's side? Just a thought.

[CR001]

She can definitely apply for a pre-settled status in her own right, providing she is a qualified person.
You will save huge amount of money but your wife will likely lose 2.5 years on her path to permanent residency.
I don't know what your inspirations are, as a family.
As to the children - why can't they be registered as UK citizens, since the father a UK citizen? Why claim citizenship from the mother's side? Just a thought.

The OP is British by descent, cannot be inherited by children born abroad.

Children can register as British under Section 3(5), once they have lived in the UK for 3 years with their British father.

Page 12 in link below.

https://assets.publishing.service.gov.u ... 4.0ext.pdf

[Richard W]

She can definitely apply for a pre-settled status in her own right, providing she is a qualified person.

She doesn't need to be a qualified person - at least, not until Article 50 is revoked, and no-one knows what happens then. (Probably not civil war.)

[NatCam]

@Richard W, You are right. Absolutely. (I was thinking about my own issues at the time).

[NatCam]

@CR001, noted, thanks.

[justininlondon]

Thanks for the replies everyone!

Why would my wife lose 2.5 years on her path to permanent residency? She'd be resident under a different type of permission, as a EU citizen vs on a spouse visa, but wouldn't they both count the same towards the 5 years?

Would that be an issue with the kids? Or the three years that is counted there is just "life in the UK" and it doesn't matter under which type of permission.

[CR001]

How did she obtain Portuguese citizenship??

[justininlondon]

Portugal is trying to make amends for the Expulsion/Inquisition:

http://www.embassyportugal-us.org/portu ... scendants/

[sfljiaf]

My understanding is that to gain permanent residence under EU rules (respectively settled status under the EU settlement scheme), one has to have been resident in the UK 5 years under EU rules. In other words, the clock for that starts only when you start being in the UK under EU rules.

There is a further subtle distinction here between (a) the case where someone had citizenship of an EU country by birth, but only later registered it, and (b) the case where you truly only later acquired that citizenship. In case (a), there is perhaps an argument to be made that the person was exercising EU treaty rights from the moment they arrived in the UK, even if they didn't know or claim it, and even if they had an additional further visa based on their non-EU nationality. In case (b), strictly speaking you only start exercising treaty rights once you acquire the EU nationality. Based on how I understand the link you posted, your wife is case (b). So, strictly speaking, if your wife wanted to acquire permanent residence (settled status) under EU (settlement scheme) rules, she would "lose" 2.5 years.

It could be that you could still apply for ILR as a family member of a British citizen 5 years after arrival - but I'm not sure, I think here spouse visa would still have to be valid at that point. Also, this would cost over 2000 pounds, compared to free settled status.

All that said, I think this is a very rare set of circumstances, especially case (b) - almost always to acquire a nationality by naturalisation one needs to be resident (and have been resident for years often) in the country in question, so I don't think this can happen very often if you're in the UK at the same time. I don't know if home office has any rules to deal with a case like this. It may well be that if your wife applied for the settlement scheme 5 years after arrival in the UK, they would not even ask about when and how she acquired EU citizenship, and simply give her settled status.

[sfljiaf]

PS: Funnily enough something similar was just discussed in another thread recently, albeit at the time as a purely hypothetical scenario: post1745324.html#p1745324

[secret.simon]

Why would my wife lose 2.5 years on her path to permanent residency? She'd be resident under a different type of permission, as a EU citizen vs on a spouse visa, but wouldn't they both count the same towards the 5 years?

No. In order to acquire either PR (under the EEA Regulations) or Settled Status (under Appendix EU), one needs to have resided in the UK in accordance with the requirements of the EEA Regulations (i.e. as a non-British EEA citizen exercising treaty rights or their direct family member) for five continuous years. If your spouse only acquired Portuguese citizenship a year ago, their clock (for PR/Settled Status) started then.

EU11(3)
(a) The applicant is:
(i) a relevant EEA citizen; or
(ii) a family member of a relevant EEA citizen; or
(iii) a family member who has retained the right of residence by virtue of a relationship with a relevant EEA citizen; or
(iv) a person with a derivative right to reside; or
(v) a person with a Zambrano right to reside; and
(b) The applicant has completed a continuous qualifying period of five years in any (or any combination) of those categories; and
(c) Since then no supervening event has occurred

Similarly, for applications for ILR as the spouse of a British citizen, the applicant needs to have completed five years in the UK under that Leave to Remain (spousal visa).

As an aside, it can be argued that by acquiring EU citizenship, your spouse's leave to remain as the spouse of a British citizen has been invalidated (EEA citizens cannot be subject to Leave to Remain under the Immigration Act 1971) and therefore s/he may no longer be eligible to apply for ILR using SET(M). Therefore, now she will have to wait for five years after her acquisition of Portuguese citizenship before applying for Settled Status. But wait for others to comment on this point.

The only immigration pathway where one can combine multiple types of legal residence in the UK is the 10 years Long Residence applilcation under the UK Immigration Rules.

[Richard W]

As an aside, it can be argued that by acquiring EU citizenship, your spouse's leave to remain as the spouse of a British citizen has been invalidated (EEA citizens cannot be subject to Leave to Remain under the Immigration Act 1971) and therefore s/he may no longer be eligible to apply for ILR using SET(M).

If she is not working and does not have CSI, by that logic then she would be an overstayer or be abusing the right of initial residence.

A practical counter-example to the logic, unless I am missing something, is that many EU citizens' registration cards were stamped with ILR after four years' residence. Holders of such cards many now apply for the EU settled status so that they may keep ILR despite a future absence from the UK of almost five years.

As a nit-pick, the OP's wife's next step but for being Portuguese would be to extend leave using FLR(M).

[vaza]

Not directly relevant to the OP, a small nit-pick too for anyone else reading in future:

your spouse's leave to remain as the spouse of a British citizen has been invalidated (EEA citizens cannot be subject to Leave to Remain under the Immigration Act 1971)

I don't think the Leave to Remain is invalidated, although any overstaying will not result in an action because of the EEA citizenship. The settlement scheme is under the immigration rules even though EU law still applies. I don't have a reference, but years ago it took 2 years to get ILR as a spouse to British citizen, so HO advised as an option for EEA citizens to apply under the immigration rules as quicker route to citizenship (it was also much cheaper then, albeit not free).

[NatCam]

You all forget that OP's wife still holds valid UK spouse visa.

[Richard W]

You all forget that OP's wife still holds valid UK spouse visa.

Secret.simon's concern was that it had become invalid.