Non-EEA spouse status after EEA loses EEA citizenship

[eeaman01]

I searched on the forums but couldn't dig out anything similar enough to this:

An EEA national comes to the UK, stayes employed, marries a non-EEA citizen. The spouse enters the UK on EEA Family Permit.

Then, the EEA national naturalises and on the day of the swear-in ceremony officially becomes a British citizen. However, as a result of his home country laws, on that day, the EEA national automatically loses their original citizenship.

1) If the spouse hasn't yet entered the UK on the EEA Family Permit (which has been issued before the EEA national applied for and became a British citizen), can the spouse still enter the UK on that permit?

2) If the spouse has entered the UK (and has or hasn't gotten her EEA2 or EEA4 confirmation), what happens to the legal status of the non-EEA spouse on the day the EEA citizen becomes British and loses the other citizenship? Does the non-EEA spouse need to take any action before or after the swear-in cermony of the EEA citizen?

Thanks.

[Hubba]

Then, the EEA national naturalises and on the day of the swear-in ceremony officially becomes a British citizen. However, as a result of his home country laws, on that day, the EEA national automatically loses their original citizenship.

Please check further this information. Most country members have provisions to allow their citizens to naturalise themselves in other EEA member states. I know Germany has such provision in place, for example.

[eeaman01]

Please check further this information. Most country members have provisions to allow their citizens to naturalise themselves in other EEA member states. I know Germany has such provision in place, for example.

I don't understand why you're questioning the loss of citizenship. Several EEA countries don't allow dual citizenship, for very good reasons. Therefore, please take this assumption as a given. If I wasn't sure about this, I wouldn't be posting the question to begin with... Thanks.

[Jambo]

See similar discussion (although in that case the non EEA has been living in the UK for several years already) - non EEA national' s spouse(EEA) became British! help requird.

In short, I would advise leaving it in the hypothetical stage as the practical implications are not clear.

[aledeniz]

Several EEA countries don't allow dual citizenship, for very good reasons.

While I do respect your opinion, in my own book there has never been and never will be a good reason to disallow multiple citizenship, let alone very good ones.

[Hubba]

Please check further this information. Most country members have provisions to allow their citizens to naturalise themselves in other EEA member states. I know Germany has such provision in place, for example.

I don't understand why you're questioning the loss of citizenship. Several EEA countries don't allow dual citizenship, for very good reasons. Therefore, please take this assumption as a given. If I wasn't sure about this, I wouldn't be posting the question to begin with... Thanks.

I'm not questioning the loss of citizenship, I'm just letting you know that this area is not as black and white as expected. Each country has its own policy and generally their position in the matter is not well presented. I have only warned you to check further, as an advice, not neglecting what you have said.

If you have done further checks and is absolutely adamant that the EEA will lose its original citizenship, please feel free to ignore my advice.

[eeaman01]

See similar discussion (although in that case the non EEA has been living in the UK for several years already) - non EEA national' s spouse(EEA) became British! help requird.

In short, I would advise leaving it in the hypothetical stage as the practical implications are not clear.

Thank you very much, Jambo. This is exactly what I was looking for. I have reviewed the thread thoroughly.

However, I am wondering, if the non-EEA spouse has reached PR status already, does it still matter if the EEA national loses EEA citizenship or not?

In other words, does the non-EEA spouse still derive their status in the UK even after reaching PR from the EEA national continuing to exercise Treaty rights? (An an obvious side question: after the EEA national reaches PR, are they still technically exercising Treaty rights?)

[Jambo]

Once PR is obtained, then the non EEA national is not dependant on the EEA national any more.

You are not required to exercise treaty rights if holding PR status.

[Directive/2004/38/EC]

eeaman01, which EU country is this? It is definitely not Germany or Poland.

[eeaman01]

eeaman01, which EU country is this? It is definitely not Germany or Poland.

At least two that I know of: Czech Republic, Slovak Republic

These two countries have laws at the moment which ensure that if one accepts citizenship of another country, they lose their original citizenship.

(There are very few exceptions in both of them, e.g. no loss occurs if acquiring another citizenship via marriage.)

[eeaman01]

See similar discussion (although in that case the non EEA has been living in the UK for several years already) - non EEA national' s spouse(EEA) became British! help requird.

In short, I would advise leaving it in the hypothetical stage as the practical implications are not clear.

This has now gone from hypothetical stage to the very real stage:

Non-EEA national:
* had a residence card but traveled abroad and card expired while abroad
* obtained an eea family permit, traveled to the UK
* traveled abroad again (no time to do EEA4 PR confirmation)
* obtained a second eea family permit to be able to come back

After this, EEA national accepted british citizenship, lost EEA citizenship.

The non-EEA national's EEA Family Permit is about to expire again (is it even still technically valid?) and their non-EEA passport to expire in 9 months as well.

Aside from it being wise to obtain a new passport, what should the non-EEA national do? They are now a spouse of a British citizen but their right to be in the UK is derived from having been a non-EEA spouse of an EEA national.

What should the non-EEA national apply for at the British consulate to 1) get back to the UK now and in the future and 2) to obtain documentation that will help assert permanent resident status?

[Jambo]

If the RC expired, then I assume the non EEA national has spent at least 5 years in the UK and obtained PR status (unless there were absences of more than 6 months a year). In that case, the simplest would be to apply for PR confirmation using EEA4. hopefully the EEA national still holds his passport/ID card but even without it, the non EEA national should be able to secure confirmation.

It would be wise not to travel abroad until the PR confirmation arrives.

[eeaman01]

If the RC expired, then I assume the non EEA national has spent at least 5 years in the UK and obtained PR status (unless there were absences of more than 6 months a year). In that case, the simplest would be to apply for PR confirmation using EEA4. hopefully the EEA national still holds his passport/ID card but even without it, the non EEA national should be able to secure confirmation.

It would be wise not to travel abroad until the PR confirmation arrives.

The non-EEA national is physically abroad already. Can EEA4 be sent in while abroad? Also, if absences prevent qualification for PR, what other routes exist?

[Obie]

A Residence Card or Permanent Residence Card cannot be applied for from overseas.

You will need to apply for an EEA family permit in any circumstance, and then apply for Residence Card or permanent Residence Card, whatever the case may be.

The problem is, if the EEA national lost her EEA nationality as a result of obtaining British NAtionality, then things may be a bit complicating.

If you are unable to show that in the preceding 5 years prior to the PR claim, you have in any of those years, not spent more than 6 months away from the UK, and that after the PR right claim, you have not been away for more than 2 years, then continuity of residence may not have been broken, and you may have a genuine claim to PR. Otherwise, you may not even be covered by the transitional provision, and may have to apply for Leave to remain or an Entry clearance as a Spouse of a British Citizen, subject of course to the Financial and maintenance requirement being met.

[Directive/2004/38/EC]

A Residence Card or Permanent Residence Card cannot be applied for from overseas.

Is this explicitly stated anywhere? Have you heard of anyone trying and being refused?

[Obie]

1. Member States shall issue a residence card
to family members of a Union citizen who are not
nationals of a Member State, where the planned period of residence is for more than three months.
2. The deadline for submitting the residence card
application may not be less than three months
from the date of arrival.

This indicate that it is envisaged that a Residence Card is issued to someone whose planned residence is for more than 3 months.

Paragraph 2 also states that the deadline should not be less than 3 months from the day of arrival. All these indicates that a residence card is intended to be issued to someone residing in the host state.

Article 5 which provides for the issuance of visa, will be otiose, if people can apply for a residence card before they enter the host state.

Article 10 also require the applicant for Residence Card to provide evidence of the EU citizens registration Certificate, or in the absence of it, evidence of residence in the Host state.
Also Article 10(2E) talks about document issued by the authority in the country of origin, or country from which they are arriving.

All this indicates the point that a Residence card could not be issued to someone living overseas.

I accept that a person who makes a Residence Card Application, can travel and return to the UK, during the time their application is being processed, but it is not the UKBA's policy or the Entry Clearance office policy or within its power to accept an application for Residence Card from someone overseas, or to issue it to such person.

[eeaman01]

1. Member States shall issue a residence card
to family members of a Union citizen who are not
nationals of a Member State, where the planned period of residence is for more than three months.
2. The deadline for submitting the residence card
application may not be less than three months
from the date of arrival.

This indicate that it is envisaged that a Residence Card is issued to someone whose planned residence is for more than 3 months.

Paragraph 2 also states that the deadline should not be less than 3 months from the day of arrival. All these indicates that a residence card is intended to be issued to someone residing in the host state.

Article 5 which provides for the issuance of visa, will be otiose, if people can apply for a residence card before they enter the host state.

Article 10 also require the applicant for Residence Card to provide evidence of the EU citizens registration Certificate, or in the absence of it, evidence of residence in the Host state.
Also Article 10(2E) talks about document issued by the authority in the country of origin, or country from which they are arriving.

All this indicates the point that a Residence card could not be issued to someone living overseas.

Hm... but we are not dealing with a candidate who is "living overseas", only who is "present overseas". If one agrees that a history of having had a Residence Card in the past or having met criteria to qualify for PR constitutes that person being normally resident in the UK merely with a temporary absence (so long as continuity of residence isn't broken for PR purposes in case of PR), then such a person qualifies for PR confirmation regardless of where they are physically present at the moment. It would be unjust (or possibly outright illegal) to deny them confirmation of PR if they have acquired it, regardless of where they are physically present at the moment.

Moreover, the same should apply in Residence Card case shouldn't it? If they have had a Residence Card in the past but haven't acquired PR due to absences but need another Residence Card, as long as it is their intention to live in the UK, being physically present abroad at time of application doesn't erase their right as a non-EEA spouse to free movement as derived from their EEA partner.

I accept that a person who makes a Residence Card Application, can travel and return to the UK, during the time their application is being processed, but it is not the UKBA's policy or the Entry Clearance office policy or within its power to accept an application for Residence Card from someone overseas, or to issue it to such person.

It doesn't seem to be UKBA policy to refuse applications made while physically present overseas either.

Did anyone try and get refused (whether that's for a Residence Card or a PR)?

[fysicus]

I have said on many occasions on this forum that I do not understand why so many EU (or EEA) immigrants apparently feel an irresistible urge to become British Citizens.

I'm in the UK for about 15 years already and still don't see the benefit, which would justifiy the high cost of the naturalisation procedure.

And the issue that started this thread is another good reason not to bother about BC! In fact, it shows there can be clear disadvantages to naturalisation!
As a matter of fact, also the laws of my country would cause automatic loss of citizenship if I acquire another nationality (regardless whether it is EU or not) voluntarily.

[Jambo]

Did anyone try and get refused (whether that's for a Residence Card or a PR)?

In practice if someone gets his passport to the UK and someone else posts an application to Liverpool with a UK address, then the HO is unlikely to realise the applicant is not present in the UK. I don't think that doing so is illegal but is the applicant willing to wait abroad 6 months until a decision is made?

I just don't understand why the EEA national has applied for BC while he is aware of the implications and that the spouse is out of the country without a visa to come back.

[Jambo]

I have said on many occasions on this forum that I do not understand why so many EU (or EEA) immigrants apparently feel an irresistible urge to become British Citizens.

I suspect there is a difference between old member of EU and the new member state nationals who seek a BC.

[Obie]

Well in the case of Residence Card, the Memberstates are clearly not oblidge to issue it to someone who is residing overseas. The requirements for a Residence Card to be issued, and the circumstance under which it should be issued, is indicative of the fact that it cannot be issued to someone who is not residing in the host memberstate at the material time, when the application is lodged.

It is important to note that the non-EEA family members has no individual rights under community law. Their rights derive from the EEA national's rights, inorder to enable the EEA national to exercise their treaty rights without any hinderance. This could not be the case, if the EEA national is residing overseas. It cannot be argued that the refusal could undermine the exercise of his/her treaty right. In those circumstance, the memberstate can rightly argue that they are not oblidge to issue a document confirming someones right of residence, when that person is not residing in the UK at the material time.

For Permanent Residence, the issues may be different, as the person might have already accrued these rights, however the overseas post do not issue PRC, and by law they are not oblidged to. If you have an address in the UK, and have proof of having resided there, then you may be fine, but the fact remains that you cannot apply for a PR confirmation from overseas, using an overseas address. You will be advised to make an appliction for EEA family permit, and then residence card when you enter.

If you look at regulation 12, the ammended version, the ECO must issue an EEA family permit to a family member who has retained his/her right of residence.

If it was possible to these people to apply for Residence Card, from overseas confirming their right of Retention of residence, then the EEA family permit provision might be argued to be otoise.

The fact remains that the community law option, of applying at the port is open to these people, if they can prove they meet the requirements under the community provision.