EAA(PR) application for EAA spouse of UK Citizen

[JGSvdS]

Thanks for your message.

No, she does not hold a Dutch-issued EHIC.

By the way, is the qualifying period (for PR) for an EEA national married to a BC 5 years or 3 years? I note there is such a distinction in the AN guidance (3 years, 5 years if not married to a BC) but see no mention in PR guide. OK, it's a different application, I realise, but they are on a linked subject (PR generally leads to AN, so I thought there might be consistency......).

[noajthan]

Thanks for your message.

No, she does not hold a Dutch-issued EHIC.

By the way, is the qualifying period (for PR) for an EEA national married to a BC 5 years or 3 years? I note there is such a distinction in the AN guidance (3 years, 5 years if not married to a BC) but see no mention in PR guide. OK, it's a different application, I realise, but they are on a linked subject (PR generally leads to AN, so I thought there might be consistency......).

EU law - 5 years.
There are no concessions in UK law for Union citizens who are fortunate enough to have a British spouse as its driven by EU law.

"3 years" is only about residency not settled status; it is a throwback leftover from UK earlier rules.
Even those unfortunate enough to be on the much more rigorous and stringent UK immigration trajectory now take 5 years to get ILR.

AN guidance booklet covers this point.

[JGSvdS]

Well, it's Booklet AN (June 2016) which makes the distinction, viz:

* p3: If you are married to......a British citizen
..you should meet......Have lived in the UK for a minimum of 3 years before you apply...

* p4: If you are NOT married to....a British citizen
....you should meet...Have lived in the UK for a minimum of 5 years before you apply..

This distinction, if applicable to EEA(PR), would be most useful in my CSI endeavours.

[ohara]

The requirements for British citizenship naturalisation are set by UK law and are completely unrelated to EEA permanent residence.

I suggest not even reading the AN guidance yet, to save you getting confused between the two.

For naturalisation you are required to have PR, and PR takes a minimum of 5 years regardless of whether you are married to a British citizen or not.

The difference is that when applying for citizenship, the maximum allowable absence is calculated over a 3 year period (as opposed to 5 years) and you also don't have to hold PR for 12 months before applying.

[noajthan]

Well, it's Booklet AN (June 2016) which makes the distinction, viz:

* p3: If you are married to......a British citizen
..you should meet......Have lived in the UK for a minimum of 3 years before you apply...

* p4: If you are NOT married to....a British citizen
....you should meet...Have lived in the UK for a minimum of 5 years before you apply..

This distinction, if applicable to EEA(PR), would be most useful in my CSI endeavours.

It does not mean '3 years and you're British'!
There are no secret shortcuts to citizenship that anyone is omitting to tell you. And precious few benefits (in immigration terms) of marriage to a BC.

There are 2 factors at play (not simply one) that need to be satisfied:
residence and settled status (ie freedom from immigration time restrictions).

You are confusing rules (and timelines) about residence with rules about achieving settled status (ie PR for EEAs).

If a Union citizen is married to a BC spouse the 3 years residence in UK for naturalisation is subsumed into the 5 years it takes to acquire PR.

[JGSvdS]

OK, thanks, got it.

Confusing, indeed. Well, I think so.

[noajthan]

OK, thanks, got it.

Confusing, indeed. Well, I think so.

It is confusing.
This is government/HO - don't expect common sense.

Its due to the interplay of 2 different legislative frameworks: EU and domestic/UK. They don't fit together very well.

[JGSvdS]

OK. As ever, thanks your kind assistance.

[Richard W]

My wife is EEA (Dutch) Citizen married to me, a British Citizen. Married 40+ years, resident in the UK since 1999.

The 23+ years you haven't told us about might be very relevant. If you were working in another EEA country while living with your wife, e.g. in the Netherlands, you may be able to sponsor (yes!) your wife under the Surinder Singh regulation. In that case, your wife would have achieved permanent residence on 30 April 2006.

It does not mean '3 years and you're British'!
There are no secret shortcuts to citizenship that anyone is omitting to tell you. And precious few benefits (in immigration terms) of marriage to a BC.

I think there is, but I also think it's not worth pursuing in the OP's case, except perhaps as Plan D.

[JGSvdS]

Thanks your comment.

The 23+ years you haven't told us about might be very relevant. If you were working in another EEA country while living with your wife, e.g. in the Netherlands, you may be able to sponsor (yes!) your wife under the Surinder Singh regulation. In that case, your wife would have achieved permanent residence on 30 April 2006.

Hmm. As it happens, I was working in the Netherlands, living there with my wife, before entering the UK May, 1999. I was there for the period 6/96-5/99. Does that put us in Surinder Singh territory?

Prior to 6/96, i was working in various international locations, none in the EEA.

[Richard W]

As it happens, I was working in the Netherlands, living there with my wife, before entering the UK May, 1999. I was there for the period 6/96-5/99. Does that put us in Surinder Singh territory?

Yes. 35 months looks pretty genuine. As to integration into the Dutch state, well, having a native wife must count for something!

[JGSvdS]

Well, who'd have thought? I'll get out the papers, have a look at Surinder Singh. Never looked twice at it.

Many thanks your suggestion.

[Richard W]

Hmm. As it happens, I was working in the Netherlands, living there with my wife, before entering the UK May, 1999. I was there for the period 6/96-5/99. Does that put us in Surinder Singh territory?

There's one possible complication, which you can probably overcome. Nowadays, a British sponsor in a Surinder Singh case doesn't have to establish that he would be a 'qualified person' or would have permanent residence. I'm not sure why this is. It may be because having right of abode implies the personal rights derived from permanent residence. If that is the case, there is the possible issue that permanent residence in the EEA sense didn't exist until 2006.

The upshot is that if your wife applies for PR on the basis of SS and residence before 2006, you may need to demonstrate that you were working in that period. It may be that someone can assure us that I am worrying unnecessarily.

[noajthan]

Ironic if you have accidentally done SS and done it right. Thousands have flocked to the corners of Europe to try and do that and get family and extended family into UK.

Brits benefit from case law of Eind and don't need to exercise treaty rights once back in Blighty.

PR didn't exist until 2006. My understanding is that time served before 2006, that would have led to acquisition of PR, results in PR being acquired as of 2006.

Periods of residence under the 2000 Regulations
6.
—(1) Any period during which a person carried out an activity or was resident in the United Kingdom in accordance with the 2000 Regulations shall be treated as a period during which the person carried out that activity or was resident in the United Kingdom in accordance with these Regulations for the purpose of calculating periods of activity and residence under these Regulations

http://www.legislation.gov.uk/uksi/2006 ... 003_en.pdf

You and wife will still have to account for all activities since 19-whenever to prove that wife's PR status, if indeed acquired automatically 'back in the day' (via SS or otherwise), has not been lost since.

For reasons that sadly fly in the face of free movement, HO and UK gov appears to be gunning for Surinder Singh-ers in particular.
The evidence will have to be rock-solid (if not unimpeachable) as HO plays hard ball in this area.

[Richard W]

Brits benefit from case law of Eind and don't need to exercise treaty rights once back in Blighty.
<snip>
For reasons that sadly fly in the face of free movement, HO and UK gov appears to be gunning for Surinder Singh-ers in particular.

Put it down to the British sense of fair play. Contrived Surinder Singh comes across as not quite cricket, and struck-down regulations have explicitly excluded it. This case is uncontrived Surinder Singh, though whether a caseworker would be aware of the difference is another matter.

The evidence will have to be rock-solid (if not unimpeachable) as HO plays hard ball in this area.

Extreme hardball would be to deny the relevance of Eind. The OP meets statements of judge-derived law delivered in Eind, but is more of a stretch from the fundamentals - the OP and his wife were together before they moved to the Netherlands, whereas Mr Eind was (re-)united with his daughter in the host country.

Another form of extreme hardball would be to reject Eind because the judgement only refers to third-country nationals, whereas the OP's wife is a host-country national! This would completely ignore the logic of the legal reasoning. At least the SS judgement makes it clear that the the family member may be of any nationality! To be fair, the HO guide to these two cases makes no mention of 'third-country nationals' or 'non-EEA nationals'. (Metock, however, does.)

As an aside, in the other case where a British citizen can count as an EEA national (dual nationals under the transitional arrangement of 2012), does the British citizen also automatically count as a permanent resident? I can't find any trace of Eind in the EEA Regulations - not that that should be any great surprise.

[noajthan]

There is no concept of 'good SS' versus 'bad SS' captured in even the UK Regs.
Case law has previously determined that motive is not a material factor.

Eind is Eind, that's as good as it gets. This is not the place to debate Eind.
This application may well be refused, in that case OP or his brief may debate Eind during his day in court.

As intimated last week

except in special circumstances, you are not treated as an EEA national under UK law (in this context). And that is even before Brexit.

The case will stand or fail based on convincing a caseworker based on the quality of the evidence submitted.
OP may be better off using CSI alternative (Netherlands pension letter) and submitting more recent evidence (wherewithal for selfsufficiency);
rather than having to find and collate evidence dating back to 19-forgotten (covering years served in Netherlands plus subsequent decades of life in UK).

[Richard W]

There is no concept of 'good SS' versus 'bad SS' captured in even the UK Regs.
Case law has previously determined that motive is not a material factor.

Yes, I said 'struck-down regulations'. The regulations are not allowed to explicitly capture the idea, just as the early Immigration Acts weren't allowed to make skin colour an explicit criterion. What we have at the moment is the 'centre of life' rule, which most people expect to be overturned in the courts.