query about EEA rights

[ran]

Hiya,

I had an interesting query about EEA rights especially continuation of EEA rights. I apologize beforehand for the length of this post. Also I think EEA forum would be the right place for this post although HSMP issues are involved.

I(Indian) am married to a Dutch national (in OCt'07) and we have been residing in UK for 3 years. We had applied for residence card and reg cert and were successful in our applications.
I was initially on a HSMP visa from 2004 (May) till 2008 (May) but I had applied for EEA2 in feb'08.
I knew that the HSMP forum were successful in their JR in april but at that time there were no directives from HO so I didn't apply for HSMP extension. But I just came to know that HSMP Forum JR directives have been initiated formally by HO since late summer and I am eligible to apply for a re-instatement under the old HSMP rules.

I am quite tempted to do that as in that case I will be eligible for ILR/probationary residence (whatever the case is) in May-2009, if my HSMP re-instatemnt application is successful. I know I am being a bit impatient about ILR but I think it would be foolish not to try this out if it is a good option. I would be grateful for any advice on the above regarding
whether it is a good option to try i.e. switching from EEA route to HSMP route as PR through the former route will take till 2012.

A few other queries I had are as follows:

1) If I switch over to HSMP, will my EEA residence card still be valid? A supplementary query would be if in the future I want to go back to EEA route will I have to apply for EEA card again?
I know that one cannot be on two visas at the same time. But as far as I have understood from all the material re: EEA rights, EEA card is not really a similar to other UK visas. My rights to stay and work in the UK depends on whether my wife is exercising treaty rights or not (which she is). I need not have applied for EEA card at all (by law) but it is more practical.

2) If I switch to HSMP will the time clock for PR through EEA route be affected?
Just in case I do not staisfy PR/ILR criteria through HSMP route (I have heard there's going to be a lot of changes in the PR/ILR context next year as per HO).

3) Associated with the above question - would all my EEA rights uphold even if I am on HSMP e.g retained rigths of residence in case of divorce/death, easier EU travel amongst others?

I do sound like I want all the comforts of both options - but I think if I am eligible and the oppurtunities are there why not take it?
I would be most grateful for any advice.

Best Regards,
Ran

[thsths]

1) If I switch over to HSMP, will my EEA residence card still be valid? A supplementary query would be if in the future I want to go back to EEA route will I have to apply for EEA card again?

I think the UKBA may request your residence card back. But you are right: even without the card, you continue to be covered by European law. So your EEA clock is still running, and if you switch back again, you will still get PR in 2012.

3) Associated with the above question - would all my EEA rights uphold even if I am on HSMP e.g retained rigths of residence in case of divorce/death, easier EU travel amongst others?

Good question. I guess you have to pick one or the other, so no.

You should also look at the changes happening in nationality law. Of course the details are still being worked on, but it sounds like the EEA route may not lead to probationary citizenship. So after 5 years to PR, you may still have to wait another 6-8 years for citizenship.

[SunBlue]

So after 5 years to PR, you may still have to wait another 6-8 years for citizenship.

So do you mean that someone under EEA rules, will have to live 5 years in the UK and then will get permanent residence, and then wait more 6-8 years to get citizenship? So it gives a total of 11 to 13 years for a EU and non-EEA family member to get citizenship then!

[Plum70]

You should also look at the changes happening in nationality law. Of course the details are still being worked on, but it sounds like the EEA route may not lead to probationary citizenship. So after 5 years to PR, you may still have to wait another 6-8 years for citizenship.

No quite... under the proposed changes the path to BC will be a three-step process:

1. Temporary Residence
2. Probationary Citizenship
3. British Citizenship/Permanent Residence.

The UKBA has stated in it's green paper that EEA nationals will not be affected by these changes. Therefore if under EU Law a EU/EEA/Swiss national (and their non-EEA family member) automatically attains permanent residence after 5 years of continuous and lawful residence in the UK, based on the list above would this not already supersede probationary citizenship? I am inclined to think it would.

Further comments are welcome.

PS: I also just read a related article and an excerpt from it reads: "...Changes will apply to new arrivals after the new laws are passed, and not to foreigners already living in the UK, so reforms are only likely to affect migrants arriving from 2010".
Full article here: http://www.independent.co.uk/news/uk/po ... 84566.html

[thsths]

The UKBA has stated in it's green paper that EEA nationals will not be affected by these changes. Therefore if under EU Law a EU/EEA/Swiss national (and their non-EEA family member) automatically attains permanent residence after 5 years of continuous and lawful residence in the UK, based on the list above would this not already supersede probationary citizenship? I am inclined to think it would.

I guess we have to see, but I was expecting that PR under EU law would be interpreted as PR under UK law - leading to the stated further 6-8 years. (The PR office is certainly effective, always keeping the topic in the news, never releasing any hard facts...)

As for transitional measures, they tend to be insufficient, but I would appreciate a positive surprise.

[Plum70]

I guess we have to see, but I was expecting that PR under EU law would be interpreted as PR under UK law - leading to the stated further 6-8 years.

Permanent residence is directly proportional to Indefinite Leave to Remain and I don't see that a demarcation can be placed between them.

Therefore despite the imminent changes I think that the EU route will still allow for a smooth transition from permanent residence to British Citizenship for anyone who so desires to make that leap.

[thsths]

Permanent residence is directly proportional to Indefinite Leave to Remain and I don't see that a demarcation can be placed between them.

Therefore despite the imminent changes I think that the EU route will still allow for a smooth transition from permanent residence to British Citizenship for anyone who so desires to make that leap.

I agree with the first part, but one of the changes in the new system is that Permanent Residence will not lead to citizenship quickly - you have to have that status for 6-8 years. The fast way to citizenship is via probationary citizenship (1-3 years), with the disadvantage that you get kicked out if you do not meet the criteria. Now obviously you cannot do that with European citizens, so I wonder whether probationary citizenship is available to them at all.

I hope that we will get some news on this soon, but personally I am rather pessimistic about this.

[ran]

Hi guys,

Thanks for your inputs, especially thsths for answering my queries, its been very helpful.

I agree with your inputs mostly - i think UKBA may ask for the residence card to be revoked if i go the HSMP route. But that would not deprive me of my EEA rights as I would still be eligible for PR in 2012 even on HSMP route. I agree that some of the EEA rights will be hard to continue with e.g. travelling in europe (which is diff even with a Residence Card).

But I am a bit confused abt ur take on q:3 about retained right of residence. If my EEA rights depends only on being a family member of an EU national and her exercising treaty rights then shouldn't it follow that the conditional arrangements should also hold even if i am on HSMP route.
I mean in the event of death and divorce (god forbid!!) why do u think it would not hold provided the conditions of those policies are met. I went through the pertinent portions of the EEA Directive (2006) again and couldn't find any clauses against this.
Like the option of me being able to apply for PR in 2012, as far as I could understand, the retained rights of residence is also an intrinsic right for a (ex) family member as long as the conditions of those policies r met (e.g. 3 years of marriage, 1 year in uk etc.)
Would be most grateful if you expanded on your thoughts about this.

Also I was very interested in the discussion about PR through EEA route and other routes. One thing which I found surprising is that on prob residence one can be ousted from UK if he/she doesn't meet the criteria in a set period of time. As far as I have seen on the green/white papers and details on HO, the prob period can last from 1 - 5 years (although the calculation of years is very vague at this stage) and as long as a person -
1) has no criminal activity
2) doesn't resort to any benefits
3) has active input into community service

they will be eligible for british citizenship or PR whichever they prefer. What exactly is this criterion by which one can be ousted from UK from prob residence period?

Sorry for the long post again but I think sharing our ideas on these impending changes regarding PR is quite necessary.
Thanks again.

Regards,
ran

[thsths]

I mean in the event of death and divorce (god forbid!!) why do u think it would not hold provided the conditions of those policies are met.

I agree that you may be right there, but I would be careful about the assumption. If this is important for you, you may want to ask a solicitor, although even then the question may remain unanswered. As for free travel across Europe, that would depend on whether you have to hand in your residence card. I guess you may get to keep it, but you cannot apply for a new one.

Also I was very interested in the discussion about PR through EEA route and other routes. One thing which I found surprising is that on prob residence one can be ousted from UK if he/she doesn't meet the criteria in a set period of time. As far as I have seen on the green/white papers and details on HO, the prob period can last from 1 - 5 years (although the calculation of years is very vague at this stage) and as long as a person -
1) has no criminal activity
2) doesn't resort to any benefits
3) has active input into community service

they will be eligible for british citizenship or PR whichever they prefer.

The requirements for BC are certainly a lot higher, for example they also include the "good character" condition. PR should be a feasible option, but there are still a number of requirements, and since the Home Office is trying to discourage immigrants from going for PR, I would not be surprised if the requirements go up.

However, you would still be covered by the European right of free movement, which would grant you PR in due time.

[JAJ]

I agree with the first part, but one of the changes in the new system is that Permanent Residence will not lead to citizenship quickly - you have to have that status for 6-8 years. The fast way to citizenship is via probationary citizenship (1-3 years), with the disadvantage that you get kicked out if you do not meet the criteria. Now obviously you cannot do that with European citizens, so I wonder whether probationary citizenship is available to them at all.

I hope that we will get some news on this soon, but personally I am rather pessimistic about this.

We will need to see the legislation to be sure. It will all depend on the wording.

All should bear in mind that while the United Kingdom remains part of the European Union, permanent residence will be granted to EEA nationals and family members after 5 years. That is clear.

However, there is no obligation on the United Kingdom to offer citizenship to anyone on the "EEA" track - ever. Under current laws, the United Kingdom chooses to do so. It could change that law.

[Plum70]

Indeed we need to wait and see what legislation is passed. However the HO green paper on the 'new path to citizenship' does state that EU citizens will NOT be affected by the changes. This remains to be seen of course.