EEA Family permit: EEA National with British Citizenship

[ardak]

Hello,

I'm a Non-EEA national (with EEA family member residence card) and my husband is Italian and recently got British citizenship. We've been living in the UK for the last 6 years. We've recently got a baby and registered her on my (mother) passport. My country doesn't accept dual citizenship and for that reason I'm going to get for her the passport from my country. Now I'm planning to travel with our baby to my own country for two months to stay with my relatives and to get her passport there. She will be leaving the UK with me, and at the end of our stay my husband will come and we'll be traveling back to the UK all together.

My question is related to the EEA Family Permit that (IMO) I should apply for our daughter after getting the passport to bring her back to the UK.

As we understand, the Family permit is not mandatory as long as we travel together with my husband (as it's written on page 6 of HO Guidance http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary):

A non EEA national family member of an EEA national should apply for an EEA family permit before coming to the UK.
Although it is prefer able they obtain one pre-entry to make possible their travel, an EEA family permit is not mandatory.
Regulation 11(4) of the Immigration (EEA) Regulations 2006 allows a person to provide other proof of their right to enter the UK, if
they do not have an EEA family permit, residence card or permanent residence card.

However, due to the dual citizenship of my husband (i.e. Italian AND British), I'm also afraid that HO would reject our application for an EEA Family Permit referring us to the UK Immigration rules. BTW, we haven't found any mention on how to deal in this specific situation.

Thus, my questions/doubts are:
1) do we need to apply for an EEA Family permit to bring our daughter back to the UK? (as referred in Regulation 11(4) )
2) in case we need to apply, should we apply as EEA Family member or UK Family member?

Many thanks for your help.
Ardak

[EUsmileWEallsmile]

You might want to think hard about the implications of not taking out an EU passport for your child. I'm sure you've already asked yourself this, but what are the advantages to you of selecting your nationality? Is it irreversible? Could the decision be postponed until the child is old enough to make their mind up. Where do you plan to live in the long term?

Where was the child born? What age is the child? If the child was born in the UK, then it is likely that they are British or can register as such. Some options may spring front this without taking a passport.

If your husband was only Italian, a family permit and/or residence card would have been fine. The dual British nationality may complicate matters, though McCarthy judgement applies to those EU nationals who have never exercised freedom of movement (your husband has).

The problem you will have will be trying to board an aircraft to return to the UK without the correct documentation. This is most likely to lead to denial of boarding.

Others may have some thoughts - it would be useful if you gave a little more background e.g. where was child born, what is your nationality, etc.

[Jambo]

I would think the child is also Italian and British from birth (if born in the UK within the last year or born anywhere after the father obtained BC). Not holding a passport doesn't mean he is not a citizen. If your country doesn't allow dual nationality, he could keep his other nationalities if he doesn't apply for a passport.

If your country is a non visa national, then I would not bother applying for EEA FP. Just show the relevant papers at the border.

If he is British, you might consider applying for Certificate of Entitlement.

[EUsmileWEallsmile]

I would think the child is also Italian and British from birth (if born in the UK within the last year or born anywhere after the father obtained BC). Not holding a passport doesn't mean he is not a citizen. If your country doesn't allow dual nationality, he could keep his other nationalities if he doesn't apply for a passport.

If your country is a non visa national, then I would not bother applying for EEA FP. Just show the relevant papers at the border.

If he is British, you might consider applying for Certificate of Entitlement.

Jambo provides some good information here. There are a number of permutations at stake. It would help if the OP stated, their nationality, the circumstances of the child's birth, etc. Otherwise, we may be second guessing things.

[ardak]

EUsmileWEallsmile and Jambo, many thanks for your response. I really appreciate your time and advice.

To avoid any ambiguity, here's more details: I'm a Kazakh national, and subject to visa/immigration rules. We thought to apply for Kazakh passport because it's very difficult to travel for more than one month to Kazakhstan, and is even more difficult to get some sort of residence permit. Therefore, we thought to go with the Kazakh passport for our daughter, and of course, later she'll decide herself.

She was born in August 2013 in the UK, and one month later my husband got naturalised as a British citizen. Before that he's been living here for more than 6 years exercising a Treaty right.

The idea with the Certificate of Entitlement sounds as the best solution, as I think she qualifies "As someone born in the UK on or after 01/01/1983".

Just few questions:
1) Do you know how long might it take in average to apply for the CoE from abroad?
2) I have also noticed in the VAF7 (Right of Abode) form the Section 7: Travellers under the age of 18 is "Not Applicable to this type of application". Does it mean that our daughter cannot apply for the Right of Abode to get the Certificate of Entitlement using this form or should we proceed with some Cover letter and explanations in the Section 9 Additional Information?

Please let me know if I miss anything.
Many thanks! Ardak

[dalebutt]

If the UK authorities are aware that your child has obtained Kazakhstan citizenship, which they will be, as the CoE will be placed on his or her Kazakhstan passport, that might cause refusal of the CoE, if Kazakhstan does not permit dual citizenship, and she/he already holds Kazakhstan citizenship, application for CoE may not succeed. It is likely not to, you should think reasonably hard before taking your decisions.

[Jambo]

If the UK authorities are aware that your child has obtained Kazakhstan citizenship, which they will be, as the CoE will be placed on his or her Kazakhstan passport, that might cause refusal of the CoE, if Kazakhstan does not permit dual citizenship, and she/he already holds Kazakhstan citizenship, application for CoE may not succeed. It is likely not to, you should think reasonably hard before taking your decisions.

The UK allow dual citizenship. CoE is intended to be used by dual nationals.

[dalebutt]

If the UK authorities are aware that your child has obtained Kazakhstan citizenship, which they will be, as the CoE will be placed on his or her Kazakhstan passport, that might cause refusal of the CoE, if Kazakhstan does not permit dual citizenship, and she/he already holds Kazakhstan citizenship, application for CoE may not succeed. It is likely not to, you should think reasonably hard before taking your decisions.

The UK allow dual citizenship. CoE is intended to be used by dual nationals.

That is what I mean Jumbo, UK allow dual but the other country does not, it is not possible in those circumstances, if Kazakhstan passport was issued, it will be issued by error , if the Kazakhstan authorities does not request op to submit proof that the child does not hold any other citizenship, if UKBA staff are aware of this, they are most likely to refuse CoE, refusal of CoE does not mean the child isn't British, but in those circumstances it might not be a straight forward issue as you think.

[Jambo]

In cases the child obtains citizenship automatically by birth, even countries that don't allow dual citizenship accept the status as long as the child doesn't exercise the other citizenships (by applying for a passport for example). I don't think the Kazakhstan authorities would have a problem in this case as long as the child only applies for a Kazakhstani passport.

[ardak]

Jambo, thank you very much for suggestion and clarification on CoE.
I have checked some other forum threads on this, and found some very interesting posts related to Indian parents in a very similar situation as ours. As I understand, India also doesn't allow a dual citizenship. There are some successful stories, like this one:

Myself and my wife both have indian passport with ILR.
Baby born in uk in march 2013, decided to apply for indian passport and after getting passport travelled to india.
Applied for certificate of entitlement to right of abode in vfs bangalore on 19/06/2013.
We got the certificate of entitlement stamped on 4/07/2013. Passport reached on 10/07/2013.
I hope this info helps someone in similar situation to us.

http://www.immigrationboards.com/britis ... 19338.html

We'll apply from Almaty, and tell the end of the story.

Once again, many thanks for your help!

[EUsmileWEallsmile]

She was born in August 2013 in the UK, and one month later my husband got naturalised as a British citizen. Before that he's been living here for more than 6 years exercising a Treaty right.

The child is British.

[EUsmileWEallsmile]

Jambo, thank you very much for suggestion and clarification on CoE.
I have checked some other forum threads on this, and found some very interesting posts related to Indian parents in a very similar situation as ours. As I understand, India also doesn't allow a dual citizenship. There are some successful stories, like this one:

Myself and my wife both have indian passport with ILR.
Baby born in uk in march 2013, decided to apply for indian passport and after getting passport travelled to india.
Applied for certificate of entitlement to right of abode in vfs bangalore on 19/06/2013.
We got the certificate of entitlement stamped on 4/07/2013. Passport reached on 10/07/2013.
I hope this info helps someone in similar situation to us.

http://www.immigrationboards.com/britis ... 19338.html

We'll apply from Almaty, and tell the end of the story.

Once again, many thanks for your help!

I'm glad that you found others' posts helpful The forum has a lot of useful information in the various sections.

[cafeconleche]

I don't think a child can renounce British citizenship that it automatically obtains at birth, nor can parents do it for the child. This is how it is in the US, so I am assuming it's the same in the UK. The CoE sounds like great option. It's too bad the US doesn't have something like this.

[dalebutt]

It doesn't matter how British Citizenship was acquired, one can renounce it provided they have acquired another citizenship in other not to render them stateless, a child cannot renounce BC until he or she turns 18.

[ardak]

Hello,
Here is an update on our application for CoE RoA for our daughter. We just got a message from the UK visa centre:

We would like to inform you, that applicant does not qualify for ROE as baby was born before father naturalised and mother does not hold permanent residence status yet in the UK. Applicant should be applying for Settlement under old Rules (para 297). In the circs, I am prepared to agree a withdrawal with a refund on the basis that they apply for Settlement/para 297. If they do not wish to withdraw the application then it will have to be refused as the applicant does not quality for ROE.

However, I am asking them to consider the following:

Although my husband was naturalised after our daughter's birth, she was born while her father had a settled status in the UK as an EEA citizen - I have submitted a copy of his Italian passport and a letter from his employer in the UK SAS UK, where he has been working continuously since 2007 till now.

(As per my residential status, I have lived in the UK since 2008 and last year I applied for a permanent residence permit, and right now I'm waiting for an appeal decision.)

Please consider my husband's settled status as EEA citizen exercising treaty rights for more than 5 years at the time of our daughter's birth, and I'll also call you on Monday.

Here's the info from pages 11 and 13 of the Guide ROA (https://www.gov.uk/government/uploads/s ... de_roa.pdf ) I used before applying.

Applicant was born in the United Kingdom or the Falkland Islands on or after 1st January 1983, or in another qualifying British overseas territory on or after 21st May 2002

(i) Applicant’s full birth certificate showing parents’ details;

(ii) Evidence of either parent’s British citizenship or settled status at time of applicant’s birth, e.g. a passport describing the relevant parent as a British citizen or indicating that he or she then had indefinite leave to remain; and

(iii) Parents’ marriage certificate (if claiming through father)


An EEA national would be regarded as settled if:
...
c) After 30th April 2006 - he or she has been exercising a Treaty right for more than 5 years or has indefinite leave to remain.

Please could you advise what can we do in this case. Many thanks.

[ardak]

I know it's a bit late to write an update, but I want to finish my story and thank all our kind contributors from this forum.
We actually got the Certificate of Entitlement, after sending my explanations as I mentioned in the previous message. They considered all those points I made and issiued the CoE. It's a relief to know that the British Embassy visa officers really take into consideration your explanations and make fair decisions. Very happy and again, many thanks!